Karnataka High Court
Sri Govardhan M vs The State Of Karnataka on 12 September, 2012
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 12th Day of September, 2012
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
WRIT PETITION NO.38144/2011(S-KAT)
C/w
WRIT PETITION NO.60233/2011 (S-KAT)
AND
WRIT PETITION NOs.24173-24174/2012 (S-KAT)
IN WRIT PETITION NO.38144/2011(S-KAT):
BETWEEN:
1. Sri. Govardhan M.
S/o. Sri. Nagappa
Aged about 29 years
Residing at No.75/2
1st D Cross, 3rd Main Road
Mathikere, Bangalore - 54 ...Petitioner
(By Sri P.S.Rajagopal, Senior Counsel,
a/w Sri. D.C.Jagadesh, Adv.,)
AND:
1. The State of Karnataka
Represented by the
Secretary to Government
2
Home Development
Vidhana Soudha
Bangalore - 01.
2. The State of Karnataka
Represented by the
Secretary to Government
Department of Personnel &
Administrative Reforms
Vidhana Soudha
Bangalore - 01.
3. The Police Sub-Inspector
Recruitment Committee
Represented by the
Deputy Inspector General of Police
Training & Member Secretary
Carlton House, Palace Road
Bangalore - 01.
4. Sri Vidyanand V. Nayak
S/o. Venkatapathy Nayak
Aged about 30 years
'Shalmala' Ghataprabha
Taluk, Gokak, District Belgaum.
5. Sri. Hareesha B.C.
S/o. Sri. Chandregowda B.K.
Aged about 29 years
Bazar Street, Bellur
Nagamangala Taluk
Mandya District.
6. Sri. N.S. Prakash
S/o. Sri. Shambhugo
Aged about 29 years
Residing at No.42, Kodaseege
H.D. Kote Taluk
Mysore Road.
3
7. Sri. Raghavendra K.N.
S/o. Sri. Nagendra K.L.
Aged about 30 years
Residing at 9th Cross
V.V.Nagar, Kallahally
Mandya - 571 401. ...Respondents
(By Sri. Ashok N. Nayak, Adv., for R.4,
Sri. S.B. Hebballi, Adv., for R.5,
Sri. Shankarappa, Adv., for Kesvy & Co. for R.6,
Sri. Kiran Kumar T.L., Adv., for R.7
Smt. Revathy Adinath Narde, HCGP, for R.1 to R.3)
This Writ Petition is filed under Articles 226 and 227
of Constitution of India praying to quash the impugned
order dated 09.04.2010 passed by the Karnataka
Administrative Tribunal, Bangalore, in Application
No.616/07 a copy of which is produced as Annexure-A and
dismiss the application No.616/07 filled by Respondent No.4
herein with cost and etc.,
IN WRIT PETITION NO.60233/2011 (S-KAT):
BETWEEN:
The State of Karnataka
Represented by the
Secretary to Government
Home Department
Vidhana Soudha
Bangalore - 560 001 ... Petitioner
(By Smt. Revathy Adinath Narde, HCGP.,)
AND:
1. Sri. Vidyanand V. Nayak
S/o. Venkatapathy Nayak
Aged about 30 years
4
'Shalmala' Ghataprabha
Taluk, Gokak, District Belgaum.
2. Sri. Govardhan M.
S/o. Sri. Nagappa
Aged about 27 years
Residing at No.75/2
1st D Cross, 3rd Main Road
Mathikere, Bangalore - 54.
3. Sri. Hareesha B.C.
S/o. Sri. Chandregowda B.K.
Aged about 25 years
Basar Street, Bellur
Nagamangala Taluk
Mandya District.
4. Sri. N.S. Prakash
S/o. Sri. Shambhugowda
Aged about 24 years
Residing at No.42, Kodaseege
H.D. Kote Taluk
Mysore Road.
5. Sri. Raghavendra K.N.
S/o. Sri. Nagendra K.L.
