Full Judgment Text
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PETITIONER:
OM PRAKASH SHUKLA
Vs.
RESPONDENT:
AKHILESH KUMAR SHUKLA & ORS.
DATE OF JUDGMENT18/03/1986
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
SEN, A.P. (J)
RAY, B.C. (J)
CITATION:
1986 AIR 1043 1986 SCR (1) 855
1986 SCC Supl. 285 1986 SCALE (1)475
ACT:
U.P. Subordinate Civil Courts Ministerial
Establishments Rules, 1947/Rules for the Recruitment of
Ministerial Staff to the Subordinate offices,
1950/Subordinate Civil Courts Ministerial Establishment
(Amendment) Rules, 1969 Subordinate Offices Ministerial
Staff (Direct Recruitment) Rules, 1975.
Rules 5, 9-12, and Appendix II of 1947 Rules -
Recruitment to establishment - 1950 Rules - Applicability
of.
Interpretation of statutes : Doctrine of implied repeal
- Applicability of.
HEADNOTE:
Recruitment to the ministerial establishment in the
Subordinate Civil Courts of the United Provinces was
regulated by the Subordinate Civil Courts Ministerial
Establishments Rules 1947. Rule 11 provided that the
recruitment shall be based on the results of a competitive
examination and an interview, to be held in the manner laid
down in Appendix II. On July 15, 1950, the Governor in
supersession of all existing rules promulgated the ’Rules
for the Recruitment of Ministerial Staff to the Subordinate
Offices, 1950’ for the recruitment of ministerial staff to
the subordinate offices in the State including the offices
of Subordinate Civil Courts.
These Rules did not expressly say that the 1947 Rules
had been superseded, but clearly stated that the Governor
had framed them in supersession of all existing rules and
orders on the subject for recruitment to the ministerial
establishment of subordinate offices under his control.
Rules 9 to 12 and Appendix II of the 1947 Rules were thus
supersded. The two reasons in support thereof are : (1) that
in the definition of the expression "subordinate office"
only the offices of the Secretariat, the State Legislature,
the High Court and the Public Service Commission stood
excluded, and (ii) the
856
offices of the Subordinate Civil Courts were included in the
Schedule to those Rules. This is evidenced from the letter
dated 12th February, 1973, written by Joint Registrar of the
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High Court to all the District Judges in the State. The High
Court on its administrative side also understood that rules
9 to 12 and Appendix II to the 1947 Rules had been
superseded by the 1950 Rules.
In the meanwhile, the Governor had promulgated the
Subordinate Civil Courts Ministerial Establishment
(Amendment) Rules, 1969 on September 20, 1969 amending the
1947 Rules. The existence of these Amending Rules of 1969
was not taken note of by the High Court at the time when the
said letter was issued. The High Court was following the
1950 Rules even after the promulgation of the 1969 Amending
Rules for purposes of holding the competitive examination
for recruitment to the ministerial staff in the Civil
Courts. Then Subordinate Offices Ministerial Staff (Direct
Recruitment) Rules 1975 were promulgated by the Governor, in
supersession of all existing rules and orders on the
subject. Rule 2 made these Rules inapplicable to the
Secretariat, the office of the State Legislature, Lokayukta,
Public Service Commission, High Court, the Subordinate
Courts under the control and superintendence of the High
Court and all the establishments under the control of the
Advocate-General. The 1975 Rules prescribed the
qualifications and the pattern of a competitive examination
for purposes of recruitment in substitution of what had been
prescribed by the 1950 Rules.
After the prmulgation of the 1975 Rules, a competitive
examination was held by the District Judge of Kanpur in
September, 1981 and its results were announced on July 25,
1983. This competitive examination was held in accordance
with the 1950 Rules and the 1969 Amending Rules were not
followed. Respondent No. 1, an unsucessful candidate in the
said competitive examination, filed a writ petition
contending that the competitive examination which had been
held in accordance with the 1950 Rules was unauthorised one
and that it should have been held in accordance with the
1947 Rules as amended by the 1969 Amending Rules. The High
Court allowed the petition holding that the intention of
promulgating the 1950 Rules was only to prescribe a syllabus
different from what had been prescribed in the 1947 Rules
but the modification made by the
857
1950 Rules did not, however, modify the rest of the 1947
Rules.
The High Court quashed the examination held in 1981 by
the District Judge of Kanpur and directed all the candidates
who had applied for the 1981 examination to appear for the
fresh examination to be held by the District Judge of
Kanpur. In other districts where similar examinations had
been held under the 1950 Rules and which had not been
challenged, the selection and appointment made in pursuance
thereof were not rendered invalid.
Allowing the appeal by one of the selected candidates
in the Kanpur Examination to this Court,
^
HELD : 1. The judgment of the High Court is set aside
and the writ petition is dismissed. The appellant and all
other successful candidates at the 1981 examination held in
Kanpur shall be appointed in accordance with the rules. If
in any other centre, selections and appointments have been
made on the basis of the 1969 Amending Rules, they shall
remain undisturbed. [879 G-H; 880 A-B]
2. The orders passed by the High Court in the connected
writ petitions Nos. 10224 of 1983 and 5073 of 1984 are set
aside. [880 B]
3. The 1947 Rules made appropriate provisions regarding
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the recruitment of candidates to the posts in the
ministerial establishment in the Subordinate Courts in the
former United Provinces. They were continued to be in force
till July 11, 1950 when the 1950 Rules were promulgated.
