Dismissed

Patel Vipulkumar Mahendralal v. State of Gujarat

Gujarat HC6 Feb 2020SCA/2554/2020

Case brief

AI extract

What is this about?

Challenge to the vires of Rule 3(d) of the 2017 Gujarat Education Service Class-II (Administrative Branch) Recruitment Rules, which permits only Head Teachers in primary education service to be considered for direct recruitment. The court held the Head Teacher category to be a distinct, validly created class, found no violation of Articles 14 and 16, and dismissed both petitions.

What the court decided

AI extract

Patel Vipulkumar Mahendralal Vs State of Gujarat — Education and Admissions | Gujarat HC (2020)

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C/SCA/1243/2020 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 1243 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 2554 of 2020

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MIHIR RAMESHCHANDRA PATEL

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Versus STATE OF GUJARAT

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Appearance in Special Civil Application No.1243 of 2020 :

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MR RAJENDRA PATEL(645) for the Petitioner(s) No.

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1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32, 33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5 6,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,71,72,73,8,9 MR RUTVIJ R PATEL(10615) for the Petitioner(s) No.

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MR DM DEVNANI, AGP for the Respondent(s) No. 1

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Appearance in Special Civil Application No.2554 of 2020:

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MR SUDHANSHU A JHA for the Petitioners

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MR DM DEVNANI, AGP for the Respondent- State

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH

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and

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HONOURABLE MR.JUSTICE ASHUTOSH J. SHASTRI

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Date : 06/02/2020

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COMMON ORAL ORDER

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(PER : HONOURABLE MR.JUSTICE ASHUTOSH J. SHASTRI)

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1. Both these petitions arise out of a similar controversy, with regard to facts and law which are common in challenging the vires of the relevant Rules. As per the request of learned advocates, both the petitions are taken up for consideration to be disposed of by the present common judgment and order, by treating Special Civil Application No.1243 of 2020 as a lead matter. Accordingly, facts are taken from the lead matter.

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Page 1 of 18

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C/SCA/1243/2020 ORDER

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2. Present petition under Article 226 of the Constitution of India is filed by the petitioners, challenging the vires of Rule 3(d) of the Gujarat Education Service Class-II (Administrative Branch) under Commissionerate of Schools, Mid-day Meals Scheme Recruitment Rules, 2017 and seek the following reliefs:-

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“(A) That your Lordships may kindly be pleased to admit and allow this petition.

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(B) That your Lordships may kindly be pleased to issue writ of mandamus/ certiorari and/or any other appropriate writ, order or direction declaring/ striking down impugned Rule 3(d) of “Gujarat Education Service, Class-II (Administrative Branch) under the Commissionerate of Schools, Mid-day Meals Scheme Recruitment Rules, 2017” as ultra vires to Article 14, 16, 19(1)(g) and 21 of the Constitution of India to the extent to which it permits “Head Teacher (Primary Teacher)” only and does not permit other “Teacher (Primary Teacher)” eligible to apply and compete in the recruitment process for the post of “The Gujarat Education Service ClassII (Administrative Branch) under the Commissionerate of Schools, Mid-day Meals”.

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(C) Pending, hearing and final disposal of this petition, your lordships may kindly be pleased to stay further recruitment process in pursuance of advertisement Annexure-B.

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(D) Pending, hearing and final disposal of this petition, your lordships may kindly be pleased to direct Respondent No.1 and 2 to keep 73 posts vacant out of 141 posts advertised.

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(E) Pending, hearing and final disposal of this petition, your lordships may kindly be pleased to permit the petitioners to participate in the recruitment process pursuing to the advertisement issued by the GPSC for the post in question and further be pleased to direct Respondent No.4 GPSC to keep result in sealed cover to be produced before this Hon’ble Court.

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(F) Pending, hearing and final disposal of this petition, your lordships may kindly be pleased to direct respondent No.3, Director of Primary Education, to issue order/ instruction/ circular to the District Primary Education Officer of the relevant Districts in which petitioners are serving, to permit relevant petitioner to appear in the recruitment process and not to initiate any action against relevant petitioners for making application for the post in question without prior permission/ no objection for the same.

