CWP No.18972 of 2009 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No.18972 of 2009 Date of decision :December 9, 2009 GMCH Nurses Welfare Association and another ............Petitioners Versus Central Administrative Tribunal and others ...........Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Surinder Gandhi, Advocate for the petitioners. HEMANT GUPTA, J (Oral). The challenge in the present writ petition is to the order passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh on 5.10.2009, whereby the Original Application challenging the Government Medical College and Hospital, Chandigarh (Group `C' Ministerial Posts) Recruitment Rules, 2002 (for short `the Rules') to the extent that Degree Holder staff nurse with five years experience were made eligible for appointment to the post of Nursing Sister, was dismissed. The petitioners have challenged the said condition in Rules on the ground that prior to the promulgation of such Rules, the post of Nursing Sister in the Government Medical College, Chandigarh was CWP No.18972 of 2009 [ 2 ] governed by Punjab Medical and Health Department, Nursing Superintendent, Matrons, Sisters Tutors, Public Health Nurse and Nursing Sisters Public Health Nurses, Staff Nurses and Male Nurses (State Service Class III) Rules, 1964 (for short `Punjab Rules') and that Nursing sisters could be appointed on the basis of diploma with five years experience. It is contended by the petitioners that since at the time of obtaining qualification of diploma, the Punjab Rules were applicable, therefore Chandigarh Administration is not competent to frame Rules against the interest of the petitioners. Learned counsel for the petitioners have relied upon H.L Trehan and others vs. Union of India and others, AIR 1989 SC 568 and BCPP Mazdoor Sangh and another vs. N.T.P.C and others, AIR 2008 SC 336 to contend that promulgation of Rules without providing opportunity of hearing to the petitioners is illegal and is in violation of the principles of natural justice. The Rules have been framed by Chandigarh Administration in exercise of the powers conferred by Proviso to Article 309 of the Constitution of India. Such Rules have been framed in exercise of its legislative functions. The question whether any opportunity of hearing is required to be given while exercising legislative functions or in exercise of delegatory legislations is not res-integra. Sir William Wade in his book `Administrative Law' Eighth Edition page 864, has written to the following effect:- “Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the CWP No.18972 of 2009 [ 3 ] administrative or executive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected by delegated legislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy.....I do not know of any implied right to be consulted or make objections, or any principle upon which the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given. Since it was plain that the proposed order was legislative rather than executive, there was no room for the principle that persons affected must be given a fair hearing.” The Supreme Court in R.K Porwal vs. State of Maharashtra, AIR 1981 SC 1127, while considering the question of establishment of market yard under Section 5 of the Maharashtra Agricultural Produce Marketing (Regulation) Act (20 of 1964) held that it is a legislative function and does not require compliance of the Rules of natural justice. “.........It was said that even as there was express provision for inviting and hearing objections before a “market area” was declared under the Act, so should objections be invited and heard before a `market yard' was established at any particular place. The principles of natural justice demanded it. We are unable to agree. We are here not concerned with the exercise of a judicial or quasi-judicial function where the very CWP No.18972 of 2009 [ 4 ] nature of the function involves the application of the rules of natural justice, or of an administrative function affecting the rights of persons, wherefore, a duty to act fairly. We are concerned with legislative activity; we are concerned with the making of a legislative instrument, the declaration by notification of the Government that a certain place shall be a principal market yard for a market area, upon which declaration certain statutory provisions at once spring into action and certain consequences prescribed by statute follow forthwith. The making of the declaration, in the context, is certainly an act legislative in character and does not oblige the observance of the rule of natural justice. In Bates v. Lord Hailsham, (1972) 1 WLR 1373, Megarry, J. pointed out that the rules of natural justice do not run in the sphere of legislation, primary or delegated, and in Tulsipur Sugar Co. v. Notified Area Committee, (1980) 2 SCR 1111: ( AIR 1980 SC 882), our brothers Desai and Venkataramaiah, JJ., approved what was said by Megarry, J., and applied it to the field of conditional legislation too. In Paul Jackson's Natural justice (Second Edn.), it has been pointed out” In Indian Express Newspapers (Bombay) Private Limited and others etc. vs. Union of India and others, AIR 1986 SC 515, Hon'ble Supreme Court delineated the grounds on which subordinate legislation can be questioned. It was held to the following effect: “73. A piece of subordinate legislation does not carry CWP No.18972 of 2009 [ 5 ] the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. xx xx xx 75. In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. In India any enquiry into the vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that it is contrary to the statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution. 