- (1.) INSTANT petition has been filed by the petitioner assailing validity of proviso -I to R. 19 of the Rajasthan Medical & Health Subordinate Service Rules, 1965 added pursuant to amendment notification Dt. 6 -2 -2013 by the State Government in exercise of power conferred by proviso to Article 309 of the Constitution of India & further amended vide notification Dt. 30 -8 -2013.
(2.) THE post of Pharmacist has been included in the Schedule appended to the Rajasthan Medical & Health Subordinate Service Rules, 1965 and the process of selection has been initiated by the respondent in terms of the procedure contemplated under the advertisement providing bonus marks under proviso -I to R. 19 of the Rules, 1965. We consider it appropriate to quote proviso to R. 19 inserted vide amendment notification Dt. 6 -2 -2013 read with further amendment notification Dt. 30 -8 -2013, which reads as under: - - "Amendment Notification Dt. 6 -2 -2013: - - 4. Amendment of rule 19. - -The existing provisos to rule 19 of the said rules, shall be substituted by following new provisos, namely: - - "Provided that in case of appointment to the post of Pharmacist, merit shall be prepared by the Appointing Authority on the basis of marks obtained in qualifying as specified in the schedule appended to these rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar wok under the Government, Chief Minister BPL, Jeevan Raksha Kosh, National Rural Health Mission, Medical Care Relief Society, AIDS Control Society, Institutes under Cooperative Department or Sahakari Upbhokta Bhandar. Provided that in case of appointment to the posts of her than Pharmacist, which are not in the purview of the Commission, merit shall be prepared by the Appointing Authority on the basis of marks obtained in such qualifying academic examination or professional examination or both as specified in the schedule appended to these rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, National Rural Health Mission and Medi Care Relief Society. Provided further that the decision of the Commission or Appointing Authority, as the case may be, as to the eligibility or otherwise of a candidate, shall be final." Amendment Notification Dt. 30 -8 -2013: - - Amendment of rule 19. - -In rule 19 of the said rules. - - (i) in first proviso, for the existing expression "or Sahakari Upbhokta Bhandar", the expression "Sahakari Upbhokta Bhandar, Revised National Tuberculosis Control Program (RNTCP), Jhalawar Hospital and Medical College Society, Integrated Disease Surveillance Project or State Institute for Health and Family Welfare" shall be substituted. 3. The present petitioner being eligible also participated in the selection process, however in the select list prepared by the respondent when his name did not turn up he approached to this Court by filing instant petition with the grievance that he too is entitled for award of bonus marks on the basis of experience of working in Ex -Servicemen Contributory Health Scheme (ECHS) which is one of the scheme of Ministry of Defence in which the present petitioner has worked as a Pharmacist but it has not been included in the proviso -I to R.19 of the Rules, 1965 and according to him such classification is discriminatory & violative of Art. 14 of the Constitution of India.
(3.) THE basic principle and scope of judicial review by this Court when validity of any law enacted by the legislature is under challenge, that has been examined by the Apex Court in the recent judgment reported in : 2014(8) SCC 682 & observed in para -49 as under: - - "Where there is challenge to the constitutional validity of a law enacted by the legislature, the Court must keep in view that there is always presumption of constitutionality of an enactment, and a clear transgression of constitutional principles must be shown. The fundamental nature and importance of the legislative process needs to be recognised by the Court and due regard and deference must be accorded to the legislative process. Where the legislation is sought to be challenged as being unconstitutional and violative of Article 14 of the Constitution, the Court must remind it self to the principles relating to the applicability of Article 14 in relation to invalidation of legislation. The two dimensions of Article 14 in its application to legislation and rendering legislation invalid are now well recognised and these are : (i) discrimination, based on an impermissible or invalid classification, and (ii) excessive delegation of powers; conferment of uncanalised and unguided powers on the executive, whether in the form of delegated legislation or by way of conferment of authority to pass administrative orders - if such conferment is without any guidance, control or checks, it is violative of Article 14 of the Constitution. The Court also needs to be mindful that a legislation does not become unconstitutional merely because there is another view or because another method may be considered to be as good or even more effective, like any issue of social, or even economic policy. It is well settled that the courts do not substitute their views on what the policy is.";