The State Of Rajasthan vs Trilok Ram

CIVIL APPEAL NO.7215 OF 2019 (Arising out of S.L.P.(C) No.30933 of 2017)

THE STATE OF RAJASTHAN & ORS. … APPELLANT(S)

VERSUS

TRILOK RAM … RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1. Leave granted.

Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2019.09.12 16:41:52 IST Reason: 1

2. The appellant issued an advertisement on

11.8.2013 for recruiting Teachers Grade III (Level I

and II) in the various Zila Parishads in the State of

Rajasthan. The advertisement stipulated the last

date for submission of the application form as

4.9.2013. The applicants were to fulfil the

requisite educational qualifications as on the last

date of the submission of the application form. The

writ petitioner who is the respondent (hereinafter

referred to as “the respondent”) was undergoing the

B.S.T.C. Course (B.S.T.C. is an essential

qualification stipulated). He, however, applied

pursuant to the advertisement. The appellant

discovered during the process of verification that

the respondent was not holding the requisite

qualification of B.S.T.C. as on the last date for

submission of application form. The respondent

appeared on the basis of an order passed by the High

Court permitting him and others to submit their

application however, it was subject to the decision

in SBCWP No.10845/2013. Thereafter, he completed his

B.S.T.C. second year course and the results were also

declared. The result of the recruitment examination

was declared on 17.5.2014. Finding that the result

2 of the examination in regard to the respondent and

another was not uploaded on the official website,

they filed writ petition No.244/2015. An interim

order was passed in the said writ petition to bring

the result of the petitioner in a sealed cover before

the Court. The High Court further directed that the

results to be declared. The respondent secured

158.41 marks. The respondent was called for

verification of documents. Though the respondent

secured marks which was more than the cut-off, his

name was not found in the Select List dated

16.3.2015. After representing and not eliciting the

required response, the writ petition which led to the

present appeal (W.P.No.2801/2015) came to be filed

seeking to quash final select list dated 16.3.2015

and to direct the appellants to declare the selection

list of the respondent as marks secured were higher

than the cut-off in the respective category.

Finally, direction to appoint the respondent to the

post of Teacher Grade III (Level I) with all

consequential benefits was sought. The appellant

filed counter affidavit. The learned Single Judge

dismissed the writ petition.

3 In appeal filed by the respondent, by the

impugned order, however, the division Bench allowed

the writ petition.

3. The controversy which falls to be resolved by us

is whether the High Court was right in holding that

the proviso to Rule 266(3) of the Rajasthan

Panchayati Raj Rules, 1996 (hereinafter referred to

as “the Rules”) which was relied upon by the

respondent remained intact despite the substitution

of Rule 266(3) by Notification dated 11.5.2011. The

proviso read as follows:

“Provided further that the person who has appeared in the B.Ed./B.S.T.C. examination shall be eligible to apply for the post of primary and upper primary school teacher but he shall have to submit proof of having acquired the said educational qualification to the District Establishment Committee before the declaration of result of the said examination.”

4

4. In short, if the proviso held the field, the

respondent would become eligible and qualified for

selection and appointment based on merit. If the

proviso on the other hand was not available, the

respondent would not be eligible for the reason that

as contended by the appellants, as on the last date

for filing application the respondent had admittedly

not passed the B.S.T.C. examination. The respondent

had actually appeared for the examination and taking

shelter under the proviso, the respondent claimed to

be qualified on the terms thereof. The High Court

after referring to the amendment dated 11.5.2011 to

clause (3) of Rule 266, dwelt upon the purpose of a

proviso. The Court adverted to case law on the

point. It was found that there is no rule that the

proviso must always be restricted to the ambit of the

main provision. Occasionally in a statute, it was

reasoned a proviso may be unrelated to the subject

matter of the preceding section or contains matter

extraneous to that section. Under such

circumstances, it was reasoned by the High Court that

it would have to be interpreted as a substantive

provision dealing independently with the matter

comprised therein and not as qualifying the main and

5 preceding section. The academic qualifications in

clause (3) of Rule 266, it was found, were neither

expanded nor qualified by the proviso. The proviso

dealt with a clearly different area, namely, the time

in which the eligibility prescribed under the Rules

had to be attained. The amendment to sub-Rule (3)

regarding academic qualifications was necessitated on

account of subsequent legislation. Even after sub-

rule (3) was substituted by amendment dated

11.5.2011, the proviso continued to hold the field.

