CIVIL WRIT JURISDICTION CASE No.17911 OF 2008 In the matter of an application under Article 226 of the Constitution of India; AMIT KUMAR,SON OF SRI RAM KUMAR CHOUDHARY, RESIDENT OF ADARSHNAGAR, SAMASTIPUR, NEAR ANGANBARI KENDRA, P.S. MUFFASIL, SAMASTIPUR, DISTT. SAMASTIPUR----PETITIONER Versus 1.THE STATE OF BIHAR 2.THE CHIEF SECRETARY, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA-1 3.THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT, GOVT. OF BIHAR, NEW SECRETARIAT, PATNA- 4. THE DIRECTOR, HIGHER EDUCATION, GOVT. OF BIHAR, NEW SECRETARIAT, PATNA-1------RESPONDENTS. For the Petitioner:-Mr.Basant Choudhary,Senior Advocate, & Mr.Anil Kumar Singh,Advocate For the State:- Mr. Lalit Kishore,Additional Advocate General No.III & Mr.Satyabir Bharti Assistant Counsel to Additional Advocate General No.III For N.C.T.E:- Mr. S.N.Pathak,Advocate P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA Prasad & Sharma,JJ:- Petitioner seems to be well qualified. He is M.A.,Ph.D and presently working as Panchayat Teacher. He intends offering his candidature for appointment to the post of Teacher in Higher Secondary Schools of Zila Parishad and of Urban areas and aggrieved by minimum cut off marks 2 of at least 45% in Post Graduate Degree in Arts, Science or Commerce fixed by Rule 4 (Kha) (ii) of Bihar Zila Parishad Madhyamik Evam Uchchtar Madhyamik Shikshak ( Niyojan Evam Seva Shart) Niyamavali,2006 and Rule (4) (kha)(ii) of Bihar Nagar Nikay Madhyamik Ebam Uchchtar Madhyamik Shikshak ( Niyojan Evam Seva Shart) Niyamavali,2006, has preferred this application and challenges its constitutional validity. According to him it should not be less than 55%. Challenge is also to the provisoto 4 (ga) of both the Rules which had relaxed the upper age limit in case of appointment of Teachers belonging to the trained category. Ordinarily, we would not have permitted challenge to the provisions of two separate Rules in one proceeding but the provisions under challenge being identical, we are examining the constitutional validity thereof. We deem it expedient to reproduce the provisions under challenge. Rule 4 (kha) (ii) of the Bihar Zila Parishad Madhyamik Evam Uchchtar 3 Madhyamik Shikshak (Niyojan Evam Seva Shart) Niyamavali,2006 reads as follows:- 4- fu;qfDr gsrq %& X X X ([k)ftyk ifj"kn~ mPprj ek/;fed f’k{kd ds fy, vgZrk %& X X X (ii) fdlh ekU;rk izkIr fo’ofo|ky; ls fofufnZ"V fo"k; esa U;wure 45 izfr’kr vadksa ds lkFk dyk foKku vFkok okf.kT; fo"k; esa LukrdksRrj dh fMxzh gksA vuqlwfpr tkfr@vuqlwfpr tu tkfr@vR;Ur fiNM+k o.Z ,oa fodykax ds fy, U;wure fu/kkZfjr vad esa 5 izfr’kr dh NwV nh tk,xhA Rule 4 (ga) of the aforesaid Rules reads as follows:- 4- (x)vk;q %& fu;kstu dh U;wure vk;q lhek 22 o"kZ ,oa vf/kdre 37 o"kZ gksxhA vuqlwfpr tkfr@ vuqlwfpr tutkfr ,oa fodykax dks ik¡p o"kZ] fiNM+k ,oa vR;Ur fiNM+k oxZ ds nks o"kZ rFkk izR;sd dksfV dh efgyk mEehnokj ds fy, rhu o"kZ dh NwV nh tk,xhA ijUrq f’k{kd dks izf’kf{kr Js.kh ds fu;kstu ds izFke fu;kstu esa vf/kdre mez lhek {kkUr jgsxhA Rule 4 (kha) (ii) of the Bihar Nagar Nikya Madhyamik Evam Uchchtar Madhyamik Shikshak ( Niyojan Evam Seva Shart) Niyamvali,2006, reads as follows:- 4- fu;qfDr gsrq %& X X X ¼([k) uxj mPprj ek/;fed f’k{kd ds fy, vgZrk %& X X X (ii)fdlh ekU;rk izkIr fo’ofo|ky; ls fufufnZ"V fo"k; esa U;wure 45 izfr’kr vadksa ds lkFk dyk foKku vFkok okf.kT; fo"k; esa LukrdksRrj dh fMxzh gksA vuqlwfpr tkfr@vuqlwfpr tu tkfr@ vR;Ur fiNM+k oxZ ,oa fodykax ds fy, U;wure fu/kkZfjr vad esa 5 izfr’kr dh NwV nh tk,xhA Rule 4 (ga) thereof which prescribes the age limit reads as follows:- 4 4-(x)vk;q %& fu;kstu dh U;wure vk;q lhek 22 o"kZ ,oa vf/kdre 37 o"kZ gksxhA vuqlwfpr tkfr@vuqlwfpr tutkfr ,oa fodykax dks ik¡p o"kZ] fiNN+k ,oa vR;Ur fiNM+k oxZ dks nks o"kZ rFkk izR;sd dksfV dh efgyk mEehnokj ds fy, rhu o"kZ dh NwV nh tk,xhA ijUrq f’k{kd dks izf’kf{kr Js.kh ds fu;kstu ds izFke fu;kstu esa vf/kdre mez lhek {kkUr jgsxhA Both the Rules have been framed in exercise of the statutory power and therefore come within the category of delegated legislation. Before we examine the constitutional validity of the Rules under challenge, it is expedient to examine the scope of judicial review. It is well settled principle of law hallowed by time and sanctified by precedent that same principle will govern judging the constitutional validity of the delegated legislation as that of an Act and provision thereof made by legislature. Reference in this connection can be made to a decision of the Supreme Court in the case of Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat & ors.