Vinay Kumar (Company Commander ... vs The State Of Jharkhand
2022 Latest Caselaw 1052 Jhar

                               -1-



     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(S) No. 1735 of 2020
                            ----

1. Vinay Kumar (Company Commander Jharkhand Home Guard) aged about 40 years, S/O Bhagirrath Singh Chaudhary, Posted At.-District Home Guard Office Palamu, Post-Daltonganj, P.S. Daltonganj Sadar, District- Palamu.

2. Asit Kumar Lakra (Company Commander Jharkhand Home Guard) aged of 32 years, S/O Kristofar Lakra, Posted At-District Home Guard Office Chatra, Post-Chatra, P.S.-Chatra, District-Chatra.

3. Mahendra Harijan, (Company Commander Jharkhand Home Guard) aged about 35 years, S/O Bijay Harijan, Posted at-District Home Guard Office, Ramgarh, Post & P.S.-Ramgarh, District-Ramgarh.

4. Sudhir Kumar, (Company Commander Jharkhand Home Guard) aged about 35 years S/O Shatrughan Singh, Posted at - District Home Guard Office, Ranchi, Post & P.S. - Ranchi, District - Ranchi.

5. Chamra Minz, (Company Commander Jharkhand Home Guard) aged about 45 years, S/O Ropna Minz, Posted At- District Home Guard Office, Hazaribagh, Post & P.S.- Hazaribagh, District-Hazaribagh.

6. Azim Ansari, (Company Commander Jharkhand Home Guard) aged about 38 years S/O Jasmudin Ansari, Posted at - District Home Guard Office, Giridih, Post-Giridih & P.S. - Pachamba, District - Giridih.

7. Prabhat Kachhap, (Company Commander Jharkhand Home Guard) aged about 45 years S/O Late Yacub Kachhap, Posted at - District Home Guard Office, Simdega, Post & P.S.-Simdega, District-Simdega.

8. Dhiraj Kumar Jha, (Company Commander Jharkhand Home Guard) aged about 37 years S/O Sudhir Chandra Jha, Posted at - District Commandant Office Koderma, P.O. & P.S. Chandbara, District-Koderma.

                                       ...   ...    Petitioners
                              Versus
1. The State of Jharkhand.

2. The State of Jharkhand though Secretary, Govt. of Jharkhand, Dept. of Home, Jail and Disaster Mgmt. (Home), Project Bhawan, P.O. & P.S. _ Dhurwa, District- Ranchi.

3. The Secretary, Govt. of Jharkhand, Dept. of Personnel, Administrative Reforms & Rajbhasha, Project Bhawan, P.O. & P.S. _ Dhurwa, District-Ranchi.

4. The Director General of Home Guard and Fire Services, Government of Jharkhand, P.O. & P.S. - Doranda, District- Ranchi.

5. The Head Office through Deputy Inspector General, Jharkhand Home Guard and Fire Service, P.O. & P.s. - Doranda, District - Ranchi.

... ... Respondents

-------

CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

------

For the Petitioners : Mr. Anil Kumar Sinha, Sr. Advocate Mr. Mohan Kumar Dubey, Advocate For the Respondents : Mr. P.A. S. Pati, S.C.-IV Mr. Vinod Kumar Sahu, Advocate

--------

C.A.V. on 02.12.2021 Pronounced on 15.03.2022

Per Dr. Ravi Ranjan, C.J.

The instant writ petition has been filed under Article 226

of the Constitution of India wherein following prayers have been

made :-

(a) A writ of and/or order and/or direction in the nature

of writ of mandamus, or a writ of certiorari or any

other appropriate writ, order or direction to declare

Rule 7 of the Jharkhand Home Guard (Gazetted)

service Rule, 2016 as unconstitutional and ultra

vires which issued by the Government of Jharkhand

vide notification dated 9/8/2016 vide memo no.

3848 (Annexure-2);

(b) A writ of and/or order and/or direction in the nature

of writ of mandamus, or a writ of certiorari or any

other appropriate writ, order or direction, under

Article 226 of the Constitution of India Rule 7 of the

Jharkhand Home Guard (Gazetted) Service Rule,

2016 as unconstitutional and ultra vires;

(c) A writ of and/or order and/or direction in the nature

of writ of mandamus, or a writ of certiorari or any

other appropriate writ, order or direction, under

Article 226 of the Constitution of India Rule 7 of the

Jharkhand Home Guard (Gazetted) Service Rule,

2016 contrary to law and provision as well

Resolution no.1565 dated 10/12/1976.

