Rajasthan High Court - Jodhpur
Madan Singh Boda vs State Of Rajasthan on 4 January, 2022
Bench: Akil Kureshi, Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 19322/2018
Madan Singh Boda S/o Shri Sardarsingh Ji Boda, Aged About 52
Years, Village Chamunderi, Tehsil Bali, District Pali, At Present
Regional Forest Officer Range Shergarh, Deputy Forest Guard
Office , Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan, Through Chief Secretary, Government Of
Rajasthan, Jaipur.
2. Chief Secretary to the Government (Personnal), Government
of Rajasthan, Jaipur.
3. Additional Chief Secretary (Forest), Government of Rajasthan,
Jaipur.
4. Principal Chief Conservator of Forest (HOFF), Government of
Rajasthan, Jaipur.
----Respondents
For Petitioner(s) : Mr. Madan Singh Boda, petitioner,
present in person.
For Respondent(s) : Mr. Sandeep Shah, AAG with
Mr. Abhimanyu Singh Rathore.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE RAMESHWAR VYAS
Order
04/01/2022
This petition is filed challenging the vires of the amended
Rajasthan Forest Service Rules by virtue of which, for promotion
to the post of Assistant Conservator of Forests from the feeder
cadre of Ranger Grade-I, it is necessary that the candidate must
have a bachelor's degree with specified subjects in Science as
mentioned in column 4 to the schedule to the said Rules.
(2 of 7) [CW-19322/2018]
Briefly stated the facts are as under:
The petitioner possesses the qualification of B.Com. He
joined the Rajasthan Subordinate Service as a Ranger Grade-I in
the year 1994. Promotion from the said post, as per the
recruitment rules, is to the next higher post of Assistant
Conservator of Forests which is the basic cadre of Rajasthan State
Forest Service. As per the unamended rules, the post of Assistant
Conservator of Forests would be filled 50 percent by promotion
and 50 percent by direct recruitment. Promotion would be from a
person holding the post of Ranger Grade-I. There was no
requirement that such person must possess degree in Science in
specified fields. For the reason of non-availability of vacancies in
the promotional post and his seniority, the petitioner could not be
promoted till the year 2015 when by impugned notification dated
16.04.2015, the Rajasthan Forest Service Rules, 1962 came to be
amended. In relation to the post of Assistant Conservator of
Forests the method of recruitment as per Schedule-I by virtue of
amendment reads as under:
S. Name Method Minimum Post Minimum Rem
No of the of qualification and from qualification & arks
Post recruitm experience for direct which experience for
ent with recruitment promot promotion
percent ion is
age to be
made
2. Assista 50% by Bachelor's degree with Ranger Bachelor's degree with
nt direct at least one of the Grade-I at least one of the
Conser recruitme subjects namely subjects namely
vator nt and Animal Husbandry & Animal Husbandry &
Forests 50% by Veterinary Science, Veterinary Science,
promotio Botany, Chemistry, Botany, Chemistry,
n Computer Computer
Application/Science, Application/Science,
Environmental Science, Environmental
Horticulture, Geology, Science, Horticulture,
Mathematics, Physics, Geology, Mathematics,
Statistics and Zoology Physics, Statistics and
or a Bachelor's degree Zoology or a
in Agriculture, Forestry Bachelor's degree in
(3 of 7) [CW-19322/2018]
or in Engineering of Agriculture, Forestry or
any of Universities in Engineering of any
incorporated by an Act of Universities
of the Central or State incorporated by an Act
Legislature in India or of the Central or State
other educational Legislature in India or
institutions established other educational
by an Act of Parliament institutions established
or declared to be by an Act of
deemed as a University Parliament or declared
under section 3 of the to be deemed as a
University Grants University under
Commission Act, 1956, section 3 of the
or possess an University Grants
equivalent Commission Act, 1956,
qualification. or possess an
equivalent qualification
& minimum 5 years
experience on the post
mentioned in column 5
Thus, for direct recruitment as well as for promotion, a
candidate must have a bachelor's degree with at least one of the
subjects namely Animal Husbandry & Veterinary Science, Botany,
Chemistry, Computer Application/Science, Environmental Science,
Horticulture, Geology, Mathematics, Physics, Statistics and
Zoology or a Bachelor's degree in Agriculture, Forestry or in
Engineering from any of the recognized Universities. The petitioner
does not hold any of these qualifications. By virtue of this
amendment, thus, the petitioner is now not eligible for promotion.
He has therefore challenged the said amendment and raised the
following grounds:
i. The Rule is ultra-vires the Constitution being violative of
Articles 14 and 16 of the Constitution.
ii. There is no rational nexus between the Rule and the purpose
sought to be achieved.
iii. The cut-off date for introduction of the Rule is wholly
arbitrary.
(4 of 7) [CW-19322/2018]
iv. The Rule applies with retrospective effect. The petitioner was
already eligible for promotion when the rule was amended.