They were applicable not merely to the ministerial
establishments in Civil Courts but to the ministerial
establishments in several other offices. Rules 9 to 12 of
the 1947 Rules and Appendix II to it stood superseded. The
other parts of the 1947 Rules remained intact. Thus, the
1947 Rules were not superseded in their entirety by the 1950
Rules. The opening words ’in supersession of all existing
rules and orders on the subject’ in the 1950 Rules only
refer to those matters in the existing rules which
correspond to the matters dealt with by the 1950 Rules. The
High Court was, therefore, right in observing that the whole
of the 1947 Rules did not come to an end on the promulgation
of the 1950 Rules. [875 B-H; 876 A-B]
858
4. The 1969 Amending Rules specifically amended the
1947 Rules, which appear to have been made after
consultation with the High Court. By these Rules, rule 5 of
the 1947 Rules was amended. Rule 5 dealt with the minimum
academic qualification which a candidate for a post in the
ministerial establishment in a Subordinate Civil Court
should possess. The other amendment related to the
substitution of the former Appendix II which related to the
subjects prescribed for the competitive examination and the
marks assigned to each of them as it obtained before the
1950 Rules came into force by a new Appendix. [876 A-B]
5. Rule 11 of the 1947 Rules which required the
District Judge to hold the examination in accordance with
the former Appendix II of the 1947 Rules, which also stood
superseded by the 1950 Rules in view of rules 5 and 7 of the
1950 Rules, which dealt with the same subject, was however
not replaced nor a corresponding rule authorising the
District Judge to hold the competitive examination in
accordance with the new Appendix II was introduced by the
1969 Amending Rules into the 1947 Rules simultaneously.
While the new Appendix II again re-appeared in the 1947
Rules prescribing certain subjects and marks assigned to
them, the authority who should hold the competitive
examination was not again prescribed in the 1947 Rules. It
was necessary to re-enact Rule 11 of the 1947 Rules because
it also stood repealed by the 1950 Rules which had made
provisions with regard to topic contained in the former Rule
11. [876 F-H; 877 A]
6(a). The legal position that by the promulgation of
the 1950 Rules, the former rules 9 to 12 of the 1947 Rules
stood repealed by necessary implication is accepted even by
the High Court in its letter dated February 12, 1973.
Therefore, the former Rule 11 should have been re-enacted
either in the same form or with modification and brought
back to life to give effect to the new Appendix II,
reintroduced in the 1947 Rules. Without such reintroduction
of Appendix II in the 1947 Rules by the 1969 Amending Rules
would be meaningless and ineffective as the authority who
can hold the examination remained unspecified. The method of
selection of candidates also remained unspecified. Whatever
was provided in Rules 9 to 12 of the 1947 Rules, which was
needed for conducting the examination and selecting
candidates was unavailable. Old
859
Rules 9 to 12 did not get automatically revived along with
the Apendix II without an express provision reintroducing
them. The 1969 Amending Rules do not expressly state that
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the 1950 Rules would no longer be applicable to the
ministerial establishment of the Subordinate Civil Courts.
They also did not repeal the item referring to the Judicial
Department Subordinate Civil Courts, which found a place in
the Schedule to the 1950 Rules. The discontinuance of the
application of the 1950 Rules to the ministerial
establishments of the Subordinate Civil Courts can only be
inferred by relying upon the rule of implied repeal provided
the said rule is applicable. [877 A-F]
6.(b). An implied repeal of an earlier law can be
inferred only where there is the eanactment of a later law,
which had the power to override the earlier law and is
totally inconsistent with the earlier law, that is, where
the two laws - the earlier law and the later law - cannot
stand together because the two inconsistent laws cannot both
be valid without contravening the principle of
contradiction. The later laws abrogate earlier contrary
laws. The principle is however subject to the condition that
the later law must be effective. If the later law is not
capable of taking the place of the earlier law and for some
reason cannot be implemented, the earlier law would continue
to operate. To such a case the rule of implied repeal is not
attracted because the application of the rule of implied
repeal may result in a vacum which the law making authority
may not have intended. Appendix II contains a list of
subjects and marks assigned to each of them. It is only in
the presence of rule 11 one can understand the meaning and
purpose of Appendix II. [877 F-H; 878 A-B]
7. In the absence of an amendment re-enacting rule 11
in the 1947 Rules, it is difficult to hold by the
application of the doctrine of implied repeal that the 1950
rules have ceased to be applicable to the ministerial
establishments of the Subordinate Civil Courts. The High
Court overlooked this aspect of the case and proceeded to
hold that on the mere reintroduction of the new Appendix II
into the 1947 Rules the examination could be held in
accordance with the said Appendix. This Court is not in
agreement with this view of the High Court. [878 B-C]
8. There is also no material to show that after the
1969 Amending Rules, examinations were held in the different
districts of Uttar Pradesh in accordance with the 1947 Rules
as amended by the 1969 Amending Rules. No body including the
High Court appears to have taken notice of the amendment.
860
Admittedly, the examinations were held in 1981 in accordance
with the 1950 Rules and not in accordance with the 1947
Rules as amended by the 1969 Amending Rules. The High Court
treated the 1950 Rules as the existing Rules in 1973 even
after the 1969 Amending Rules came into force. [878 C-F]
9. In the year 1981 in some other districts of Uttar
Pradesh also examinations were held as per the 1950 Rules
because the High Court expressed its reluctance to set aside
the results of the examinations in other districts and
confined the operation of its judgement to Kanpur district
only. The 1969 Amending Rules appear to have been ignored by
some District Judges. Having regard to the lacuna created by
the non-repromulgation of rule 11 of the 1947 Rules it has
to be held that there was no effective substitution of the
1950 Rules brought about by the 1969 Amending Rules. The
1950 Rules should, therefore, be held to be operating even
in the year 1981. Hence the examination held according to
them cannot be held to be bad. [879 A-C]
10. 1950 Rules have not been repealed by the 1975 Rules
in so far as the Subordinate Civil Courts are concerned.
