Sukhwinder Singh vs State of Punjab and Another

A.K. Sikri, C.J.—By means of this writ petition filed under Article 226 of the Constitution of India, the petitioner prays for a writ of certiorari, mandamus or any other writ, order or direction declaring Clause No. 3(iii) of the Punjab State Civil Services Combined Competitive Examination, 2012 and proviso to Rule 5(1) of the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 to be arbitrary, discriminatory and hit by Article 14 of the Constitution of India and also for directing the respondents to allow the petitioner to appear and compete in the Punjab State Civil Services Combined Competitive Examination-2012. Clause-3 of the Punjab State Civil Services Combined Competitive Examination, 2012, which was part of the Advertisement No. 7 dated 14.9.2012 issued by the respondents inviting applications for filling up of 60 posts reads as under:-

The age of the candidate shall be between 21 to 37 years with relaxation for reserved categories as per Government instructions mentioned below:

i) Provided that in the case of Punjab Police Service, a candidate should have attained the minimum age of twenty-one years and should not have attained the age of twenty-eight years as on 01.01.2012.

ii) However, in the case of candidates belonging to Scheduled Castes and Backward Classes of Punjab the age is relaxed up to 5 years as per Punjab Government Instructions including the Punjab Police Service.

iii) The upper age limit for a Punjab Government/other State Government/Central Government employees will be relaxed up to 47 years.

It is clear from the above that the age limit of the candidate is 21 to 37 years. However, if the candidate is employee of Punjab Government/other State Government/Central Government, then the upper age limit is 47 years. Similar provision for this age relaxation is also contained in the Punjab Civil Services (General and common Conditions of Service) Rules, 1994. Rule 5, thereof fixes the upper age limit of 37 years. However, second proviso thereto provides that the upper age limit may be relaxed up to 45 years in the case of persons already in employment of Punjab Government, other State Government or the Government of India. This Rule-5 of 1994 Rules reads as under:-

Age.-(1) No person shall be recruited to the Service by direct appointment, if he is less than eighteen years or is more than thirty seven years of age in the case of technical and non-technical posts Ist day of January or the year immediately preceding the last date fixed for submission of applications by the Commission or the Board, as the case may be,

Provided that where different lower and upper age limits have been specifically prescribed for the posts in the Service Rules, these limits shall be made applicable for appointment to such posts:

Provided further that the upper age limit may be relaxed up to forty-five years in the case of persons already in the employment of the Punjab Government, other State Government or the Government of India.

The petitioner has challenged the validity of these provisions as discriminatory on the ground that this benefit is extended only to the government employees, namely, employees of State Governments or the Central Government, but is not extended to the employees of Government Corporations or the Boards like the Punjab State Electricity Board. The petitioner got appointment with erstwhile Punjab State Electricity Board, Patiala. After the Electricity Act, 2003 was enacted repealing the Electricity (Supply) Act, 1948, the Punjab State Electricity Board had been bifurcated into two Corporations, viz., Punjab State Power Corporation Limited and Punjab State Transmission Corporation Limited. The petitioner has been allocated to the Punjab State Transmission Corporation Limited, which is a fully owned company of the State of Punjab. The grievance of the petitioner is that had the benefit of provision relaxing age been extended to Government Corporations also, the petitioner would have become beneficiary thereof and could have applied for the post in question, inasmuch as, he is more than 37 years old, but less than 47 years of age.

The respondents have filed the counter-affidavit submitting that the petitioner is an employee of the Corporation, which may be a Government undertaking under Article 12 of the Constitution, but its employees, like the petitioner, are not the public servants and, therefore, are not regulated by the provisions of Article 309 of the Constitution. It is stated that rules in question are framed under proviso to Article 309 of the Constitution and, therefore, cannot be applied to the employees of the Public Sector Undertakings/Corporations.

