Mukesh Kumar Sharma vs State (Medical and Health) and Others

Instant petition has been filed by the petitioner assailing validity of proviso-I to R. 19 of the Rajasthan Medical & Health Subordinate Service Rules, 1965 added pursuant to amendment notification Dt. 6-2-2013 by the State Government in exercise of power conferred by proviso to Article 309 of the Constitution of India & further amended vide notification Dt. 30-8-2013.

The post of Pharmacist has been included in the Schedule appended to the Rajasthan Medical & Health Subordinate Service Rules, 1965 and the process of selection has been initiated by the respondent in terms of the procedure contemplated under the advertisement providing bonus marks under proviso-I to R. 19 of the Rules, 1965. We consider it appropriate to quote proviso to R. 19 inserted vide amendment notification Dt. 6-2-2013 read with further amendment notification Dt. 30-8-2013, which reads as under:--

"Amendment Notification Dt. 6-2-2013:--

Amendment of rule 19.--The existing provisos to rule 19 of the said rules, shall be substituted by following new provisos, namely:--

"Provided that in case of appointment to the post of Pharmacist, merit shall be prepared by the Appointing Authority on the basis of marks obtained in qualifying as specified in the schedule appended to these rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar wok under the Government, Chief Minister BPL, Jeevan Raksha Kosh, National Rural Health Mission, Medical Care Relief Society, AIDS Control Society, Institutes under Cooperative Department or Sahakari Upbhokta Bhandar.

Provided that in case of appointment to the posts of her than Pharmacist, which are not in the purview of the Commission, merit shall be prepared by the Appointing Authority on the basis of marks obtained in such qualifying academic examination or professional examination or both as specified in the schedule appended to these rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, National Rural Health Mission and Medi Care Relief Society.

Provided further that the decision of the Commission or Appointing Authority, as the case may be, as to the eligibility or otherwise of a candidate, shall be final."

Amendment Notification Dt. 30-8-2013:--

Amendment of rule 19.--In rule 19 of the said rules.--

(i) in first proviso, for the existing expression "or Sahakari Upbhokta Bhandar", the expression "Sahakari Upbhokta Bhandar, Revised National Tuberculosis Control Program (RNTCP), Jhalawar Hospital and Medical College Society, Integrated Disease Surveillance Project or State Institute for Health and Family Welfare" shall be substituted.

The present petitioner being eligible also participated in the selection process, however in the select list prepared by the respondent when his name did not turn up he approached to this Court by filing instant petition with the grievance that he too is entitled for award of bonus marks on the basis of experience of working in Ex-Servicemen Contributory Health Scheme (ECHS) which is one of the scheme of Ministry of Defence in which the present petitioner has worked as a Pharmacist but it has not been included in the proviso-I to R.19 of the Rules, 1965 and according to him such classification is discriminatory & violative of Art. 14 of the Constitution of India.

The basic principle and scope of judicial review by this Court when validity of any law enacted by the legislature is under challenge, that has been examined by the Apex Court in the recent judgment reported in Centre for Public Interest Litigation Vs. Union of India (UOI), & observed in para-49 as under:--

"Where there is challenge to the constitutional validity of a law enacted by the legislature, the Court must keep in view that there is always presumption of constitutionality of an enactment, and a clear transgression of constitutional principles must be shown. The fundamental nature and importance of the legislative process needs to be recognised by the Court and due regard and deference must be accorded to the legislative process. Where the legislation is sought to be challenged as being unconstitutional and violative of Article 14 of the Constitution, the Court must remind it self to the principles relating to the applicability of Article 14 in relation to invalidation of legislation. The two dimensions of Article 14 in its application to legislation and rendering legislation invalid are now well recognised and these are : (i) discrimination, based on an impermissible or invalid classification, and (ii) excessive delegation of powers; conferment of uncanalised and unguided powers on the executive, whether in the form of delegated legislation or by way of conferment of authority to pass administrative orders- if such conferment is without any guidance, control or checks, it is violative of Article 14 of the Constitution. The Court also needs to be mindful that a legislation does not become unconstitutional merely because there is another view or because another method may be considered to be as good or even more effective, like any issue of social, or even economic policy. It is well settled that the courts do not substitute their views on what the policy is."