Though Rule 20 of the 1975 Rules clearly stated that the
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1950 Rules had been repealed, but the 1975 Rules did not
apply to the Subordinate Courts under the control and
superintendence of the High Court. Hence the 1950 Rules in
so far as they applied to the Subordinate Courts continued
to be in force. [879 C-D]
In the instant case, the petitioner in the writ
petition should not have been granted any relief. He
appeared in the examination without protest and filed the
petition when he realised that he would not succeed in the
examination. The High Court itself observed that the setting
aside of the result of the examinations held in the other
districts would cause hardship to the candidates who had
appeared there. The same yardstick should have been applied
to the candidates in the District of Kanpur also. [879 E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 2999 of
1985.
From the Judgment and Order dated 12th April, 1985 of
the Allahabad High Court in Civil Misc. Writ Petition No.
3961 of 1982.
S.N. Kacker, R.B. Mehrotra for the Appellant.
Arun Deo Sagar and Pramod Dayal for the Respondents.
The Judgment of the Court was delivered by
861
VENKATARAMIAH, J. This appeal by special leave is filed
against the judgment and order of the High Court of
Allahabad dated April 12, 1985 in Writ Petition No. 3961 of
1982 by which the High Court of Allahabad quashed the
results of the competitive examination held by the District
Judge of Kanpur in September, 1981 for selecting candidates
for appointment to the vacancies in Grade III of the
ministerial staff in the Subordinate Courts in the District
of Kanpur.
Before the commencement of the Constitution,
recruitment to the ministerial establishment in the
Subordinate Civil Courts of the United Provinces was
regulated by the Subordinate Civil Courts Ministerial
Establishment Rules, 1947 (hereinafter referred to as ’the
1947 Rules’). The said Rules were promulgated by the
Governor of the United Provinces on August 1, 1947. The
expression ’Ministerial Establishment’ was defined by rule
2(c) of the 1947 Rules as the staff of the subordinate civil
courts consisting of ministerial servants as defined in
Fundamental Rule (17), Financial Handbook, Vol.II, Part II.
According to the definition given in rule 2(e) of the 1947
Rules the expression ’Subordinate Civil Courts’ included the
Courts of District and Sessions Judges, Additional District
& Sessions Judge, Civil and Sessions Judges, Civil Judges,
Additional Civil Judges, Munsifs, Additional Munsifs and
Courts of Small Causes subordinate to the High Court of
Judicature at Allahabad or the Chief Court of Oudh at
Lucknow. Rule 5 of the 1947 Rules prescribed the academic
qualifications which a person should possess for being a
candidate to a post in the ministerial establishment. It
read as follows :
"5. Academic qualifications - No person who is not
already on the staff attached to a subordinate
civil court shall be appointed to a post in the
ministerial establishment unless;
(a) he has passed at least the High School
examination conducted by the Board of High School
and Intermediate Education, United Provinces or
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any other examination which has been or may be
declared by the Governor to be equivalent thereto;
(b) he possesses a thorough knowledge both of Urdu
and Hindi;
862
(c) he possesses in the case of a candidate for
the post of stenographer a diploma or certificate
from a University or a recognised shorthand and
typewriting institution, showing that he possesses
a speed of at least 100 words in shorthand and 35
words per minute in typewriting."
Rule 11 of the 1947 Rules which is relevant for the
purposes of this case read as follows :-
"11. The recruitment shall be based on the results
of a competitive examination, and an interview by
the district Judge at the headquarters of the
judgeship. The examination and the interview shall
be held in the manner laid down in Appendix II.
Provided that the District Judge may delegate any
one or more of the functions other than the
function of interviewing the candidates to a
senior civil judge or senior munsif in respect of
the examination held under this rule."
Appendix II of the 1947 Rules which contained the
details regarding the manner in which the competitive
examination was to be held read thus :-
"APPENDIX II
(Vide Rule 11)
The examination shall be in three parts
(1) Compulsory subjects 350 marks :Total
(2) Optional subjects 50 marks : 500
(3) Interview 100 marks :
Compulsory subjects shall be-
(a) Translation from English into Urdu : Total
(b) Translation from English into Hindi : 200
(c) Translation from Urdu into English :
(d) Translation from Hindi into English :
(e) Precis writing 50
(f) Dictation 100
863
Optional subjects -
Shorthand and typewriting 50
In the optional subjects no marks shall be awarded to
any candidate who does not reach the minimum standard
required in the note to rule 14.
Any clerk who is already on the establishment and is
not qualified as a stenographer may sit for the
examination in typewriting and shorthand alone and will
be eligible for appointment as stenographer if he
qualifies."
By virtue of the provisions of Article 313 and Article
372 of the Constitution, the 1947 Rules continued to be in
force even after the commencement of the Constitution. But
on July 15, 1950 the Governor of Uttar Pradesh promulgated
rules for the recruitment of ministerial staff to the
subordinate offices in the State of Uttar Pradesh including
the offices of subordinate civil courts in exercise of the
powers conferred on him by the proviso to Article 309 of the
Constitution of India in supersession of all existing rules
and orders on the subject. These rules were called the
’Rules for the Recruitment of Ministerial Staff to the
Subordinate Offices, 1950’ (hereinafter referred to as ’the
1950 Rules’). Rule 2 of the 1950 Rules defined the term
’Subordinate Office’ as including all offices under the
control of the Governor of Uttar Pradesh other than those of
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the Secretariat, the State Legislature, the High Court and
the Public Service Commission. Rule 3 of the 1950 Rules
provided that the recruitment to the lowest grade of the
ministerial staff in a subordinate office shall be made on
the basis of a competitive test. Rules 5,6 & 7 of the 1950
Rules read as follows :-
"5. Tests to be held annually - The competitive
tests shall be held at least once a year and at
the time specified in the Schedule by each head of
a subordinate office for posts not requiring
technical knowledge, e.g. stenography:
Provided that if the strength of any office does
not warrant annual recruitment, or recruitment in
a
864
particular year, a competitive test shall be held
whenever it becomes necessary to recruit a
ministerial servant to the office.
