In the matter of : Ashutosh Gupta Vs. State of Rajasthan & Ors.
Email(From the Judgment and Order dated 16.5.97 of the Rajasthan High Court in D.B.S.A. No. 312 of 1983)
(From the Judgment and Order dated 16.5.97 of the Rajasthan High Court in D.B.S.A. No. 312 of 1983)
Mr. S.K. Bhattacharya, Advocate (NP), Ms. Sandhya Goswami and Mr. M.P.S. Tomar, Advocates for the Respondents.
Constitution
Articles 14 and 16 – Rajasthan Administrative Service Rules, 1954 – Rajasthan Administrative Service (Emergency Recruitment) Rules, 1956 – Rule 23 – Rajasthan Administrative Service (Emergency Recruitment) Rules, 1959 – Rule 23 – Rajasthan Administrative Service (Emergency Recruitment) Rules, 1976 – Rule 25 – Adminis-trative services of the state – Direct recruitment and emergency recruitment – Determination of seniority – Can persons recruited under the emergency recruitment be seniors to those directly recruited earlier – Does if violate the equality clause of the Constitution – In the seniority list published by the state government in 1980 persons recruited under the Emergency Recruit-ment Rules of 1976 shown as seniors to those recruited earlier in 1974 and 1976 under the Administrative Service Rules 1954 – Direct recruits under 1954 rules challenging the seniority and rule 25 of the 1976 rules dealing with determination of seniority – High Court relying on Anand Prakash Saksena’s case ((1968) 2 SCR 611) and K.P. Singhal’s case ((1995) Suppl. SCC 549) and upholding the validity of rule 25 – Whether rule 25 of 1976 rules valid – Whether emergency recruits form a class by themselves – Whether the formula laid down for determining their seniority discriminatory. Held, emergency recruits not being direct re-cruits or promotees, formed a class by themselves. The formula laid down for determining their seniority cannot be considered to be discriminatory. The law making authority must be presumed to have examined the pros and cons in making the provision for seniority in the cadre which was in pari materia with similar provision for recruitment to the Indian Administrative Services. There is always a presumption in favour of constitutionality of enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. In the absence of proper pleadings and averments the substantive petition before the question of denial of equal protection or infringement of fundamental in rights can be decided. Most of those recruited under the 1996 rules having been superannuated or about to super-annuate, the seniority determined in terms of Rule 25 having been in operation for more than 25 years, there was no justification for alteration of the same and therefore no interference in the judgment of the High Court called for.
The concept of equality before law does not involve the idea of absolute equality amongst all which may be a physical impos-sibility. All that Article 14 guarantees is the similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. Equality before the law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. Equality before the law does not mean that things which are different shall be treated as though they were the same. It is true that Article 14 enjoins that the people simi-larly situated should be treated similarly but what amount of dissimilarity would make the people disentitle to be treated equally is rather a vexed question. A Legislature, which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws, to attain particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not ‘per se’ amount to discrimination within the inhibition of the equal protection clause. The state has always the power to make clas-sification on a basis of rational distinctions relevant to the particular subject to be dealt with. In order to pass the test of permissible classification, two conditions must be fulfilled, namely (i) that the classification must be founded on an intelli-gible differentia which distinguishes persons or things that are grouped together from others who are left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act. When a law is challenged as violative 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. Having ascertained the policy and the object of the Act, the court has to apply a dual test in examining the validity, the test being, whether the classification is rational and based upon an intelligible differentia which distinguished persons or things that are grouped together from others that are left out of the group, and whether the basis of differentiation has any rational nexus or relation with its avowed policy and objects. In order that a law may be struck down under this Article, the inequality must arise under the same piece of legis-lation or under the same set of laws which have to be treated together as one enactment. Inequality resulting from two differ-ent enactments made by two different authorities in relation to the same subject will not be liable to attack under Article 14. It is well settled that Article 14 does not require that the legislative classification should be scientifically or logically perfect. If we examine the impugned provisions of the emergency recruitment rules from the aforesaid stand point the conclusion is irresistible that the aforesaid set of rules have been framed for a specific recruitment to the administrative service. The provision of section 25 dealing with the seniority has been specifically designed to meet all situations under which people from different walks of life could be recruited to the Rajasthan Administrative Service under the emergency recruitment rules. The law making authority must be presumed to have examined pros and cons in making the aforesaid provision for seniority in the cadre which is in pari materia with similar provisions for re-cruitment to the Indian Administrative Service and, therefore, it is difficult for us to hold that the aforesaid provision is discriminatory in nature. (Para 6)
A special formula fixing seniori-ty of the emergency recruits other than that provided in the normal rules had been thought of so that the entire past experi-ence of such recruits is not totally wiped off. Having regard to the facts and circumstances of the present case, and bearing in mind that hardly a few people of those emergency recruits are there in the cadre who are also on the verge of superannuation, we are not inclined to strike down the aforesaid rule governing the seniority of the emergency recruits and thereby unsettle the matter of seniority in the cadre. (Para 8)
Those who had joined the Rajasthan administrative service under the provisions of emergency recruitment rules of 1976, have either superannuated or about to superannuate. Their seniority in the cadre as deter-mined under rule 25 of the emergency recruitment rules has oper-ated for all this period from 1976 onwards. In respect of a vanishing cadre, the seniority provision which has operated for more than 25 years, the same should not be altered after this length of time, as it would unsettle the entire seniority in the cadre. In the aforesaid premises, we do not find any jus-tification for our interference with the impugned judgment of the High Court. (Para 9)
2. Anand Parkash Saksena v. Union of India and Ors. ((1968) 2 Supreme Court Reports – 611) (Paras 1,7)
1. The appellant is a direct recruit to the Rajasthan administra-tive service, having been selected through the competitive exami-nation 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 (Emergen-cy Recruitment) Rules 1956’ and then another similar set of rules have been framed in the year 1959, called ‘The Rajasthan Adminis-trative 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 administra-tive service on being recruited under the provisions of Rajas-than administrative service rules of 1954 on 5.6.1975, and is continuing, a set of rules were framed by the governor in exer-cise of power under the proviso to Article 309 of the Constitu-tion 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 Recruit-ment Rules, 1976’). Persons on being selected under the provi-sions 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 deal-ing 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 recruit-ed 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 v. Union of India and Ors. ((1968) 2 Supreme Court Reports – 611) and K.P. Singhal v. State of Rajas-than 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 re-liance 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.