(2008) 5 SCC 33) in which it has been held as follows:- “39. We have recently held in Govt. of A.P.V. P.Laxmi Devi, that the Court should exercise judicial restraint while judging the constitutional validity of statutes. In our opinion, the same principle also applies when judging the constitutional 5 validity of delegated legislation and here also there should be judicial restraint. There is a presumption in favour of the constitutionality of statutes as well as delegated legislation, and it is only when there is a clear violation of a constitutional provision ( or of the parent statute, in the case of delegated legislation ) beyond reasonable doubt that the court should declare it to be unconstitutional.” It is trite that an Act of legislature or provision thereof can be struck down only on one ground and that it violates clearly some provision of the Constitution. Not only this, in a case in which two views are possible one making it constitutional and other unconstitutional, the pendulum must rest at the former. Presumption is of Constitutionality of law and the Court must make effort to uphold it and in the process can adopt strained construction. Further prescription of qualification is a matter of policy upon which men reasonably may differ and one may say it be wise and other unwise but that is not the concern of the Court. Reference in this connection can be made to a decision of the Supreme Court in the case of Government of Andhra Pradesh & others Vs. P.Laxmi 6 Devi ( 2008) 4 SCC 720) in which it has been held as follows:- “46. In our opinion, there is one and only one ground for declaring an Act of the legislature ( or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways e.g. if a State Legislature makes a law which only Parliament can make under List I to the Seventh Schedule, in which case it will violate Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution ( other than the directive principles). But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto V. State of Kerala SCC para 6: AIR para 6. Also, it is none of the concern of the Court whether the legislation in its opinion is wise or unwise.” Bearing in mind the aforesaid principle, we proceed to consider the constitutional validity of the Rules under challenge. 7 Mr. Basant Kumar Choudhary, Senior Advocate, appearing on behalf of the petitioner contends that earlier teaching at Higher Secondary Level used to be imparted in Degree Colleges where only such candidate who had obtained 55% marks at the Post Graduate Level were qualified to teach. He points out that in view of the qualification prescribed by Rule 4(kha) (ii) of the Rules under challenge,they shall be taught by less qualified persons, which shall reduce the quality of education. Any act which reduces the quality of education per se is arbitrary and thus violative of Article 14 of the Constitution of India, contends Mr. Choudhary. Mr. Lalit Kishore, Additional Advocate General No.III appearing on behalf of the State submits that Teachers in Degree Colleges used to impart education not only to the students of High Secondary Level but also Degree Level and hence the State Government while framing the Rules had not adopted the same qualification in the Rules under challenge. He submits that the Rule cannot be said to be arbitrary and basically it is a matter of policy over which the Rule making authority had 8 power. He also points out that National Council For Teachers Education framed regulation fixing qualification for recruitment of Teachers in the Schools including the Senior Secondary Schools. He points out that the National Council For Teachers Education (determination of minimum qualification for recruitment of Teachers in Schools) Regulation, 2001, framed by it had prescribed the following qualification. Qualifications of the Teachers of the Schools having Senior Secondary/PUC/Intermediate Level,as provided by the Regulation is as follows:- Senior Secondary/PUC/Intermediate Master;s degree in the relevant subject with Bachelor of Education (B.Ed.) or its equivalent. Or Two years’ integrated M.Sc.Ed.course or an equivalent course. Accordingly, Mr. Kishore emphasises that the Regulation aforesaid had not prescribed minimum percentage of marks which the candidate is required to obtain in Masters Degree but the Rule making authority in its wisdom