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V.K Sood v. Secretary, Civil Aviation And Others
Factual and Procedural Background
The appellant applied pursuant to Advertisement No. 33 dated 19 August 1989 for the post of Examiner of Personnel in the Department of Civil Aviation but was not selected. He filed a writ petition before the Delhi High Court challenging paragraphs 3(i) and 3(ii) of the advertisement, contending that the educational and experience requirements were discriminatory and had been “tailor-made” to exclude him. The High Court summarily dismissed the petition. The present judgment arises from the appellant’s further challenge before the Supreme Court after special leave was granted.
Historically, the post was governed by statutory recruitment rules framed in 1969 under the proviso to Article 309 of the Constitution. Those rules required, inter alia, a First-Class British or Indian Navigator’s Licence with 100 hours of air experience. Amendments in 1978 and again in 1989 significantly increased the flying and instructional experience required and added further technical stipulations. The appellant claimed eligibility under the 1969 rules and alleged that the 1978 and 1989 amendments were enacted solely to deprive him of consideration.
Legal Issues Presented
- Whether the 1978 and 1989 amendments to the recruitment rules—framed under the proviso to Article 309—were unconstitutional for prescribing allegedly discriminatory and “tailor-made” qualifications.
- Whether the enhanced qualifications violated the equality guarantees under Articles 14 and 16 of the Constitution by unfairly excluding eligible candidates such as the appellant.
Arguments of the Parties
Appellant's Arguments
- The pre-1978 rules made him eligible, and the subsequent amendments artificially raised the bar (e.g., from 100 hours of air experience to 2,500 hours as Flight Navigator and additional instructional flying), thereby discriminating against him.
- He possessed a First-Class Navigator’s Licence with more than 100 flying hours and should not have been excluded.
- The amended qualifications were “tailor-made” for specific individuals and, therefore, violated the constitutional guarantee of equality of opportunity in public employment.
- He further criticised the competence of certain incumbents and urged the Court to impose higher standards to prevent air accidents.
Respondent's Position (Union of India)
- Recruitment rules were validly framed by the President under the proviso to Article 309 and, as statutory instruments, stood on par with legislation unless superseded by an Act of Parliament.
- Advancement in aviation technology had reduced the demand for navigators, leading to difficulty in attracting suitable applicants despite repeated advertisements.
- The qualifications were framed on expert advice, and it was not open to the Court to substitute its views on technical standards.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| B.S. Vadera v. Union of India, AIR 1969 SC 118 | Rules made under the proviso to Article 309 have full statutory force unless overridden by parliamentary legislation. | Used to affirm that the impugned recruitment rules, being framed under Article 309, carry legislative authority and cannot be struck down merely on allegations of mala fides. |
| General Manager, S. Rly. v. Rangachari, AIR 1962 SC 36 | Equality of opportunity (Art. 16) permits reasonable classification and prescription of qualifications. | Relied on to justify that setting specific qualifications does not contravene Articles 14 or 16 if applied uniformly. |
| State of Mysore v. P. Narasing Rao, AIR 1968 SC 349 | Government may lay down selective tests and qualifications consistent with Art. 14/16. | Supported the view that technical and general qualifications are permissible. |
| State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19 | Classification based on qualifications is valid if it bears rational nexus to the post. | Used to reinforce that higher qualifications for the Examiner post are constitutionally valid. |
| State of Orissa v. N.N. Swamy, (1977) 2 SCC 508 | Distinction between eligibility and suitability in recruitment. | Cited to emphasise that while a candidate may be “eligible,” assessment of “suitability” is within the authority’s domain. |
Court's Reasoning and Analysis
Justice K. Ramaswamy, writing for the Court, proceeded through the following analytical steps:
- Statutory authority under Article 309: Recruitment rules framed by the President under the proviso to Article 309 possess legislative character. Unless a contrary Act of Parliament exists, such rules are fully operative (citing B.S. Vadera).
- Permissibility of prescribing qualifications: Constitutional jurisprudence recognises that equality of opportunity does not bar reasonable prescriptions of educational and technical qualifications (citing Rangachari, Narasing Rao, and Khosa).