2. The brief facts of the case, as per the pleadings made in

the writ petition, which are required to be enumerated, read as

under :-

The writ petitioners claim to have joined on the post of

Company Commander, Jharkhand Home Guard in the year

2012 in different districts. The State Government has taken a

decision sometime in the year 1955 regarding ratio for

appointment to the post of District Commandant to be filled up

through direct recruitment to the extent of 50% and 50% by

way of promotion.

After bifurcation of the State of Bihar, the State of

Jharkhand has come out with a rule to be known as

―Jharkhand Home Guard (Gazetted) Service Rule, 2016‖ which

contains a provision for appointment of District Commandant

by way of promotion to the extent of 25% and 75% through

direct recruitment.

The case of the writ petitioners is that at the time of

joining in service there was a provision regarding ratio for

appointment to the post of District Commandant to be filled up

through promotion to the extent of 50% of the vacancies which

may increase to 100% subject to condition that there must be

eligible candidates available in feeder cadre. But the said rule

has been amended in purported exercise of power conferred

under Section 12(1) of the Jharkhand Home Guards Act, 2005

by reducing the quota of the post to be filled up through

promotion to the extent of only 25% and the rest 75% to be

filled up through direct recruitment.

3. Mr. Anil Kumar Sinha, learned senior counsel appearing

for the petitioners assisted by Mr. Mohan Kumar Dubey,

learned counsel, has submitted by taking aid of the provision of

Section 73 of the Bihar Reorganization Act, 2000 which

contains a provision that there cannot be any alteration in the

service condition of public servant. According to him since the

chance of promotion is a condition of service, as such, by

reducing the quota of the post to be filled up by way of

promotion from 50% to 25% is alteration in the service

condition which hits the provision of Section 73 of the Bihar

Reorganization Act, 2000 and, as such, the aforesaid provision

is not sustainable in the eyes of law and hence, fit to be struck

down.

Learned senior counsel has fortified his argument by

referring to the judgment rendered by the Hon'ble Apex Court

in T.R. Kapur and Others v. State of Haryana and Others

[1986 (Supp) SCC 584]. He submits that on the very same set of facts,

the judgment has been passed by Hon'ble Apex Court treating

the chance of promotion to be service condition and since

amendment has been made in the recruitment rule so far as it

relates to the promotion in the cadre which has been

considered by Hon'ble Apex Court in the aforesaid case as

alteration of the service condition and, therefore, the same has

been held to be invalid. He further submits that herein also the

Rule has been amended after entry of the petitioners in service

by which the chance of promotion has been reduced by limiting

the quota of posts to be filled up by way of promotion from 50%

to 25% which is in the teeth of the proviso to Section 73 of the

Bihar Reorganization Act, 2000.

4. Mr. P.A.S.Pati, learned S.C.-IV appearing for the State of

Jharkhand, assisted by Mr. Vinod Kumar Sahu, has submitted

that the provision as contained under Section 73 of the Bihar

Reorganization Act, 2000 is not applicable in the given facts of

the case as because the writ petitioners have entered into the

service in the year 2012 while Section 73 speaks about non-

alteration of service condition which was prevailing on the

appointed day and appointed day as per the Bihar

Reorganization Act, 2000 has already been provided as

15.11.2000. Since the writ petitioners were not in service on

15.11.2000 rather they have entered in service in the year

2012, therefore, there is no question of applicability of the

Section 73 of the Bihar Reorganization Act, 2000.

He further submits that on facts the judgment rendered by

Hon'ble Apex Court in T.R. Kapur and Others v. State of

Haryana and Others (Supra) is not applicable.

He further submits that chance of promotion cannot be

considered to be a service condition and in order to strengthen

his argument, he has relied upon the judgment rendered by the

Hon'ble Apex Court in State of Jharkhand v. Bhadey Munda

and Another [(2014) 10 SCC 398] as also the judgment

rendered in the case of Deepak Agarwal and Another v.

State of Uttar Pradesh and Others [(2011) 6 SCC 725] and a

judgment passed by Co-ordinate Division Bench of this Court

in L.P.A. No.82 of 2021 with L.P.A. No.85 of 2021, disposed

of on 10.09.2021.

