Holding

Rules made under the proviso to Article 309 are statutory legislative measures whose prescribed qualifications cannot be struck down as tailor‑made or discriminatory, and courts cannot intervene to prescribe technical qualifications.

Summary

V.K. Sood applied for the post of Examiner of Personnel in the Department of Civil Aviation but was not selected. He challenged the qualifications prescribed in the 1989 advertisement, alleging that the amendments to the 1969 rules were tailor‑made to exclude him. The issue was whether the President’s rule‑making power under the proviso to Article 309 of the Constitution could be struck down as discriminatory or whether the court could prescribe higher technical qualifications for navigators and pilots. The Supreme Court held that rules made under Article 309 are statutory, legislative measures whose qualifications cannot be impeached on the ground of being tailor‑made, and that courts cannot intervene to prescribe technical standards. Consequently, the appeal was dismissed.

Issues considered

Can the qualifications prescribed in recruitment rules made under the proviso to Article 309 be challenged as discriminatory or tailor‑made to exclude a particular applicant?
Whether the motive of the legislature in framing such rules can be examined by the court.
Whether the court can prescribe higher or different technical qualifications for posts such as navigators and pilots.
Extent of judicial review over rule‑making powers exercised under Article 309.

Legislation cited

Constitution of Indias. Article 309

Subjects

Article 309rule makingrecruitment qualificationsdiscriminationequality of opportunitycivil aviationjudicial reviewtechnical qualificationsUPSC

Judgment

A V.K.SOOD

v.

SECRETARY, CIVIL AVIATION AND ORS.
---
MAY 14, 1993
B
[K.RAMASWAMY AND N.P. SINGH, J.J.]

Constitution of India-Article 309 Proviso-Held, rules made under
sta11110ry-No motives can be attributed to Legislature in making law.

C The appellant has) applied for recruitment as Examiner of Personnel in
the Department of Civil Aviation, but was unsuccessful. He challenged the
qualifications detailed in the advertisement as being discriminatory and
tailor-made, with a view to exclude him. He contended that while he would
have qualified under the 1969 Rules framed under the proviso to Article 309,
the rules were amended in 1978 and 1989 with a view to deprh•e him of his
D chance.

He submitted that the court should regulate the prescription of higher
qualifications and strict standards for navigators and pilots in view of the
frequent air accidents.
E
Dismissing the appeal, this Court,

HELD: (1) In exercise ofrule making power under Proviso to Art. 309,
the President or authorised person is entitled to prescribe the method of
recruitment, educational and technical qualifications or conditions of service
F
for appointment to an office or· post under the State. These rules being
statutory cannot be impeached as being tailor-made to suit specific individu-
als. (777-B)

B.S. Vadera v. Union of India & Ors., AIR 1969 SC 118; General
G manager, Southern Railway v. Rangachari [1962) 2 SCR 586 at 596; State of
Mysore v. P.Narasing Rao [1968] 1 SCR 407 at 411; State of J & K \'. Tri Loki
Nath Kliosa AIR 1974 SCI and State ofOrissa v.N.N.Swamy [1977) 2SCC 508,
para 18, followed.

(2) No motives can be attribute~ to the Legislature in making the law.
H
(777-C)
772
V.K. SOOD v. SECRETARY. CIVIL AVIATION 773

(3) The prescribed qualifications and the suitability of the applicant A
would be tested by the UPSC. (777-C)

. (4) It is for the rule making authority or for the Legislature to regulate
the method ofrecruitment, prescribe qualifications etc. It is not for this court
to trench into and prescribe qualifications, in particular where the matters B
are ofa techinical nature (777-F)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2847 of 1993.

From the Judgment and Order dated 31.8.1990 of the Delhi High Court in
C.W. 2617 of 1989. C

Yogeshwar Prasad, U.S Prasad, A.K. Lal Sinha, V.S. Pandey, Mrs. Nidhi
Pandey and S.M. Tripathi for the Appellant.

V.C. Mahajan, and S.N. Terdol for the Respondents. D

The Judgment of the Court was delivered by

K.RAMASWAMY, J. Special leave granted.
E
In response to the advertisement No. 33 dated August 19, 1989 the appellant
had applied for recruitment to the post ofExaminerof 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 tailormade. He also contends that in 1969,
for the said post the qualifications prescribed were 1st Class British or Indian F
Navigator or a British Flight Navigator licence with oot 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 himofthe change, the offending rules have been amended in 1978 G
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. air crafts or should hold or have held or 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 to rules. As per the 1969 rules H
774 SUPREME COURT REPORTS [1993] 3 S.C.R.

A which are statutory made under proviso to Art. 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
B than 100 hours air experience.
Desirable
(i) Degree in Mathematics or in Engineering.

c (ii) Experience of Goedetic Surveying. _In 1978 clause A was
amended and in its place Clause.s A(i) and (ii) were brought on the
rules which reads thus :

"A(i) Experience of a minimu·m of 300 hours of instructional flying
as qualified Navigation Instructor.
D
(ii) Experience of not less than 2500 hours as Flight Navigator with
category "A" and endorsement to fly VIPsNVIPs on all routes in
I.A.F. aircrafts. ·
OR
E
"B" (i) Should hold or have held an indian Flight Navigators'
licence.

