High Court
Case Details
WP(C) 66/2010 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE MR. JUSTICE P.K. MUSAHARY In the State of Assam, apart from Government Engineering Colleges and Engineerin g Institutes, there are four Government colleges, namely, Cotton College, Diphu Government College, Haflong Government College and Kokrajhar Government College. The petitioners are lecturers of Diphu Government College and Haflong Governmen t College. At the time of appointment of the petitioners to the posts of lecture rs of Government Colleges, their service conditions were governed by the Assam E ducation Service Rules, 1982 (hereinafter referred to as ’the 1982 Rules’), the Rules having been framed under Article 309 of the Constitution of India. 2. Though the conditions of service of the petitioners are still governed b y the 1982 Rules, they have put to challenge, with the help of this writ petitio n, made under Article 226 of the Constitution of India, (cid:28)amendment Note (cid:29) below R ule 3 of the 1982 Rules, which has come into effect, with the publication of the requisite notification, in the official Gazette, on 15-09-2009. The (cid:28)amendment Note (cid:29) has been introduced by the Assam Education Service (Amendment) Rules, 2009 , which is hereinafter referred to as the Amended Rules, 2009. The amendment Not e below Rule 3 of the 1982 Rules reads as under: (cid:28)Each of the post in Sub-Rule (1) shall form an independent cadre except in the case of the Principals, Vice-Principals, Professors, Assistant Professors, Selec tion Grade Lecturers Senior-Grade lecturers and lecturers of Government Degree C olleges, including non-technical Assistant Professors of polytechnics. In their cases, for each of these posts, there shall be an independent cadre in each Gove rnment Degree College and one cadre for non-technical teaching faculty of Engine ering Colleges and Polytechnics. Members of any cadre shall have no claim for ap pointment in a higher cadre except in accordance with the provisions of these Ru les. (cid:29) 3. Rule 3 of 1982 Rules enlists various classes or cadres. In terms of the Pre-amended 1982 Rules, lecturers of Government Degree Colleges, including non-t echnical lecturers of Engineering Colleges and Polytechnics, form one cadre. Rul e 3 of the Pre-Amended 1982 Rules mentions that each of the posts, mentioned in Sub-Rule (1) of Rule 3 (such as, the posts of lecturer of Government Degree Coll eges), form an independent cadre and that no member of any given cadre shall hav e any claim for appointment to higher cadre except as provided by the 1982 Rules . 4. The petitioners were directly recruited to the posts of lecturer and whi le some of them were posted to Diphu Government College, the others were posted as lecturers in Haflong Government College. In terms of the (cid:28)Note (cid:29) given below R ule 3 of the Pre-amended 1982 Rules, the lecturers of the four Government Colleg es, namely, Cotton College, Diphu Government College, Haflong Government College and Kokrajhar Government College as well as the Government Engineering Colleges and Government Institutes formed, as indicated above, a common cadre. Rule 4 of the Pre-Amended 1982 Rules had, however, left the Governor with the power to de termine the cadre strength of the lecturers of the said Government Colleges. 5. In terms of the (cid:28)Note (cid:29) given below Rule 3 of the Pre-Amended 1982 Rules, lecturers, appointed as direct recruits, could be posted to any of the aforemen tioned colleges and they formed a common seniority. In other words, because of t he common seniority and common cadre, a lecturer of any of the said Government C olleges could have been transferred from one college to another. 6. By virtue of the amendment incorporated in the (cid:28)Note (cid:29) given below Rule 3 of the Pre-Amended 1982 Rules, the lecturers of the four Government Colleges, n amely, Cotton College, Diphu Government College, Haflong Government College and Kokrajhar Government College, shall, now, form independent cadre in their respec tive four Government Degree Colleges and none of the members of any of these fou r Colleges can, now, seek transfer to, or appointment in, any of the said four Colleges; whereas the pre-amended 1982 Rules permitted his transfer to any of th e said four Government colleges. Once appointed to a given Government college, a s a lecturer, the appointee will, now, continue to remain in the same college so long as he remains a lecturer. 7. Thus, the effect of the amendment, as introduced by the Amendment Rules, 2009, is that with effect from 15-09-2009, each lecturer of the said four degre e colleges would form independent cadre and it would not be possible for them, t herefore, to seek transfer nor can they be transferred from one Government degre e college to another Government degree college.