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(G) That your lordships may kindly be pleased to direct

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Page 2 of 18

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C/SCA/1243/2020 ORDER

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respondent No.3, Director of Primary Education, to issue order/ instruction/ circular to the District Primary Education Officer of the relevant Districts in which petitioners are serving, to grant permission to relevant petitioner to appear in exam and not to initiate any action against relevant petitioner, for not obtaining prior permission/ no objection for making application.

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(H) …...... (I) …......”

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3. The case, in brief, submitted before us, is that all these petitioners were appointed as ‘Teachers’ under the provisions of the Gujarat Primary Education Act, 1947. They are below the age of 42 years or below the age relaxation applicable to some of them. They have the educational qualifications of Bachelor Degree in Arts, Science or Commerce respectively along with a degree in teaching and education. All the petitioners have a basic knowledge of computer applications and have combined or separate experience of 5 years in teaching and/or administration in the field of education on their respective posts as primary teachers in various primary educational institutes. The petitioners have raised a grievance on the premise that at an earlier time, Rule 3 of the Rules framed, namely ‘The Gujarat Educational Service Class-II (Administrative Branch) Recruitment Rules, 1969, was meant for direct selection, which reads as under:-

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“3(d) have about five years teaching, inspecting or administrative experience after obtaining the B.T/ B.Ed. or equivalent qualification and”

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As such, the experience was originally considered as valid experience for being teachers and there was no requirement of experience for ‘Head Teacher’. By making certain averments made in the petition, it has been mentioned specifically that the impugned Rules, framed in the year 2017, for the first time, under Rule 3(d) of the Gujarat Educational Service Class-II (Administrative Branch)

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C/SCA/1243/2020 ORDER

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under Commissionerate of Schools, Mid-day Meals Scheme Recruitment Rules, 2017 permits only Head Teachers (Primary Teachers only) and Teachers (Primary Teachers) are not made eligible. This has violated the fundamental rights of the petitioners and by raising multiple contentions, the afore-mentioned prayers have been made in the petition.

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4. We have heard Shri Rajendra Patel, learned advocate appearing for the petitioners in Special Civil Application No.1243 of 2020 and learned advocate Shri Sudhanshu A. Jha, appearing for the petitioners in Special Civil Application No.2554 of 2020 and learned Assistant Government Pleader Shri D.M. Devnani for the respondentState authorities.

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5. Learned advocate Mr. Rajendra Patel appearing on behalf of the petitioners in the lead matter, has contended that by virtue of insertion of word ‘Head Master’, an attempt is made to create discrimination amongst the teachers and Head Teachers serving in primary section. Creating a class amongst the class, is an attempt that clearly violates the fundamental rights of the petitioners contained under Article 14 and 16 of the Constitution of India. It has been contended that under various provisions of the Bombay Primary Education Act (now, Gujarat Primary Education Act), the Statute has not provided a separate category of Head Teacher in primary institutions. Whoever is a primary teacher being the senior most, is in-charge of the institution and therefore, when the Statute itself has not provided this post of Head Teacher, to incorporate in Rule 3, is to deprive the other teachers from being considered for the posts in question, despite being eligible. In fact, according to Mr. Patel, there is no distinguishing feature, mere nomenclature of ‘Head Master’ would not disassociate the person from a teacher. Basically, Head Teacher himself or herself is a primary teacher and

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C/SCA/1243/2020 ORDER

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therefore, in the absence of any distinguishable concept between two, to demarcate the position would tantamount to being an act of discrimination. Hence, on this count alone, the challenge made in the petition deserves to be considered.

