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Judgment
Dev Darshan Sud, J.—The Petitioners, who are working on various posts, are Senior Assistantsand have challanged the Recruitment and Promotion Rules Annexure P4, notifiedon 1st November, 2008 regulating recruitment to the post of Tehsil Welfare Officer,to which post the Petitioners submit that they are entitled to be consideredirrespective of the amendment made in these Rules. The Petitioners have alsochallenged the Constitutionality of these Rules prescribing educationalqualifications of eligibility. Submission of the Petitioners is that by thisamendment, they have been deprived of their right to be considered and promotedto the post of Tehsil Welfare Officers. According to the pleadings the otheravenue of promotion for them is that to Superintendent Grade-II.
The Petitioners'' case as pleaded is that in the Rules which were in forcein the year 1992, titled Himachal Pradesh Social & Women''s WelfareDepartment, Tehsil Welfare Officer (Class-III-Non-Gazetted) Recruitment &Promotion Rules, 1992, there were 62 posts in this category. It was a nonselection post. Essential qualification for direct recruits was graduation froma recognized University, but in case of promotees this qualification was notrequired. By amending these rules and providing for essential qualifications ofeligibility, the right of the Petitioner has been obliterated. The Petitionerspleaded that according to the Recruitment & Promotion Rules Annexure P-7notified in 1992 and Annexure P-2 notified on 4th July, 2002, educationalqualification were not required and prescription of such qualification byAnnexure P-4 notified on 1st November, 2008 is nothing but a ploy todeliberately exclude the Petitioners. The second submission made on behalf ofthe Petitioners is that the vacancies to Tehsil Welfare Officer which existedbefore the date when Annexure P-4 was notified have to be filled up by resortto the unamended Rules and not by reference to Annexure P-4. According to thePetitioner, the cadre strength of the Tehsil Welfare Officers is 69 and allthese posts are required to be filled up from amongst Senior Assistants.
The State resisted the Writ Petition primarily on the ground thatinitially in the year 1992 according to the Recruitment & Promotion Rules,75 per cent of posts of Tehsil Welfare Officers was to be filled up from directrecruitment and 25 percent by promotion from the category of Clerks. By theamendment made in the year 2008, direct recruitment was reduced to 50 percentand 30 percent by promotion from amongst Senior Assistants having five yearsregular service and 20 percent from amongst Supervisors having eight yearsregular service in terms of Clause 11 of the Rules Annexure P-4. Subsequently,the other categories, namely, Supervisors were also impleaded in this petitionas Respondents and they have also submitted their reply.
Before considering the rival contentions of the parties, the Rules asamended from time to time may be noticed. They are tabulated here under forreference:-
Post
No. of posts
Method of recruitment
Percentage
Education qualification on whether necessary
Himachal
Tehsil
9
By promotion,
Pradesh
Welfare
failing which by
-
-
Welfare
Officers
direct recruitment
Department
(Class-III)
(Class-III)
Non
(Ministerial
Selection
and Non-
Ministerial)
Service rules,
1976.
Himachal Pradesh Social & Women''s Welfare Department, Tehsil Welfare Officers (Class-III-Non-Gazetted) Recruitment & Promotion Rules, 1992, applicable w.e.f. 28.2.1992 Annexure P-1/ P1/T
Tehsil Welfare Officer Class-III (Non-Gazetted) Non Selection
62
75% by direct recruitment and 25% by promotion, failing which by direct recruitment. "By promotion from amongst the Clerks having five years regular service or regular combined with continuous adhoc (rendered upto 31.3.1991) service in the grade as such."
75% by direct 25% by promotion
Graduate from recognized University for direct recruits no qualification n for promotees.