It is found that in such circumstances the condition

in the advertisement being contrary to the proviso it

would be illegal for the reason that an executive

instruction cannot supplant the rule. The writ

appeals were allowed. Petitioners were found

entitled to benefits of employment in the light of

their merit position except for back wages.

5. We heard Dr. Manish Singhvi, learned senior

counsel appearing on behalf of the appellants and Ms.

Aishwarya Bhati, learned senior counsel on behalf of

the respondent.

6

6. It is contended by learned counsel for the

appellants that the advertisement dated 11.8.2013

clearly stipulated that applicants should have the

requisite educational qualifications on the last date

of the submission of the application form. The

respondent did not possess the said qualification

admittedly but become qualified only if the proviso

is made applicable. The respondent had not

challenged the advertisement. He had participated in

the selection, fully aware that under the

advertisement the cut-off point was the last date for

determining the issue relating to qualifications. He

would also further submit that the amendment dated

5.10.2011 brought about by substitution in clause (3)

of Rule 266, swept away the proviso. When clause (3)

of Rule 266 was substituted by the said amendment,

the rule making authority did not think it fit to

continue the proviso relied upon by the respondent.

The advertisement dated 11.8.2013 was issued after

the substitution was carried out in clause (3) of

Rule 266 on 11.5.2011. Therefore, the High Court

erred in holding that the proviso survived the

substitution on the basis that it was an independent

provision having nothing to do with the change in the

7 qualifications which was brought about through the

substituted provision of clause (3) of Rule 266 of

the Rules. He further submitted that thousands of

candidates had applied and were appointed who were

qualified in terms of the advertisement, namely,

those who were possessing qualification on the last

date mentioned for making the application. He would

also highlight that if the view of the High Court is

upheld, it would also reach injustice to those

candidates who relied upon the advertisement and were

positioned like the respondent who appeared for the

examination but did not apply on the basis that they

were not having the qualifications.

8

7. Per contra, the learned senior counsel for the

respondent supported the High Court judgment. She

pointed out that sub-rule (3) of Rule 266 dealt with

the qualification to be possessed for appointment as

teachers. The qualifications became amenable to

changes based on the qualifications which were

stipulated by the competent authority. All that

happened when the amendment dated 11.5.2011 was

carried out was a new set of qualifications as

stipulated by the competent authority came to be

inserted in sub—rule (3) of Rule 266. The proviso as

found by the High Court did not deal with the

qualifications as such but only contemplated allowing

persons who were not qualified when an advertisement

is issued but had appeared for the examination could

also apply subject to the conditions therein. The

proviso thus only facilitated greater participation

in the competitive process by throwing open the doors

of recruitment to candidates who would otherwise be

ousted. She also further drew our attention to the

fact that the proviso in question came to be inserted

for the first time on 1.7.2004. In 2006, Rule

266(3), it is pointed out came to be amended and a

new set of qualifications were introduced through the

9 said amendment. However, the proviso continued in

Rule 266(3). In fact, she drew our attention to the

following circular dated 29.2.2012:

“GOVERNMENT OF RAJASTHAN RURAL DEVELOPMENT AND PANCHAYATI RAJ DEPARTMENT PANCHAYATI RAJ PRIMARY EDUCATION

NO. EK 914/(10) Paravi/Prashi/2010/116

Dated 29.02.12

To

All District Magistrate Controller of Examination.

Chief Executive Officer District Council Additional Controller of Examination.