Aged about 26 years
Residing at 9th Cross
V.V.Nagar, Kallahally
Mandya - 571 401. ...Respondents
(By Sri. S.S. Haveri, Adv., for R.1,
Sri. B.C.Seetharama Rao, Adv., for R.2 to R.5
R.3 and R.4 are served)
This Writ Petition is filed under Articles 226 and 227
of Constitution of India praying to issue a writ, order of
direction including the writ of certiorari quashing the
impugned order dated 09.04.2010 passed by the Karnataka
Administrative Tribunal, Bangalore in Application
5
No.616/07 pending on the file of Tribunal copy of which is
produced at Annexure-A in the interest of justice and equity
and etc.,
IN WRIT PETITION NOs.24173-24174/2012 (S-KAT):
BETWEEN:
1. B.C. Hareesha
S/o. Chandregowda B.K.
Aged: 30 years
R/at Bazar Street, Bellur
Nagamangala Taluk
Mandya District.
2. Raghavendra K.N.
S/o. Nagendra K.L.
Age: 30 years
R/at 9th Cross
V.V.Nagar, Kallahally
Mandya - 571 401. ...Petitioners
(By Sri. S.B. Hebballi, Adv.,)
AND:
1. The State of Karnataka
Represented by its Secretary
Government of Home Development
Vidhanasoudha
Bangalore - 01.
2. The State of Karnataka
Represented by its Secretary
Home Department of Personnel &
Administrative Reforms
Vidhanasoudha
Bangalore - 01.
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3. The Police Sub-Inspector
Recruitment Committee
Represented by its Secretary
Deputy Inspector General of Police
Training & Member Secretary
Carlton House, Palace Road
Bangalore - 01.
4. Vidyanand V. Nayak
S/o. Venkatapathy Nayak
Aged about 32 years
R/at 'Shalmala' Ghataprabha
Taluk, Gokak, District Belgaum.
5. Govardhan M.
S/o. Nagappa
Aged about 30 years
Residing at No.75/2
1st D Cross, 3rd Main Road
Mathikere, Bangalore - 54.
6. Sri. N.S. Prakash
S/o. Sri. Shambhugo
Aged about 30 years
Residing at No.42, Kodaseege
H.D. Kote Taluk
Mysore Road. ...Respondents
(By Sri. S.S. Haveri, Adv., for R.4,
Sri. Shanmukappa, Adv., for Kesvy & Co., for R.6)
These Writ Petitions are filed under Articles 226 and
227 of Constitution of India praying to quash the impugned
order dated 9.4.10 passed by the Karnataka Administrative
Tribunal at Bangalore in Application No.616/2007 vide
Annexure -A and dismiss the application No.616/2007 filed
by the R.4 herein with cost and etc.,
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These petitions coming on for orders this day,
N. KUMAR J., made the following:-
ORDER
All these writ petitions are preferred challenging the order passed by the Karnataka Administrative Tribunal holding that substitution of the provision relating to the upper age limit under 2009 Rules is retrospective in operation and therefore, the applicant is entitled to the benefit of the prescription of upper age limit under 2009 Rules.
2. For the purpose of convenience, the parties are referred to as they are referred to the in the applications before the Karnataka Administrative Tribunal.
3. Respondent Nos.1 to 3 invited applications under the Karnataka State Police Service (including Ministerial Services) Recruitment Rules, 2004 (for short hereinafter referred to as '2004 Rules') from the qualified and eligible candidates for recruitment to the post of Sub- 8 Inspector (Civil), Women Sub-Inspector/Reserve Sub- Inspector CAR/DAR and Special Reserve Sub-Inspector (KSRP) including the persons in service by issuing a notification dated 25.9.2006 under various categories as detailed in the said notification to fill up totally 368 posts.
