Allahabad High Court
Virendra Kumar Mishra vs State Of U.P. And 4 Others on 27 May, 2016
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- WRIT - A No. - 35583 of 2015 Petitioner :- Virendra Kumar Mishra Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- C.P. Gupta Counsel for Respondent :- C.S.C., K.N.Shukla, Ramendra Asthana Hon'ble Pradeep Kumar Singh Baghel,J.
This is a petition by one Virendra Kumar Misra, who is employed as a Group 'D' employee in the office of the Patrachar Siksha Sansthan, Allahabad.
A brief reference to the factual aspects would suffice.
The petitioner has preferred this writ petition for issuance of a writ of certiorari quashing the order dated 25th March, 2015 and the consequential order whereby a direction has been issued for holding written examination and interview for the purposes of promotion from Class-IV employees to Class-III posts of Junior Clerks/Routine Clerks in the Directorate of Education. A further relief has been sought for a direction upon the respondents to make promotion on the basis of criterion of "seniority subject to the rejection of unfit" as provided under Rule 17 of the Uttar Pradesh Directorate of Education Ministerial Service Rules, 1983.
The petitioner was initially appointed as a Class-IV employee in the year 1983 in the office of the Patrachar Shiksha Sansthan, Allahabad and was confirmed. He claims that he has unblemished service record and has been awarded selection grade and benefits of Assured Career Progression (A.C.P.) scheme. According to him, his services are governed under the Uttar Pradesh Directorate of Education Ministerial Service Rules, 19831, which has been framed by the Governor in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The petitioner claims that he possesses the essential qualification for appointment/ promotion to the next higher post of Class-III (Junior Clerk/Routine Clerk) in the Directorate of Education, Allahabad.
It is stated that prior to the enforcement of the Rules, 1983, the promotions of Class-IV employees to Class-III posts were governed by the Government Order dated 31st August, 1982. Under the said Government Order there was 15 per cent quota for promotion of Class-IV employees to Class-III posts and the criterion for promotion was merit. However, after the enforcement of the Rules, 1983 the promotion was governed under Rule 17 of the Rules, 1983, wherein the criterion for promotion was 'seniority subject to the rejection of the unfit' through the Selection Committee.
It is further stated that the office of the Directorate of Education is a head office of the Department of Education, therefore, the Uttar Pradesh Subordinate Educational Ministerial Service Rules, 19852 is not applicable to the employees of the Directorate of Education. It is also stated that the Rules, 1985 or any other Rules are not applicable to the employees of the Directorate of Education.
It is next stated that Rule 5(2) of the Rules, 1983 itself provides for promotion of Group 'D' employees to the extent of 10 per cent (now 20 per cent) of the vacancies of the Routine Clerks (Group 'C' employees) and under Rule 17 of the Rules, 1983, as mentioned above, the criterion for promotion is 'seniority subject to the rejection of the unfit' and not the 'merit' as it was earlier in the Government Order dated 31st August, 1982. The fitness of an eligible candidate is to be adjudged from the character roll and such other records of the employee as may be considered proper. The said rule, according to the petitioner, does not provide for holding of any departmental examination for the promotion. By a subsequent Government Order dated 03rd September, 1985 the promotion quota of 10 per cent has been increased to 20 per cent and the educational qualification has also been changed from High School to Intermediate but the criteria for promotion remained the same.
On 25th March, 2015 a notice was issued from the office of the second respondent calling applications on the prescribed proforma from eligible Class-IV employees working in different wings of the Directorate of Education for their promotion to the posts of Junior Clerk/Routine Clerk. In the said notice it has been mentioned that the selection for the said promotion will be made on the basis of merit by holding written examination, typing test on computer and interview. The said notice was subsequently amended by another notice/corrigendum dated 27th May, 2015, whereby the date of examination has been changed from 11th June, 2015 to 24th June, 2015. The petitioner has not applied in response to the said notice and has challenged it by the instant writ petition.