The question for determination is as to whether the aforesaid rules in question become bad in law and discriminatory, as benefit of relaxation of age, though accorded to the Government employees of State as well as Union, but has not been extended to the employees of the statutory corporations or other bodies under Article 12 of the Constitution. To put it otherwise, whether the employees in the employment of State or Central Government and the employees of the Corporations, Boards, etc. form same/homogeneous class and there cannot be any differentiation between the two or there is a reasonable classification.

It was the submission of learned counsel for the petitioner that one has to keep in view the avowed objective behind the aforesaid provisions. In order to answer the question posed, he submitted that purpose for introducing such a provision was to give benefit of age relaxation to the employees of the Government who are already working. Even the employees of the Corporations are performing their duties in connection with the affairs of the State and, therefore, for this purpose, they should be treated at par with the Government employees. It was argued that since the object of relaxation of age in respect of State Government/Central Government employees was to select the best available persons, there was no reason to deny the same benefit to the employees of the Boards/Corporations who are also serving in connection with the affairs of the State of Punjab. Mr. Sharma, learned senior counsel referred to the judgment of the Constitution Bench of the apex court in Harakchand Ratanchand Banthia and Others Vs. Union of India (UOI) and Others, and argued that while examining the validity of a provision on the touchstone of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it and on the application of the aforesaid dual test, it would be clear that classification of the employees between State Government/Central Government on the one hand and the employees of the Public Sector Undertakings on the other, was without any rationale and was not based upon any intelligible differentia. He particularly referred to the following discussion in the aforesaid Constitution Bench judgment:

We proceed to consider next the question arising in this case whether the provisions with regard to licensing of dealers and certification of goldsmiths are discriminatory and violate the guarantee of equal protection under Article 14 of the Constitution. Reference was made to Sections 27 and 39 of the impugned Act and it was argued that the provisions with regard to licensing of dealers were more harsh than in the case of registered goldsmiths. But in our opinion licensed dealers and certified goldsmiths form separate classes and the classification made by the impugned Act is a reasonable classification. A licensed dealer is essentially a trader who does the business of buying and selling ornaments while a certified goldsmith is a craftsman who does the actual manufacture of ornaments and does not trade in ornaments. A licensed dealer can make or manufacture ornaments from his own gold but a certified goldsmith can make or manufacture new ornaments for his customers only from their gold. A licensed dealer can sell ornaments to the public and can keep ready stock of such ornaments for the purpose of sale while a certified goldsmith is not permitted to do the business of selling ornaments. A licensed dealer may have in his possession primary gold in the form of standard gold bars without any limit and melted gold in the form other than the standard bars in quantities ranging from 400 to 2,000 grammes. A certified goldsmith cannot have in his possession more than 300 grammes of primary gold. A licensed dealer can employ as many persons as he likes as his artisans but a certified goldsmith cannot employ more than one hired labourer to assist him in his work as goldsmith and even this hired labourer cannot make, manufacture, prepare or process any ornament. When a law is challenged as violative of Art. 14 of the Constitution it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. Having ascertained the policy and object of the Act the Court has to apply a dual test in examining its validity (1) whether the classification is rational and based upon an intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group and (2) whether the basis of differentiation has any rational nexus or relation with its avowed policy and object. In the present case both the tests are satisfied and we hold that Ss. 27 and 39 of the impugned Act do not violate the guarantee under Article 14 of the Constitution.

Mr. Sharma submitted that Division Bench of this Court in Union Public Service Commission Vs. Dr. Jai Dev Wig and Others, held such a provision of age relaxation to be violative of Articles 14 and 16, when benefit of age relaxation was given to the doctors of the Government College but denied to the PGI doctors. In that case, UPSC had granted the benefit of relaxation of age to the extent of five years to those working in Government hospitals but denied it to the members of Faculty of PGI. Holding it to be discriminatory and violative of Article 14 of the Constitution, the Division Bench gave the following rationale:

Mr. R.S. Longia, learned counsel for the petitioner has contended that the persons working in the PGI are different from those teaching in Government Medical Colleges. Thus, a differential treatment is clearly permissible under the law.