4. The applicant is a holder of degree in B.Sc. He has also obtained B.Ed. decree with 79% marks. He applied to the post of Police Sub-Inspector (Civil) and submitted his application with necessary documents on 29.10.2006. His date of birth is 20.07.1980. As on the date of the notification, he was aged 26 years 2 months. As per 2004 Rules, the upper age limit for General Merit candidates was 24 years and in case of candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes, it was 26 years. The applicant belongs to category 2A. As he did not satisfy the qualification regarding age and as he was 26 years 2 months old on the day the last date for prescribing the application, he was not called for interview. Therefore, he preferred application No.616/2007 before the 9 Karnataka Administrative Tribunal challenging the prescription of the said age on the ground that Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977, prescribes the upper age limit for recruitment to any posts at 33 years in case of candidates belonging to General Merit, 36 years in case of candidates belonging to Backward Classes and 38 years in case of candidates belonging to Scheduled Castes and Scheduled Tribes. Further, Rule 1(3) of the General Recruitment Rules states that General Recruitment Rules are applicable for recruitment to all State Civil Services and all posts in connection with the affairs of the State of Karnataka. Therefore, it was contended that the said Rule is liable to be quashed as it is adversely affects his interest.
5. After entertaining the application the Tribunal passed an interim order directing the authorities to permit the applicant to take examination along with another 67 candidates who are similarly placed. Pursuant to the interim order dated 12.1.2007 the applicant was permitted to write 10 written examination on 4.2.2007. He passed in the said examination. By an order dated 23.3.2007 he was permitted to participate in the further selection process. Accordingly, he participated in the physical efficiency test and viva voce. According to the information furnished by the learned Additional Government Advocate, the applicant was also selected as per the select list dated 7.2.2008.
6. During the pendency of the said proceedings before the Tribunal, the Government in exercising its power conferred by Sub-Section 1 of Section 3 read with Section 8 of the Karnataka State Civil Services Act, 1978, made the Karnataka State Police including Ministerial Services (Recruitment) (Amendment) Rules, 2009, amending the age limit by raising it into 28 years in the case of candidates belonging to Scheduled Castes, Scheduled Tribes and Backward classes and 26 years in the case of other candidates. The said amendment came into force from 28th May, 2009 the date of publication of the amendment in the Official Gazette.
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7. Therefore, the Tribunal after referring the several judgments on which reliance is placed by both parties held that substitution of the provision relating to the upper age limit in 2009 Rules has to be read as if the said provision is there from the day when 2004 Rules came into force. The applicant is entitled for the benefit of prescription of the upper age limit under 2009 Rules in view of the substitution of clause relating to the upper age limit. In view of the subsequent developments, the applicant is entitled to have his case considered for selection and appointment under 2009 Rules. If the applicant had not challenged the validity of 2004 Rules, he would not have got the benefit of amendment of the Rules by substituting the age limit of 26 years instead of 24 years for Backward classes during the pendency of the present application. The applicant has not challenged the said notification dated 25.9.2006 calling for applications for recruitment to the post of Police Sub- Inspector. On the other hand, immediately after issuance of the notification, he applied for the said post and filed the application seeking permission to participate in the selection 12 process pending consideration of the application challenging the validity of 2004 Rules. In the instant case, even though 2004 Rules are amended subsequent to the selection process, the applicant is entitled to the benefit of amendment. As the Selection Authority has already considered the case of the applicant for selection process, but has not declared the result of the selection because of the litigation pending, it directed respondent Nos.1 to 3 to appoint the applicant to the post of Police Sub-Inspector under 2009 Rules. Aggrieved by the said order, the State has preferred this writ petition.
8. Similarly, three among four respondents who are arrayed as respondents in application before the Tribunal have also preferred writ petitions challenging the said order.
9. Sri P.S.Rajgopal, learned senior counsel appearing for these private respondents assailing the impugned order of the Tribunal contends that though the 13 amendment by way of substitution would have the effect of replacing the provision and substituting new provision in its place from the day the original Rule came into force, when the amendment expressly states that the amended provision of the rules would come into effect from the date of publication of the amendment in the Official Gazette, the intention of the legislature is clear that the said amendment is prospective and not retrospective. Therefore, the applicant cannot have the benefit of the said amended provision. In particular, while applying aforesaid principle to recruitment, the law is well-settled. Once a notification is issued in pursuance of the law governing the recruitment, stipulating the conditions, the said condition cannot be altered in the course of said selection process. If the interpretation given by the Tribunal is accepted, it would have the effect of challenging the Rules of the Selection, which is not permissible. In support of his contention, he relied on several judgment of the Apex Court.
