Ashutosh
Gupta Vs. State of Rajasthan & Ors [2002] Insc 158 (20 March 2002)
G.B.
Pattanaik,, S.N. Phukan & Brijesh Kumar Pattanaik,J.
The
appellant is a direct recruit to the Rajasthan Administrative Service, having
been selected through the competitive examination held by the Rajasthan Public
Service Commission. The recruitment of the appellant had been made on 5.6.1975
under the Rajasthan Administrative Service Rules 1954. The Government of
Rajasthan finding necessity for making emergency recruitment to the State
Administrative Service framed a set of Rules in the year 1956, called 'The
Rajasthan Administrative Service (Emergency Recruitment) Rules 1956' and then
another similar set of Rules have been framed in the year 1959, called 'The
Rajasthan Administrative Service (Emergency Recruitment) Rules, 1959'.
Emergency recruitment had taken place under the aforesaid two Emergency
Recruitment Rules, once in the year 1956 and another in the year 1959.
While
the appellant has joined the Rajasthan Administrative Service on being
recruited under the provisions of Rajasthan Administrative Service Rules of
1954 on 5.6.1975, and is continuing, a set of Rules were framed by the Governor
in exercise of power under the proviso to Article 309 of the Constitution on 29.9.1976,
called 'The Rajasthan Administrative Service (Emergency Recruitment) Rules,
1976. The said Rules were amended on 15.12.1976 (hereinafter referred to as
'The Emergency Recruitment Rules, 1976'). Persons on being selected under the
provisions of the aforesaid Emergency Recruitment Rules of 1976 were appointed
on 6.11.1978. The validity of the Rules relating to seniority under the
Emergency Recruitment Rules of 1956 as well as of 1959 were challenged in a
Writ Petition and the learned Single Judge of Rajasthan High Court quashed the
provision dealing with seniority in the aforesaid Emergency Recruitment Rules
by judgment dated 4.4.1980.
Special
appeals being filed by the State Government and the same were dismissed by the
Division Bench on 14.8.1980. A seniority list was published by the State
Government on 2.6.1980 and in the aforesaid list persons recruited under the
Recruitment Rules of 1976 were shown as senior to the directly recruited
officers to the Rajasthan Administrative Service in the year 1974 and 1976. A
batch of Writ Petitions were filed by the direct recruits challenging the
validity of Rule 25 of the Emergency Recruitment Rules 1976. On 12.6.1981 Rule
23 of the Emergency Recruitment Rules of 1956 and 1959 were amended and under
the amended provision the emergency recruits would rank junior to the special
recruits and senior to the direct recruits appointed during the same year. The
batch of Writ Petitions including the Writ Petition filed by the appellant were
dismissed by the learned Single Judge by judgment dated 7.1.1983. Special
appeals were filed against the same to the Division Bench and the Division
Bench by the impugned judgment dated 16.5.1997, having upheld the validity of
Rule 25 of the Emergency Recruitment Rules of 1976 and having affirmed the
judgment of the learned Single Judge the present appeal by grant of Special
Leave has been filed. While upholding the validity of Rule 25 of the Emergency
Recruitment Rules 1976, the learned Single Judge as well as the Division Bench
of Rajasthan High Court strongly relied upon the judgment of this Court in Anand
.Parkash Saksena vs. Union of India and ors. (1968) 2 Supreme Court Reports 611
and K.P. Singhal vs. State of Rajasthan and anr.
(1995) Suppl. 3 Supreme Court Cases 549. When this appeal has been placed
before a Bench of this Court on 4.12.2001, a Bench of this Court examined the
two decisions on which reliance has been placed and the fact that in Singhal's
case (supra) this Court examined Rule 25 of the Emergency Recruitment Rules 1976
and held that the notional service could be taken into account as a part of
service. It was further observed that it is no doubt true that the
constitutional validity of Rule 25 (3)(1) and Rule 25(3)(2) of the Emergency
Recruitment Rules of 1976 was not the subject matter of challenge, but having
regard to the conclusions arrived at, by the earlier Bench decision of this
Court of two learned judges it will be more appropriate that the appeal should
be heard by a Bench of three learned Judges and that is how the matter has come
before us.
Mr. Sushil
Kumar Jain, appearing for the appellant contended that the persons recruited to
the Rajasthan Administrative Service under the Emergency Recruitment Rules of
1976 and persons appointed to the cadre under the Recruitment Rules of 1954,
all form only one class and, therefore, providing a special rule for seniority
of those who were recruited under the Emergency Recruitment Rules of 1976 by
having a notional year of allotment is discriminatory on the face of it and
violates Articles 14 and 16 of the Constitution of India and must be struck
down.
Alternatively,
Mr. Jain argued that even if they form two different classes for the
classification between them made under Rule 25, there has been no intelligible
differentia and there is no nexus between providing a notional year of
allotment for those who were recruited under the Emergency Recruitment Rules of
1976 with any specific object sought to be achieved and, therefore, Rule 25 of
the Emergency Recruitment Rules, more particularly, the formula for giving a
year of allotment must be struck down.
