B. Sudershan Reddy, C.J.
1. The fifth respondent in WP(C) No. 92(AP)/2005 is the appellant in this writ appeal. The appeal is directed against the judgment and order dated 19.8.2005 whereby and whereunder the learned Single Judge disposed of the writ petition with the following directions:
(i) The respondents shall reconsider the matter towards suitable amendment of the impugned Recruitment Rules of 2005 so as to remove the anomalies pointed out above and also in Annexure-P9 letter dated 27.1.2005 relevant portion of which has been quoted above. While doing so they will also take into account Annexure-P8 communication dated 13.10.2004 enclosing therewith a chart laying down the job responsibility.
(ii) In any case, the petitioner and for that matter the officers in the cadre of Dy. M.E.I.O. shall not be allowed to be superseded by their erstwhile juniors. The respondents will bear in mind that the petitioner once held the feeder grade/post of Health Educator way back in 1986 from which Grade he was promoted to the present rank of Dy. M.E.I.O. They will also bear in mind that in the past Health Educators were promoted to the rank presently being held by the petitioner, i.e. Dy. M.E.I.O.
(iii) The respondents may also consider the promotion of the petitioner to the rank of M.E.I.O. and before such consideration no junior shall be promoted as H.E.O. without first considering the case of the petitioner for such promotion.
2. The learned Judge directed the entire exercise to be completed within a period of two months.
3. The judgment is challenged on various grounds. In order to consider the question as to whether the impugned judgment and order suffers from any infirmities requiring our interference in exercise of appellate jurisdiction, few relevant facts leading to filing of this writ appeal may have to be noticed.
4. The first respondent/writ petitioner filed the writ petition claiming that he is entitled to be promoted as Mass Education and Information Officer (M.E.I.O.), a Group-B gazetted post.
5. Shorn of all the details the respondent/writ petitioner is aggrieved by the action of the respondents in framing the recruitment rules called 'the Recruitment to the posts of Health Education Officer Rules, 2005' which provides the channel for promotion to the post of Health Education Officer (H.E.O.) which, according to the respondent/ petitioner, is equivalent to the post of M.E.I.O. in rank. The Rules make the Health Educators, who have rendered eight years of regular service in the grade, eligible for promotion to the post of H.E.O. The post of H.E.O. is to be filled up 100% by promotion from amongst the Health Educators only. The said Rules are impugned in the writ petition mainly on the ground that they deprive the respondent/writ petitioner of his legitimate right for consideration to the next higher post of M.E.I.O. The sum and substance of the case set up by him is that he was recruited as Para Medical Assistant and thereafter promoted as Health Educator way back in 1986. According to him, had the petitioner been still in the rank of Health Educator he would have been eligible for promotion as H.E.O. Since no provision has been made in the impugned Rules for consideration of the incumbents holding the post of Dy. M.E.I.O. for promotion to the rank of H.E.O. he would be deprived of his promotion as H.E.O. According to him both the posts of Health Educator and District Extension Educator are Group-C posts having the same pay scale with same educational qualification and are equal in status, responsibilities and duties. The officers of both Grades are accordingly made eligible for promotion to the rank of Dy. M.E.I.O. as per Recruitment Rules of 1992 according to which the post of Dy. M.E.I.O. is to be filled up by 100% promotion from amongst the District Extension Educator and Health Educator having five years of regular service.
6. The case set up by the writ petitioner is that the impugned Rules of 2005, which provides the promotional avenues only to the Health Educators depriving all others of their right for consideration to be promoted, are arbitrary. The writ petitioner apprehends that he is likely to be superseded by Health Educators who are far juniors to him and who do not even hold the rank of Dy. M.E.I.O. The petitioner accordingly prayed that appropriate directions be issued as against the State and its authorities to provide him promotional opportunity to the rank of M.E.I.O. before his juniors are promoted as H.E.O. or to make him eligible for promotion as H.E.O. ahead of his juniors. The writ petitioner, however, challenged the validity of the Recruitment Rules of 2005 under which only the Health Educators are made eligible for promotion as H.E.O.