Himachal
Tehsil
68
75% by direct
75% by
Pradesh Social
Welfare
recruitment and
direct
& Women''s Welfare Department, Tehsil Welfare Officers (Class-III-Non-Gazetted) Recruitment & Promotion (1st amendment) Rules, 2002 applicable w.e.f. 4th June, 2002 Annexure P-2
Officer Class-III (Non-Gazetted) Non Selection
25% by promotion amongst Senior Assistants having six years regular service or regular combined with continuous adhoc (rendered) upto 31.3.98, service in the grade.
recruitment 25% by promotion From Sr. Assistants.
-
Himachal Pradesh Social Justice & Empowerment Department, Tehsil Welfare Officers, Class-II (Non-Gazetted), Recruitment & Promotion rules, 2008 Annexure P-4
Tehsil Welfare Officer Class-II (Non-Gazetted) Selection Post.
69
50% by direct recruitment 30% by promotion from amongst Senior Assistants having five years regular service, 20% from amongst Supervisors having 8 years regular service or regular combined with continuous adhoc service rendered if any in the grade.
50% direct 30% Sr. Assistants. 20% Supervisors
Graduate from a recognized University applicable both to direct recruits and promotees
It would thus be apparent that Senior Assistants become eligible forconsideration only in the year, 2002 and before that it was from amongst othercategories i.e. Male Social Workers and Clerks. It would also be apparent thatthe quota of direct recruitment has been reduced in the Rules of 2008.
Coming to the first submission made on behalf of the learned Counselappearing for the Petitioner that the prescription of educational qualificationviolates Article 14 of the Constitution of India, as there is no reasonablenexus between the duties to be performed by these officers and the educationalqualifications prescribed. Learned Counsel submits that this qualification wasnot prescribed in the un-amended Rules and there was no need to change it in theyear 2008 vide Annexure P-4. The consequence, according to the learned Counsel,is that the Petitioners'' right for consideration for the post of Tehsil WelfareOfficers and selection which was a mere certainty has been completely effaced.There is no avenue for promotion available to the Petitioners.
The contention that the Petitioners'' rights are totally taken away,cannot be accepted. It is the pleading of the Petitioners that they are alsoentitled to be considered and promoted to Superintendent Grade-II. There isnothing in Annexure P-4, which restricts or obliterates this channel ofpromotion.
Learned Counsel appearing for the Petitioners places reliance on thejudgment of Supreme Court in T.R. Kapur and Others Vs. State of Haryana and Others, to urge that the right of promotion of a particularcategory of employees cannot be taken away by amendment in the Rules. Thissubmission cannot be accepted as the judgment deals with the provisions of thePunjab Reorganization Act and the Supreme Court was in particular interpretingthe provisions of Section 82(6) of the Punjab Reorganization Act, 1966, whichprovides:-
Sub-section (6) of S. 82, Punjab Reorganisation Act, 1966, provides:
82(6). Nothing in this sectionshall be deemed to affect on or after the appointed day the operation of theprovisions of Chapter I of Part XIV of the Constitution in relation to thedetermination of the conditions of service of persons serving in connectionwith the affairs of the Union or any State:
Provided that the conditions ofservice applicable immediately before the appointed day to the case of anyperson referred to in Sub-section (1) or sub s. (2) shall not be vested to hisdisadvantage except with the previous approval of the Central Government.
The provision itself placed fetters on the right of the State to alterthe conditions of services of the employees, who were allocated over under theAct.