According
to Mr. Jain, Rule 25 of the Emergency Recruitment Rules, which provided that
the year of allotment should be 1976 minus N1 plus half of N2 and both N1 and
N2 being dependent upon the factor whether monthly emolument is Rs.625/- or
less than Rs.625/-, there must be some rationale with the aforesaid fixation of
emolument. But the Rules being totally silent and the Rule Making Authority
having not indicated, the entire basis is imaginary and arbitrary and,
therefore, the same must be struck down. Mr. Jain also urged that in the matter
of determining the seniority, the period of practice or profession is given
certain premium, depending upon the emoluments therefrom whether Rs.625/- or
less than that. It is un-imaginable that such practice or profession has any
relevance in the matter of administrative experience and consequently, the very
basis is illogical and has to be struck down. According to Mr. Jain, when
legislation is attacked, as being discriminatory, two conditions must be
fulfilled to uphold the legislation namely
(i) that
the classification must be founded on an intelligible differentia which
distinguishes persons that are grouped together from other left out of the
group and
(ii)
that the differentia must have a rational relation to the object sought to be
achieved by the legislation in question. According to Mr. Jain, the impugned
provision contained in Rule 25 of the Emergency Recruitment Rules, does not satisfy
either of the conditions. Referring to the preamble of the Emergency
Recruitment Rules, Mr. Jain submitted that as more persons were immediately
needed in Rajasthan Administrative Service, a Special Recruitment Rules had
been framed and people from different walks of life were permitted to compete
in the examination and get recruited. The standard of examination that had been
fixed and the methodology of selection was undoubtedly different and,
therefore, people with less merit could be taken in the service. Such people
with inferior qualifications and their suitability having been tested with
inferior standard, could not have been granted any premium for their past
period during which period they did not have any administrative experience and
adjudged from this stand point, the provisions of Rule 25 must be held to be
grossly discriminatory and the High Court committed error in upholding the
validity of the Rules.
At the
outset, it may be stated that recruitment to Rajasthan Administrative Service
through a special emergency recruitment and to have a statutory rule for such
recruitment is not new to the State and in fact in almost every State, there
has been such recruitment once or twice. The very purpose for having such an
emergency recruitment is the urgent need to man the cadre of the administrative
service and the insufficient number existing at a point of time. But it cannot
be said that the process of selection, even for such emergency recruitment is
either less competitive or the persons recruited are inefficient. It may be
borne in mind that even in the Indian Administrative Service also, there has
been an emergency recruitment.
In the
Constitution itself, even while providing in Article 46 that the State shall
promote the special care for the educational and economic interest of the
weaker section of the people and in particular of the Scheduled Castes and
Scheduled Tribes and Article 16(4) of the Constitution having further provided
that the mandate of Article 16(1) (a) requiring equality of opportunity for all
citizens in matters relating to employment or appointment to any office in the
State does not prevent the State from making any provision for the reservation
of appointments to posts in favour of any backward class of citizens which in
the opinion of the State is not adequately represented in the services of the
State.
Article
335 stipulates that the claims of the members of Scheduled Castes and Scheduled
Tribes shall be taken into consideration , consistent with the maintenance of
efficiency of administration, in the making of appointment to services and
posts in connection with the affairs of the union or of State. It is, thus,
apparent that even in the matter of reservation in favour of Scheduled Castes
and Scheduled Tribes the founding fathers of the Constitution did make a
provision relating to the maintenance of efficiency of administration. In this
view of the matter, if any statutory provision provides for a recruitment of a
candidate without bearing in mind the maintenance of efficiency of
administration such a provision cannot be sustained being against the
constitutional mandate. But we are unable to accede to the contention of Mr.
Jain that those persons who got recruited to the Rajasthan Administrative
Service under the Emergency Recruitment Rules are either in-efficient or their
suitability has been adjudged on an inferior standard. It may be reiterated
that those persons also had undertaken a written test on specified subjects as
indicated in the Rules and after qualifying in the written test they were also
subjected to interview conducted by the Public Service Commission, in the same
manner, as those who had been recruited to Rajasthan Administrative Service
under the Recruitment Rules of 1954 though there may have been a variance on
the subjects of which they had taken the test. But that by itself would not be
sufficient to hold that the candidates recruited under the Emergency
Recruitment Rules are less efficient or their suitability had been adjudged at
a lesser standard. We would, therefore, reject the submissions made by Mr. Jain
on the ground of discrimination, on the score.
Article
14 of the Constitution secures equal protection to government servants and
Article 16 is a particular application of general guarantee provided in Article
14. The doctrine of equality before law is a necessary corollary to concept of
rule of law accepted by the Constitution. It is well settled principle that if
a person complains of unequal treatment, the burden squarely lies on that
person to place before the court sufficient materials from which it can be
inferred that there is unequal treatment. Where, however, the necessary
materials have not been placed to show how there has been an unequal treatment,
the plea of provisions being violative of Article 14 cannot be entertained. We
record this conclusion of ours, as in course of hearing of this matter.
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