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6. Learned advocate Mr. Patel has further submitted that these primary teachers are fully qualified and otherwise fulfill all the conditions as required. In past as well, under the Rules of 1969, there was no such distinction and an ordinary primary teacher was also entitled to be considered for the post in question. For the first time, a deviation is being made, which violates Article 14 of the Constitution of India. Mr. Patel has emphasized that there no object is sought to be achieved, by which Head Teachers are to be considered as eligible. On the contrary, all the primary teachers are well experienced with administrative skill and cannot be discriminated simply because they are not working as Head Teachers. Mr. Patel has further contended that though there are a large number of posts of Head Master available in the respective institutes within the State, a number of vacancies are not filled. Despite this fact, the attempt made is to recruit a person by making eligible only the Head Teacher. This insertion of word ‘Head Teacher’ in Rule 3(d) of the Rules reflects either a malafide intent or complete non-application of mind on the part of the authority. Mr. Patel has further submitted that this insertion of word ‘Head Teacher’ in the respective Rule would seriously prejudice these teachers and would permanently debar their promotional avenues and have far-reaching consequence. This being a clear act of arbitrariness on the part of the authority, the Rule requires to be declared ultra vires . Mr. Patel has further submitted that in many other administrative services, even ordinary graduates are allowed to participate in the recruitment process and there is no logic behind the prescription and requirement of Head Teachers in the

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C/SCA/1243/2020 ORDER

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Rules. An example is given that in various administrative services, like IAS, and other similar services, if a person is entitled to apply in other services on Class-II category, then why primary teacher are not entitled to be considered in the Rules in question. Therefore, there is no logic or nexus reflected in the object sought to be achieved. The relevant rule, particularly rule 3(d), is required to be taken care of by granting the reliefs prayed for in the petition.

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7. Learned advocate Mr. Patel has further submitted that it is just like a recruitment of JMFC. Upon selection, JMFC (he or she) is required to take training in a similar way. If a primary teacher is considered for the post in question, he or she will have to undertake training. There appears to be a clear non-application of mind in mentioning the word ‘Head Teacher’ in Rule 3(d) and an attempt is made to create inequality in same class. Hence, the said clause deserves to be declared ultra vires .

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8. By referring to the Rules, pertaining to Class-I, referred to on page 105, a contention is raised that here, in the Rule, if a primary teacher is permitted to be considered having adequate experience of 7 years, then why cannot a primary teacher be considered for Class-II position. This leads to rather absurd situation. Resultantly, the relief prayed for in the petition deserves to be granted.

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9. Mr. Patel has further contended that all these petitioners hold adequate qualifications and the required experience, but simply because they do not have the tag of ‘Head Teacher’, they are deprived from participating. This is nothing but a discriminatory treatment. As a result of this, in the absence of rationality behind this Rule, Rule 3(d) deserves to be declared ultra vires by granting the relief prayed for. The main thrust made by learned advocate Mr. Patel is that the Statute does not permit the post of ‘Head Teacher’,

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C/SCA/1243/2020 ORDER

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hence the respondent authority cannot incorporate and put the word ‘Head Teacher’ for the purpose of consideration to the post in question. Therefore, by reiterating the aforesaid submission, a request is made to grant the relief as prayed for in the petition.

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10. In the subsequent petition, i.e. Special Civil Application No.2554 of 2020, learned advocate Mr. Sudhanshu A. Jha appearing for the relevant petitioners has adopted all the submissions made by learned advocate Mr. Patel. He has reiterated that there is no rationality visible behind mentioning the word ‘Head Teacher’ as an eligible person. Further, this prescription would create a discrimination amongst the same class and in the absence of any logic or object sought to be achieved from incorporating such word, the action cannot be said to be valid. Hence, the relief prayed for deserves to be granted in the interest of justice.

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11. As against this, learned Assistant Government Pleader Mr. D.M. Devnani, on advance copy, assisted the Court by contending that it is not correct to say that there is no post of ‘Head Teacher’ at all. On the contrary, there are as many as 5000 posts of Head Teachers created for various institutions. Resultantly, while framing the Rules in question, this class of ‘Head Teacher’ has been considered as eligible for direct recruitment. It has been contended that these Rules of ‘Head Teacher’ framed in the year 2012 were tested from the validity point of view by this Court in a decision given in the case of Bharatsigh Lakshmansigh Makwana and others Vs. State of Gujarat and Another reported in 2012(3) GLH 62 . These Rules have been upheld by this Court and, therefore, the post of ‘Head Teacher’ has been created in large numbers. The candidates are available and simply because there are a large number of vacancies, it would not permit the petitioners to challenge the Rule by not stating the fact correctly. On the