6. Subjects of the tests (1) The competitive tests
shall comprise a written test as well as an oral
test.
(2) The subject of the tests and the maximum marks
on each subject shall be as follows :
_______________________________________________________
Subjects Marks
_______________________________________________________
Oral
(i) Personality 25
(ii)General Knowledge and suitability
for the particular post. 25
Written
(i) Simple drafting 50
(ii) Essay and Precis writing 50
(iii) Hindi 50
Optional
(i) Typewriting and shorthand 50
(ii) English 50
_______________________________________________________
X X X X
Note:- A candidate must take one of the two
optional subjects and may take both.
7. Selection of candidates - (1) On the results of
the test, the head of the subordinate Office shall
select a number of candidates sufficient to fill
the number of vacancies as ascertained in rule 3
and offer to them appointments as and when the
vacancies occur, according to the order of merit
865
disclosed at the test.
(2) No one who has not been selected in accordance
with sub-rule (1) shall be appointed to any
vacancy unless the list of selected candidates is
exhausted.
(3) Casual vacancies may be filled up by
appointing persons who have not taken the test but
their further retention shall depend on their
taking the next test and being selected in it."
In the Schedule attached to the 1950 Rules it was
provided that for the offices of the subordinate civil
courts the competitive examination should be held in August
second week every year. The relevant entry in that Schedule
read as follows :-
"Judicial (A) Department
(1) Offices of Subordinate Civil Courts - August
second week"
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The 1950 Rules did not, however, expressly say that the
1947 Rules had been superseded by these Rules. But it is
significant to note that the 1950 Rules clearly stated that
the Governor had framed them in supersession of all existing
rules and orders on the subject for recruitment to the
ministerial establishment of subordinate offices under his
control. The clear effect of the 1950 Rules therefore was
that the 1947 Rules stood superseded by the 1950 Rules as
regards the subjects prescribed for the test and the manner
of the examination to be held for the purpose of selecting
candidates for the ministerial staff in the Civil Courts of
the State of Uttar Pradesh. To be precise, rules 9 to 12 and
Appendix II of the 1947 Rules were superseded. The two
reasons in support of G the above view are : (i) that in the
definition of the expression ’Subordinate Office’ only the
offices of the Secretariat, the State Legislature, the High
Court and the Public Service Commission stood excluded and
(ii) the offices of the Subordinate Civil Courts were
included in the Schedule to those Rules. On its
administrative side the High Court also
866
understood that the 1950 Rules were applicable insofar as
recruitment to the ministerial staff in the Civil Courts was
concerned. This is evident from a letter written by Shri
M.P. Singh, Joint Registrar of the High Court of Allahabad
to all the District Judges in the State of Uttar Pradesh on
February R 12, 1973 which is as under :-
"From:
M.P. Singh, B.A., LL.B.
Joint Registrar,
High Court of Judicature at Allahabad.
To
All the District Judges,
Subordinate to the High Court of
Judicature at Allahabad.
CIRCULAR LETTER
No. 14/Ve-4 Dated Allahabad February 12, 1973.
Subject :- Recruitment to the establishment of the
Subordinate Civil Courts.
Sir,
It has been brought to the notice of the Court
that many District Judges face a lot of difficulties at the
instance of Employment Exchange in making recruitments to
their establishments. Broadly speaking the difficulties
pointed out by them are as under :-
1. Quite often the District Judges, on the list of
approved candidates having exhausted, have to recruit
candidates directly without subjecting them to a regular
test prescribed under the rules for filling up casual
vacancies and for meeting the requirements of newly created
additional courts at short notice and such candidates
continue in the employment of the civil courts for a
considerable time, but when a test is held for recruitment,
the Employment Exchange
867
either refuses to sponsor the names of those candidates or
withholds their applications for one reason or the other and
consequently such candidates are prevented from taking up
the test .
2. Some times the Employment Exchange, while forwarding
the applications of candidates, withholding applications of
such candidates who appear to be deserving the suitable to
the District Judges without assigning any reason and this
compel the District Judges to rec Nit candidates only from
amongst the candidates whose applications are forwarded by
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the Employment Exchange.
In order to obviate the difficulties, the court has
examined the whole scheme and the rules and within frame
work of the existing rules and Government orders on the
subject, the following procedure is laid down for our
guidance :-
While following the procedure laid down in existing
rules, published under Government Notification No.0-111/-XI-
8-50 dated July 11, 1950 (which was adopted in supersession
of rules 9 to 12 of the U.P. Subordinate Civil Courts
Ministerial Establishment Rules 1947) and amplified in G.O.
No. 0-2248/II-8-1950 dated August 30, 1950, the District
Judge should in addition himself advertise his requirement
under intimation to the Employment Exchange and while doing
so he should take care to make it clear that all
applications are to be addressed to him and routed through
the Employment Exchange. The District Judge should further
require that candidates should send advance copies of their
applications direct to the District Judge which would go to
ascertain p whether all applications have been forwarded to
him by the Employment Exchange or not. However, if on
receiving the applications from the Employment Exchange, it
is found that applications of certain suitable candidates
have been withheld by the Employment Exchange, the District
Judge may in his discretion, permit such candidates to take
the test as contemplated in paragraph 7 of the G.O. dated
August 30, 1950 referred to earlier.
