PETITIONER: V.K. SOOD Vs. RESPONDENT: SECRETARY, CIVIL AVIATION AND ORS. DATE OF JUDGMENT14/05/1993 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. SINGH N.P. (J) CITATION: 1993 AIR 2285 1993 SCR (3) 772 1993 SCC Supl. (3) 9 JT 1993 (3) 520 1993 SCALE (2)921 ACT: Constitution of India-Article 309 Proviso-Held, rules made under statutory-No motives can be attributed to Legislature in making law. HEADNOTE: The appellant had applied for recruitment as Examiner of Personnel in the Department of Civil Aviation, but was unsuccessful. He challenged the qualifications detailed in the advertisement as being discriminatory and tailor-made, with a view to exclude him. He contended that while he would have qualified under the 1969 Rules framed under the proviso to Article 309, the rules were amended in 1978 and 1989 with a view to deprive him of his chance. He submitted that the court should regulate the prescription of higher qualifications and strict standards for navigators and pilots in view of the frequent air accidents. Dismissing the appeal, this Court, HELD: (1) In exercise of rule making power under Proviso to Art. 309, the President or authorised person is entitled to prescribe the method (of recruitment, educational and technical qualifications or conditions of service for appointment to an office or post under the State. These rules being statutory cannot be impeached as being tailor- made to suit specific individuals. (777-B) B.s. Vadera v. Union of India & Ors., AIR 1969 SC 118; General manager, Southern Railway v. Rangachari [1962] 2 SCR 586 at 596; State of Mysore v. P.Narasing Rao [19681 1 SCR 407 at 411; State of J & K v. Triloki Nath Khosa AIR 1974SCI and Sate of Orissa v.N.N.Swamy [1977] 2 SCC 508, para 18, followed. (2) No motives can he attributed to the Legislature in making the law. (777-C) 773 (3) The prescribed qualifications and the suitability of the applicant would be tested by the UPSC. (777-C) (4) It is for the rule making authority or for the Legislature to regulate the method of recruitment, prescribe qualifications etc. It is not for this court to trench into and prescribe qualifications, in particular where the matters are of a technical nature (777-F) JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2847 of 1993.
From the Judgment and Order dated 31.8.1990 of the Delhi
High Court in C.W. 2617 of 1989.
Yogeshwar Prasad, U.S Prasad, A.K. Lal Sinha, V.S. Pandey,
Mrs. Nidhi Pandey and S.M. Tripathi for the Appellant.
V.C. Mahajan, and S.N. Terdol for the Respondents.
The Judgment of the Court was delivered by
K.RAMASWAMY, J. Special leave granted.
In response to the advertisement No. 33 dated August 19,
1989 the appellant had applied for recruitment to the post
of Examiner of Personnel in the Department of Civil
Aviation. He was unsuccessful in the selection. He later
on challenged paras 3(i) and 3(ii) of the advertisement on
the ground that the qualifications prescribed are
discriminatory and were tailor made. He also contends that
in 1969, for the said post the qualifications prescribed
were 1st Class British or Indian Navigator or a British
Flight Navigator licence with not less than 100 hours of air
experience. The method of recruitment was direct
recruitment and the age prescribed was 45 years relaxable to
Government Servants. He claims that he is having the first
Class licence with 100 hours of air navigation experience.
With a view to deprive him of the change, the offending
rules have been amended in 1978 substituting 300 hours of
instructional flying and experience of not less than 2500
hours as Flight Navigator with category A and endorsement to
fly VIPs and VVIPs on all routes in I.A.F. air crafts or
should hold or have held or Indian Flight Navigator Licence.
According to him this rule was made with a view to deprive
him of his chance. The Delhi High Court dismissed the writ
petition summarily. To appreciate the contention, it is
necessary to read to rules. As per the 1969 rules
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which are statutory made under proviso to Art. 309 of the
Constitution, the method of recruitment with qualification
prescribed thereafter are thus:
“Essential
(i) First Class British or Indian Navigators’
Licence with not less than 100 hours air
experience.
Desirable
(i) Degree in Mathematics or in Engineering.
(ii) Experience of Goedetic Surveying.In 1978
clause A was amended and in its place Clauses
A(i) and (ii) were brought on the rules which
reads thus :
“A(i) Experience of an minimum of 300 hours of
instructional flying as qualified Navigation
Instructor.
(ii) Experience of not less than 2500 hours as
Flight Navioator with category “A” and
endorsement to fly VIPs VVIPs on all routes in
I.A.F. aircraft.
OR
“B” (i) Should hold or have held an Indian
Flight Navigators’ licence.
(ii) Experience of 2000 hours as Flight
Navigator on international Routes.
Desirable
(i) Degree in Science with Physics and-
Mathematics as subject of recognised
University or equivalent.
(ii) Experience as Navigation Instructor in a
recognised Institution or in an Air
Corporation.
(iii) Commercial Pilot’s licence.
Method of recruitment is direct recruitment through the
Union Public Service
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Commission. When the candidates in required number did not
apply for, the rules have been further amended in 1989 with
the following modified qualifications
Essential
1. 10+2 with Physics, Chemistry & Mathematics
2(i) should have held a senior Commercial
Pilot’s Licence.
(ii) should have flying experience of not less
than 2500 hours on multiengine aircraft of
which not less than 250 hours should be as
pilot-in-command.
OR
(i) should hold or should have held an
Indian Flight Navigator’s licence.
(ii) should have not less than 500 hours
experience as Flight Navigator.