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10. The learned Government pleader adopted the aforesaid arguments.
11. The learned counsel for the applicant submitted that the effect of a substitution is that the substituted provision was there in the statute from the day the statute was enacted and therefore, it comes into operation not from the date of amendment but from the date of the original statute. Therefore, the applicant was eligible to be considered for the said post and that is precisely what the Tribunal has held and as such, the order passed by the Tribunal is in accordance with law and does not call for interference.
12. In the light of the aforesaid facts and rival contentions, the point that arises for consideration is:-
"By the amendment to Rules 2009 where upper age limit was enhanced and the earlier provision was substituted by the amended provision, whether the substituted provision 15 comes into effect from the date of amendment or from the date the original rule came into effect?"
13. The Government of Karnataka by virtue of the powers conferred by sub-section(1) of Section 3 read with Section 8 of the Karnataka State Civil Services Act, 1978 made the Karnataka State Police including the Ministerial Services (Recruitment)Rules, 2004, which came into effect from 23rd July 2004. It provided for establishment of the Karnataka State Police services including the Ministerial Services. The category of posts and the scale of pay is specified in Column No.2 of Schedule I. The number of posts (permanent or temporary), method of recruitment and minimum qualification, if any, are specified in the corresponding entries in Columns 3, 4, 5 and 6 thereof. In the said Schedule at Sl.No.10 is the Sub-Inspector of Police(Civil). The age limit for direct recruitment is as under:-
"Age limit: Notwithstanding any thing contained in rule 6(2-A) of the Karnataka Civil Services(General Recruitment) Rules, 1977, the candidate as on the last date for the receipt of 16 application for appointment to the posts must have attained the age of 21 years but not have attained the age of (1)26 years in the case of persons belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes. (2)24 years in the case of other candidates.
Provided that in the case of the candidate who is an Ex-Serviceman discharged from service by reason of demobilisation, retrenchment or retirement, age limit shall be relaxed by the number of years of military service rendered by him."
14. The said provision is now amended by the Amendment Rules 2009 as under:-
"Age limit: Notwithstanding any thing contained in rule 6(2-A) of the Karnataka Civil Services(General Recruitment) Rules, 1977, the candidate as on the last date for the receipt of application for appointment to the posts must have attained the age of 21 years but not have attained the age of (1)28 years in the case of persons belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes. (2)26 years in the case of other candidates.17
Provided that in the case of the candidate who is an Ex-Serviceman discharged from service by reason of demobilisation, retrenchment or retirement, age limit shall be relaxed by the number of years of military service rendered by him plus additional three years. However, ex- servicemen who have previously availed benefit of ex-servicemen reservation for any Government service shall not be eligible to avail the benefit again under these rules"
15. Sub-rule(2) of Rule 1 of amended Rules expressly stated that they shall come into force from the date of their publication in the Official Gazette. The said Rules were published in the Official Gazette on 28.5.2009.
16. Clause(a) of Rule 2 reads as under:-
"(a)in the entries relating to the category of posts of Sub-Inspector of Police(Civil) at serial number 10, for the entries in columns No(5) and (6), the following shall be substituted".18
17. Therefore the amendment is by way of substitution. Therefore, the question is whether the substituted provision comes into operation from the date the 2004 Rules came into effect or from the date 2009 amendment Rules came into effect.
SUBSTITUTION - EFFECT
18. The Apex Court in the case of Shamrao V. Parulekar and others .vs. District Magistrate, Thana, Bombay and others [AIR 1952 SC 324] dealing with the interpretation to be placed on a substituted provision held as under:-
"(7). The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed(except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the 19 earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all".