Decision
8. It is the constitution of the four independent cadres, in the said four degree colleges, by virtue of the Amendment Rules, 2009, which forms the subject matter of challenge in the present writ petition. The petitioners contend that the Amendment Rules, 2009, are retrospective in nature inasmuch as it takes away from the petitioners their rights to seek transfer from one Government Degree C ollege to another Government Degree College, because of the fact that each of th e Government colleges would, henceforth, constitute an independent cadre. This a part, according to the petitioners, the amendment is arbitrary, unreasonable, ir rational and mala fide inasmuch as the amendment has been introduced, because th e Government was unable to stop exodus of lecturers from colleges, such as, Diph u Government College and Haflong Government College, which are located at underd eveloped places, to Cotton College, Guwahati, which is regarded as the premier c ollege and stands located at a developed place like Guwahati. 9. Furthermore, the amendment, according to the writ petitioners, does not achieve the object with which the amendment has been brought. The petitioners co ntend that the Government’s failure to carry out transfer of lecturers, serving in Cotton college, to any of the other Government colleges has led to the making of the amendments and the petitioners are, thus, being penalized for the failur e of the Government. In order to show that the Government’s action is arbitrary, the respondents referred to the Cabinet Memorandum, which came to introduce th e impugned amendments in the 1982 Rules. The relevant portion of the Cabinet Mem orandum, leading to making of the Amendment Rules, 2009, reads as under: (cid:28)CABINET MEMORANDUM (CIRCULATED UNDER RULE 17 OF THE RULES OF EXCUTIVE BUSINESS) Sub: AMENDMENT OF ASSAM EDUCATION SERVICE RULES, 1982 Assam has six Govt. colleges, which have a common cadre for the teaching faculty of Professors, Lecturers etc. Rules also provide that the Principals fo r these colleges would be appointed by promotion from the common gradation list. A lot of difficulties are being faced because of these provisions. There is a c onstant tendency of the teaching faculty to seek transfer to Cotton College as s oon as vacancies arise there. Because of this Colleges situated at Diphu, Haflon g and Kokrajhar are continuously faced with a shortage of teachers. The situatio n is worse for the post of Principal. Since all the senior Professors are in Cot ton College and they are not prepared to move out from there to go as Principal, despite repeated efforts and offers of appointment being made, the post of Prin cipal in Haflong College and Diphu College has remained vacant almost for the en tire period since inception. For a very short time one Principal had joined to t ake promotion as he was retiring within a few months otherwise the two colleges have had In-charge Principals. In order to meet the situation two proposals are put forward:- a) Common cadre of Govt. Degree Colleges be broken up. There may be a separate c adre for each college and one cadre for the non-technical teaching faculty of En gineering Colleges and Polytechnics. b) The post of Principal of Govt. Degree Colleges which is now a promotional pos t be made a post to be filled up by direct recruitment. 2) The advantage in breaking up the common cadre would be that the teaching faculty would not be in a position to seek transfer from their respective colle ges because of which the chronic problem of vacancies in the colleges situated a t difficult locations would be substantially reduced. Filling up of the post of Principal by direct recruitment is the right thing to do. Apart from the fact th at the present system of filling up this post by promotion has not worked, most other institutions like Engineering Colleges, Law College and even Provincialise d Colleges have a system of direct recruitment for the post of Principal. The jo b of a Principal is of an administrative nature for which a person needs to be s elected on the basis of his administrative capabilities. It is not necessary tha t the senior most person in the gradation list would fulfill this requirements. 3) The Assam Education Service Rules, 1982 govern these matters. The said R ules are placed at Annexure-I. Amendments would be needed in these Rules which a re placed at Annexure-II. 4) There are no financial implications in the proposal. There could be a ne gligible saving as the transfer TA payable to the teachers on transfer would not be payable any longer. The rule of as are where are shall be applied to impleme nt the scheme. Accordingly whoever is posted at whichever college would be borne in the cadre of that college. All subsequent appointments would be made to the specific colleges. (cid:29) 10. We have heard Mr. SS Dey, learned counsel, for the petitioners, and Mr. D Saikia, learned Additional Advocate General, Assam, appearing on behalf of the respondents. 