In Mangej Singh and Others Vs. Union of India (UOI) and Others, the Court holds that prescription of qualification is outside the purview ofjudicial review. To similar effect is the judgment in J. Ranga Swamy Vs. Government of Andhra Pradesh and Others, In that case, the SupremeCourt was considering the qualification prescribed for the posts of Scientists.The principle which emerges from these judgments is that unless theprescription of educational qualification is arbitrary and has no nexus, suchcondition can be struck down. It is not for the Court to exercise its powers ofjudicial review to prescribe or proscribe educational qualifications. One otherdecision in V.K. Sood Vs. Secretary, Civil Aviation and others, may be considered. The Supreme Court while adjudicating on the challengeto qualifications, held:
In the The General Manager, Southern Railway Vs. Rangachari, another Constitution Bench held that equality of opportunity need not beconfused with absolute equality as such. What is guaranteed is the equality ofopportunity and nothing more. Article 16(1) or 16(2) does not prohibit theprescription of reasonable rules for selection to any employment or appointmentto any office or post. Any provision as to the qualifications for theemployment or appointment to an office or post reasonably fixed and applicableto all citizens would certainly be consistent with the doctrine of the equalityof opportunity. In State of Mysore and Another Vs. P. Narasing Rao, this Court held that the provisions of Article 14 or Article 16 do not exclude the laying down of selective tests, nor do theypreclude the Government from laying down qualifications for the post inquestion. Such qualifications need not be only technical but they can also begeneral qualifications relating to the suitability of the candidate for suchservice as such. The same was the view in another Constitution Bench decisionreported in The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, In State of Orissa and Another Vs. N.N. Swamy and Others, in paragraph 18,this Court held that the eligibility must not be confused with the suitabilityof the candidate for appointment.
Thus it would be clear that,in the exercise of the rule making power, the President or authorised person isentitled to prescribe method of recruitment, qualifications both educational aswell as technical for appointment or conditions of service to an office or apost under the State. The rules thus having been made in exercise of the powerunder proviso to Article 309 of the Constitution, being statutory cannot beimpeached on the ground that the authorities have prescribed tailor madequalifications to suit the stated individuals whose names have been mentionedin the appeal. Suffice to state that it is settled law that no motives can beattributed to the Legislature in making the law. The rules prescribedqualifications for eligibility and the suitability of the Appellant would betested by the Union Public Service Commission. ....
On the question of prescription of qualification, the Court furtherholds:
...It is for theexpert body and this Court does not have the assistance of experts. Moreover itis for the rule making authority or for the Legislature to regulate the methodof recruitment, prescribe qualifications etc. It is open to the President orthe authorised person to undertake such exercise and that necessary testsshould be conducted by U.P.S.C. before giving the certificates to them. This isnot the province of this Court to trench into and prescribe qualifications inparticular when the matters are of the technical nature. ....
Coming to the second aspect of the case, learned Counsel appearing forthe Petitioner submits that the power to amend the rules has been exercisedmalafide. Adverting to this submission, all that I need say is that mereamendment in the rules would not per se constitute malafides. This is an allegationeasily made, than established on record. It is well settled that malafide isone of the grounds to declare an order void, set aside any law, order, Rule orRegulation, provided that such malafides are pleaded, proved and established onrecord. In E.P. Royappa Vs. State of Tamil Nadu and Another, . TheCourt holds:-
...The only question before us is whether the action taken by the Respondents includes any component of mala fides; whether hostility and mulus animus against the Petitioner were the operational cause of the transfer of the Petitioner from the post of Chief Secretary.
Secondly, we must also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. ....
To similar effect is the judgment in Swaran Lata Vs. Union of India and Others, holding that burden to establish mala fide lies very heavily on the person who alleges it. Lastly in Abraham Kuruvila v. S.C.T. Institute of Medical Sciences & Technology and Ors. (2005) 9 SCC 49, the Court held:
It is now a well-settled principle of law that bias, which would mean and imply "spite or ill will"; must be proved by raising requisite plea in this behalf and by adducing cogent and sufficient evidence in support thereof. In fact, bias is a state of mind and it shows predisposition. Thus, general statements would not meet the requirements of law. Certain correspondence/orders which might have been passed against the Petitioner as far back as in 1994 and 1998 would not meet the requirement of law to prove bias. Not only existence of a factual bias has to be proved, but it must also be shown that the same has resulted in miscarriage of justice. A finding of fact has been arrived at by the High Court that the Petitioner had not been able to show any predisposition on the part of the Respondents concerned so as to affect his chances of promotion to the post of Associate Professor. The Division Bench has in our opinion assigned sufficient and cogent reasons for not agreeing with the submissions of the Petitioner herein. It also took notice of the letter of the Director dated 27-7-1996 which stands explained in the judgment of the High Court. The said letter has rightly been held to be not a communication proving bias.