2. Mr. Sushil Kumar Jain, appearing for the appellant contended that the persons recruited to the Rajasthan Administrative Serv-ice 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 Re-cruitment 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. Alterna-tively, 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 formu-la 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 ful-filled to uphold the legislation namely (i) that the classifica-tion must be founded on an intelligible differentia which distin-guishes 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 experi-ence 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.
3. 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 selec-tion, even for such emergency recruitment is either less competi-tive 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.
4. 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 opportuni-ty for all citizens in matters relating to employment or appoint-ment 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 consid-eration , consistent with the maintenance of efficiency of admin-istration, 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 adminis-tration 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 Recruit-ment 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 re-cruited 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.
5. 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 equal-ity 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 enter-tained. We record this conclusion of ours, as in course of hearing of this matter. Mr. Jain, learned counsel appearing for the appellant, had often repeated that the provision of the emergency recruitment rules has permitted even a beetle shop owner with the minimum income as indicated therein to appear and compete at the test and on being selected, the period for which he had been earning the aforesaid amount could be taken into account for the purpose of seniority in the cadre even though there has been no nexus between that period and the service to which he has been recruited. Apart from making such submission on a hypothetical basis, no material has been produced to in-dicate if anyone of the persons recruited under the emergency recruitment rules has reaped any undue advantage in respect of his past experience by adoption of the formula in the emergency recruitment rules for the purpose of allotting year of allotment as 1976 – (N 1 + N 2). In the absence of an iota of materials on this aspect, we are not required to examine the correctness of the said submission of Mr. Jain, on an assumption that the provi-sions of the recruitment rules might have enabled the profession-als on being recruited to count their past experience for reckon-ing their seniority in the cadre of administrative service even though the said experience might not have any co-relationship with the administrative service. Even otherwise, the entire experience of such recruits could not have been totally wiped off and therefore the rule making authority while making the rules for recruitment on emergency basis did make the provisions con-tained in Rule 25 which is also in para materia with similar provisions available elsewhere including the one which was meant for emergency recruitment to the Indian Administrative Service. Where the challenge is made to a statutory provision being dis-criminatory, allegations in writ petition must be specific, clear and unambiguous. There must be proper pleadings and averments in the substantive petition before the question of denial of equal protection of infringement of fundamental right can be decided. There is always a presumption in favour of the constitutionality of enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The presumption of constitutionality stems from the wide power of classification which the Legislature must, of necessity possess in making laws operating differently as regards different groups of persons in order to give effect to policies. It must be presumed that the Legislature understands and correct-ly appreciates the need of its own people, that its laws are directed to problems made manifest by experience. The claim of equal protection under Article 14, therefore, is examined with the aforesaid presumption that the state Acts are reasonable and justified. If we examine the challenge to the impugned provision from the aforesaid stand point, we have no hesitation to hold that the appellants have utterly failed to establish any materi-als from which grievances about the discrimination alleged can be said to have been made.