It is averred in the writ petition that the Rules, 1983 is especially framed for the purposes of recruitment, promotion and other conditions of services of ministerial staff of the Directorate of Education which cannot be altered or superseded by a Government Order or by the executive instructions. The provisions of Rule 17 of the Rules, 1983 are statutory and mandatory in nature, whereunder the promotions are to be made on the basis of seniority, character roll and other records by a Selection Committee constituted under Rule 16 of the said Rules, and not on the basis of merit by holding written examination etc.. It is stated that the criterion adopted by the respondents is contrary to the statutory rules, illegal and unsustainable.
It is further stated that earlier in the year 2009 the respondents had undertaken the same exercise for promotion of Class-IV employees to Class-III posts by adopting the criterion of 'merit' instead of criterion of 'seniority subject to the rejection of the unfit'. The petitioner had challenged the said order by means of Civil Misc. Writ Petition No.29453 of 2009 (Virendra Kumar Mishra v. The State of U.P. and others), wherein an interim order was passed on 05th June, 2009 by this Court but later on the said writ petition has been dismissed.
A counter affidavit has been filed by the State functionaries. The stand taken in the counter affidavit is that the State Government vide a notification dated 22nd December, 2001 has framed a rule, known as, the Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 20013. By the said Rules, 2001 all the previous Government Orders dated 31st August, 1982 and 03rd September, 1985 have been superseded. Now the promotions of Group 'D' employees to Group 'C' posts (Junior Clerks) are governed under the provisions of Rules 5, 6, 7 and 8 of the Rules, 2001, wherein it has been specifically provided that the promotion on Group 'C' post (Junior Clerks) from amongst Group 'D' employees shall be made on the basis of the merit list prepared by holding written test, interview and considering the character roll entries of the Group 'D' employees. It is also stated that Hindi typing test will also be held, in which the candidates must have typing speed of 25 words per minute. Thus, according to the marks obtained in the tests a select list is prepared and selection for promotion is accordingly made.
It is stated in the counter affidavit that the advertisement /notices have been issued on 25th March, 2015, 27th May, 2015 and 15th June, 2015 for promotion on Group 'C' post (Junior Assistant) from the post of Group 'D', pursuant to which departmental examination, interview and other eligible proceedings were held on 24th June, 2015. It is stated that a large number of applications were received, however, the petitioner has not submitted any application for his promotion.
In the counter affidavit the petitioner's case with regard to the applicability of the Rules, 1983 has been denied and it is stated that the promotion of Group 'D' employees to Group 'C' post is governed under the provisions of the Rules, 2001 and not by the Rules, 1983. It is further stated that Rule 17 of the Rules, 1983 is not applicable in the case of the petitioner regarding his promotion from Group 'D' to Group 'C' post. It is stated that Rule 4 (chha) of the Rules, 2001 clearly indicates that the said rule is applicable to the employees of the Directorate of Education and its subordinate departments also. It has also been mentioned in the counter affidavit that the earlier Writ Petition No. 29453 of 2009 filed by the petitioner has been dismissed by this Court on 04th January, 2012.
The newly impleaded respondents have also filed their counter affidavit. They have adopted the stand of the State.
I have heard Sri C.P. Gupta and Sri Anil Tiwari for the petitioners and Sri Ramendra Asthana and learned Standing Counsel for the respondents.
Learned counsel for the petitioner submits that the Patrachar Shiksha Sansthan, Allahabad is an establishment which is part and parcel of the Directorate of Education, Allahabad and is a Head Office/Headquarter of the Department of Education and not a subordinate office of the said Department. The Government Order dated 31st August, 1982 provides 10 per cent promotional quota to clerical post of Class- III but it does not lay down any criteria and procedure for such departmental promotion, therefore, it has provided that the promotion will be made on the basis of merit. On 09th August, 1983 new rule being the Rules, 1983 was framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution. The said Rules, 1983 was specifically made for the Directorate of Education. For the said reason, the Rules, 1983 was special in nature dealing with the particular service only. Rule 5(2) of the Rules, 1983 provides that 10 per cent of the vacancies of the Routine Clerks as indicated in the proviso to Rule 7 of the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 19754 shall be filled by promotion of Group 'D' employees. It is further submitted that Rule 17 of the Rules, 1983 lays down the criteria and procedure for promotion. The seniority subject to the rejection of the unfit is the criterion for promotion and not the merit as provided in the Government Order dated 31st August, 1982.