Turning to the facts of the present case, on the question of malafides,the pleading of the Petitioners in the writ petition is that 36 posts of TehsilWelfare Officers were lying vacant before the issuance of Annexure P-4 whichare required to be filled up from amongst the category of the Petitionerswithout insistence of education qualifications. By prescribing suchqualification these posts are now sought to be filled up from amongst otherpersons which directly proves the malafides. This submission cannot beaccepted. Merely prescription of educational qualification is insufficient. Thefact that the posts are required to be filled in amongst the Tehsil WelfareOfficers is also not correct as would be considered later on. The Petitionersalso plead in the supplementary affidavit that the purport of this submissionis that one Senior Assistant can influence the amendment in the Rules. If thisargument is accepted and taken to its extreme conclusion, it would indicatethat the Government works at the mercy of few interested Clerks and that per seestablishes malafides. This submission, therefore, requires to be rejected,more especially in view of the supplementary affidavit filed by the Stateshowing in detail the number of posts occupied on the day when the amendment inthe Rules were promulgated. As the amendments in the Rules from time to timewould indicate that these posts were to be filled in from amongst Male SocialWorkers, Clerks, Senior Assistants and Supervisors, Senior Assistants becameeligible for the first time in 2002 and Supervisors for the first time in theyear 2008 when Annexure P-4 was issued. There has also been a reduction in thequota of direct recruits. This fluctuation has itself caused confusion in thenumber of posts which are available to each of the category. Obviously, afterIst November, 2008, what was required is not the number of posts, but theeligibility criteria is also to be considered.
With the amendment of the Rules in the year 2008, the quota of SeniorAssistants came down. In other words they were only entitled to 30% of theposts or 21 posts in all. These are to be filled in as per the affidavit, whichshows that on 31.10.2008, 42 posts have been filled in and are being manned byClerks, Male Social Workers and direct recruits. Learned Counsel appearing forthe Petitioner places reliance on decisions in Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, State of Rajasthan Vs. R. Dayal and Others, and Arjun Singh Rathore and Others Vs. B.N. Chaturvedi and Others, , to urge that the vacancies which exist prior to theamendment of the rules are required to be filled up by resort to the un-amendedrules. There is no dispute to proposition of law. It is this fluctuation in thequota which has caused the problem. The Petitioners cannot lay claim to those ofthe posts of the direct recruits which have been reduced in the cadre and wouldkeep fluctuating and recruitment would be governed in accordance with Rules.The details in the affidavit clearly shows that on 1.11.2008 only one post wasavailable for Senior Assistant against 25% quota previously carved out for themin the Rules of 2002. The Petitioners cannot lay claim to the posts filled inby direct recruitment which quota has been reduced or to insist that the postsfilled in prior to the amendment be filled in only from their category. Theyobviously could not be thrown out when their quota ceased to exist and anotherclass was created. After that post falling vacant by virtue of the retirementor otherwise of the incumbent, it would be filled in by the Rules applicable ason the date when the vacancy occurs.
Before parting with this writ petition, I must place on record my strongdispleasure in the manner in which the State has proceeded to fill up thevacancies, during the pendency of the writ petition. When notice was issued onapplication for interim relief, resort could not be taken to the technicalityof law that no stay order was issued. Whenever such an action is taken in hothaste it cannot but create suspicion that the State has some motive inproceeding with the action. Otherwise a simple application to the Court seekingits permission is the only known method of proceeding in a case which is subjudice before it. No impression should be left with the Court that promotionshave been made with an ulterior motive. I direct that the Government initiateappropriate proceedings against those of the officers who were responsible forthese acts. This writ petition is accordingly disposed of. The claim of thePetitioners is rejected. The writ petition is disposed of in terms of thedirections issued above. All interim orders are vacated. All miscellaneousapplications are disposed of.