7. The State in its counter affidavit justified the framing of the impugned Rules of 2005 by, inter alia, contending that there are two Bureaus under the Health Department, namely, State Health Education Bureau and Information Education and Communication Bureau, Family Welfare which are under the control of Directorate of Health Services. The sum and substance of their contention is that the promotion avenues of the Health Educators and Dy. M.E.I.O. being distinct and separate the writ petitioner cannot make any grievance against the impugned Recruitment Rules which provides promotional avenues exclusively for the Health Educators. But they have admitted that the pay scale of Dy. M.E.I.O. is higher than that of pay scale of Health Educator. According to them there are two separate Bureaus, therefore, promotional avenues in both the Bureaus are required to be regulated by separate Recruitment Rules.
8. The learned Judge having referred to the materials made available on record relied on Annexure-P9 : letter dated 27.1.2005 issued by the Joint Director of Health Services to the Director of Health Services highlighting the anomalies in the event of framing of Recruitment Rules providing promotional prospects exclusively to the Health Educators denying the claim of all others including those who are holding the post of Dy. M.E.I.O. We do not propose to refer to Annexure-P9 in detail which has been noticed by the learned Judge.
9. The learned Judge found that the Rule making authority did not take into account the issue highlighted in Annexure-P9 letter by the Joint Director of Health Services before framing and notifying the impugned Recruitment Rules of 2005. The learned Judge accordingly observed that the writ appellant who is far junior to the respondent/ writ petitioner will score a march over the respondent/writ petitioner in the matter of promotion. The learned Judge further found that the impugned Rules created an anomalous situation depriving the respondent/writ petitioner of his legitimate right to be promoted as H.E.O. It is further found that the respondent/writ petitioner once held the post of Health Educator which is now only the feeder cadre as per the impugned Recruitment rules for promotion as H.E.O. and yet deprived of his legitimate right for promotion as H.E.O.
10. The learned Judge was not impressed by the plea taken by the State that there are two different Bureaus under the Directorate of Health Services and separate avenues for promotion were required to be provided for the officers of both Bureaus which according to them do not suffer from any legal or constitutional infirmities.
11. The learned Judge was mainly impressed by the fact that the respondent/writ petitioner was once holding the post of Health Educator and thereafter promoted as Dy. M.E.I.O; but strangely denied of his legitimate right to be promoted as H.E.O. The omission on the part of the State from providing channel of promotion to the persons holding the post of Dy. M.E.I.O. according to the learned Judge, led to an anomalous and absurd situation demoralizing the officers in the cadre of Dy. M.E.I.O. It is under those circumstances the learned Judge disposed of the writ petition with certain directions which we have noted in the preceding paragraphs.
12. In this writ appeal Mr. R.P. Sarmah, learned Counsel for the appellant submitted that the impugned judgment under appeal suffers from incurable legal infirmities requiring the interference of this Court in exercise of its appellate jurisdiction. The learned Counsel contended that directions issued directing the official respondents to re-consider the matter for making suitable amendments to the Rules could not have been issued in exercise of judicial review jurisdiction. The learned Judge committed error in issuing the consequential directions.
13. Mr. C.K.S. Baruah, learned Advocate General, Arunachal Pradesh appearing on behalf of the State while submitting that such directions could not have been issued by this Court to the Rule making authority, however, made an attempt to submit that the learned Judge, perhaps, did not commit any error in view of the peculiar facts and circumstances. Mr. R.L. Yadav, the learned Counsel for the respondent/writ petitioner supported the impugned judgment.
14. We have given our anxious consideration to the rival submissions made during the course of hearing of this appeal.
15. The respondent/writ petitioner in specific terms challenged the constitutional validity of the impugned Rules of 2005 which deprived him of his right to be considered for the post of H.E.O. on promotion since the post of Health Educator alone is made to be the exclusive feeder category for promotion as H.E.O. The learned Judge did not express any opinion whatsoever as regards the constitutional validity of the Rules. The learned Judge took into consideration the view expressed by the Joint Director of Health Services in Annexure-P9 letter dated 27.1.2005 and came to the conclusion that the said views could not have been ignored and ought not have been ignored by the Rule making authority while framing the impugned Rules. The learned Judge thereby impliedly held that the decision of the Rule making authority is vitiated by non-application of mind since it did not take the relevant factors including the Annexure-P9 letter dated 27.1.2005 into consideration.