11. In the present case, it is of utmost importance to note that as a State, the Government cannot give to any particular degree college precedence over oth er degree colleges. In fact, it is not even averred, in the writ petition, that the Government treats the Cotton College as superior to other degree colleges, i n Assam, namely, Diphu Government College, Haflong Government College and Kokraj har Government College. No wonder, therefore, that the learned Additional Advoca te General asserts that in the eyes of Government, all the four degree colleges stand on the same level and the Government does not intend to give any preferent ial treatment to Cotton College vis-à-vis other degree colleges. 12. It is, no doubt, true that Diphu Government College, Haflong Government College and Kokrajhar Government College are situated at places, which are not a s developed as Guwahati. One cannot, however, ignore the fact that merely becaus e of the fact that a given college is situated at a less developed place, Govern ment shall not pay, or shall stop from paying, as much attention as it pays to a college, which is situated at a developed place, nor can the Government be perm itted to ignore, or shall ignore, the quality of education provided to the stude nts in any of its colleges. 13. It is not the petitioners’ case that the petitioners are less meritoriou s than the lecturers, who are presently serving in Cotton College and, hence, th e students of Diphu Government College, Haflong Government College and Kokrajhar Government College have as much right to have better and improved education as the students of Cotton College. 14. If the quality of education is the object to be achieved by the formatio n of independent cadre, the same can neither be regarded as arbitrary nor unreas onable and/or irrational. As far as accusation of mala fide is concerned, no spe cific fact has been pleaded to show that the action of the Government, in making the Amendment Rules, 2009, is mala fide. The remedy to the exodus of lecturers from Diphu Government College, Haflong Government College and Kokrajhar Governme nt College, which are located in less developed areas, to Cotton College, which is located at a developed place, such as, Guwahati, needed to be stopped and whe n the Government has made the necessary amendments in the 1982 Rules, the amendm ents, so made, cannot be said to be unconstitutional or violative of any fundame ntal or legal right of the petitioners inasmuch as the petitioners do not have a ny fundamental right or indefeasible right to remain in any particular college a nd/or to seek transfer to any specific Government degree college. As far as thei r right to remain in a college is concerned, the same is subject to the Governme nt’s power to change the service conditions. The benefit, which one enjoys by vi rtue of service conditions embodied in a set of Rules, may be taken away by chan ging the service conditions and a change, in the service conditions, cannot be p ut to challenge unless the same is arbitrary, unconstitutional, unreasonable or mala fide. 15. As a policy decision, when the Government, for functional, operational o r administrative improvement, makes any change in the service conditions of its employees, the change, so introduced, cannot be interfered with unless the chang e is found to be unconstitutional. The unconstitutionality will obviously inclu de a policy, which is arbitrary, irrational, unreasonable or mala fide. 16. We need, at this stage, to remind ourselves that though the employment o f a Government employee and the employment of a person in a private sector is, o riginally, contractual in nature, what distinguishes a Government employee from others is that a Government employee acquires, on his appointment to a Governmen t office, a status. As a result of this status, which he acquires, his service c onditions are determined on the basis of the relevant provisions of the Constitu tion and the statute. In consequence thereof, a Government servant’s rights and obligations can be determined by the statutory or the constitutional authority c oncerned and for such exercise of powers, the authority concerned does not, unli ke the case of a private employee, require consent from the Government employee concerned. In other words, Government can alter terms and conditions of its empl oyees unilaterally, though, in practice, such alteration may face protest from t he employees concerned. This does not, however, mean, we must hasten to add, tha t the consent of the Government employee is a condition precedent for changing t he terms and conditions of his service by the statutory or constitutional author ity in terms of the provisions of the relevant statutes and/ or the Constitution . A reference may be made, in this regard, to the case of State of J&K Vs. T. N. Khosa (AIR 1974 SC 1), wherein the Supreme Court has held thus: \It is well settled that though employment under the Government like that under any other master may have a contractual origin, the Government servant acquires a ’status’ on appointment to his office. As a result, his rights and obligations are liable to be determined under statutory or constitutional authority which, for its exercise, requires no reciprocal consent. The government can alter the t erms and conditions of its employees unilaterally and though in modern times con sensus in matters relating to public services is often attempted to be achieved consent is not a pre-condition of the validity of rules of service, the contract ual origin of the service notwithstanding. \ (Empha sis is added) 17. What surfaces from the above is that the service conditions of a Government employee can be changed by making changes in the relevant statutes or rules by t he statutory or constitutional authority concerned in terms of the statute and/o r the Constitution. 