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C/SCA/1243/2020 ORDER

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contrary, no discrimination is made by the authority amongst the same class. For the purpose of eligibility of ‘Head Teacher’, a qualification criteria has been prescribed. The said post of ‘Head Teacher’ has a separate pay scale, akin to that of an Assistant Teacher of Secondary or Higher Secondary Schools, as the case may be. Therefore, this category of ‘Head Teacher’ is quite distinct from an ordinary primary teacher in the institute. Therefore, no discrimination has been meted out, as has been agitated. It has been further contended that in the State of Gujarat, these posts at various schools are available, i.e. of ‘Head Teacher’, and a separate pay scale is also prescribed. Therefore, the challenge made in the petition that the Statute has no mention of the post of ‘Head Teacher’, is without disclosing facts before the Court, that there are specific Rules related to the post of ‘Head Teacher’, hence is illfounded. Thus, the petition deserves to be dismissed.

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12. Mr. Devnani further vehemently contended that these petitioners cannot compare their services with other services. If the other services provided the eligibility criteria differently, then these petitioners cannot equate themselves for availing the benefits on the basis of those instances. On the contrary, here is a case where administrative exigency is to be met with by the State authority by filling up Class-II position in the administrative wing. The wisdom of legislative intent cannot be questioned by the petitioners. This Court of judicial review is also circumscribed, especially when these Rules are framed in exercise of the power under Article 309 of the Constitution of India.

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13. Mr. Devnani by referring to Rule 3(d) reflecting on page 91 has in terms stated that various categories are made eligible and these Head Teachers in primary education services have more administrative skill than an ordinary teacher. They are equal to the

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C/SCA/1243/2020 ORDER

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position of Assistant Teacher in secondary and higher secondary schools since the pay scale of Head Teacher is similar to that of Assistant Teacher undisputedly. Considering this situation, as well the challenge made in the petition, it is ill-logical and does not deserve to be entertained.

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14. It has been contended by Mr. Devnani that simply because the Rules related to Class-I position do not specifically mention the word ‘Head Teacher’, that lacuna cannot be taken as an advantage by the petitioners. For class-II position, more administrative skill might have been found to be required by the authority while framing the Rules. Therefore, the purport and object behind framing these Rules cannot be questioned by the petitioners on account of any other logic attempted to be canvassed before the Court. According to Mr. Devnani, there is no discrimination, rather specific terms have been incorporated, on a separate individual category is considered to be eligible in the Rules. The Rules are framed in exercise of the legislative competence and the petition being devoid of merit, deserves to be dismissed.

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15. Having heard the learned advocates appearing for the parties and having gone through the material on record, we found that firstly, the Rule 3(d), which is the center of the controversy in the present proceedings, has specifically and emphatically stated in clear terms regarding which position is required, i.e. at least 5 years experience. To deal with the same, we may reproduce this Rule 3(d) as under:-

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“3. To be eligible for appointment by direct selection to the post mentioned in clause (B) of rule 2, a candidate shall-

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(d) have at least five years combined or separate experience in teaching and/or administration in the field of education in the Government or Local bodies or University or private or public sector self financed educational organization or education

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C/SCA/1243/2020 ORDER

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institution on the post which can be considered equivalent to the post of Assistant Teacher, Class III in the Government Higher Secondary School or Assistant Teacher, Class III, in the Government Secondary School or Kelavani Nirikshak or Extension Officer (Education) or Additional District Education Inspector or Head Teacher in Primary Education Service after obtaining the degree in teaching or education as prescribed under sub-clause (ii) of clause (b) of rule 3.”