19. The Apex Court in Vijayalakshmi Rice Mills, New Contractors Co. and others .vs. State of Andhra Pradesh [(1976) 3 Supreme Court Cases 37] explaining the effect of the word "substitute" appearing in an amendment act held as under:-
"It is no doubt true that the literal meaning of the word "substitute" is "to replace' but the question before us is from which date the substitution or replacement of the new Schedule took effect. There is no deeming clause or some such provision in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 to indicate that it was intended to have a retrospective effect. It is a well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity, may be inferred, a notification takes effect from the date it is issued and not from any prior date. The principle is also well settled that statutes should not be construed so as to create new disabilities or obligations or 20 impose new duties in respect of transactions which were complete at the time the Amending Act came into force."
20. Reliance is also placed on the judgment of this Court in VIJAYAKUMAR SHANKRAYYA SARDAR .VS. STATE OF KARNATAKA AND ANOTHER [1993(3) KAR.L.J.411] on which the Tribunal has infact placed reliance and allowed the application. The relevant paragraphs 10 and 11 are extracted as under:-
"10. In Gayathri Ramaswamy's case, Act 31 of 1991 and the provisions thereto are referred to, to hold that the sa id provisions will come into effect from 5.2.1991, which only means, that these provisions get incorporated into the parent Act as from 5.2.1991 and no more. The criticism of the learned Counsel for the petitioner and those assisting as Amicus Curiae is that, the attention of this Court was not drawn to the provisions of the Parent Act after amendment at all but only to the date on which the Amending Act came into force.
11. The upshot of this discussion is that whenever an amended Act has to be applied 21 subsequent to the date of amendment, the various unamended provisions of the Act have to be read along with the amended provision "as though they are the part of it." The amended part of the provision having got incorporated into the Act the provision of Section 79-A of the Act as such should be read. Section 79-A of the Act has the opening words "on and from the commencement of the Amended Act". The amended Act, as stated earlier, is defined to be Act 1 of 1974 which came into effect from 1.3.1974. From that date, no one can acquire an agricultural land if his income from sources other than agricultural lands is in excess of Rs. 50,000/-. If the interpretation given in Gayathri Ramaswamy's case is to be adopted, then it gives rise to two sets of transactions:-
(1) those by which from the commencement of the amendment Act, i.e. from 1.3.1974, acquired lands prior to 5.2.1991, and (2) those by which acquired lands subsequent to 5.2.1991.
But Section read as it is, subsequent to amendment does not give scope for such a construction at all. If the amended provisions 22 were to be effective from 5.2.1991, then the expression "on and from the date of commencement of Amended Act i.e. 1.3.1974." will have no meaning at all. Legislature, noticing that the section itself has provided as to in respect of what transactions the restriction is applicable which are entered into from particular date, there was no necessity to make the same retrospective at all. We cannot attribute either ignorance to the legislature of the opening words of Section 79-A of the Act or treat the same as surplussage. Section simply states "from the date of the commencement of the Amended Act which is 1.3.1974", those having annual income in excess of Rs. 50,000/- from non-agricultural sources cannot acquire agricultural lands. It is not a case where the legislature classifies transactions depending upon a particular date. On the other hand, the legislature gives rise to certain consequences that would follow if a transaction takes place after a particular date. It is only a restriction in relation to a transaction. If that is so, there is no scope for interpretation that there can be two classes of transactions. As the provision stands, the date of the commencement of the entire provision is 1.3.1974 and none other."
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21. The Apex Court in the case of K. NARAYANAN AND OTHERS .VS. STATE OF KARNATAKA AND OTHERS [1994 SUPP (1) SUPREME COURT CASES 44] dealing with the effect of amendment by way of substitution has held as under:-
"7. Rules operate prospectively.