18. What logically follows from the above discussion is that unlike an empl oyee in a private sector, a Government employee’s terms and conditions of servic e are governed by the relevant statutes, rules and provisions of the Constitutio n. Such conditions of service can be changed by the constitutional or statutory authority concerned unilaterally. Such a change can even be made with retrospect ive effect; but benefits acquired or a right, which has accrued or comes to be v ested in a Government employee by virtue of the existing rules, cannot be impair ed, far less, taken away by amending the conditions of service with retrospectiv e effect. Whether an amendment, with retrospective effect, has taken away an acc rued or vested right is, however, essentially a mixed question of fact and law a nd can be determined on the basis of the facts of a given case. 19. In Union of India Vs. Puspa Rani and others, reported in (2008) 9 SCC 24 2, the Supreme Court has held that the power of judicial review can be exercised only when it is shown that the action of an employer is contrary to any constit utional or statutory provisions or the action is patently arbitrary or the same is vitiated due to mala fide. The relevant observations, appearing at para 37, r ead as under: (cid:28)Before parting with this aspect of the case, we consider it necessary to reiter ate the settled legal position that matters, relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the sou rce/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employ er. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercise d in such matters only if it is shown that the action of the employer is contrar y to any constitutional or statutory provisions or is patently arbitrary or is v itiated due to mala fides. The Court cannot sit in appeal over the judgment of t he employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The cou rt cannot suggest the manner in which the employer should structure or restructu re the cadres for the purpose of improving efficiency of administration. (cid:29) (Emphasis is added) 20. From what has been observed, in Puspa Rani (supra), it becomes clear tha t the Court cannot, ordinarily, sit in appeal over the judgment of the employer and it is primarily for the Government to create or abolish posts, form, structu re/restructure cadres, prescribe the source or mode of recruitment and qualifica tions, criteria of selection, etc. Interference with matters, as indicated herei nbefore, is possible in exercise of the power of judicial review if the action o f the employer is shown to be contrary to any constitutional or statutory provis ions or is patently arbitrary or vitiated by mala fide. 21. Laying down the scope of judicial review in matters of administrative or legislative action, the Supreme Court, in State of A.P. Vs. Mcdowell & Co., rep orted in (1996) 3 SCC 709, has held as under: (cid:28)43. Shri Rohinton Nariman submitted that inasmuch as a large number of persons falling within the exempted categories are allowed to consume intoxicating liquo rs in the State of Andhra Pradesh, the total prohibition of manufacture and prod uction of these liquors is ’arbitrary’ and the amending Act is liable to be stru ck down on this ground alone. Support for this proposition is sought from a judg ment of this Court in State of T.N. v. Ananthi Ammal. Before, however, we refer to the holding in the said decision, it would be appropriate to remind ourselves of certain basic propositions in this behalf. In the United Kingdom, Parliament is supreme. There are no limitations upon the power of Parliament. No court in the United Kingdom can strike down an Act made by Parliament on any ground. As a gainst this, the United States of America has a Federal Constitution where the p ower of the Congress and the State Legislatures to make laws is limited in two w ays, viz., the division of legislative powers between the States and the Federal Government and the fundamental rights (Bill of Rights) incorporated in the Cons titution. In India, the position is similar to the United States of America. The power of Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by Parliament or the legislature can be struck down by cou rts on two grounds and two grounds alone, viz., (1) lack of legislative competen ce 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 gro und. We do not wish to enter into a discussion of the concepts of procedural unr easonableness and substantive unreasonableness - concepts inspired by the decisi ons of United States Supreme Court. Even in U.S.A., these concepts and in partic ular the concept of substantive due process have proved to be of unending contro versy, the latest thinking tending towards a severe curtailment of this ground ( substantive due process). (cid:29) (Emphasis is added) 22. From what has been observed, in Mcdowell & Co. (supra), it becomes clear that the Court can not strike down an enactment unless the legislation suffers from lack of legislative competence or violation of any fundamental rights or an y other rights or any other constitutional provisions. 