16. The view taken by the learned Judge, in our considered opinion, is not in conformity with law. The Rules framed in exercise of the powers conferred under proviso to Article 309 of the Constitution of India enjoy the same immunity as that of any law enacted by a competent Legislature. They continue to occupy the field until an appropriate legislation is made replacing the same. Such Rules, if challenged, can certainly be struck down by the court only on two grounds, namely, (a) lack of legislative competence and (b) ultra vires the provisions of the Constitution. None of these two grounds were taken into consideration. The Rules cannot be declared void on any other ground. There is no other ground available in law for striking down such Rules. The principles developed in the field of administrative law, such as, non-application of mind, decision based on irrelevant grounds ; acting under dictation, etc., are not available to struck down any validly made Rules in purported exercise of powers conferred under the proviso to Article 309 of the Constitution of India. Therefore, the question of remitting the matter for fresh consideration by the Rule making authority as such does not arise. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot compel any Rule making authority to make Rules in any particular manner. This Court is undoubtedly conferred with jurisdiction to declare any Act or Rule, if challenged, void but only on the grounds stated (supra). But this Court cannot make any further suggestion as to how the Rule is required to be made.
17. In Chandigarh Administration and Ors. v. Manpreet Singh and Ors. : AIR1992SC435 while considering the nature of jurisdiction of the High Court under Article 226 of the Constitution of India observed:. while acting under Article 226, the High Court does not sit and/or act as an Appellate Authority over the orders/actions of the Subordinate Authorities/Tribunals. Its jurisdiction is supervisory in nature. One of the main objectives of this jurisdiction is to keep the Government and several other authorities and Tribunals within the bounds of their respective jurisdiction. The High Court must ensure that while performing this function it does not overstep the well-recognised bounds of its own jurisdiction.
18. The Apex Court by noting the nature of directions issued by the High Court whereunder directions have been issued changing the categories and the order of precedence in the matter of working out reservations in admission of the candidates against the reserved seats meant for the sons/daughters/spouses of Military/Para-Military personnel observed:. without assigning any reason the High Court has directed that category 4 should be made category 5 and category 5 should be made category 4. In short, it has switched these two categories. Again, we must say that if the High Court thought that this categorization was discriminatory and bad it ought to have struck down the categorization to that extent and directed the authority to reframe the rule. It would then have been open to the rule making authority either to merge these two categories or delete one or both of them, depending upon the opinion they would have formed on a review of the situation. We are only saying that the High Court should not have indulged in the exercise of 'switching' the categories.... Thereby, it has practically assumed the role of rule-making authority, or, at any rate, assumed the role of an Appellate Authority. That is clearly not the function of the High Court acting under Article 226 of the Constitution of India.
(emphasis is of ours).
19. In the case on hand it was perfectly open to the court to consider validity of the impugned Rule and strike it down if the same is found violative of Articles 14 and 16 of the Constitution of India, as pleaded by the writ petitioner, and as a consequential measure could have left or directed the authority to re-frame the Rule in accordance with law. But in the absence of any finding as to the unconstitutionality of the impugned Rule the court could not have remitted the matter for re-consideration by the Rule making authority by taking certain aspects into consideration as specified in the impugned judgment. Such a course is not available in law.
20. For the aforesaid reasons we find it difficult to sustain the impugned judgment. But at the same time the respondent/writ petitioner cannot be left without any remedy. The issues raised by him are required to be considered. The question whether the Rules suffer from any constitutional infirmities is required to be gone into after hearing all the parties to the Us.
21. We, accordingly set aside the judgment and remit the matter for fresh consideration and for effective disposal of the writ petition. There shall be no order as to cost.
22. The Registry is directed to list the matter for hearing before the appropriate court according to the roster.