Retrospectively is an exception. Even where the statute permits framing of rule with retrospective effect the exercise of power must not operate discriminately or in violation of any constitutional right so as to affect vested right. The rule-making authority should not be permitted normally to act in the past. The impugned rule made in 1985 permitting appointment by transfer and making it operative from 1976 subject to availability of vacancy in effect results in appointing a Junior Engineer in 1986 with effect from 1976. Retrospectivity of the rules is a camouflage for appointment of Junior Engineers from a back date. In our opinion the rule operates viciously against all those Assistant Engineers who were appointed between 1976 to 1985. In Ex-Capt. K.C. Arora .vs. State of Haryana and P.D. Aggarwal .vs. State of U.P. it was held by this Court that the President or Government cannot 24 make such retrospective rules under Article 309 of the Constitution as contravene Articles 14, 16 or 311 and affect vested right of an employee."
22. In STATE OF RAJASTHAN VS. MANGILAL PINDWAL[(1996) 5 SUPREME COURT CASES 60] explaining the effect of substitution, it was held as under:-
"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. The effect of the amendments that were introduced in sub-rule (2) of Rule 244 of the Rules vide notifications dated 2-9-1975 and 26-11-1975 whereby the said sub-rule was substituted with effect from 2-9-1975 is that sub-rule (2) which was introduced on 19-8- 1972 ceased to exist with effect from 2-9-1975 but it was operative during the period from 19-8-1972 to 1-9- 1975. It is settled law that a rule made in exercise of the power conferred by Article 309 of the Constitution can have retroactive operation. Since sub-rule (2) of Rule 244 of the Rules, as introduced in August, 25 1972, was operative during the period from 19-8-
1972 to 1-9-1975, it could be amended in exercise of the rule making power under Article 309 of the Constitution so as to operate during the period from 19-8-1972 to 1-9- 1975. The notification dated 11-3-1976, by substituting sub- rule (2) of Rule 244 of the Rules, repealed the said provision that was operative during the period from 19-8-1972 to 1-9-1975 and replaced it by another Provision which was to be operative during the said period. The said notification cannot be held to be invalid on the basis that the said amendment sought to amend a provision which was not in existence. The Statement of Law in Sutherland on Statutory Construction, on which reliance was placed by the learned Judges of the High Court, that a repealed law cannot be amended has no application in the present case."
23. To the similar effect is the judgment of the Apex Court in the case of GOPAL KRUSHNA RATH VS. M.A.A.BAIG (DEAD) BY LRS. AND OTHERS [(1999)1 SUPREME COURT CASES 544] at paragraph 6:- 26
"6. When the selection process has actually commenced and the last date for inviting applications is over, any subsequent change in the requirements regarding qualifications by the University Grants Commission will not affect the process of selection which has already commenced. Otherwise it would involve issuing a fresh advertisement with the new qualifications. In the case of P. Mahendran v. State of Karnataka this Court has observed:(SCC p.416, para 5) "5. It is well-settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect."
The Court further observed that:
"Since the amending rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite 27 qualifications prescribed by the Rules before its amendment."
24. The Constitution Bench of the Apex Court in the case of SHYAM SUNDER AND OTHERS .VS. RAM KUMAR AND ANOTHER (2001) 8 SCC 24 explaining this legal principle has held as under:-
"From the aforesaid decisions, the legal principle that emerges is that the function of a declaratory or explanatory Act is to supply an obvious omission or to clear up doubts as to meaning of the previous Act and such an Act comes into effect from the date of passing of the previous Act. Learned counsel for the appellants strongly relied upon a decision of two-Judges Bench of this Court in Mithilesh Kumari & anr. vs. Prem Behari Khare [1989 (2) SCC 95] in support of his argument. In the said decision, it was held by this Court that The Benami Transactions (Prohibition) Act 1988 being a declaratory Act, the provisions of Section 4 of the Act have retroactive operation. The reliance of this decision by the appellants' counsel is totally misplaced as this decision was overruled in R. Raja Gopal Reddy vs. Padmini Chandrasekharan wherein it was 28 held that the Act was not passed to clear any doubt that existed as to the common law or the meaning of effect of any statute and it was, therefore, not a declaratory Act.