It is undoubtedly correct that Article 14 permits reasonable classification. But such classification must be founded on an intelligible differentia and that differentia must have a rational nexus with the object sought to be achieved. Article 14 forbids arbitrariness,

Indisputably, while filling up the Faculty positions in the Medical College, the object of the Government and the Union Public Service Commission would be to select the best persons. For achieving this object, it would be reasonable to have a wide field of choice so that eminent people from everywhere in the country are able to compete. It may be, as has been urged by the counsel for the petitioner that persons serving in the Government hospitals have to initially serve in rural dispensaries or in suburban areas. Yet, when they come to the Medical Colleges they discharge the same functions as are being performed by the members of the Faculty of the PGI. Thus, there is prima facie no basis for treating them differently.

It is indisputable that the PGI is an Institute of national importance. In fact, it has been so declared by the Act of Parliament. Section 2 of the Post-Graduate Institute of Medical Education and Research Act, 1966, in terms declares that it "is an Institute of National Importance". It was constituted to "develop patterns of teaching in undergraduate and post-graduate medical education in all its branches so as to demonstrate a high standard of medical education to bring together, as far as may be, in one place educational facilities of the highest order for the training of personnel in all important branches of health activity; and to attain self-sufficiency in postgraduate medical education to meet the country''s needs for specialists and medical teachers." Should persons working in such an Institute be excluded from consideration for appointment to the posts of Professors in Government Medical Colleges? We find no reason to keep them out of consideration by laying down different requirement regarding age etc. The mere fact that some members of the Faculty of the PGI may not have in the initial stages of their career worked in a rural dispensary, does not entitle the Commission to exclude them from consideration or to deny the benefit of relaxation of age which is admissible to those teaching in Government Medical Colleges or working in Government Hospitals. The object being to select the best, the action of the Commission amounts to ignoring a significant section of the available talent in the country. We find no justification for such a course of action.

Still further, even if it is assumed that persons working in autonomous Institutes are in certain ways different from those working in Government Hospitals, the difference has no rational nexus with the object of selecting the best persons. It is undoubtedly correct that the Government does not appoint teachers in the PGI. It may also be correct (though it has not been so contended) that members of the Faculty of the PGI do not have the protection of Article 311 of the Constitution. Yet, it is undeniable that the Government has a deep and all-pervasive control in the functioning of the PGI. The Minister for Health presides over the Institute''s meetings. The Secretaries of the Ministries of Health and Finance are on the governing body. The funds are totally provided by the Government. The Institute follows the instructions and rules framed by the Government. The Central Government has the power to frame the rules governing the functioning of the Institute. In this situation, it is apparent that there is really no substantive difference between the persons working in the Institute and those working in Government Medical Colleges. Even if technically, the provisions of Article 311 do not apply to the employees of the Institute, the protection under the rules and the principles of natural justice is almost the same as that applicable to the employees of the Government.

We are clearly of the view that the members of the Faculty in the PGI are men of distinction. It would not be in public interest to exclude them from consideration for appointment to the Senior Faculty positions in institutions imparting medical education. The benefits admissible to the employees of the Government should not and cannot be denied to the members of the Faculty in the PGI.

[Emphasis applied]

The aforesaid dicta laid down by the Supreme Court as well as by the Division Bench of this Court provides complete answer to the arguments of the respondents and impels us to hold that non-extension of provision of age relaxation to the employees of the Corporations/Boards/Public Sector Undertakings, which are State under Article 12, is violative of Article 14 of the Constitution. We, thus, allow this writ petition and hold that employees of such Corporations/Boards/Public Sector Undertakings shall also be entitled to the benefit of age relaxation in similar manner. The effect of that would be that petitioner shall be treated as eligible for the post in question. The petitioner is permitted to apply for the post and the respondents shall consider his application as well.