It is urged that the Rules, 1983 has been framed in supersession of all existing rules and orders, therefore, the Government Order dated 31st August, 1982 stood superseded by the Rules, 1983. Later on, the Rules, 1985 was framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution. Rule 3 (h) of the Rules, 1985 defines the 'Subordinate Office', which means office of the Regional Deputy Director/ Regional Inspectors of Girls Schools/ District Inspector of Schools/ Zila Basic Shiksha Adhikari/ Government Educational Institutions/ Registrar, Departmental Examinations, Allahabad. Rule 5(1)(2) of the Rules, 1985 also provides for 15 per cent promotional quota for Class-IV employees to Class-III post.
Learned counsel for the petitioner asserted that if the Rules, 1983 and the Rules, 1985 are taken together, they constitute a complete code insofar as the educational departments are concerned, therefore, the said Rules are special and specific (particular in nature) and cannot be superseded by the general rules impliedly or by implication. They can be superseded or abrogated by expressly referring the said Rules. The field relating to criteria and procedure for promotion of the Ministerial Staff of the Education Department from Class-IV employees to Class-III posts, thus, stood already occupied by the said special and specific service rules, being the Rules, 1983 and the Rules, 1985.
He further contended that insofar as the Rules, 2001 is concerned, it is general in nature and does not specifically override or supersede the special and specific Service Rules, 1983 framed for the Ministerial Staff of their department only. The Rules, 2001 being a general Rule is applicable only to the subordinate offices of the Government, in respect of which there are no other specific service rules in operation. The Rules, 2001 has not expressly and specifically superseded or abrogated the Rules, 1983. Therefore, the criteria and procedure for promotion of petitioner from Class-IV post to Class-III post of Junior Clerk would be seniority and not the merit, for which no written examinations are required to be held.
Summing up his submission learned Counsel for the petitioner has drawn the attention of the Court to a Government Order dated 21st September, 2012, whereby the pay structure of clerical cadre in the establishment of the Directorate of Education, Uttar Pradesh has been restructured. In Appendix-I of the said Government Order, in Column-5 relating to appointment/procedure for promotion, it has been mentioned that the same will be made as per the Rules, 1983. The said entry pertaining to the Rules, 1983 has not been deleted/amended in Column-5 of Appendix-II of the said Government Order dated 21st September, 2012 and there is no reference of the Rules, 2001. He has also referred an order passed by the Joint Director of Education, Allahabad Region, Allahabad dated 23rd November, 2010 in respect of promotion of some employees.
In support of his submissions, learned counsel for the petitioner has also placed reliance on the following judgments:
(i) Virendra Kumar Mishra v. State of U.P. and others5;
(ii) Revati Raman Pandey and others v. State of U.P. and others6;
(iii) Vijay Singh and others v. State of U.P. and others7;
(iv) Mayank Gautam v. State of U.P. and others8;
(v) R.S. Raghunath v. State of Karnataka and another9.
Learned counsel for the respondents Sri Ramendra Asthana submits that the Rules, 2001 is applicable to all promotions of Class-IV employees as it is later in point and it is a general rule dealing with promotion of all employees of Class-IV posts, except the offices mentioned in Rule 2 of the Rules, 2001. He has also urged that Rule 3 of the Rules, 2001 clearly provides that it has overriding effect notwithstanding any contrary provision contained in any other rules. He has further submitted that an interpretation of the statute which harmonizes with the avowed object is always to be accepted than the one which dilutes it. While construing the statute where there may be some doubt, the Court has to consider the statute as a whole, its design, its purpose and the remedy which it seeks to achieve.
Lastly he urged that there seems to be some apparent contradiction but Rules 2 and 3 of the Rules, 2001 make it abundantly clear about the applicability the said Rule in the present matter. He has placed reliance on the judgments of the Supreme Court in the cases of Regional Provident Fund Commissioner v. Hooghly Mills Company Limited and others10 and Mohd. Saud and another v. Dr. (Maj.) Shaikh Mahfooz and others11.