45. We have already quoted substituted Section 15 of the amending Act but do not find that the amending Act either expressly or by necessary implication intended to supply an omission or to clear up a doubt as to the meaning of previous Section 15 of the parent Act. The previous Section 15 of the parent Act was precise, plain and simple. There was no ambiguity in it. The meaning of the words used in Section 15 of the parent Act was never in doubt and there was no omission in its phraseology which was required to be supplied by the amending Act. Moreover, the amending Act either expressly or by implication was not intended to be retroactive and for that reason we hold that amending Act 10 of 1995 is not a declaratory Act and, therefore, it has no retrospective operation.
47. The result of the aforesaid discussion is that the amending Act being prospective in operation does not affect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the appellate court is not 29 required to take into account or give effect to the substituted Section 15 introduced by the amending Act."
25. However, the learned counsel appearing for the applicant relied on the judgment of the Apex Court in the case of GOVERNMENT OF INDIA AND OTHERS .VS. INDIAN TOBACCO ASSOCIATION [AIR 2005 SC 3685] where the interpretation of the expression "substitute" fell for consideration, it was held at Paragraphs 15, 24 and 25 as under:-
"15. The word "substitute" ordinarily would mean "to put (one) in place of another"; or "to replace". In Black's Law Dictionary, Fifth Edition, at page 1281, the word "substitute" has been defined to mean "To put in the place of another person or thing" or "to exchange". In Collins English Dictionary, the word "substitute"
has been defined to mean "to serve or cause to serve in place of another person or thing"; "to replace (an atom or group in a molecule) with (another atom or group)"; or "a person or thing that serves in place of another, such as a player 30 in a game who takes the place of an injured colleague".
24. The substitution of one text for the other pre- existing text is one of the known and well- recognised practices employed in legislative drafting. 'Substitution' has to be distinguished from 'supersession' or a mere repeal of an existing provision.
25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (See Principles of Statutory Interpretation, ibid, p.565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. v. State of U.P., State of Rajasthan v. Mangilal Pindwal; Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. and A.L.V.R.S.T. Veerappa Chettiar v. S. Michael. In West U.P. Sugar Mills Association case a three-Judges Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centring around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case this Court 31 upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar case a three-Judge Bench of this Court emphasized the distinction between 'supersession' of a rule arid 'substitution' of a rule and held that the process of substitution 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."
26. The word "substitute" ordinarily would mean "to put (one) in place of another"; or "to replace". In Black's Law Dictionary, Fifth Edition, at page 1281, the word "substitute" has been defined to mean "To put in the place of another person or thing" or "to exchange". In Collins English Dictionary, the word "substitute" has been defined to mean "to serve or cause to serve in place of another person or thing"; "to replace (an atom or group in a molecule) with (another atom or group)"; or "a person or thing that serves in place of another, such as a player in a game who takes the 32 place of an injured colleague. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. Substitution thus combines repeal and fresh enactment. The substitution has the effect of just deleting the old rule and making the new rule operative. The process of substitution 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. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. Whenever an amended Act has to be applied subsequent to the date of amendment, the various unamended provisions of the Act have to be read along with the amended provision "as though they are the part of it.
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27. It is well-settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. The principle is also well settled that statutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force. When the legislature amends an existing provision in a statute by way of substitution, the effect is the substituted provision stands repealed and the amended provision is substituted in the place of earlier provision in the earlier Act, as if the substituted provision is there in the earlier act from the inception. By express provision or by implication if it is not made clear that it is prospective in nature the said amended provision comes into effect from the date of the earlier Act. But it is not an invariable Rule. If such an interpretation is given, if it leads to repugnancy, inconsistency or absurdity, then the said general rule is not 34 followed. In certain situations, the court having regard to the purport and object sought to be achieved by the Legislature may construe the word "substitution" as an "amendment" having a prospective effect. If the amendment Act expressly states that the substituted provision shall come into force from the date the amendment comes into force, the said provision is prospective in nature. Then it is not open to the Court by way of interpretation to give retrospective effect to such provision. Ultimately to decide whether these provisions are prospective or retrospective, it is the intention of the legislature which is the sole guide. If the procedure adopted for amendment is substitution and in the Amended Act it is specifically stated that the substituted provisions come into effect from the date the amended Rules or Act came into force, the intention of the legislature is clear. On the pretext that it is the case of substitution, the effect cannot be given to that substituted provision from the date of the earlier statute. It has to be necessarily from the date the amended rules came into force.