- No attribution of motive to the rule-maker: The Court reiterated the settled principle that motives cannot be imputed to a legislature or a rule-making authority. Mere allegation that the rules were “tailor-made” is insufficient to invalidate them.
- Technical nature of the post: Determination of appropriate aviation qualifications lies within expert and policy domains, not within the judiciary’s purview. The Union Public Service Commission (UPSC) remains responsible for assessing individual suitability.
- Irrelevance of other incumbents’ credentials: Challenges to the competence or legality of appointments of third parties were deemed outside the scope of the present litigation.
- No violation of Articles 14 or 16: As the amended rules applied uniformly to all aspirants and were rationally related to the duties of an Examiner of Personnel, they survived scrutiny under the equality clauses.
Holding and Implications
HOLDING: The appeal is dismissed; the amended recruitment rules stand affirmed.
Implications: The decision reinforces the wide latitude accorded to the executive under the proviso to Article 309 in prescribing qualifications for public posts. It underscores that courts will not interfere with technical standards absent clear constitutional infirmity, and allegations of motive cannot, by themselves, invalidate statutory rules. No new precedent was created, but existing doctrine on Articles 14, 16, and the rule-making power under Article 309 was reaffirmed. The immediate effect is that the appellant’s challenge fails, and the Department of Civil Aviation may continue recruiting under the 1989 amended rules.
K. Ramaswamy, J.— Special leave granted.
2. In response to the advertisement No. 33 dated August 19, 1989 the appellant had applied for recruitment to the post of Examiner of Personnel in the Department of Civil Aviation. He was unsuccessful in the selection. He later on challenged paras 3(i) and 3(ii) of the advertisement on the ground that the qualifications prescribed are discriminatory and were tailor made. He also contends that in 1969, for the said post the qualifications prescribed were 1st Class British or Indian Navigator or a British Flight Navigator licence with not less than 100 hours of air experience. The method of recruitment was direct recruitment and the age prescribed was 45 years relaxable to Government servants. He claims that he is having the First Class licence with 100 hours of air navigation experience. With a view to deprive him of the chance, the offending rules have been amended in 1978 substituting 300 hours of instructional flying and experience of not less than 2500 hours as Flight Navigator with category A and endorsement to fly VIPs and VVIPs on all routes in I.A.F aircrafts or should hold or have held an Indian Flight Navigator Licence. According to him this rule was made with a view to deprive him of his chance. The Delhi High Court dismissed the writ petition summarily. To appreciate the contention, it is necessary to read the rules. As per the 1969 rules which are statutory, made under proviso to Article 309 of the Constitution, the method of recruitment with qualification prescribed thereafter are thus:
“Essential
(i) First Class British or Indian Navigators' Licence with not less than 100 hours' air experience.
Desirable
(i) Degree in Mathematics or in Engineering.
(ii) Experience of Geodetic Surveying.”
In 1978 Clause A was amended and in its place Clauses A(i) and (ii) were brought on the rules which read thus:
“A(i) Experience of a minimum of 300 hours of instructional flying as qualified Navigation Instructor.
(ii) Experience of not less than 2500 hours as Flight Navigator with category ‘A’ and endorsement to fly VIPs/VVIPs on all routes in IAF aircrafts.”
“B(i) Should hold or have held an Indian Flight Navigators' licence.
(ii) Experience of 2000 hours as Flight Navigator on international routes.
Desirable
(i) Degree in Science with Physics and Mathematics as subject of recognised University or equivalent.
(ii) Experience as Navigation Instructor in a recognised Institution or in an Air Corporation.
(iii) Commercial Pilot's licence.
Method of recruitment is direct recruitment through the Union Public Service Commission. When the candidates did not apply in required number the rules were further amended in 1989 with the following modified qualifications:
Essential
1. 10+2 with Physics, Chemistry and Mathematics.
2. (i) Should have held a senior Commercial Pilot's Licence.
(ii) Should have flying experience of not less than 2500 hours on multi-engine aircraft of which not less than 250 hours should be as Pilot-in-command.
(i) Should hold or should have held an Indian Flight Navigator's licence.
(ii) Should have not less than 500 hours experience as Flight Navigator.