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16. This Rule, according to us, in terms clearly suggests that a candidate must have at least 5 years combined or separate experience in teaching. This may be in different institutions or local bodies, equivalent to the post of Assistant Teacher Class-III in Higher Secondary school or Assistant Teacher Class-III in Government Secondary School or Kelavani Nirikshak or Extension Officer or Additional District Education Inspector or Head Teacher in primary education service. This may be after obtaining necessary degree in teaching or education as prescribed under sub-rule (ii) of clause (b) of Rule 3. So, unequivocally, the requirement of minimum 5 years’ experience of a particular position is made absolutely clear and there can be no confusion visible from that. Now, in the aforesaid context, if we see the stand of learned Assistant Government Pleader, who has clearly submitted that there are 5000 posts very much available of Head Teachers, created by virtue of the Head Teachers, Class-III, in the Subordinate Services of the Directorate of Primary or respective District or Municipal Primary Education Committee Recruitment Rules, 2012 (for short, ‘the Act of 2012’), which were the subject matter of challenge before this Court and whose validity has already been upheld by the Court, the post of ‘Head Teacher’ is very much available, created by the State authority and having a particular pay scale as well. We have also noticed that these Head Teachers’ pay scale is undisputedly parallel to that of the Assistant Teacher in Secondary and Higher Secondary Schools. Learned advocates appearing for the petitioners have also not disputed this position. When the authority wants a particular

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class to be treated as eligible for their own requirement, such wisdom of the authority cannot be questioned by the petitioners in the absence of malafide or the absence of valid reason. We were given an impression by the learned counsel that the Statute has not provided a definition for ‘Head Teacher’. However, it was pointed out that there are actually various posts of Head Teachers available, and most are functioning. Simply due to vacancy in some schools, the said circumstance cannot allow to set at naught the statutory Rule. On the contrary, para 6 of the decision delivered by this Court in the case of Bharatsigh Lakshmansigh Makwana (supra) has indicated in clear terms that after enactment of the Central Act, the respondent State has issued notification on 22.6.2011, resolved to create 5000 posts of Head Teachers Class-III in the particular pay scale with a Grade Pay of Rs.4400/- to be filled in by promotion and by direct selection in 1:1 ratio, We deem it proper to incorporate the said information supplied to us by learned Assistant Government Pleader contained in para 6 of the aforesaid decision, which reads as under:-

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“6. After the enactment of Central Act the respondent State issued notification dated 22nd June 2011 whereby the respondent State resolved to create 5,000 posts of Head Teacher, class III in the pay scale of Rs.930034800 (grade pay of Rs.4400/). The said posts are to be filled up by promotion and by direct selection in 1:1 ratio.”

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17. In view of the aforesaid situation prevalent, we are not impressed by the submission that by virtue of incorporating the word ‘Head Teacher’ in Rule 3(d), the State has made any attempt to create a class amongst the class or to create any discrimination amongst the same class. Head Teachers’ position is separately categorized by the aforesaid Rule of 2012, which has been undisputedly upheld by this Court. This situation has not been controverted by the learned advocates appearing on behalf of the petitioners. When that be so, the question of violation of Articles 14

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and 16 of the Constitution of India would not arise.

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18. We are also not in a position to accept the proposition attempted to be canvassed on behalf of the petitioners that Rules of 1969 do not debar the teachers from being considered but in 2017, they are being deprived of. Such submission has no legs to stand in view of the fact that a need might have been visualized by the authority in framing the Rules under Article 309 of the Constitution of India. The Government might have thought it fit to have more experienced persons having administrative skill, which is otherwise available from a candidate who is serving as ‘Head Teacher’, particularly when a Class-II position in the administrative branch is to be filled in. This wisdom we cannot examine nor can be substituted by us in exercise of the jurisdiction under Article 226 of the Constitution of India.