Sub.: Regarding Direct Recruitment for Third grade Teachers Exam 2012.

Ref: Departmental letter No. 94 dated 21.2.12.

10 With reference to above cited subject it is stated that a video conferencing was convened regarding Third Grade Teachers Direct Recruitment through competitive examination, 2012 on 28.2.2012 wherein Chief Executive Officers raised following points:-

1. Whether the candidates who have qualified the Teachers Eligibility Test 2011 but took part in training examination and consequently results were not declared can appear in the Direct Recruitment competitive examination for Third Grade Teachers?

In this connection, it is clarified that a departmental letter No.94 dated 21.2.2012 was uploaded on the website and in the advertisement at Point No.7 (7) “the eligibilities mentioned therein about have been acquired till the last date of filing application” has been replaced by the words “Such person who has appeared in B.Ed./BSTC/DSE/B.ED. (General/special education) examination or appearing shall be eligible for filing application for the primary or higher primary school Teachers (Common Education/Special Education) post but he has to furnish the proof of having acquired the educational qualification prior to the declaration of result of competitive examination.” The same be read accordingly.

11

2. For the Third Grade Teachers Direct Recruitment Competition Examination, 2012, no mention is made about the posts advertised about the language of the special teachers (Mentally retarted, Visually impaired, Hearing Impaired) in the post advertised?

On this point, it is clarified with the concurrence of Chief Secretary, School Education Department that for Third Grade Teachers, Second level Class 6 to 8 (higher primary school), language for special teachers (Mentally retarted, visually impaired, hearing impaired) shall be Hindi – English. Hence, the candidates having certificates for Teachers Eligibility Test Second level for class 6 to 8 in language Hindi, English shall be eligible.

Hence please ensure that the above modifications be placed on the website today for conducting further proceedings regarding Third Degree Teachers Direct Recruitment Competitive Examination, 2012.

Sd/- ADDITIONAL CHIEF SECRETARY RURAL DEVELOPMENT AND PANCHAYATI RAJ DEPARTMENT”

12 13

8. She would therefore, submit that despite the

fact that sub-Rule (3) of Rule 266 came to be

substituted in 2006, as already noticed, the proviso

remained intact and there is no basis for the

appellant to contend otherwise. She emphasised that

it was the understanding of the authorities

themselves that the proviso did not die in the

process of substitution carried out in clause (3) of

Rule 266. She also commended the reasoning of the

High Court for our acceptance, namely, the area of

the operation of the proviso was independent and

different from the province covered by clause (3) of

Rule 266. It was pointed out that several persons

are affected by the proviso. It was further pointed

out that in view of the fact that the proviso held

the field, the participation of the respondent under

the advertisement was not fatal. The provisions in

an advertisement which did not square with the

requirement of the statutory rules must naturally

perish and be ignored.

14

9. In reply to the same the learned counsel for the

appellant agreed with the contention of the

respondent that the proviso was first inserted on

1.7.2004. He also agreed that Rule 266 underwent an

amendment dated 28.6.2006. The substitution of

clause (3) of Rule 266 makes no mention about the

omission of the proviso. However, most pertinent it

is argued by him, that on 29.11.2006 a further

amendment was carried out in Rule 266(3) and under

the said amendment the proviso was resurrected.

There was a further amendment in the proviso to Rule

266, wherein in place of Rajasthan Public Service

Commission, the expression, District Establishment

Committee came to be substituted. However, he would

point out on 11.5.2011 again clause (3) of Rule 266

came to be substituted. In fact, there is no

controversy that such an amendment was carried out.

His argument however is unlike what happened in 2006

when consequent upon the changes brought about in

Rule 266(3), the proviso which existed earlier prior

to the substitution came to be brought back to life,

after the substitution which took place on 11.5.2011,

the proviso suffered a burial from which it has not

been brought back to life. In other words, after the

15 admitted substitution of clause (3) to Rule 266 in

2011, the proviso has not been inserted again as was

done in the year 2006. This meant that after the

substitution of 11.5.2011, the proviso had ceased to

exist. Thereafter, it has never been brought back in

rules in question.