In the case of candidates who are appointed to
fill up casual vacancies without appearing in the regular
test prescribed under the rules and are already working on
the
868
staff of the civil court concerned, they should be treated
as departmental candidates and should be allowed to take the
test without any reference to the Employment Exchange in
order to enable them to qualify for regular appointment.
Yours faithfully,
sd/- M.P. Singh
Joint Registrar"
(underlining by us)
From the above letter it is clear that the High Court
understood that rules 9 to 12 of the 1947 Rules including
rule 11 which prescribed the manner of examination and
Appendix II to the 1947 Rules which prescribed details
regarding the subjects in the examination had to be held had
been superseded by the 1950 Rules.
In the meanwhile in exercise of his powers under
proviso to Article 309 of the Constitution, the Governor had
promulgated the Subordinate Civil Courts Ministerial
Establishment (Amendment) Rules, 1969 on September 20, 1969
amending the 1947 Rules (hereinafter referred to as ’the
1969 Amending Rules’). The 1969 Amending Rules read as
follows :
"No. 49(1)/69-Nyaya (Ka-2)
September 20, 1969.
In exercise of the powers under proviso to Article
309 of the Constitution, the Governor is pleased
to make the following rules with a view to amend
the subordinate Civil Court Ministerial
Establishment Rules, 1947 published with
Government notification No.2494/VII-612-40 dated
August 1. 1947.
RULES
1. Short title and commencement : (i) These Rules
may be called the subordinate Civil Courts
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Ministerial Establishment (Amendment) Rules, 1969
(iii) They shall come into force with effect from
the date of their publication in the Gazette.
869
2. Amendment of rule 5: In the Subordinate Civil
Courts Ministerial Establishment Rules, 1947
(hereinafter referred to as the said rules, for
the rules as set out in Column 1, the rule as set
out in column 4 shall be substituted. B
___________________________________________________________
Column 1 Column 4
___________________________________________________________
5. Academic qualifications :- Academic qualification :-
No person who is not already No person who is not
on the staff attached to a already on the staff atta-
subordinate civil court ched to a subordinate Civil
shall be appointed to a post Court shall be appointed to
in the ministerial establi- a post in the ministerial
shment unless :- establishment unless :-
(a) he has passed at least (a)he has passed at least
the High School examination the Intermediate Examina-
conducted by the Board of tion conducted by the Board
High School and Inter- of High School and Inter-
mediate Education United mediate Education, U.P. Or
Provinces, or any other any other examination which
examination which has been has been or may be declared
or may be declared by the by the Governor to be the
Governor to be equivalent equivalent thereto.
thereto;
(b) he possesses a thorough (b)he possesses a thorough
knowledge both of Urdu and knowledge both of Urdu and
Hindi; Hindi.
(c) he possesses in the case (c)he possesses in the case
of a candidate for the post of a candidate for the post
of Stenographer, a diploma or of Stenographer, a diploma
certificate from a University or certificate from a
of a recognised Shorthand University or a recognised
and typewriting Institution, Shorthand and typewriting
showing that he possesses a Institution showing that he
speed of at least 100 words possesses a speed of at
per minute in Shorthand and least 100 words per minute
35 words per minute in in typewriting.
typewriting.
__________________________________________________________
870
3. AMENDMENT OF APPENDIX II 5. In the said rules for
the Appendix as set out in
column 1, the Appendix as
set in column 2 shall be
substituted.
Column 1 Column II
Existing Appendix II Marks Appendix as hereby Marks
substituted.
The Examination shall The Examination shall
be in three parts: be in three parts:
1. Compulsory subjects 350 1.Compulsory subjects 350
2. Optional subjects 50 2.Optional subjects 50
3. Interview 100 3.Interview 100
--- ---
Total 500 Total 500
--- ---
Compulsory subjects shall Compulsory subjects shall
be be
(a) Translation from Translation from English
English to Urdu 50 to Hindi 50
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(b) Translation from (b) Translation from
English to Hindi 50 Hindi to English 50
(c) Translation from Urdu (c)Hindi Drafting
to English. 50 (Added) 50
(d) Translation from (d)Hindi Precis writing 50
Hindi to English 50
(e) Precis writing 50 (e)English Drafting 50
(f) Dictation 100 (f)Dictation 100
OPTIONAL SUBJECTS : OPTIONAL SUBJECTS
Shorthand & Typewriting 50 Shorthand & Typewriting 50
In the optional subject no In the optional subject
marks shall be awarded to no marks shall be awarded
any candidate who does not to any candidate who does
reach the minimum standard not reach the minimum
required in the note to standard required in the
rule 14. note to rule 14.
Any clerk who is already Any clerk who is already
871
On the Establishment and on the Establishment and
is not qualified as, a is not qualified as a
stenographer may sit for Stenographer may sit for
the examination in typewriting the examination in typewri-
and shorthand alone and will ting and shorthand alone
be eligible for appointment and will be eligible for
as stenographer if he appointment as Stenographer
qualifies. if he qualifies."
The existence of these Amending Rules of 1969 was not
taken note of by the High Court when the letter of the Joint
Registrar dated February 12, 1973 was addressed to all the
District Judges. It appears from the said letter that the
Nigh Court was following the 1950 Rules even after the
promulgation of the 1969 Amending Rules for purposes of
holding the competitive examination for recruitment to the
ministerial staff in the Civil Courts. Then came the
subordinate Offices Ministerial Staff (Direct Recruitment)
Rules, 1975 (hereinafter referred to as ’the 1975 Rules’)
promulgated by the Governor under the proviso to Article 309
of the Constitution. The said Rules were promulgated in
supersession of all existing rules and orders on the
subject. Rule 2 of the 1975 Rules which deals with their
application read as follows :
"2. Application of these rules. (1) These rules
shall govern recruitment to all the ministerial
posts of the lowest grade, other than the posts of
stenographer (which are required to be filled by
direct recruitment and which are outside tho
purview of the Public Service Commission) in all
subordinate offices under the control of the
Government but excluding the Secretariat, the
offices of State Legislature, Lokayukt, Public
Service Commission, Uttar Pradesh, High Court the
Subordinate Courts under the Control and
seuperintendence of the High Court, the Advocate
General, Uttar Pradesh and of the establishments
under the control of the Advocate General."