The petitioner's eligibility cannot be taken away by virtue of
this amendment.
In support of the contentions, the petitioner who appeared in
person, has referred to certain decisions, reference to which will
be made at a later stage.
On the other hand, the case of the Government is that the
Ranger Grade-I post is part of the subordinate service of the State
whereas the post of the Assistant Conservator of Forests belongs
to the State Forest Services. In the year 2004, the Government of
India had insisted that the person holding the post of Assistant
Conservator of Forests must hold a degree in Science subjects
mentioned above. To bring the State recruitment rules in
consonance with the Government of India decision, the
amendment was introduced. It is stated that the rule has no
retrospective application. The reason for making the amendment,
as stated in the State's affidavit, reads as under:-
"That the averments contained in paragraph 3 of
the writ petition are not disputed to the extent of
issuing of notification dated 06.04.2015 and the
requirement of Bachelor Degree with at least one of
the subjects, viz. Animal Husbandry and Veterinary
Science, Botany, Chemistry, Computer Application/
Science, Environment Science, Horticulture,
Geology, Mathematics, Physics, Statistics and
Zoology or Bachelors degree in agriculture, forestry
or in engineering in any of the universities
incorporated by any of the Central or the State
Legislature or any other educational institution
established by an Act of Parliament or declared to
be a deemed University under Section 3 of the UGC
Act or possessing an equivalent qualification has
been inserted. It will be however relevant to
mention here that the amendment was made from
the date of issuance of the notification and was not
given any retrospective application, which will be
(5 of 7) [CW-19322/2018]
clear from the perusal of Rule 1 of the Rajasthan
Forest Service (Amendment) Rules, 2015 itself."
We have heard the petitioner in person and learned
Additional Advocate General at considerable length. From the
record we notice that till 16.04.2015, when the recruitment rules
were amended, the petitioner could not be promoted for want of
availability of vacancies in the promotional post. The rules now
require that even for promotion, the candidate must have a
Bachelor's or Engineering degree in Science subjects specified
therein. Since the petitioner does not possess any of these
qualifications, he is now ineligible for promotion. The questions
therefore are, is the rule unconstitutional, does it apply with
retrospective effect and lastly, is the date of introduction of
amendment in the rule arbitrary and therefore should be struck
down.
There is always a presumption of constitutionality of a
statute. Reference in this respect can be made to the decision of
the Constitution Bench of Supreme Court in the case of State of
Jammu and Kashmir Vs. Triloki Nath Khosa and others (AIR
1974 SC 1). Such presumption attaches also to subordinate
legislation. The wisdom of the rule making authority in introducing
certain eligibility criteria particularly in relation to the educational
qualification required, is ordinarily not within the judicial review of
the Court. Unless such qualification is shown to be wholly arbitrary
or suffering from mala fides, the Court would not interfere with
such policy matter. What should be the educational qualification
required for holding the post in the nature of Assistant
Conservator of Forests, is ordinarily left to the rule making
authority to judge. We also notice that as per the affidavit filed by
(6 of 7) [CW-19322/2018]
the State Government, such prescription of eligibility criteria is
also provided by the Central Government for Forest Services. We
do not find any reason to declare the rule as unconstitutional.
We also do not find that the rule is applied with retrospective
effect. Merely because the petitioner was already in Government
service, he cannot hope to be governed by set of statutory rules
existing at the time of his entry in the Government service. Any
rule which is introduced later on or existing rule is amended,
would be applied to all existing employees of the Government. As
long as such amendment is applied for future instances, merely
because it applies to existing staff, cannot be stated to be a
retrospective application of the rule. This is precisely what has
been held by Supreme Court in the case of Triloki Nath Khosa
(supra). It was observed that a rule which classifies existing
employees for promotional purposes, undoubtedly operates on
those who entered service before framing of the rule but it
operates in future in the sense it governs the future right of
promotion of those who are already in service. The impugned
rules do not recall promotion already made. In such background,
it was held that the rules do not have retrospective application.
The argument that the rules are applied through a randomly
chosen date is also not valid. Introduction of any rule or regulation
is bound to be with reference to a particular date. Unless it is
shown that the date is arbitrary or chosen with mala fide
intentions, merely because it draws a cut-off line between two
classes of persons, per se, cannot be stated to be impermissible.
Reference to the Constitution Bench judgment in the case of D.S.
Nakara and others Vs. Union of India (AIR 1983 SC 130) is
of no use. It was a case in which the Government of India had
(7 of 7) [CW-19322/2018]
introduced a modified pension scheme giving higher pension to
certain class of pensioners. In the notification, the Government of
India had introduced a cut-off date for applicability of the modified
pension scheme leaving out those who had retired before such
date from the applicability of the scheme. It was in such
background that the Supreme Court had held that such cut-off
date was invalid.
In the result, the petition fails and is dismissed.
(RAMESHWAR VYAS),J (AKIL KURESHI),CJ
219-jayesh/-
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