76. That subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned has been held in Tulsipur Sugar Co. Ltd. v. Notified Area Committee, Tulsipur, 543 (1980) 2 SCR 1111 : (AIR 1980 SC 882) : Rameshchandra Kachardas Porwal v. State of Maharashtra, (1981) 2 CWP No.18972 of 2009 [ 6 ] SCR 866: (AIR 1981 SC 1127) and in Bates v. Lord Hailsham of St. Marylebone. (1972) 1 WLR 1373. xx xx xx” In Union of India and another vs. Cynamide India Ltd. And another, AIR 1987 SC 1802, the Court held to the following effect: 5. The second observation we wish to make is, legislative action, plenary or subordinate, is not subject to rules of natural justice. In the case of Parliamentary legislation, the proposition is self- evident. In the case of subordinate legislation, it may happen that Parliament may itself provide for a notice and for a hearing there are several instances of the legislature requiring the subordinate legislating authority to give public notice and a public hearing before say, for example, levying a municipal rate -, in which case the substantial non-observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. The right here given to rate payers or others is in the nature of a concession which is not to detract from the character of the activity as legislative and not quasi-judicial. But, where the legislature has not chosen to provide for any notice or hearing, no one can insist upon it and it will not be permissible to read natural justice into such legislative activity. 6. Occasionally, the legislature directs the subordinate legislating body to make 'such enquiry as it thinks fit' before making the subordinate legislation. In such a situation, while such enquiry by the subordinate CWP No.18972 of 2009 [ 7 ] legislating body as it deems fit is a condition precedent to the subordinate legislation, the nature and the extent of the enquiry is in the discretion of the subordinate legislating body and the subordinate legislation is not open to question on the ground that the enquiry was not as full as it might have been. The provision for 'such enquiry as it thinks fit' is generally on enabling provision, intended to facilitate the subordinate legislating body to obtain relevant information from all and whatever source and not intended to vest any right in anyone other than the subordinate-legislating body. It is the sort of enquiry which the legislature itself may cause to be made before legislating, an enquiry which will not confer any right on anyone. In M/s Shri Sitaram Sugar Co. Ltd. vs. Union of India, AIR 1990 SC 1277, a Constitution Bench of Supreme Court held to the following effect: “36. A statutory instrument (such as rule, order or regulation) emanates from the exercise of delegated legislative power which is the part of the administrative process resembling enactment of law by the legislature. A quasi-judicial order emanates from adjudication which is the part of the administrative process resembling a judicial decision by a court of law. This analogy is imperfect and perhaps unhelpful in classifying borderline or mixed cases which are better left unclassified. 37.If a particular function is termed legislative rather than judicial, practical results may follow as far as the parties are concerned. When the function is CWP No.18972 of 2009 [ 8 ] treated as legislative, a party affected by the order has no right to notice and hearing, unless of course, the statute so requires. It being of general application engulfing a wide sweep of powers, applicable to all persons and situations of a broadly identifiable class, the legislative order may not be vulnerable to challenge merely by reason of its omission to take into account individual peculiarities and differences amongst those falling within the class.” Lastly in J.K Industries Limited and another vs. Union of India and others, (2007) 13 SCC 679, it was held that subordinate legislation cannot be questioned on the ground of violation of the principles of natural justice on which administrative action may be questioned. A distinction must, however, be made between delegation of legislative function in which case question of reasonableness cannot be gone into and the investment by the statute to exercise a particular discretionary power, while reiterating the earlier view of Supreme Court in Indian Express Newspaper's case (supra). Since the Rules have been framed in exercise of powers conferred upon administration under proviso to Article 309 of the Constitution of India, therefore, such Rules promulgated in its power of delegated legislation cannot be questioned on the ground that no opportunity of hearing was provided to the petitioners. The members of the petitioner-Union have no vested right to seek appointment on the basis of Diploma in Nursing. The Rule making authority has the jurisdiction and liberty to frame Rules which CWP No.18972 of 2009 [ 9 ] are considered necessary and appropriate. The fact that under the Punjab Rules the Diploma Holder with five years experience was eligible for appointment as Nursing Sister does not preclude the Chandigarh Administration to frame Rules to the contrary in exercise of its delegated legislative powers. There was no promise by the Chandigarh Administration that the Members of the petitioner-Union shall be appointed on the basis of qualification of Diploma in Nursing. It is for the employer to spell out eligibility conditions for a post. The fact that the members of petitioner-Union are Diploma Holders does not confer any right to seek appointment under the Administration on the basis of such qualification nor Rule of estoppel can be applied against the administration from prescribing higher qualifications for the post as the post of Nursing Sister is higher post than the post of Staff Nurse. It is reasonable for the Administration to fix minimum qualification of Degree for appointment to the post of Nursing Sister. It may be noticed that there is a quota for promotion from the post of Staff Nurse to the post of Nursing Sisters. Therefore, a Diploma holder Staff Nurse can seek promotion to the post of Nursing Sister but the petitioners cannot be permitted to impugn the Rules prescribing higher qualification of Degree for the purpose of direct appointment to the post of Nursing Sister. The judgments referred to by the learned counsel for the petitioners are not applicable to the facts of the present case. Both the CWP No.18972 of 2009 [ 10 ] judgments do not deal with the framing of the Rules in exercise of delegated legislative powers. Therefore, such judgments are of no help to the arguments raised by the learned counsel for the petitioners. In view of the above, we do not find any merit in the present writ petition and the same is dismissed. [ HEMANT GUPTA ] JUDGE December 9, 2009 [ JORA SINGH ] ritu/ds JUDGE