From rule 2 of the 1975 Rules which is set out above,
it clear that the said Rules were not made applicable to the
Secretariat, the offices, of the State Legislature,
Lokayukta, Public Service Commission, High Court, the
subordinate Courts
872
under the control and superintendence of the High Court and
all the establishments under the control of the Advocate
General. The 1975 Rules prescribed the qualifications and
the pattern of a competitive examination for purposes of
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recruitment in substitution of what had been prescribed by
the 1950 Rules in respect of subordinate offices to which
the 1975 Rules applied. Sub-rule (1) of rule 20 of the 1975
Rules expressly provided thus :
"20. Repeal and validation. (1) The Rules for the
recruitment of ministerial staff in the
Subordinate offices published under notification
No.C-1119/IU-850, dated July 11, 1950 as amended
from time to time, shall be, and be deemed to have
been repealed with effect from June 5, 1974."
It was after the promulgation of the 1975 Rules that
the competitive examination, with which we are concerned,
was held by the District Judge of Kanpur. The said
examination was held in September 1981 and its results were
announced on July 25, 1983. Respondent No.l and many others
appeared in the said examination. The competitive
examination was, however, held in accordance with the 1950
Rules. The 1969 Amending Rules were not, however, followed.
Respondent No.l who had appeared for the competitive
examination was not successful. Aggrieved by the result of
the examination he filed the writ petition before the High
Court of Allahabad, out of which this appeal arises. His
principal contention before the High Court was that the
competitive examination which had been held in accordance
with the 1950 Rules was an unauthorised one and that it
should have been held in accordance with the 1947 Rules as
amended by the 1969 Amending Rules. The High Court held that
it was evident that the intention of promulgating the 1950
Rules was only to prescribe a syllabus different from what
had been prescribed in the 1947 Rules but the modification
made by the 1950 Rules did not, however, modify the rest of
the 1947 Rules. The High Court was of the opinion that
"therefore, it follows that the 1950 Rules being later in
time superseded 1947 Rules to the extent of its
inconsistency. After the enforcement of 1950 Rules
competitive tests for holding selection for appointment to
the Ministerial Establishment of Subordinate Courts was
required to be held in accordance with the syllabus of 1950
Rules and not in
873
accordance with Appendix II of 1947 Rules. In other respects
the 1947 Rules continued to be effective."
The High Court then found that on the promulgation of
the 1969 Amending Rules the syllabus prescribed by the 1950
Rules could not be followed. The High Court observed on this
question as follows:
"The question, however, arises what was the effect
of Subordinate Civil Courts Ministerial
Establishment (Amendment) Rules, 1969. As noted
earlier, the Rules of 1969 were framed by the
Governor, amending Appendix II of 1947 Rules. The
notification dated September 20, 1969, under which
the Rules were enforced, does not contain any
reference to 1950 Rules. It appears that while
amending the 1947 Rules, the Governor failed to
notice that Appendix II of 1947 Rules had already
been superseded by Rule 6 of 1950 Rules. However,
it is evient that the intention was to prescribe
different syllabus than that prescribed by 1950
Rules. There is no doubt that by the 1969 Rules,
the Governor intended to lay down a syllabus for
holding competitive examination for selection and
appointment to the ministerial establishment of
Subordinate Courts which was quite different to
the syllabus prescribed by rule 6 of 1950 Rules as
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well as Appendix II of 1947 Rules. The 1969 Rules
were also framed by the Governor in respect of the
same subject matter as laid down by rule 5 of 1950
Rules. Since 1969 Rules were framed later in time
by the same authority on the same subject, it must
be held that the syllabus prescribed by the
Amending Rules superseded the earlier rules on the
subject.
The High Court gave one more reason for holding that
the 1950 Rules were no longer in force in the year 1981. The
High Court was of the view that the 1950 Rules having been
repealed by rule 20 of the 1975 Rules they were no longer
effective from June 5, 1974. It observed thus :
"The 1969 Rules, no doubt, purported to amend Rule
5 and Appendix II of 1947 Rules. The language of
874
the Rules of 1969 indicates that apart from the
rules being in the nature of an amendment, the
Governor intended to lay down specific rules
prescribing educational qualifications and
syllabus for holding the examination for
recruitment to the Ministerial Staff of the
Subordinate Courts. Even if the 1969 Rules could
not be effective during the period the 1950 Rules
were in force, the same would be fully effective
after June 5, 1974, the same repeal of 1950 Rules.
We, therefore, hold that in any event after June
5, 1974 recruitment to the ministerial staff of
the Subordinate Courts could be held only in a
accordance with 1947 Rules read with 1969 Rules
and not in accordance with 1950 Rules.