23. Dealing with the concept as to when a valid piece of legislation can be struck down, the Supreme Court, in Prafulla Kumar Das Vs. State of Orissa, repor ted in (2003) 11 SCC 614, has observed, at para 45, thus: (cid:28)In this case, the petitioners seek benefit to which they are not otherwise enti tled. The legislature, in our opinion, has the requisite jurisdiction to pass an appropriate legislation which would do justice to its employees. Even otherwise a presumption to that effect has to be drawn. If a balance is sought to be stru ck by reason of the impugned legislation, it would not be permissible for this C ourt to declare it ultra vires only because it may cause some hardship to the pe titioners. A mere hardship cannot be a ground for striking down a valid legislat ion unless it is held to be suffering from the vice of discrimination or unreaso nbleness. A valid piece of legislation, thus, can be struck down only if it is f ound to be ultra vires Article 14 of the Constitution of India and not otherwise . We do not think that in this case, Article 14 of the Constitution is attracted . (cid:29) ded) 24. From what has been observed above, in Prafulla Kumar Das (supra), it bec omes abundantly clear that a mere hardship cannot be made a ground for striking down a valid piece of legislation unless it is held to be suffering from the vic e of discrimination or unreasonbleness. A valid piece of legislation, therefore, can be struck down only if the legislation is found to be ultra vires Article 1 4 of the Constitution of India and/or beyond legislative competence. (Emphasis is ad In support of the petitioners’ case, Mr. Dey has placed reliance on K. R 25. avindranath Pai v. State of Karnataka, 1995 Supp (2) SCC 246, which is wholly in applicable. In Ravindranath Pai’s case (supra), there was bifurcation of pay sca le of the earlier existing common cadre of Junior Engineers and the bifurcation was brought with retrospective effect. The bifurcation had resulted into chaos i nasmuch as bifurcation, in the cadres of Junior Engineers, had the effect of con stituting two different groups. One group comprised of graduates and the other o f non-graduates and the graduates started receiving higher pay scale than the no n-graduates with retrospective effect. Apart from the fact that the policy was h eld to be discriminatory and violative of Articles 14 and 16, it was also held t hat it would result in hostile discrimination against graduate engineers. It is in this backdrop that the retrospective bifurcation of common cadre into two sep arate cadres was held to be legally impermissible. 26. In the case at hand, the amendment, as already indicated above, has intr oduced a scheme of formation of independent cadre for each of the four Governmen t Degree Colleges. Breaking the common cadre of the said four degree colleges in to four independent cadres cannot be said to be bad in law. The petitioners cann ot claim any vested right to be transferred to Cotton College, when the Constitu tion makes it obligatory for the Government to treat its citizens on equal footi ng and provide every citizen with good quality of education and if that be the G overnment’s aim and also the duty, there is no reason for a lecturer, who has al ready been appointed to a particular college, to claim that he has an inherent r ight to be transferred to a college located at a more developed place. If this a rgument is accepted, the poorly developed areas would never be provided with goo d education and would be made to suffer from lack of good quality education. 27. In the present case, when the Government has decided to give students of even the underdeveloped areas education as good as in the developed places, suc h as, Guwahati, the Government’s action cannot be described or branded as arbitr ary, irrational, unreasonable or mala fide. The petitioners have not been able to assign any convincing and/or cogen 28. t reason as to why they must be allowed to go on transfer to Cotton College and when they have failed to assign any good and convincing reason, in this regard, one cannot help, but hold that the petitioners have not been able to make out an y case warranting this Court to invoke its extraordinary jurisdiction, under Art icle 226 of the Constitution of India, for the purpose of interfering with the A mended Rules, 2009. 29. and the same shall accordingly stand dismissed. 30. In the result and for reasons discussed above, this writ petition fails No order as to costs.