Sri Anil Tiwari, learned Advocate, who is counsel for the petitioners in the companion Writ-A No. 32882 of 2015 (Chhote Lal and others v. State of U.P. And others) has adopted the submissions of Sri C.P. Gupta, learned counsel for the petitioner in the present writ petition. Sri Tiwari has placed reliance on a judgment of the Supreme Court in the case of Prasad Kurien and others v. K.J. Augustin and others12.
I have heard and considered the submissions advanced by the learned counsel for the parties and perused the record.
A short question which arises for determination in the present case and other companion matters is that which Rule would be applicable for promotion of Class-IV employees to Class-III posts for the ministerial staff of the office of the Directorate of Education. Whether they are governed by the Rules, 1983 or the Rules, 2001?
I find it helpful to start with 1983 and 2001 Rules. The provisions of the Rules, 1983, insofar as are material for the present controversy, are set out at below:
"2. .....
Status of the service.--The Uttar Pradesh Directorate of Education Ministerial Service is a Service comprising Group 'C' posts.
3. Definitions-- In these rules, unless there is anything repugnant in the subject or context-
*** *** ***
(g) 'member of the Service' means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service;
(h) 'Service' means the Uttar Pradesh Directorate of Education Ministerial Service;
*** *** *** PART III Recruitment
5. Source of recruitment.--Recruitment to the various categories of posts in the service shall be made from the following sources:
Name of posts Source of Recruitment (1) Routine Clerks (1) By direct recruitment in accordance with the provisions of the Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1975 as amended from time to time.
(2) By promotion of Group 'D' employees to the extent of 10 per cent of the vacancies in accordance with the proviso to Rule 7 of the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975 as amended from time to time.
*** *** ***
17. Procedure for recruitment by promotion.--(1) Recruitment by promotion shall be made on the basis of seniority, subject to the rejection of the unfit through the Selection Committee constituted under Rule 16.
(2) The appointing authority shall prepare an eligibility list of the candidates, arranged in order of seniority and place it before the Selection Committee alongwith their character rolls and such other record, pertaining to them, as may be considered proper.
(3) The Selection Committee shall consider the cases of candidates on the basis of the records, referred to in sub-rule (2) and if it considers necessary, it may interview the candidates also.
(4) The Selection Committee shall prepare a list of selected candidates arranged in order of seniority and forward the same to the appointing authority."
Now, the relevant parts of the Rules, 2001, as are material for the present case, read as under:
"lafo/kku ds vuqPNsn 309 ds ijUrqd }kjk iznRr 'kfDr dk iz;ksx djds vkSj bl fo"k; ij leLr fo|eku fu;eksa vkSj vkns'kksa dk vfrdze.k djds jkT;iky ljdkj ds v/khuLFk dk;kZy;ksa esa lewg *?k* deZpkfj;ksa esa ls] fyfid oxhZ; lewg *x* ds fuEure~ Js.kh ds inksa ij inksUufr }kjk HkrhZ dks fofu;fer djus ds fy, fuEufyf[kr fu;ekoyh cukrs gS% *** *** *** 2& ;g fu;ekoyh mRrj izns'k lfpoky;] fo/kku e.My ds dk;kZy;ksa] yksd vk;qDr m0iz0] yksd lsok vk;ksx] mPp U;k;ky;] mPp U;k;ky; ds fu;=a.k vkSj v/kh{k.k ds v/khu v/khuLFk U;k;ky;ksa] egk vf/koDrk] mRrj izns'k vkSj mu LFkkiuksa tks egk vf/koDrk] mRrj izns'k ds fu;a=.k ds v/khu gks] dks NksM+dj lewg *?k* deZpkfj;ksa esa fyfid oxhZ; lewg *x* ds fuEure Js.kh ds inksa ij ¼tks yksd lsok vk;ksx dh ifjf/k ds ckgj gksa½ inksUufr }kjk HkrhZ leLr v/khuLFk dk;kZy;ksa esa ljdkj ds fu;a=.k ds v/khu 'kkflr gksxhA ¼2½ fyfid oxhZ; lewg *x* ds fuEure Js.kh ds inksa ij inksUufr }kjk leLr fjfDr;kW ftu ij ;g fu;ekoyh ykxw gksrh gS] bl fu;ekoyh ds micU/kksa ds vuqlkj dh tk;sxhA 3& fdlh vU; fu;ekoyh ;k vkns'kksa esa fdlh izfrdwy ckr ls gksrs gq, Hkh ;g fu;ekoyh izHkkoh gksxhA 4& tc rd fo"k; ;k lanHkZ esa dksbZ izfrdwy ckr u gks bl fuekoyh esa%& *** *** *** ¼N½ v/khuLFk dk;kZy; dk rkRi;Z] mRrj izns'k lfpoky;] fo/kku e.My ds dk;kZy;ksa] yksd vk;qDr] mRrj izns'k yksd lsok vk;ksx] mPp U;k;ky;] mPp U;k;ky; ds fu;a=.k vkSj v/kh{k.k ds v/khu v/khuLFk U;k;ky;ksa] egk vf/koDrk] mRrj izns'k vkSj mu LFkkiuksa tks egkf/koDrk] mRrj izns'k ds fu;a=.k ds v/khu gksa] dks NksM+dj ljdkj ds fu;a=.k ds v/khu leLr dk;kZy;ksa ls gS% *** *** *** 5& fdlh v/khuLFk dk;kZy; esa fyfid oxhZ; lewg *x* ds fuEure~ Js.kh ds inksa ij fjfDr;ksa dh chl izfr'kr HkrhZ p;u lfefr ds ek/;e ls inksUufr }kjk fuEufyf[kr lzksrksa ls dh tk;sxh% ¼1½ iUnzg izfr'kr ekSfyd :i ls fu;qDr ,sls lewg *?k* deZpkfj;ksa esa ls ftUgksaus ek/;fed f'k{kk ifj"kn mRrj izns'k dh gkbZLdwy ijh{kk ;k ljdkj }kjk mlds led{k ekU;rk izkIr dksbZ ijh{kk mRrh.kZ dh gks vkSj ftUgksaus HkrhZ ds o"kZ ds izFke fnol dks bl :i esa ikWp o"kZ dh lsok iwjh dj yh gksA ¼2½ ikWp izfr'kr ekSfyd :i ls fu;qDr ,sls lewg *?k* ds deZpkfj;ksa esa ls ftUgksaus ek/;fed f'k{kk ifj"kn] mRrj izns'k dh b.VjehfM,V dh ijh{kk ;k ljdkj }kjk mlds led{k ekU;rk izkIr dksbZ f'k{kk mRrh.kZ dj yh gks vkSj ftlus HkrhZ ds o"kZ ds izFke fnol dks bl :i esa ikWp o"kZ dh lsok iwjh dj yh gksA *** *** *** 8& ¼1½ *** *** 2& inksUufr }kjk HkrhZ Js"Brk ds vk/kkj ij tSlk mi fu;e ¼1½ ds v/khu xfBr p;u lfefr ds ek/;e ls p;u ds fy;s ijh{kk esa izkIr vadks }kjk izdV gks] dh tk;sxhA p;u ds fy, nh tkus okyh ijh{kk esa ,d lkekU; fyf[kr ijh{kk lk{kkRdkj vkSj pfj= iath dk ewY;kadu lfEefyr gS] fyf[kr ijh{kk] lk{kkRdkj vkSj pfj= iath ewY;kadu ds fy, fu;e fd;s x;s vf/kdre vad fuEu izdkj gksaxsA ¼d½ fyf[kr ijh{kk rhl vad ¼[k½ lk{kkRdkj nl vad ¼x½ pfj= iath dk ewY;kadu nl vad dqy ipkl vad fVIi.kh%& fyf[kr ijh{kk dk ,d iz'uxr gksxkA iz'u i= nks iz'uksa dk gksxkA izR;sd iz'u iUnzg vadks dk gksxkA igyk iz'u ,d lk/kkj.k fo"k; ij fgUnh fucU/k ys[ku dk gksxk vkSj vU; ,d lkekU; Kku dk gksxkA fVIi.kh& tgkW inksUufr }kjk HkrhZ Vadd ;k fdlh in ftlds fy, fgUnh Vad.k vko';d gks] dh tk jgh gS] ogkW fgUnh Vad.k dh ,d vgZrk ijh{kk Hkh vk;ksftr dh tk;sxh] tSlk le;≤ ij ljdkj }kjk fofgr dh tk;A ;g ijh{kk vfgZr djus dh fdlh vH;FkhZ dh fgUnh Vad.k esa iPphl 'kCn izfr feuV xfr gksuk vko';d gSA ¼3½ p;u lfefr mi fu;e ¼2½ ds v/khu ik= vH;fFkZ;ksa dh ijh{kk