The High Court was of the view that since within the
judgeship of Kanpur the examination had not been held in
accordance with the syllabus prescribed by the 1947 Rules as
amended by the 1969 Amending Rules all those who were
successful and selected for appointment had no legal right
to be appointed. It accordingly quashed the examination held
in 1981 by the District Judge of Kanpur, the results of
which had been announced in 1983 by its judgment dated April
12, 1985. The High Court clarified that all the candidates
who had applied for the 1981 examination were, however,
entitled to appear for the fresh examination to be held by
the District Judge of Kanpur. It further observed that in
the other Districts of Uttar Pradesh where examinations had
been held under the 1950 Rules and which had not been
challenged the selection and appointment made in pursuance
thereof should be treated as valid and would not be rendered
invalid on the ground that any other view would cause great
hardship ’which will not be in the public interest’. The
result of the judgment was that only those who had been
selected or appointed on the basis of the competitive
examination held by the District Judge, Kanpur lost their
appointments or the right to be appointed but all other
candidates who hat been selected on the basis of
examinations held in accordance with the 1950 Rules in the
rest of the State of Uttar Pradesh continued in their posts.
Aggrieved by the judgment of the High Court, the
875
appellant who was one of the selected candidates in the
Kanpur examination, has filed this appeal by special leave.
In this case the deficiencies in the drafting of the
rules and the inadvertence on the part of the High Court in
complying with them pose some difficulty in arriving at a
just solution. There is no dispute that the 1947 Rules made
appropriate provisions regarding the recruitment of
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candidates to the posts in the ministerial establishment in
the Subordinate Courts in the former United Provinces and
they continued to be in force till July 11, 1950. On July
11, 1950 the 1950 Rules were promulgated. They were
applicable not merely to the ministerial establishments in
Civil Courts but to the ministerial establishments in
several other offices. They were promulgated in supersession
of all existing rules and orders on the subject. They
prescribed that recruitment to the ministerial staff in a
subordinate office to which the said rules were applicable
should be made on the basis of a competitive test and also
provided for the mode of calculation of vacancies, the
period during which competitive examinations should be held,
the subjects for the test and the marks assigned to each of
them and the method of selection of successful candidates.
They also provided that appointments to higher posts in the
ministerial staff of those offices should be made by
promotion. Rules 9 to 12 of the 1947 Rules and Appendix II
to it which dealt with above topics thus stood superseded.
The other parts of the 1947 Rules which dealt with the
nationality domicile and residence of the candidates, their
academic qualifications, character and physical fitness, the
appointing authority, probation and confirmation, seniority,
punishment, rate of pay, transfers and regulations of
conditions of service remained intact since the 1950 Rules
did not make any provision as regards these topics. Hence we
do not agree with the argument urged on behalf of the
appellant that the 1947 Rules stood superseded in their
entirety by the 1950 Rules relying upon the opening words of
the 1950 Rules which read thus : G
"In exercise of the powers conferred by Article
309 of the Constitution of India, and in
supersession of all existing rules and orders on
the subject.................
(Emphasis supplied)
876
"In supersession of all existing rules and orders on
the subject" can only refer to those matters in the existing
rules which correspond to the matters dealt with by the 1950
Rules. We have explained earlier the other subjects in the
1947 Rules which were not covered by 1950 Rules. Hence the
argument based on the assumption that the entire 1947 Rules
had been repealed by implication and no amendment could be
made to the 1947 Rules has to be rejected. The High Court
was, therefore, right in observing that the whole of the
1947 Rules did not come to an end on the promulgation of the
1950 Rules. The problem, however, does not get solved
thereby as we shall presently show.
The 1969 Amending Rules specifically amended the 1947
Rules. These 1969 Amending Rules appear to have been made
after consultation with the High Court as can be seen from
the letter dated November 30, 1968 written by the Joint
Registrar of the High Court to the Joint Legal Remembrancer
of the Government of Uttar Pradesh. The 1969 Amending Rules
were published in the Uttar Pradesh Gazette dated October 9,
1969. By these Rules, rule 5 of the 1947 Rules was amended.
Rule 5 dealt with the minimum academic qualification which a
candidate for a post in the ministerial establishment in a
Subordinate Civil Court should possess. The other amendment
related to the substitution of the former Appendix II which
related to the subjects prescribed for the competitive
examination and the marks assigned to each of them as it
obtained before the 1950 Rules came into force by a new
Appendix which has already been set out above.
Rule 11 of the 1947 Rules which required the District
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Judge to hold the examination in accordance with the former
Appendix II of the 1947 Rules which also stood superseded by
the 1950 Rules in view of rules 5 & 7 of the 1950 Rules
which dealt with the same subject, was however not replaced
nor a corresponding rule authorising the District Judge to
hold the competitive examination in accordance with the new
Appendix II was introduced by the 1969 Amending Rules into
the 1947 Rules simultaneously. The result was that while the
new Appendix II again re-appeared in the 1947 Rules
prescribing certain subjects and marks assigned to them, the
authority who should hold the competitive examination was
not again prescribed in the 1947 Rules. It was necessary to
re-enact rule 11 of the
877
1947 Rules because it also stood repealed by the 1950 Rules
which had made provision with regard to the topic contained
in the former rule 11. The legal position that by the
promulgation of the 1950 Rules, the former rules 9 to 12 of
the 1947 Rules stood repealed by necessary implication is
accepted even by the High Court in its letter dated February
12, 1973 referred to above. Therefore the former rule 11
should have been re-enacted either in the same form or with
modification and brought back to life to give effect to the
new Appendix II reintroduced in the 1947 Rules. Without such
reintroduction of rule 11, the mere reintroduction of
Appendix II in the 1947 Rules by the 1969 Amending Rules
would be meaningless and ineffective as the authority who
can hold the examination remained unspecified. The method of
selection of candidates also remained unspecified. In effect
whatever was provided in Rules 9 to 12 of the 1947 Rules