16

10. As regards the circular dated 29.2.2012 relied

upon, learned counsel pointed out that it related to

the advertisement in the year 2012. At that time

though the proviso was actually not there and the

advertisement was issued on the said basis namely the

candidates were expected to be in possession of the

qualifications as on the last dated fixed under the

advertisement, a decision was taken to replace the

said clause in the advertisement itself for

introducing the provisions of the proviso. In other

words, though originally the advertisement

contemplated the last date for determining the

possession of qualifications, a conscious decision

was taken to amend the advertisement itself on the

basis that the proviso would govern the situation.

He would further point out that we are concerned not

with the advertisement of 2012 but with the

advertisement dated 11.8.2013. As far as the current

advertisement in question is concerned, the Circular

dated 29.2.2012 would have no application. As far as

the advertisement in question, the authorities have

also not changed the requirement that the candidate

should possess the qualifications as on the last

date. The requirement of the candidate possessing

17 qualifications as on the last date stipulated in the

advertisement is in consonance with Rule 266(3) sans

the proviso. The advertisement, thus is in harmony

with the statutory rules holding the field. He would

no doubt submit that few persons may have been

appointed on the basis that proviso would operate.

It is appellants case that proceedings have been

initiated in this regard. He would emphasize however

that the correct legal position must govern,

illegality should not be perpetuated and the proviso

indeed cannot hold the field after 2011.

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11. We have already noticed the proviso. The proviso

was introduced for the first time on 1.7.2004 (though

with variation not relevant to the enquiry) in the

rules. Rule 266 is a part of Rajasthan Panchayat Raj

Rules. The qualifications for teachers for the

category we are concerned with, is undoubtedly, laid

down by the National Council for Teachers Education

(NCTE). This is done by virtue of the provisions of

Section 23 of Right of Children to Free and

Compulsory Education Act, 2009. After the proviso

was inserted in 2004 by virtue of the amendment

carried out in Rule 266 (3) dated 28.6.2006, the

qualifications in clause (3) of Rule 266 came to be

changed and new qualifications came to be introduced

through the amendment. It purported to be a

substitution of clause (3). It must be remembered

that the proviso had been earlier inserted in clause

(3) of Rule 266 by virtue of Rajasthan Panchayati Raj

(Fourth Amendment) Rules 2004.

12. Thereafter again on 11.5.2011, Rule 266(3) came

to be substituted. Qualifications as stipulated by

NCTE, were inserted. It reads as follows:

19

“In exercise of the powers conferred by Section 102 of the Rajasthan Panchayati Raj Act, 1994 (Act No.13 of 1994) and all other powers enabling it in this behalf, the State Government hereby makes the following rules further to amend the Rajasthan Panchayati Raj Rules, 1996, namely:-

1. Short title and commencement.- (1) These rules may be called the Rajasthan Panchayati Raj (Second Amendment) rules, 2011.

2. Amendment of rule 266.-The existing clause (3) of rule 266 of the Rajasthan Panchayati Raj Rules, 1996, hereinafter referred to as the said rules, shall be substituted by the following, namely:-

(3)Primary and Upper Primary School Teacher (100% by direct Recruitment)

(a)General Education

Level-(i) Classes I to V Qualification as

20 laid down by National Council for Teacher Education (NCTE) under the provisions of sub-

section (1) of Section 23 of the Right of Children to Free and compulsory Education Act, 2009 (Central Act No.35 of 2009) from time to time.

Level-(ii) Classes VI to VIII Qualifications as laid down by National Council for Teacher Education (NCTE) under the provisions of sub- section (1) OF Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act No.35 of 2009) from time to time. (b) Special Education

Level-(i) Classes I to V Qualifications as laid down by National Council for Teacher Education (NCTE) under the provisions of sub- section (1) OF Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act No.35 of 2009) from time to time.