vk;ksftr djsxh vkSj vH;fFkZ;ksa dks muds }kjk mDr ijh{kk esa izkIr fd, x, vadksa ds vuqlkj lkj.khc) djsxhA p;u lfefr fu;e&6 ds vuqlkj vuqlwfpr tkfr;ksa vkSj vuqlwfpr tutkfr;ksa ds vH;fFkZ;ksa dk lE;d izfrfuf/kRo lqfuf'pr djus dh vko';drk dks /;ku esa j[krs gq, izoh.krk dze esa tSlk muds }kjk mDr ijh{kk esa izkIr fd, x;s vadksa ls izdV gks ,d lwph rS;kj djsxh vkSj mruh la[;k esa vH;fFkZ;ksa dks ftrus mDr ijh{kk ds ifj.kke ds vk/kkj ij bl lEcU/k esa p;u lfefr }kjk fu/kkZfjr ekud rd vk;s gksa] flQkfj'k djsxhA nks ;k vf/kd vH;fFkZ;ksa ds fyf[kr ijh{kk esa Hkh cjkcj&cjkcj vad izkIr djus dh fLFkfr esa vk;q esa T;s"B vH;FkhZ dks p;u lwph esa mPprj LFkku ij j[kk tk;sxkA p;u lfefr lwph fu;qfDr izkf/kdkjh dks vxzlkfjr djsxhA"
At this stage before considering the submission of the learned counsel for the petitioner that the Rules, 1983 is a special rule, therefore, general rule of 2001 would not be applicable, it would be advantageous to refer some of the decisions of the Supreme Court dealing with the applicability of special and general rules in given circumstances.
The Supreme Court had the occasion to consider this construction of interpretation in Ajoy Kumar Banerjee and others v. Union of India and others13. In the said case there was a conflict between two schemes and a question arose that what is general law and what is the special law and which law in case of conflict would prevail. The relevant paragraphs, being 38 & 39, of the judgment read as under:
"38. ....As mentioned hereinbefore if the scheme was held to be valid, then the question what is the general law and what is the special law and which law in case of conflict would prevail would have arisen and that would have necessitated the application of the principle "Generalia specialibus non derogant". The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied:
(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment.
If either of these two conditions is fulfilled, the later law, even though general, would prevail.
39. From the text and the decisions, four tests are deducible and these are: (i) The legislature has the undoubted right to alter a law already promulgated through subsequent legislation, (ii) A special law may be altered, abrogated or repealed by a later general law by an express provision, (iii) A later general law will override a prior special law if the two are so repugnant to each other that they cannot co-exist even though no express provision in that behalf is found in the general law, and (iv) It is only in the absence of a provision to the contrary and of a clear inconsistency that a special law will remain wholly unaffected by a later general law. See in this connection, Maxwell on the Interpretation of Statutes, Twelfth Edition, pages 196-198."
The case of Ajoy Kumar Banerjee (supra) was followed by the Supreme Court in the case of R.S. Raghunath v. State of Karnataka and another14. The relevant part of the judgment in R.S. Raghunath (supra) is quoted below:
"1. Even the General Law later in time, prevails over the earlier Special Law if it clearly and directly supersedes the said Special Law--is an unexceptionable proposition of law...."