Desirable
1. Degree in Science with Physics and
Mathematics of a recognised University or its
equivalent.
2. Experience as Navigation Instructor in a
recognised institute/Flying Club or in an
Airline.
Method of recruitment-by direct recruitment failing which by
transfer or deputation including short term contract).
Age: 50 years.
It is not in dispute that these rules have been made by the
President exercising the power under proviso to Art. 309 of
the Constitution which read thus :
“309. Recruitment and conditions of service
of persons serving the Union or a State-
Subject to the provisions of this
Constitution, Acts of the appropriate
Legislature may regulate the recruitment, and
conditions of service of persons appointed, to
public services and posts in connection with
the affairs of the Union or of any State:
776
Provided that it shall be competent for the
President or such person as he may direct in
the case of services and posts in connection
with the affairs of the Union, and for the
Governor of a State or such person as he may
direct in the case of services and posts in
connection with the affairs of the State to
make rules regulating the recruitment, and the
conditions of service of persons appointed, to
such service and posts until provision in that
behalf is made by or under an Act of the
appropriate Legislature under this Article,
and any rules so made shall have effect
subject to the provisions of any such Act.”
It would thus clear that the rules made by the President or
authorised person under proviso to Art. 309 are subject to
any law made by the Parliament and the power includes rules
regulating the recruitment and the conditions of service or
post. They are statutory and legislative in character. The
statutory rules thus made are subject to the law that may be
made by the Parliament.
In B.S Vadera v. Union of India & Ors. reported in AIR 1969
SC 118, this Court held that the rules made under the
proviso to Art. 309 of the Constitution shall have effect
subject to the provisions of the Act i.e. if the appropriate
legislature has passed an Act, In its absence the rules made
by the president or by such person as he may direct are to
have full effect.
In The General Manager, Southern Railway v. Rangachari
reported in [1962] 2 SCR 586 at 596 another Constitution
Bench held that equality of opportunity need not be confused
with absolute equality as such. What is guaranteed is the
equality of opportunity and nothing more. Article 16(1) or
16(2) does not prohibit the prescription of reasonable rules
for selection to any employment or appointment to any office
or post. Any provision as to the qualifications for the
employment or appointment to an office or post reasonably
fixed and applicable to all citizens would certainly he
consistent with the doctrine of the equality of opportunity.
In State of Mysore, & Anr. v. P. Narasing Rao report in
1968] 1 SCR 407 at 411 this Court held that the provisions
of Art. 14 or Art. 16 do not exclude the laying down of
selective tests, nor do they preclude the Government from
laying down qualifications for the post in question. Such
qualifications need not be only technical but they can also
be general qualifications relating to the suitability of the
candidate for such service as such. The same was the view
in another Constitution Bench decision reported in The State
of Jamu and Kashmir v. Triloki Nath Khosa & Ors. AIR 1974
SC 1. In State of Orissa & Ant-. v. N.N. Swamy & Ors.
reported in [1977] 1 2 SCC 508 in paragraph 18, this Court
held that
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the eligibility must not be confused with the suitability of
the candidate for appointment.
Thus it would be clear that, in the exercise of the rule
making power, the president or authorised person is entitled
to prescribe method of recruitment, qualifications both
educational as well as technical for appointment or
conditions of service to an office or a post under the
State. The rules thus having been made in exercise of’ the
power under proviso to Art. 309 of the Constitution, being
Statutory, cannot he impeached on the ground that the
authorities have prescribed tailor made qualifications to
suit the stated individuals whose names have been mentioned
in the appeal. Suffice to state that it is settled law that
no motives can be attributed to the Legislature in making
the law. The rules prescribed qualifications for
eligibility and the suitability of the appellant would be
tested by the Union Public Service Commission.
It is next contended that several persons whose names have
been copiously mentioned in the appeal were not qualified to
hold the post of examiner and they were not capable even to
set the test papers to the examiners nor capable to evaluate
the papers. We are not called upon to decide the legality
of their appointments nor their credentials in this appeal
as that question does not arise nor are they before the
court. It is next contended by Mr. Yogeshwar prasad, the
learned Senior counsel that on account of inefficiency in
the pilots’ operational Capability repeatedly air accidents
have been occurring endangering the lives of innocent
travellers and this Court should regulate the prescription
of higher qualifications and strict standard to the
navigators or to the pilots be instead on. We are afraid
that we cannot enter into nor undertake the responsibility
in that behalf’. It is for the expert body and this Court
does not have the assistance of experts. Moreover it is for
the rule making authority or for the legislature to regulate
the method of recruitment, prescribe qualifications etc. It
is open to the President or the authorized person to
undertake such exercise and that necessary tests should be
conducted by U.P.S.C. before giving, the certificates to
them. This is not the province of this Court to trench into
and prescribe qualifications in particular when the matters
are of the technical nature. It is stated in the counter
affidavit that due to advancement of technology of the
flight aviations the navigators are no longer required and
therefore they are not coming in large number. Despite the
repeated advertisements no suitable candidate is coming
forward, We do not go into fault aspect also and it is not
necessary for the purpose of this case. Suffice to state
that pursuant to another advertisement made in July 1992,
the appellant is stated to have admittedly applied for and
appeared before the
778
U.P.S.C. for selection and that he is awaiting the result
thereof.Under these circumstances. we do not find any
substance in this appeal.The appeal is accordingly
dismissed.No costs.
U. R.
Appeal dismissed.
779