5. We have heard the learned counsel for the parties and

gone across the pleadings as also the annexures appended

thereto.

6. The writ petitioners claim to be appointed sometime in the

year 2012 in the capacity of Company Commander. It is the

case of the writ petitioners that on the date of their entry in

service there was a decision of the State Government wherein

provision has been made to fill up the post of District

Commandant both through direct recruitment or by way of

promotion to the extent of 50% through direct recruitment and

50% by way of promotion.

The State of Jharkhand has come out with a Rule in the

year 2016 in the name and style of ―Jharkhand Home Guard

(Gazetted) Service Rule, 2016‖ under the provision of Section 12

of the Jharkhand Home Guard Act, 2005 wherein it has been

provided that 75% of the vacancies of the District Commandant

is to be filled up by way of direct recruitment and 25% through

promotion, thereby the extent of the post of District

Commandant to be filled up by way of promotion has been

reduced from 50% to 25%. The aforesaid provision of reducing

the extent of the post of District Commandant to be filled up

through promotion is under question which is contained under

the provision of Rule 3 of the Jharkhand Home Guard

(Gazetted) Service Rule, 2016 which reads as under :-

>kj[kaM ljdkj x`g] dkjk ,oa vkink izca/ku foHkkx vf/klwpuk jk¡ph] fnukad&[email protected]@2016 bZ0A

la[;k&[email protected] xk0 ¼LFkk½&[email protected]& [email protected] dk lafo/kku ds vuqPNsn 309 ds ijUrqd ,oa >kj[kaM x`g j{kd vf/kfu;e] 2005 ¼>kj[kaM vf/kfu;e 03] 2006½ dh /kkjk&12 ds }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, >kj[kaM jkT;iky] >kj[kaM x`g j{kk okfguh ¼jktif=r½ inksa dh fofHkUu dksfV;ksa esa fu;qfDr izksUufr ,oa vU; lsok 'krksZa dks fofu;fer djus ds fy, fuEukafdr fu;ekoyh xfBr djrs gSa %&

1 laf{kIr uke] foLrkj ,oa izkjaHk %&

-----------------------------------

2 ifjHkk"kk,¡ %&

---------------------------------------------

3 %&

(i) ;g laoxZ x`g] dkjk ,oa vkink izca/ku foHkkx] >kj[kaM ljdkj ds iz'kklh fu;a=.k esa gksxkA egklekns"Vk blds fu;a=h inkf/kdkjh gksx a s] tks Hkkjrh;

iqfyl lsok ds gksx a sA

(ii) bl laoxZ ds inksa dh lajpuk fuEu izdkj esa gksxh &

Ø0 in dk uke lh/kh inksa dk osrueku xzsM la0 fu;[email protected] oxhZdj.k is lfgr in 1 egklekns"Vk ds fo'ks"k izksUur in xzqi ^,* ih0ch0&IV dk;Z inkf/kdkjh (37400-87000) xzsM&is 8700 2 ize.Myh; lekns"Vk izksUur in xzqi ^,* ih0ch0&III (15600-39100) xzsM&is 7800

3. ojh; ftyk lekns"Vk izksUur in xzqi ^,* ih0ch0&III (15600-39100) xzsM&is 6600

4. ftyk lekns"Vk 75% lh/kh xzqi ^ch* ih0ch0&II fu;[email protected]% 9300-34800) izksUufrA xzsM&is 5400

7. The sole ground taken on behalf of the petitioners that

chance of promotion since is a condition of service, the same

cannot be altered once the writ petitioners have entered into

the service in the year 2012. The said rule has been contended

to be in the teeth of the provision of Section 73 of the Bihar

Reorganization Act, 2000.

While on the other hand, argument has been advanced on

behalf of the State that there is no question of applicability of

the provision of Section 73 of the Bihar Reorganization Act,

2000 because Section 73 stipulates about its applicability on

the cut-off date and as per the Bihar Reorganization Act, 2000,

the cut-off date is 15.11.2000 and admittedly on 15.11.2000

the writ petitioners since were not in service rather, they have

come in service in the year 2012 and, therefore, there is no

question of applicability of provision of Section 73 of the Bihar

Reorganization Act, 2000 and hence the validity of the provision

by which the extent of post to be filled up through promotion

which has been reduced from 50% to 25% cannot be said to be

invalid.