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19. In light of the aforesaid circumstances, we may recollect the relevant proposition in exercising jurisdiction while examining the Rules framed under Article 309 of the Constitution of India. Some relevant observations contained in the decision delivered by the Apex Court, we deem proper to be incorporated hereinafter:-

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“The Apex Court has, in the case of State of Himachal Pradesh & Ors. v. Satpal Saini , reported in (2017) 11 SCC 42 , observed in Para.6 and 9, thus;

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“6. The grievance, in our view, has a sound constitutional foundation. The High Court has while issuing the above directions acted in a manner contrary to settled limitations on the power of judicial review under Article 226 of the Constitution. A direction, it is well settled, cannot be issued to the legislature to enact a law. The power to enact legislation is a plenary constitutional power which is vested in Parliament and the state legislatures under Articles 245 and 246 of the Constitution. The legislature as the repository of the sovereign legislative power is vested with the authority to determine whether a law should be enacted. The doctrine of separation of powers entrusts to the court the constitutional function of deciding upon the validity of a law enacted by the legislature, where a challenge is brought before

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the High Court under Article 226 (or this Court under Article 32) on the ground that the law lacks in legislative competence or has been enacted in violation of a constitutional provision. But judicial review cannot encroach upon the basic constitutional function which is entrusted to the legislature to determine whether a law should be enacted. Whether a provision of law as enacted subserves the object of the law or should be amended is a matter of legislative policy. The court cannot direct the legislature either to enact a law or to amend a law which it has enacted for the simple reason that this constitutional function lies in the exclusive domain of the legislature. For the Court to mandate an amendment of a law - as did the Himachal Pradesh High Court - is a plain usurpation of a power entrusted to another arm of the state. There can be no manner of doubt that the High Court has transgressed the limitations imposed upon the power of judicial review under Article 226 by issuing the above directions to the state legislature to amend the law. The government owes a collective responsibility to the state legislature. The state legislature is comprised of elected representatives. The law enacting body is entrusted with the power to enact such legislation as it considers necessary to deal with the problems faced by society and to resolve issues of concern. The courts do not sit in judgment over legislative expediency or upon legislative policy. This position is well settled. Since the High Court has failed to notice it, we will briefly recapitulate the principles which emerge from the precedent on the subject.

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4. Similarly, in Supreme Court Employees’ Welfare Association v. Union of India, (1989) 4 SCC 187 this Court held that a court cannot direct the legislature to enact a particular law. This is because under the constitutional scheme, Parliament exercises a sovereign power to enact law and no other authority can issue directions to frame a particular piece of legislation. This principle was reiterated in State of Jammu & Kashmir v. A.R. Zakki & Ors., 1992(1) S.C.T 499 : AIR 1992 SC 1546 where this Court observed that :

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“10. ...A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. Section 110 of the J & K Constitution, which is on the same lines as Article 234 of the Constitution of India, vests in the Governor, the power to make rules for appointment of persons other than the District Judges to the Judicial Service of the State of J & K and for framing of such rules, the Governor is required to consult the Commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court.”

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In V.K. Naswa v. Union of India, (2012) 2 SCC 542 this Court referred to a large number of decisions and held that

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”18. Thus, it is crystal clear that the court has a very limited role and in exercise of that, it is not open to have judicial legislation. Neither the court can legislate, nor has it any competence to issue directions to the legislature to enact the law in a particular manner.”

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20. Additionally, we are also have an assistance from another decision of the Apex Court. In the case of Binoy Viswam Vs. Union of India and others reported in (2017)7 SCC 59 . Relevant observations were contained in para 78, 79 and 80 and read as under:-

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“78. With this, we advert to the discussion on the grounds of judicial review that are available to adjudge the validity of a piece of legislation passed by the Legislature. We have already mentioned that a particular law or a provision contained in a statute can be invalidated on two grounds, namely: (i) it is not within the competence of the Legislature which passed the law, and/or (ii) it is in contravention of any of the fundamental rights stipulated in Part III of the Constitution or any other right/ provision of the Constitution. These contours of the judicial review are spelled out in the clear terms in case of Rakesh Kohli37, and particularly the following paragraphs:

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“16. The statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. The court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. Sans flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature is not declared bad.

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This Court has repeatedly stated that legislative enactment can be struck down by court only on two grounds, namely (i) that the appropriate legislature does not have the competence to make the law, and (ii) that it does not (sic) take away or abridge any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions. In McDowell and Co. while dealing with the challenge to an enactment based on Article 14, this Court stated in para 43 of the Report as follows: (SCC pp. 737-38)

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“43. … A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone viz. (1) lack of legislative competence, and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional

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provision. There is no third ground. … if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by sub-clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or the other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom.” (emphasis supplied)

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In Mohd. Hanif Quareshi, the Constitution Bench further observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. It stated in para 15 of the Report as under: (AIR pp. 740-41)

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“15. … The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.”