21 Level-(ii) Classes VI to VIII Qualifications as laid down by National Council for Teacher Education (NCTE) under the provisions of sub- section (1) OF Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act No.35 of 2009) from time to time.”

(emphasis supplied)

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13. The High Court has taken the view that when the

substitution was effected on 11.5.2011, all that

happened was one set of qualifications were replaced

by another set of qualifications. The domain of

clause (3) of Rule 266 was the declaration as to the

qualifications to be possessed by the candidates for

appointment as teachers at different levels. The

proviso which was inserted on 1.7.2004 did not add to

or take away from the qualifications which were

declared in the main provision. All that the proviso

purported to achieve was to give an opportunity to

those candidates who had not acquired the

qualifications as on the last date for making

application but who had appeared for the concerned

examination, to apply for the post. Thus, the

proviso was indeed a beneficial provision as it

provided a window of opportunity to those while not

being qualified as such, were in the process of

acquiring qualification by having appeared in the

examination. This is no doubt subject to the

conditions in the proviso.

23 14. We do agree with the High Court and with the

learned counsel for the respondent that the proviso

was intended to have a different area of operation

from the main provision whose function was only to

enunciate the requisite qualifications.

15. The argument also is that in the year 2006 also

when the new set of qualifications was ushered in, it

was facilitated by the substitution of clause (3) of

Rule 266 of the Rules. Therefore, the contention is,

when qualifications changed as a result of NCTE

stipulating new qualifications, by substituting the

existing qualifications contained in Rule 266(3), the

rule making authority complied with the requirement

of law. This has nothing to do with the continued

availability of the beneficial provisions of the

proviso.

24 16. We are in this case concerned with the effect of

amending Act which brought about the substitution of

a provision. An amendment which brings about

substitution of a provision essentially does two

things. In the first place, the provision which is

substituted undergoes a repeal. At the same time,

there is a re-enactment through the newly inserted

provisions.

17. We may only refer to a decision of this Court in

State of Rajasthan vs. Mangilal Pindwal reported in

AIR 1996 SC 2181, therein this Court inter alia held

as follows:

“9. As pointed out by this Court, the process of a substitution of statutory provision consists of two steps; first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. (See: Koteswar Vittal Kamath v. K. Rangappa Baliga & Co. [(1969) 1 SCC 255 : (1969) 3 SCR 40], SCR at p. 48.) In other words, the substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. As regards repeal of a statute the law is thus stated in Sutherland on Statutory Construction:

25 “The effect of the repeal of a statute where neither a saving clause nor a general saving statute exists to prescribe the governing rule for the effect of the repeal, is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the statute, which, except as to proceedings past and closed, is considered as if it had never existed.” (Vol. I, para 2042, pp. 522-523)

10. Similarly in Crawford's Interpretation of Laws it has been said:

“Effect of Repeal, Generally.— In the first place, an outright repeal will destroy the effectiveness of the repealed act in futuro and operate to destroy inchoate rights dependent on it, as a general rule. In many cases, however, where statutes are repealed, they continue to be the law of the period during which they were in force with reference to numerous matters.” (pp. 640-641)

11. The observations of Lord Tenterden and Tindal, C.J. referred in the above-

mentioned passages in Craies on Statute Law also indicate that the principle that on repeal a statute is obliterated is subject to the exception that it exists in respect of transactions past and closed. To the same effect is the law laid down by this Court.