(ii) Experience of 2000 hours as Flight Navigator on international
F Routes.

Desirable
(i) Degree in Science with Physics and Mathematics as subject of
recognised ~illersity or equivalent.
G
(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
H
V.K. SOOD v. SECRETARY, CIVIL AVIATION [K. RAMASWAMY. J] 775

Commission. When the candidates in required number did not apply for, the rules A
have been further amended in 1989 with the following modified qualifications :

Essential
I. 10+2 with Physics, Chemistry & Mathematics
B
2(i) should have held a senior Commercial Pilot's Licence.

(ii) should have flying experience of not kss than 2500 hours on
multiengine aircraft of which not less than 250 hours should be as
pilot-in-command.
c
OR

(i) shouJd !'told or should have held an Indian Flight Navigator's
licence~-. ··

(ii) should have not less than 500 hours experience as Flight D
Navigator.

Desirable
1. Degree in Science with Physics and Mathematics of a recognised
University or its equivalent. E

2. Experience as Navigation Instructor in a recognised institute/
Flying Club or in an Airline.

Me1hod of recruitmenr-by direct recruitment failing which by transfer or depu- F
tation (including short term contract).

Age : 50 years.

It is not in dispute that these rules have been made by the President exercising
the power under proviso to Art. 309 of the Constitution which read thus : G

"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: H
776 SUPREME COURT REPORTS [1993) 3 S.C.R.
-
A 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

B
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 regulaLing
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."

C It would thus clear that the rules made by the President or authorised person
under proviso to Art. 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.

D
In B.S Vadera v. Union of India & Ors. reported in AIR 1969 SC 118, this
Court held that the rules made under the proviso to Art. 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.
E
In The General Manager, So11thern Railway v. Rangaclzari reported in
[1962] 2 SCR 586 at 596 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)
F does not prohibit the prescription of reasonable rules for selection to any employ-
ment or appointment to any office or post. Any provision as to the qualifications
for the employment or appointment to an 1)ffice or post reasonably fixed and
applicable to all citizens would certainly he consistent with the doctrine of the
equality of opportunity. In State of Mysorl' & Anr. v. P. Narasing Rao report in
[1968] 1 SCR 407 at 41 l this Court hid that the provisions of Art. 14 or Art. 16 do
G not exclude the laying down of selectin: tests, nor do they preclude the Govern-
ment from laying down quali fl~at i1 ins for the post in question. Such qualifications
need not be only technical hut they can also be general qualifications relating to
the suitability of the candidate for such service as such. The same was the view in
anotherConstitution·Bench decision reported in The State ofJamm11 and Kashmir
v. Triloki Nath Khosa & Ors. AIR 1974 SC 1. In State of Orissa & Anr. v. N.N.
H
Swamy & Ors. reported in [1977] 2 SCC 508 in paragraph 18, this Court held that
-- V .K. SOOD v. SECRETARY. CIVIL AVIATION [K. RAMASWAMY. J] 7T/

the eligibility must not be confused with the suitability of the candidate for A
appointment.

Thus it would be clear that, in the exercise of the rule making power, the
President or authnrised person is entitled to prescribe method of recruitment,
qualifications t"toth educational as well as technical for appointment or conditions
B
of ser\'ice to an office or a post under the State. The rules thus having been made
in exercise of the power under proviso to Art. 309 of the Constitution, being
statutory, cannot be impeached on the ground that the authorities have prescribed
tailormade 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 qualifica- C
lions forcligibilily and the suitability of the appellant would be tested by the Union
Public Service Commission.

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
0
were not capable even to set the test papers to the examinees nor capable lo
evaluate the papers. We are not called upon to decide the legality of their
appointments nor thefr credentials in this appeal as that question does not arise nor
arc 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 repeatedly air accidl.!nts have been occurring endangering the Jives of E
innocent travellers and this Court shoutcl regulate the prescription of higher
qualifications and strict standards to the navigators or to the pilots be instead on.
We arc afraid that we cannot enter into nor undertake the responsibility in that
behalf. It is for the expert body and this Court does not have the assistance of
ex.perts. MoreoYer it is for the rule making authority or for th\! Legislature to
1•
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 U.P.S.C. before giving the certificates to them. This
is not the province of this Court to trench into and prescribl.! qualifications in
particular when the matters are of the technical nature. It is stated in the counter
aflicla\'it that due to advancement of technology of the !light aviations the G
navigators arc no llJnger required and therefore they are not coming in large
number. Despite the repeated advertisements no suitahle candidate is coming
forward. Wc 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 ad\'ertisement made in July
1992, the appellant is stated to have admittedly applied for and appeared before the
H
778 SUPREME COL'RT REPORTS [1993) l S.C.R.

.A U.P.S.C. for selection and that he is a\vaiting. the result thereof. Under these
circumstances. we do not find any substance in this appeal. The appeal is
accordingly dismissed. No cOsts.

U.R. Appeal dismissed.

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