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The above legal position has been reiterated by a Constitution Bench of this Court in Mahant Moti Das v. S.P. Sahi.

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In Hamdard Dawakhana v. Union of India, inter alia, while referring to the earlier two decisions, namely, Bengal Immunity Co. Ltd. and Mahant Moti Das, it was observed in para 8 of the Report as follows: (Hamdard Dawakhana case, AIR p. 559):

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“8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is

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legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy….”

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In Hamdard Dawakhana, the Court also followed the statement of law in Mahant Moti Das and the two earlier decisions, namely, Charanjit Lal Chowdhury v. Union of India and State of Bombay v. F.N. Balsara and reiterated the principle that presumption was always in favour of constitutionality of an enactment.

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xx xx xx

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A well-known principle that in the field of taxation, the legislature enjoys a greater latitude for classification, has been noted by this Court in a long line of cases. Some of these decisions are Steelworth Ltd. v. State of Assam; Gopal Narain v. State of U.P.; Ganga Sugar Corpn. Ltd. v. State of U.P.; R.K. Garg v. Union of India; and State of W.B. v. E.I.T.A. India Ltd.”

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Again in Ashok Kumar Thakur v. Union of India & Ors. 38, this Court made the following pertinent observations:

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“219. A legislation passed by Parliament can be challenged only on constitutionally recognised grounds. Ordinarily, grounds of attack of a legislation is whether the legislature has legislative competence or whether the legislation is ultra vires the provisions of the Constitution. If any of the provisions of the legislation violates fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power of judicial review. A legislation could also be challenged as unreasonable if it violates the principles of equality adumbrated in our Constitution or it unreasonably restricts the fundamental rights under Article 19 of the Constitution. A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law. This Court in State of Rajasthan v. Union of India said: (SCC p. 660, para 149)

¶120

“149.… if a question brought before the court is purely a political question not involving determination of any legal or constitutional right or obligation, the court would not entertain it, since the court is concerned only with adjudication of legal rights and liabilities.”

¶121

Therefore, the plea of the petitioner that the legislation itself was intended to please a section of the community as part of the vote catching mechanism is not a legally acceptable plea

¶122

Page 16 of 18

¶123

C/SCA/1243/2020 ORDER

¶124

and it is only to be rejected.”

¶125

Furthermore, it also needs to be specifically noted that this Court emphasised that apart from the aforesaid two grounds no third ground is available to invalidate any piece of legislation. In this behalf it would be apposite to reproduce the following observations from State of A.P. & Ors. v. McDowell & Co. & Ors.39, which is a judgment rendered by a three Judge Bench of this Court:

¶126

“43...A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness — concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety (see Council of Civil Service Unions v. Minister for Civil Service [1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174] which decision has been accepted by this Court as well). The

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C/SCA/1243/2020 ORDER

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applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue. (See the opinions of Lords Lowry and Ackner in R.v. Secy. of State for Home Deptt., ex p Brind [1991 AC 696 : (1991) 1 All ER 720] AC at 766-67 and 762.) It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled...”

¶130

21. In view of the aforesaid scope enlisted by the Apex Court, we are not inclined to accept the challenge of the petitioners. The petition is found to be devoid of merit. Accordingly, the petition, being Special Civil Application No.1243 of 2020, is dismissed hereby.

¶131

22. Consequently, the subsequent petition, being Special Civil Application No.2554 of 2020, is also dismissed.

¶132

Sd/- (VIKRAM NATH, CJ)

¶133

Sd/- (ASHUTOSH J. SHASTRI, J)

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OMKAR

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Page 18 of 18

Patel Vipulkumar Mahendralal v. State of Gujarat

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Patel Vipulkumar Mahendralal v. State of Gujarat

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