6. The concept of equality before law does not involve the idea of absolute equality amongst all which may be a physical impos-sibility. All that Article 14 guarantees is the similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. Equality before the law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. Equality before the law does not mean that things which are different shall be treated as though they were the same. It is true that Article 14 enjoins that the people simi-larly situated should be treated similarly but what amount of dissimilarity would make the people disentitle to be treated equally is rather a vexed question. A Legislature, which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws, to attain particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not ‘per se’ amount to discrimination within the inhibition of the equal protection clause. The state has always the power to make clas-sification on a basis of rational distinctions relevant to the particular subject to be dealt with. In order to pass the test of permissible classification, two conditions must be fulfilled, namely (i) that the classification must be founded on an intelli-gible differentia which distinguishes persons or things that are grouped together from others who are left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act. When a law is challenged as violative 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. Having ascertained the policy and the object of the Act, the court has to apply a dual test in examining the validity, the test being, whether the classification is rational and based upon an intelligible differentia which distinguished persons or things that are grouped together from others that are left out of the group, and whether the basis of differentiation has any rational nexus or relation with its avowed policy and objects. In order that a law may be struck down under this Article, the inequality must arise under the same piece of legis-lation or under the same set of laws which have to be treated together as one enactment. Inequality resulting from two differ-ent enactments made by two different authorities in relation to the same subject will not be liable to attack under Article 14. It is well settled that Article 14 does not require that the legislative classification should be scientifically or logically perfect. If we examine the impugned provisions of the emergency recruitment rules from the aforesaid stand point the conclusion is irresistible that the aforesaid set of rules have been framed for a specific recruitment to the administrative service. The provision of section 25 dealing with the seniority has been specifically designed to meet all situations under which people from different walks of life could be recruited to the Rajasthan Administrative Service under the emergency recruitment rules. The law making authority must be presumed to have examined pros and cons in making the aforesaid provision for seniority in the cadre which is in pari materia with similar provisions for re-cruitment to the Indian Administrative Service and, therefore, it is difficult for us to hold that the aforesaid provision is discriminatory in nature.
7. Emergency recruits to the Rajasthan Administrative Service form a class by themselves, they being neither direct recruits under the Recruitment Rules of 1954 nor are they promotees. For the purpose of their seniority in the cadre, in the emergency recruitment rules of 1976, a formula has been adopted. The said formula, in our opinion cannot be held to be discriminatory in nature. In fact in Anand Parkash Saksena v. Union of India & Ors., (1968 (2) SCR 611), in somewhat similar circumstances, considering the validity of regulation 3(3) of the Special Re-cruits Seniority Regulations, this Court held that since the special recruits form a distinct class and the regulation proper-ly adopts the formula for fixing the seniority, the said regula-tion cannot be held to be arbitrary or violative of Articles 14 and 16 of the Constitution. The ratio in the aforesaid case should apply to the case in hand. We may also take note of the fact that provisions of the emergency recruitment rules came up for consideration in the case of K.P.Singhal v. State of Rajas-than and Another (1995 Supp.(3) SCC 549). In that case inter-pretation of sub-rule (3) of rule 32 of the Rajasthan Administra-tive Service Rules, 1954, came up for consideration. The Court held that for the purpose of 20 years’ service for being eligible to be appointed on the super time scale under sub-rule (3) of rule 32, the notional service to which emergency recruits are entitled under rule 25 of the 1976 rules, should be added. In other words, the formula indicated in rule 25, conferring a notional year of allotment to persons recruited under the emer-gency recruitment rules, was very much before the court and the court held that the said notional service should be reckoned for computing the period of twenty years of service. It is true, as contended by Mr. Jain, that the validity of rule 25 of the emergency recruitment rules was not before the Court in the aforesaid case, but having examined the provisions and having expressed the view that the notional service to which the emer-gency recruits are entitled under rule 25, should be added, it can be assumed that the Court has also upheld the validity of rule 25. The aforesaid observation of this Court in the three judge bench decision in Singhal’s case, runs counter to the contention of Mr. Jain, for the appellant.
8. The contention of Mr. Jain that there is no nexus in the formula for fixation of seniority under rule 25 of 1976 rules with the object sought to be achieved though may not be thorough-ly unsustainable, but in the absence of any materials establish-ing how the alleged discrimination has perpetrated we are not inclined to strike down the same, more particularly, when the persons for whose benefit the aforesaid rules had been engrafted are a dying cadre, hardly few of them remaining in service, and that the rule has operated upon for last quarter century. It is true, that the formula under rule 25 confers bennefit under the principle of N1 + N2 in relation to the conferment of year of allotment of the emergency recruits and it has not been demon-stratively shown as to how the income has any nexus for the object sought to be achieved, but yet we think it inappropriate to strike down the rules after it has operated for more than a quarter century on that score. A special formula fixing seniori-ty of the emergency recruits other than that provided in the normal rules had been thought of so that the entire past experi-ence of such recruits is not totally wiped off. Having regard to the facts and circumstances of the present case, and bearing in mind that hardly a few people of those emergency recruits are there in the cadre who are also on the verge of superannuation, we are not inclined to strike down the aforesaid rule governing the seniority of the emergency recruits and thereby unsettle the matter of seniority in the cadre.
9. In course of hearing, we were also told that those who had joined the Rajasthan administrative service under the provisions of emergency recruitment rules of 1976, have either superannuated or about to superannuate. Their seniority in the cadre as deter-mined under rule 25 of the emergency recruitment rules has oper-ated for all this period from 1976 onwards. In respect of a vanishing cadre, the seniority provision which has operated for more than 25 years, the same should not be altered after this length of time, as it would unsettle the entire seniority in the cadre. In the aforesaid premises, we do not find any jus-tification for our interference with the impugned judgment of the High Court. The civil appeal fails and is dismissed.