While dealing with the meaning, scope and effect of Art. 14 of the Constitution of India, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible different in which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved and under consideration. The Coordinate Bench of this Court had an occasion to examine the validity of proviso-I to R.19 of the Rules, 1965 in the case reported in 2013(1) WLC (Raj.) 239 and observed in para-8 & 12 as under:--

"8. The benefit of bonus marks has been given under amended Rule 16 to the Pharmacists, who have obtained the experience of Government Schemes/Institutions under Cooperative Department or Sahakari Upbhokta Bhandar. Experience gained in private job has not been included for grant of bonus marks. In our opinion, private job stands on different footing and cannot be said to be on similar terms and conditions as rendered in Government Institutions etc. as provided in amended Rule 19. The private Pharmacists cannot be treated of same class, hence, they cannot take plea of discrimination. It is open to the State Government to give bonus marks to particular class of person. As there is difference in conditions, liabilities, requirement of job, the petitioners cannot claim similar treatment. The classification made by the Government cannot be said to be illegal or arbitrary. It is open to the Government to classify person for such purpose. Classification made cannot be said to be irrational. Article 14 permit s classification on different bases. The responsibility of Government job/cooperative is different than private job. Since there is qualitative difference also in jobs, classification cannot be said to be arbitrary. We are not able to accept the submission that private work can be equated in all respects with the jobs enumerated in amended proviso to Rule 19 of the Rules of 1965. The condition of service responsibility differs from job to job, thus, private Pharmacists cannot claim part of the same class. Hence, plea of discrimination is not available to them.

In view of the above, if benefit of bonus marks has been extended only to the Pharmacists, who have gained experience under the Government Institutions, Cooperative Department, Sahakari Upbhokta Bhandar etc. as enumerated in the amended Rule 19 of the Rules of 1965 and such benefit has not been made available to the private Pharmacists, who have gained experience in private institutes/shops, it cannot be said that action of the Government was arbitrary or violative of Article 14 or 16 of the Constitution of India. Classification made by the Government does not suffer from the vice of arbitrariness, rather it appears to be reasonable and rational one. No case of discrimination is made out."

It was finally observed that grant of bonus marks extended to the Pharmacist who have gained experience under the Government Institutions/Schemes certainly have a rational relation to the object sought to be achieved and other persons even working as a Pharmacist cannot be treated to be same class and cannot take plea of discrimination and further observed that it was open for the Government to grant bonus marks to the class of persons as there is difference in conditions, liabilities and requirement of job and the person cannot claim to similar treatment and the classification made by the Rule Making Authority under the impugned notification as held cannot be illegal or arbitrary and observed that the classification made cannot be said to be irrational, on the contrary Art. 14 permits classification on different basis and the conditions of service and responsibility differs from job to job and of hers cannot claim any parity if the class of persons identified by the Government under its impugned amendment extending bonus marks for their participation in the selection process.

Keeping in view the judgment of this Court reported in 2013(1) WLC (Raj.) 239, counsel for petitioner submits that it was a case of a person who was working as a Pharmacist in a private institute, however, in the instant case the present petitioner who is working as a Pharmacist in the agency which is attached to the Ministry of Defence and that requires re-look to the proviso-I to R.19 of the Rules, 1965 which has been examined by the Division Bench in the judgment (supra).

In our opinion, after the view has been expressed by the Division Bench of this Court, the submission made by the counsel for petitioner to give a re-look to the proviso-I of R.19 of the Rules, 1965 since has been examined, deserves outright rejection for the reason that of her persons may claim their experience gained in various kind of employment under various schemes like the present petitioner of served as a Pharmacist in the agency which as alleged is attached to the Ministry of Defence but there is no direct control or supervision of the State Government over the present scheme as provided under Rules, 1965 for appointment to the post of Pharmacist the rule making authority has given credence to the length of experience of a candidate gained on similar work either under the Government or under the Government Scheme over which the Government has direct control and supervision and indisputably the kind of experience has been referred to under proviso-I to R.19 of the Rules, 1965 and it certainly have a reasonable classification and direct nexus with the object sought to be achieved and mere working as a Pharmacist in it self is not sufficient for an individual candidate to claim for grant of bonus marks when the persons who are grouped together for the purpose of grant of bonus marks under proviso-I to R.19 have been classified who have length of experience of working similar kind either under the Government control or its supervision and if that benefit has not been ext ended to the candidates who have worked as a private Pharmacist in the institution or with any of her agency over which the Government has no direct or indirect control and supervision as already observed, in our considered view the classification made by the Rule Making Authority cannot be said to be arbitrary or violative of Article 14 of the Constitution of India and in our considered view such classification made does not suffer from vice of arbitrariness and has a reasonable nexus and rationale behind it and no case of interference as prayed for is made out.

Consequently, the writ petition fails and is hereby dismissed.