(See: Qudrat Ullah v. Municipal Board [(1974) 1 SCC 202 : (1974) 2 SCR 530] , SCR at p. 539) 26

12. This means that as a result of repeal of a statute the statute as repealed ceases to exist with effect from the date of such repeal but the repeal does not affect the previous operation of the law which has been repealed during the period it was operative prior to the date of such repeal. “ (emphasis supplied)

18. Therefore, when a substitution was carried out

initially on 28.6.2006, all the provisions of clause

(3) of Rule 266, as it stood, suffered a repeal and

in its place a new avtaar was born. It must be at

once remembered that the proviso was inserted on

1.7.2004 in clause (3) of Rule 266. Therefore, when

the rule making authority substituted clause (3) of

Rule 266 by the amendment dated 28.6.2006, the

inevitable result would be the repeal of entire

clause (3) of Rule 266 including the proviso. It is

crucial to bear in mind that the amendment to Rule

266 (3) by substitution did not expressly save the

proviso. It is equally important to be not oblivious

to the fact that the proviso was an integral part of

clause(3) of Rule 266. Since Rule 266(3) came to be

substituted, having regard to the legal consequences

of the same, the proviso could not survive.

27

19. The fact that the proviso had ceased to exist as

a result of the substitution dated 28.6.2006 is

unambiguously demonstrated, by the fact the rule

making authority chose to step in by issuing

notification dated 29.11.2006 by inserting again the

proviso to Rule 266(3). It read as follows:

“Provided that the person who has appeared or is appearing in the B.Ed./ B.S.T.C./DSE/B.Ed.(Special Education) Examination shall be eligible to apply for the post of primary and upper primary school teachers (General Education/ Special Education) but he shall have to submit proof of having acquired the said educational qualification to the Rajasthan Public Service Commission before the declaration of result of the competitive examination.”

It is by a subsequent amendment that the words

‘District Establishment Committee’ was inserted in

place of Rajasthan Public Service Commission.

28 20. Rule 266 (3) as was brought into life by the

amending Act dated 28.6.2006 continued to hold the

field till it suffered substitution by notification

dated 11.5.2011. Apparently, consequent upon the

need to change the qualifications, Rule 266(3) came

to be substituted. However, it is not in dispute

that after the substitution dated 11.5.2011, the

proviso relied upon by the respondent has not been

brought back into existence as was done in the year

2006.

29

21. We would think whatever ambiguity there may

have been as to the actual effect of the

substitution, it stands removed by the legislative

history of clause (3) of Rule 266 including the

proviso therein. The legislative intention is clear

that when rule maker substituted the provisions of

clause (3), it intended that the entirety of clause

(3) would stand obliterated as indeed is the effect

of a repeal and a new set of provisions taking its

place. It is on this understanding that the rule

making authority, when it intended that the proviso

must govern, it expressly did so, and it issued the

notification dated 29.11.2006. Admittedly after

11.5.2011, the proviso has not been brought back to

life. Apparently, the notification dated 29.11.2006

bringing the proviso back to life after the

substitution of clause (3) to Rule 266 in 2006 was

not brought to the notice of the High Court.

30

22. As far as the Circular dated 29.2.2012 relied

upon by the respondent is concerned, it related to

the advertisement issued in 2012 though legally the

proviso to Rule 266(3) was non-existent. For

whatever reasons it may have been, the order came to

be issued extending the benefit of the proviso but

after changing the condition in the advertisement.

It cannot advance the case of the respondent who

applied pursuant to a later advertisement dated

11.8.2013 wherein the requirement as to possession of

qualifications as on the last date is clearly

indicated. As far as the advertisement with which we

are concerned which is of the year 2013, the Circular

dated 29.2.2012 cannot be pressed into service by the

respondent both in law and on facts.

23. The candidates must possess the qualifications

on the last date when applying under the

advertisement when it is so provided. In view of our

finding that the proviso had ceased to exist after

substitution of Rule 266(3) by notification dated

11.5.2011, there can be no question of the

advertisement being opposed to the statutory rule.

31

24. The upshot of the above discussion is that the

appeal is only to be allowed. We allow the appeal

and the impugned judgment of the High Court in Writ

Appeal No.DBCSAW NO.667/2015 shall stand set aside.

.......................J. (SANJAY KISHAN KAUL)

.......................J. (K.M. JOSEPH) New Delhi, September 12, 2019.

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