Desirable
1. Degree in Science with Physics and Mathematics of a recognised University or its equivalent.
2. Experience as Navigation Instructor in a recognised institute/Flying Club or in an Airline.
Method of recruitment
By direct recruitment failing which by transfer or deputation (including short-term contract).
Age: 50 years.
3. It is not in dispute that these rules have been made by the President exercising the power under Proviso to Article 309 of the Constitution which reads thus:
“309. Recruitment and conditions of service of persons serving the Union or a State.— Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such service and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.”
It would thus be clear that the rules made by the President or authorised person under proviso to Article 309 are subject to any law made by the Parliament and the power includes rules regulating the recruitment and the conditions of service or post. They are statutory and legislative in character. The statutory rules thus made are subject to the law that may be made by the Parliament.
4. In B.S Vadera v. Union of India AIR 1969 SC 118, (1968) 3 SCR 575, (1970) 1 LLJ 499 this Court held that the rules made under the proviso to Article 309 of the Constitution shall have effect subject to the provisions of the Act i.e if the appropriate Legislature has passed an Act. In its absence the rules made by the President or by such person as he may direct are to have full effect.
5. In General Manager, S. Rly. v. Rangachari (1962) 2 SCR 586, AIR 1962 SC 36 another Constitution Bench held that equality of opportunity need not be confused with absolute equality as such. What is guaranteed is the equality of opportunity and nothing more. Article 16(1) or 16(2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office or post. Any provision as to the qualifications for the employment or appointment to an office or post reasonably fixed and applicable to all citizens would certainly be consistent with the doctrine of the equality of opportunity. In State of Mysore v. P. Narasing Rao (1968) 1 SCR 407, AIR 1968 SC 349, (1968) 2 LLJ 120 this Court held that the provisions of Article 14 or Article 16 do not exclude the laying down of selective tests, nor do they preclude the Government from laying down qualifications for the post in question. Such qualifications need not be only technical but they can also be general qualifications relating to the suitability of the candidate for such service as such. The same was the view in another Constitution Bench decision reported in State of J&K v. Triloki Nath Khosa (1974) 1 SCC 19, AIR 1974 SC 1. In State of Orissa v. N.N Swamy (1977) 2 SCC 508, this Court held that the eligibility must not be confused with the suitability of the candidate for appointment.
6. Thus it would be clear that, in the exercise of the rule-making power, the President or authorised person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to an office or a post under the State. The rules thus having been made in exercise of the power under proviso to Article 309 of the Constitution, being statutory, cannot be impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal. Suffice to state that it is settled law that no motives can be attributed to the Legislature in making the law. The rules prescribed qualifications for eligibility and the suitability of the appellant would be tested by the Union Public Service Commission.
7. It is next contended that several persons whose names have been copiously mentioned in the appeal were not qualified to hold the post of examiner and they were not capable even to set the test papers to the examinees nor capable to evaluate the papers. We are not called upon to decide the legality of their appointments nor their credentials in this appeal as that question does not arise nor are they before the Court. It is next contended by Mr Yogeshwar Prasad, the learned senior counsel that on account of inefficiency in the pilots' operational capability air accidents have been occurring repeatedly endangering the lives of innocent travellers and this Court should regulate the prescription of higher qualifications and strict standards to the navigators or to the pilots be insisted on. We are afraid that we cannot enter into nor undertake responsibility in that behalf. It is for the expert body and this Court does not have the assistance of experts. Moreover it is for the rule-making authority or for the Legislature to regulate the method of recruitment, prescribe qualifications etc. It is open to the President or the authorised person to undertake such exercise and that necessary tests should be conducted by UPSC before giving the certificates to them. This is not the province of this Court to trench into and prescribe qualifications in particular when the matters are of a technical nature. It is stated in the counter-affidavit that due to advancement of technology of the flight aviations the navigators are no longer required and therefore they are not coming in large number. Despite the repeated advertisements no suitable candidate is coming forward. We do not go into that aspect also and it is not necessary for the purpose of this case. Suffice to state that pursuant to another advertisement made in July 1992, the appellant is stated to have admittedly applied for and appeared before the UPSC for selection and that he is awaiting the result thereof. Under these circumstances, we do not find any substance in this appeal. The appeal is accordingly dismissed. No costs.
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