The further argument has been made that the Rule since

has been passed by way of policy decision, unless the same is

held to be unreasonable/arbitrary and discriminatory, then

only there can be interference in the said Rule but no such

ground has been made.

- 10 -

It has also been argued that it is not a case that the

chances of promotion of the petitioners have totally been

snatched away, rather only the extent of the post to be filled up

through promotion has been reduced from 50% to 25%.

8. This Court, on the basis of the aforesaid argument, deems

it fit and proper to answer the following issues :-

(i) Whether the provision of Section 73 of the Bihar

Reorganization Act, 2000 is applicable in the facts of the

case?

(ii) Whether the chance of promotion can be considered to be

a service condition?

Issue No.(i)

9. In order to answer the first issue, the provision of Section

73 of the Bihar Reorganization Act, 2000 is required to be

referred, which reads as under :-

―73. Other provisions relating to services.--(1) Nothing in section 72 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:

Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Bihar or to the State of Jharkhand under section 72 shall not be varied to his disadvantage except with the previous approval of the Central Government. (2) All services prior to the appointed day rendered by a person--

- 11 -

(a) if he is deemed to have been allocated to any State under section 72, shall be deemed to have been rendered in connection with the affairs of that State;

(b) if he is deemed to have been allocated to the Union in connection with the administration of the Jharkhand shall be deemed to have been rendered in connection with the affairs of the Union, for the purposes of the rules regulating his conditions of service.

(3) The provisions of section 72, shall not apply in relation to members of any All-India Service.‖

It is evident from the aforesaid provision that nothing in

section 72 shall be deemed to affect on or after the appointed

day the operation of the provisions of Chapter I of Part XIV of

the Constitution in relation to determination of the conditions

of service of persons serving in connection with the affairs of

the Union or any State. Provided that the conditions of service

applicable immediately before the appointed day in the case of

any person deemed to have been allocated to the State of Bihar

or to the State of Jharkhand under section 72 shall not be

varied to his disadvantage except with the previous approval of

the Central Government.

Thus, it is evident that Section 73 contains a proviso

which stipulates that there cannot be alteration in the service

conditions applicable immediately before the appointed day in

the case of any person deemed to have allocated to the State of

Bihar or to the State of Jharkhand under section 72 shall not

- 12 -

be varied to his disadvantage except with the previous approval

of the Central Government.

The aforesaid provision speaks about the deemed

allocation of cadre on the appointed day i.e., on 15.11.2000,

prior to the final decision which is to be taken in exercise of

power conferred under Section 72(2) of the Bihar

Reorganization Act, 2000 to be taken by the Central

Government by taking final decision for allocation of cadre.

Admittedly herein, so far as the given facts of the case is

concerned, the writ petitioners were not in service on the

appointed day i.e., 15th day of November, 2000, as has been

notified vide Notification S.O. 829(E), dated September 14, 2000

published in the Gazette of India, Extraordinary, Pt. II. Sec.

3(ii), No. 601, dated 14th September, 2000 whereby the Central

Government appoint the 15th day of November, 2000 as

appointed day for the purposes of the Act.

The writ petitioners have joined service sometime in the

year 2012 in the capacity of Company Commander. Since they

have joined their service in the year 2012, as such, there is no

question of their being in service on the appointed day and

hence, there is no question of deemed allocation of cadre as

stipulated under the provision of Section 73 of the Bihar

Reorganization Act, 2000.

The ‗deemed allocation of cadre' as per the provision of

Section 73 of the Bihar Reorganization Act, 2000 deals with

- 13 -

such employee who were posted as on 15.11.2000 within the

territorial jurisdiction of the successor States i.e., successor

State of Bihar or successor of Jharkhand subject to final

decision to be taken in view of the provision of Sub-section 2 of

Section 72 of the Bihar Reorganization Act, 2000. Admittedly

herein, the writ petitioners cannot be said to be either within

the territory of successor State of Bihar or Jharkhand deeming

them to be in service as on the appointed day since they were

not in service on 15.11.2000 rather they have been appointed

only sometime in the year 2012.

10. Learned counsel appearing for the petitioner has relied

upon the judgment rendered by Hon'ble Apex Court in T.R.

Kapur and Others v. State of Haryana and Others (Supra).