which was needed for conducting the examination and
selecting candidates was however unavailable. It is not
correct to assume that the old rules 9 to 12 also
automatically revived along with Appendix II without an
express provision reintroducing them. Here we are not trying
to be technical. It is to be noted that the 1969 Amending
Rules do not expressly state that the 1950 Rules would no
longer be applicable to the ministerial establishments of
the Subordinate Civil Courts. They also did not repeal the
item referring to the Judicial Department Subordinate Civil
Courts, which found a place in the schedule to the 1950
Rules. The discontinuance of the application of the 1950
Rules to the ministerial establishments of the subordinate
Civil Courts can only be inferred by relying upon the rule
of implied repeal provided the said rule is applicable.. An
implied repeal of an earlier law can be inferred only where
there is the enactment of a later law which had the power to
override the earlier law and is totally inconsistent with
the earlier law, that is, where the two laws - the earlier
law and the later law - cannot stand together. This is a
logical necessity because the two inconsistent laws cannot
both be valid without contravening the principle of
contradiction. The later laws abrogate earlier contrary
laws. This principle is, however, subject to the condition
that the later law must be effective. If the later law is
not capable of taking the place of the earlier law and for
some reason cannot be implemented, the earlier law would
continue to operate. To such a case the rule of implied
repeal is not attracted
878
because the application of the rule of implied repeal may
result in a vacuum which the law making authority may not
have intended. Now, what does Appendix II contain? It
contains a list of subjects and marks assigned to each of
them. But who tells us what that list of subjects means? It
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is only in the presence of rule 11 one can understand the
meaning and purpose of Appendix II. In the absence of an
amendment re-enacting rule 11 in the 1947 Rules, it is
difficult to hold by the application of the doctrine of
implied repeal that the 1950 Rules have ceased to be
applicable to the ministerial establishments of the
Subordinate Civil Courts. The High Court overlooked this
aspect of the case and proceeded to hold that on the mere
reintroduction of the new Appendix II into the 1947 Rules,
the examinations could be held in accordance with the said
Appendix. We do not agree with this view of the High Court.
There is also no material before the Court to show that
after the 1969 Amending Rules, examinations were held in the
different districts of Uttar Pradesh in accordance with the
1947 Rules as amended by the 1969 Amending Rules. No body
including the Nigh Court appears to have taken notice of the
amendment. On the other hand examinations have been held
according to the 1950 Rules even after the above 1969
amendment. The District Judge has filed a counter-affidavit
stating that the examinations were held in 1981 in this case
in accordance with the 1950 Rules and not in accordance with
the 1947 Rules as amended by the 1969 Amending Rules. me
letter of the High Court dated February 12, 1973 shows that
it treated the 1950 Rules as the existing Rules in 1973 even
after the 1969 Amending Rules came into force because it is
stated in that letter as follows :
"While following the procedure laid down in the
existing rules. published under Government
Notification Nb. 0-1119/XI-850 dated July 11,
1950 (which was adopted in supersession of rules 9
to 12 of the U.P subordinate Civil Courts
ministerial establishment Rules 1947) and
amplified in G.O. No.0-2248/II-8-III-1950 dated
August 30, 1950, the District Judge
should....................... "
(emphasis added)
879
Further it appears that in the year 1981 in some other
districts of Uttar Pradesh examinations were held as per the
1950 Rules. This is borne out by the observation of the High
Court in its judgment where it has expressed its reluctance
to set aside the results of the examinations in the other
districts and confined the operation of its judgment to
Kanpur District only. The 1969 Amending Rules appear to have
been ignored by some District Judges. In the circumstances
having regard to the lacuna created by the non-
repromulgation of rule 11 of the 1947 Rules it has to be
held that there was no effective substitution of the 1950
Rules brought about by the 1969 Amending Rules. The 1950
Rules should therefore be held to be operating even in the
year 1981. Hence the examinations held according to them
cannot be held to be bad.
We do not agree with the view of the High Court that
the 1950 Rules have been repealed by the 1975 Rules insofar
as the Subordinate Civil Courts are concerned. It is true
that rule 20 of the 1975 Rules clearly stated that the 1950
Rules had been repealed. But the 1975 Rules did not apply to
the subordinate courts under the control and superintendence
of the High Court. Hence the 1950 Rules insofar as they
applied to the subordinate courts continued to be in force.
The finding of the High Court on this question is erroneous
and is liable to be set aside.
Moreover, this is a case where the petitioner in the
writ petition should not have been granted any relief. He
had appeared for the examination without protest. He filed
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the petition only after he had perhaps realised that he
would not succeed in the examination. The High Court itself
has observed that the setting aside of the results of
examinations held in the other districts would cause
hardship to the candidates who had appeared there. The same
yardstick should have been applied to the candidates in the
District of Kanpur also. They were not responsible for the
conduct of the examination.
For the foregoing reasons we feel that the judgment of
the High Court should be set aside. We accordingly set aside
the judgment of the High Court and dismiss the Writ
Petition. The appellant and all other successful candidates
at the 1981 examination held in Kanpur shall be appointed in
accordance with the Rules. We further direct that they shall
be given the
880
salary, allowances, increments and seniority to which they
would have been entitled but for the judgment of the High
Court. But they will not be entitled to any salary and
allowances for the period during which they have not
actually worked. We also make it clear that if in any other
centre, selections and appointments have been made on the
basis of the 1969 Amending Rules they shall remain
undisturbed.
The order passed by the High Court in the connected
writ petition No. 10224 of 1983 on its file is also set
aside. Similarly the oder passed in writ petition No.5073 of
1984 on the file of the High Court is also reversed. There
shall be a common order in these connected cases as directed
in this appeal.
The appeal is accordingly allowed. No costs.
The High Court may take steps, if it so desires, to
promulgate a fresh set of Rules of recruitment for-the staff
in the subordinate courts early.
A.P.J. Appeal allowed.
881