PRAMOD SARMA Vs. STATE OF ASSAM

JUDGEMENT

(1.) The petitioners are Lower Division Assistants, for short 'LDA', in the Office of the Chief Engineer, Public Works Department, Assam. By this petition under Article 226 of the Constitution, the petitioners challenged the seniority of respondents No. 4 to 48, all LDAs, encadred and worked in the Office of the Chief Engineer, P.W.D. (Road), of the State of Assam. The petitioners joined service as LDA on 22.4.82 and 23.9.82. their grievance is that respondent Nos. 4 to 48 were orginally appointed as Typists but subsequently encadred as LDA in accordance with the Assam Directorate Establishment (Ministerial Service) (Amendment) Rules, 1981. The petitioners have challenged the Amendment Rules 1987, particularly Rule 4 and 8, which according to the petitioners adversely affects their inter- se-seniority. It is the petitioner's case that this amended Rule was not given effect to until the publication of the seniority list in the middle of 1996, to be precise on 28.8.96, as per Annexure-I.

(2.) Heard learned counsel for the petitioner. It was strenuously urged that the amending Rule I of Assam Directorate Establishment (Ministerial Service) Rules, 1973 of encadred Typists, who were born in service on 1.1.81 as LDA cadre, financial benefit to such typists, whose educational qualification as per recruitment rules was only Matriculation, has been given. Thus, these encadred Typists, having less academic qualification, drawing a lower pay scale, were not only given financial benefit but have also been favoured with seniority and promotional benefit to the prejudice of the LDA's with higher qualification and pay scale. The petitioners have therefore challenged the succession of seniority of entire lot of upgraded Typists above the petitioners as illegal. This challenge is mainly and essentially based on the challenge thrown to Rule 4 and 8 of the Assam Directorate Establishment (Ministerial Service) (Amendment) Rules, 1987, as discriminatory and violative of Articles 13 and 14. Learned counsel denounced this Rules as ultra vires and as a piece of colourable legislation. The fate of the petition hinges on the validity of the Rules. It cannot be disputed that there is a presumption of Constitutionality in such matters and the judicial veto can only be exercised in cases where there is rule for reasonable doubt and the test of constitutionality depends on the effects of its operation on fundamental rights. The constitutionality of an act or a scheme framed by the Government which is closely connected with the Act, so as to constitute an integral part, will have to be determined with reference to that particular Act. On petitioners own showing, a Pay Commission was constituted by the State in the year 1979 and on the basis of Pay Commission Report, the revision of pay scales,1983, for short 'the ROP Rules', was framed and this has resulted in removal of certain anomalies existing in the pay scales of Ministerial Staff serving at the Head Offices and at the District level. Merely using such phrases as unconstitutional, ultra vires or void, would not by itself render the amended provision ultra vires. The grounds of attack are set forth in paragraphs 17, 18 and 19 of the petition. In para 17, the petitioner States that the amended provisions are the Directive Principles of State Policy. But there is absolutely no whisper as to how this provision violates either Article 13 or 14. In paragraph 18, the phrase 'colourable legislation' has been used but in what sense it is colourable legislation in face of Articles 22 and 23 of the Constitution? There is absolutely no hinge or communication. The same is repeated in paragraph 19.

(3.) The petition appears to be based on misconception of the doctrine of ultra vires without grasping its true meaning and import. Phrases 'unconstitutional', 'colourable exercise of power' have been used without even remotely suggesting the reasons that render the exercise of power unconstitutional or colourable exercises. The facts are totally missing. On such vague and ambiguous attack, an amendment to the existing Rules to which presumption of validity is attached, cannot be allowed to be assailed. The petition is therefore summarily dismissed without notice to the opposite parties.