We have considered the aforesaid judgment and found from the

factual aspect involved therein leading to the case of Punjab

Reorganization Act, 1966. The aforesaid Act of 1966 contains a

provision under Section 82(6) which speaks that the condition

of service applicable immediately before the appointed day to

the case of any person referred to in sub-section (1) or sub-

Section (2) shall not be varied to his disadvantage except with

the previous approval of the Central Government. Thus, the

Punjab Reorganization Act, 1966 is having the pari materia

provision as has been stipulated under the provision of Section

73 of the Bihar Reorganization Act, 2000.

The grievance of the appellant in the aforesaid case was

- 14 -

that as to whether Degree in Engineering was necessary when

the post of Executive Engineer which is a post in Class-I service

was to be filled up by promotion by the members of Class-II

service and while delving upon the said issue, the Hon'ble Apex

Court has come to a finding that a member of Class-II service

namely, Assistant Engineer or Sub-Divisional Officer did not

require to have University Degree for promotion to the post

Executive Engineer in Class-I service.

It further appears from the said judgment that all the

aggrieved Assistant Engineers/Sub Divisional Officers were

already in service as on the date of coming into effect of the

Punjab Reorganization Act, 1966 since they have joined service

in the erstwhile State of Punjab but herein, the writ petitioners,

admittedly, have joined their services in the year 2012 and as

such, on fact the judgment rendered by the Hon'ble Apex Court

in T.R. Kapur and Others v. State of Haryana and Others

(Supra) is not applicable.

11. In the case in hand, since the writ petitioners have been

appointed sometime in the year 2012 and not on the appointed

day i.e., on 15.11.2000, so as to attract the provision of Section

73 of the Bihar Reorganization Act, 2000 since provision of

Section 73 stipulates about applicability of the said provision on

such employees, who, on the appointed day, were either in the

successor State of Bihar or in the successor State of Jharkhand

and the service conditions cannot be altered detrimental to

- 15 -

their interest, meaning thereby, importance of appointed day is

of paramount consideration. There is no question of

applicability of Section 73 on such group of employees who

were not in service as on 15.11.2000 since they cannot be said

to have been allocated the Cadre on the basis of deemed

allocation of cadre, rather they will be said to be appointees of

the State by which they have been appointed and, as such, the

contention raised by the petitioner in this regard about

applicability of Section 73 is having no foundation.

12. The issue No.(i) is answered accordingly.

Issue No. (ii)

13. So far as this issue is concerned, the rival submissions

have been made that the chance of promotion to a public

servant is considered to be a condition of service. It is settled

position of law that getting promotion has not been treated to

be a fundamental right, rather right of consideration for

promotion has been held to be a fundamental right as has been

held by Hon'ble Apex Court in Deepak Agarwal and Another

v. State of Uttar Pradesh and Others (Supra) at paragraphs

26, 27 and 28 which are quoted hereunder :-

"26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the ―rule in force‖ on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is

- 16 -

interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case [(1983) 3 SCC 284] lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment.

27. The judgments cited by the learned counsel for the appellants, namely, B.L. Gupta v. MCD [(1998) 9 SCC 223] and N.T. Devin Katti v. Karnataka Public Service Commission [(1990) 3 SCC 157] are reiterations of a principle laid down in Y.V. Rangaiah case [(1983) 3 SCC 284]. All these judgments have been considered by this Court in Rajasthan Public Service Commission v. Chanan Ram [(1998) 4 SCC 202]. In our opinion, the observations made by this Court in SCC paras 14 and 15 of the judgment are a complete answer to the submissions made by Dr. Rajeev Dhavan. In that case, this Court was considering the abolition of the post of Assistant Director (Junior) which was substituted by the post of Marketing Officer. Thus the post of Assistant Director (Junior) was no longer eligible for promotion, as the post of Assistant Director had to be filled by 100% promotion from the post of Marketing Officer. It was, therefore, held that the post had to be filled under the prevailing rules and not the old rules.

28. In our opinion, the matter is squarely covered by the ratio of the judgment of this Court in Dr. K. Ramulu [(1997) 3 SCC 59]. In the aforesaid case, this Court considered all the judgments cited by the learned Senior Counsel for the appellant and held that Y.V. Rangaiah case [(1983) 3 SCC 284] would not be applicable in the facts and circumstances of that case. It was observed that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. It was also held that when the Government takes a conscious

- 17 -

decision and amends the rules, the promotions have to be made in accordance with the rules prevalent at the time when the consideration takes place.‖

Similarly, in the case of Subodh Kumar and Others v.