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28. In the field of service law it is settled law that a rule made in exercise of the power conferred by Article 309 of the Constitution can have retroactive operation. Rules operate prospectively. Retrospectively is an exception. Even where the statute permits framing of rule with retrospective effect the exercise of power must not operate discriminately or in violation of any constitutional right so as to affect vested right. The substitution would have the effect of amending the operation of law during the period in which it was in force. In the case of rules relating to recruitment, it is settled law that if a recruitment has to take place for public office, to be in conformity with Articles 14 and 16 of the Constitution of India, it has to be by way of paper advertisement. A notification has to be issued calling for applications from all eligible candidates. It is for the recruiting authority to prescribe qualifications and conditions for eligibility to apply. Once a notification is issued prescribing the qualifications in pursuance of the rules governing the said recruitment, it is settled law that the rules cannot be altered during the process of 36 selection/recruitment. When the selection process has actually commenced and the last date for inviting applications is over, any subsequent change in the requirements regarding qualifications will not affect the process of selection which has already commended otherwise it would involve issuing a fresh advertisement with the new qualification. If it is altered, persons who have not applied on the assumption that they did not possess the requisite qualification are denied an opportunity to apply for a public post. Therefore, any alterations and amendments to the Rules regarding recruitment should only be prospective in nature. It has no application to the recruitment process, which are set in motion. If it is given retrospective effect, such a rule violates Articles 14 and 16 of the Constitution of India and it cannot be given effect to. FACTS OF THE CASE
29. It is in this background when we look into the facts of the case, admittedly, the notification was issued in pursuance of the Rules governing recruitment which 37 prescribes the upper age limit for general merit candidates as 24 years and for SCs, STs and OBCs as 26 years. All those persons who belonged to that category who are above the age of 24, though possessed other requisite qualifications did not apply against the said notification. The applicant was over-aged according to the said notification. He should not have applied as he was not eligible. He applies knowing fully well that he is not eligible. When he was not called for an interview he files an application before the Tribunal challenging the Rules and seeks an interim order. Luckily he was able to get the said interim order where direction was given to the authorities to permit him to take examination. When he passed the examination, further interim order was granted permitting him to take physical tests and he was also permitted to attend viva-voce. Ultimately, his name finds a place in the select list. It is during the pendency of the said proceedings, Rules of 2004 are amended by the amendment Rules 2009 raising the upper age limit. Sub-Rule (2) of Rule 1 of the Amendment Rules expressly stated that the said Rules come 38 into force from the date of their publication in the official Gazetted, namely 28-05-2009. It is not given retrospective effect. The said amendment can have only prospective effect. It cannot have any application to the recruitment which is already in process. If the benefit of enhancement of age is given to the applicant, the effect is persons who were similarly placed, who did not apply against the notification on the ground that they were over aged, are denied the opportunity in public employment. The applicant was ineligible to apply. But still he applied. When the legislature expressly has made these rules prospective in nature, the Court by way of interpretive process ignoring the legislative intention cannot make it retrospective either on humanitarian consideration or on any consideration as was done by the Tribunal. Therefore, the order passed by the Tribunal is contrary to the law declared by the Apex Court as aforesaid and is illegal.
30. Hence, we proceed to pass the following:
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ORDER The writ petitions are allowed.
The impugned order passed by the Tribunal is hereby set aside. The application filed by the applicant is dismissed.
The selection process shall be completed ignoring the claim of the applicant.
Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE SA/alb/-