had fixed at best 45% 9 marks at the Post Graduate Degree Stage. He submits that the Rule cannot in any way said to be arbitrary. Having appreciated the rival submission, we do not have the slightest hesitation in accepting the broad submission of Mr. Choudhary that any act which is arbitrary hits Article 14 of the Constitution of India and in case any of the provisions of Rule does so same is fit to be declared as ultra vires but the question herein is as to whether the Rules under challenge are in any way arbitrary. We do not have any hesitation in holding that it is not so. Simply because the students of Higher Secondary Level earlier used to study in Degree Colleges and there they were taught by Teachers having 55% marks in Post Graduate Degree itself shall not make the provision ultra vires. Earlier at the degree College, the Teachers employed therein were not only teaching the students of Higher Secondary Level but Degree Level also and hence the requirement of passing Post Graduate examination with 55% marks was made. Undisputedly in the Higher Secondary Schools 10 teaching is not at the degree level and the Teachers employed in Higher Secondary Education are not required to impart teaching to degree students. The best we can assume in favour of the petitioner that men may differ on this issue, even then, the provision under challenge cannot be declared ultra vires as it is well settled that it is none of the concern of the Court as to whether the rule in its opinion is wise or unwise. Accordingly, we negative the petitioner’s contention so far as validity of Rule 4(kha) (ii) of the Rules is concerned. While assailing the validity of 4 (ga) of the Rules under challenge, Mr. Choudhary submits that it is discriminatory and once it is so it stares at Article 14 of the Constitution.This submission does not commend us. The proviso to Rule 4(ga) makes relaxation in the upper age limit for appointment of a Teacher in the trained category. It has not made relaxation in other category but that itself shall not render the provision discriminatory. Trained Teachers constitute different class and at the first stage of 11 recruitment age relaxation has been made. As has rightly been pointed out by Mr. Kishore that in view of the direction of this Court and the undertaking given by the State Government before the Supreme Court, it was obligatory on the part of the State Government to first make appointment of teachers who are trained and keeping that in mind no upper age limit was fixed for appointment of the trained Teachers. Thus, the Rule has been framed for a purpose which cannot be said to be in any way arbitrary. A Division Bench of this Court had the occasion to consider the constitutional validity of identical provision in CWJC No. 18065 of 2008 (Bishwanath Roy & ors. Vs.The State of Bihar and ors.) which has been dismissed on 23.1.2009. “Mr. Lalit Kishore, Additional Advocate General-III, however, contends that Librarian and trained teacher constitute different and distinct class and, hence no question of discrimination arises. He points out that upper age limit has been relaxed so far as the trained teachers are concerned as large number of teachers are required to be appointed which is not in the case of the Librarian. It has also been pointed out that in view of the direction of this Court and the undertaking of the State 12 Government before the Supreme Court that as many as trained teachers are available shall be appointed, there was no upper age limit fixed in this category. He also points out that Librarian constitutes a different class and because of sufficient number of qualified persons being available, upper age limit for eligibility has been fixed. Having considered the rival submission, we are of the opinion that the trained graduates and Librarian constitute different class and, therefore, the complaint of discrimination is absolutely misconceived. What should be the upper age limit for appointment is primarily the prerogative of the employer and interference by this Court is called for only in such cases where there is apparent discrimination. The case in hand does not fall within the said exception.” Challenge to proviso to Rule 4(ga) thus also fails. We do not find any merit in the application and it is dismissed accordingly but without any order as to cost. (Chandramauli Kr.Prasad,ACJ.) (Shyam Kishore Sharma,J.) Patna High Court Dated the 30th January,2009 A.Kumar/AFR 13