Commissioner of Police and Others [(2020) 13 SCC 201], it

has been held :-

―16. It is equally a settled proposition of law that a candidate has a right to be considered under the existing rules, which implies the ―rule in force‖ on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up earlier year vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion.‖

It is evident from the judgment rendered by the Hon'ble

Apex Court in Deepak Agarwal and Another v. State of

Uttar Pradesh and Others (Supra) as also Subodh Kumar

and Others v. Commissioner of Police and Others (Supra),

wherein it has been laid down that the candidate has the right

to be considered under the existing rules for promotion and

when the candidate has the right only to be considered for

promotion, itself suggests that to get promotion is not a matter

of right and, therefore, there is no question of chances of

promotion to be considered as service conditions.

The Hon'ble Apex Court has considered the issue of

chances of promotion to be conditions of service in Dhole

- 18 -

Govind Sahebrao and Others v. Union of India and Others

[(2015) 6 SCC 727] and after delving upon the said issue, it

was held that mere chances of promotion are not conditions of

service. It was elucidated at paragraph 40 as under :-

"40. As a proposition of law it is imperative for us to record that chances of promotion do not constitute conditions of service, and as such, mere alteration of chances of promotion, would not per se call for judicial interference. The above general proposition would not be applicable in case the chances of promotion are altered arbitrarily, or on the basis of considerations which are shown to be perverse or mala fide.‖

13. In view of the judgment rendered by Hon'ble Apex Court in

Deepak Agarwal and Another v. State of Uttar Pradesh

and Others (Supra) wherein consideration for promotion has

been considered to be a right and considering the judgment

rendered in Dhole Govind Sahebrao and Others v. Union of

India and Others (Supra), wherein the proposition has been

laid down that chances of promotion do not constitute

conditions of service, therefore, the contention raised by the

learned counsel appearing for the petitioner that merely

because the chances of promotion have been reduced by

reducing the extent of reservation to fill up the post by way of

promotion from 50% to 25%, cannot be said to be alteration in

service condition.

14. Issue No.(ii) is also answered accordingly.

15. Further, this Court is required to delve upon the issue

- 19 -

that if any statute has been formulated by way of policy

decision and if it does not suffer from any irregularity or

unreasonableness, whether interference can be made?

The Hon'ble Apex Court has decided the issue pertaining

to the validity of the statute, while holding at paragraph 20 of

the judgment in Namit Sharma v. Union of India [(2013) 1

SCC 745] which reads as under:-

"20. Dealing with the matter of closure of slaughterhouses in Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat [(2008) 5 SCC 33] , the Court while noticing its earlier judgment Govt. of A.P. v. P. Laxmi Devi [(2008) 4 SCC 720] , introduced a rule for exercise of such jurisdiction by the courts stating that the court should exercise judicial restraint while judging the constitutional validity of the statute or even that of a delegated legislation and it is only when there is clear violation of a constitutional provision beyond reasonable doubt that the court should declare a provision to be unconstitutional. Further, in P. Laxmi Devi [(2008) 4 SCC 720] , the Court has observed that even if two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must prevail and the court must make efforts to uphold the constitutional validity of a statute, unlike a policy decision, where the executive decision could be rendered invalid on the ground of mala fides, unreasonableness and arbitrariness alone.‖

In the instant case, the writ petitioners have not raised any

issue to get the impugned Rule declared unconstitutional on the

ground of mala fides, unreasonableness and arbitrariness,

therefore, applying the principle laid down by the Hon'ble Apex

Court in Namit Sharma v. Union of India (Supra), this Court is

of the considered view that no interference can be made to the

impugned provision of the statute.

16. This Court, after taking into consideration the facts in

- 20 -

entirety and as per the discussions made hereinabove, is of the

considered view that the writ petition lacks merit and the same is, accordingly,

dismissed.

17. Pending interlocutory application, if any, also stands

disposed of.

(Dr. Ravi Ranjan, C.J.) I agree

(Sujit Narayan Prasad, J.) (Sujit Narayan Prasad, J.)

Birendra/ A.F.R.