In the case of S. Prakash and another v. K.M. Kurian and others15, after referring the judgment of Ajoy Kumar Banerjee (supra) and R.S. Raghunath (supra), the Supreme Court has held as under:
"14. From the aforesaid discussion, it is clear that if the intention of the rule-making authority was to establish a rule of universal application to all the services in the State of Kerala for which Special Rules are made, then Special Rules will give way to the General Rules enacted for that purpose. This has to be found out from the language used in the rules which may be express or by implication. If the language is clear and unqualified, subsequent General Rule would prevail despite repugnancy. If the intention of the rule-making authority is to sweep away all the Special Rules and to establish a uniform pattern for computation of the ratio or percentage of direct recruits and by transfer, in such case, the Special Rules will give way...."
In Queen v. London County Council16, Bowen, L.J. has observed as under:
"Now, a general Act, prima facie, is that which applies to the whole community. In the natural meaning of the term it means an Act of Parliament which is unlimited both in its area and, as regards the individual, in its effects; and as opposed to that you get statutes which may well be public because of the importance of the subjects with which they deal and their general interest to the community, but which are limited in respect of area--a limitation which makes them local--or limited in respect of individuals or persons--a limitation which makes them personal."
Bearing in the mind the principle aforesaid when the Court proceeds to consider the fact of this case, I find that a careful analysis of the Rules, 2001 clearly indicates that Rule 3 thereof has an overriding effect, therefore, all the promotions of Class-IV to Class-III posts shall be made on the basis of merit and not on the basis of seniority subject to the rejection of the unfit. The Rules, 2001 has been framed later in time, therefore, the provisions of promotion on the basis of merit shall have overriding effect on all existing rules dealing with promotion of Class-IV employees to Class-III posts in the Government Offices, except in those offices which are exempted under Rule 2 of the Rules, 2001.
Rule 3 of the Rules, 2001 clearly provides that it has overriding effect notwithstanding any contrary provision contained in any other rule. Rule 4(g) of the Rules, 2001 provides that it would be applicable to all offices under the control of the Government except Uttar Pradesh Secretariat, Offices of Legislature, Lokayukta, Uttar Pradesh Public Service Commission, High Courts, Subordinate Courts, Advocate General. Thus, the combined reading of Rules 3 and 4 of the Rules, 2001 clearly indicates the intention of the State Government that this rule is applicable to all the clerical cadre of Group 'C' working in the subordinate offices. The Rules, 2001 is a specific rule dealing with the promotion only.
The Rules, 1983 is a special rule which deals with the employees of the Directorate of Education. For promotion the said rule provides that the criterion for promotion shall be seniority subject to the rejection of the unfit. The Rules, 2001 is a general rule, which has a universal application for all the services except some of the offices mentioned in Rule 2(g) thereof. The Rules, 2001 provides that the criterion for promotion shall be merit. Hence, there is a clear inconsistency between the special rule and the general rule.
The principle of maxim 'generalia specialibus non derogant' is well settled. It provides that a special law is not impliedly repealed by a later general law. The special law deals with the particular subject, whereas general law is universally applicable. However, it has certain exceptions. Later general law will be applicable to a prior special law if there is a conflict between two statutes or there is some express reference in general law which is later in point.
It is true that non obstinate clause in every case cannot be treated repealing the earlier law. The non-obstinate clause is to be understood as operating to set aside the part which is inconsistent with later law. In other words, where both the provisions cannot be read harmoniously, in that event a later law abrogate earlier law which is clearly inconsistent with it. At this stage, it is apt to refer Broom's Legal Maxims, New Eleventh Edition, Chapter 5 at page 252, wherein while dealing with two maxims 'generalia specialibus non derogant' and 'specialia generalibus derogant' he observed as under:
"The principles expressed in the maxims generalia specialibus non derogant (general things do not derogate from special things) and specialia generalibus derogant (special things derogate from general things) have also been applied in resolving a conflict between two different Acts and in the construction of statutory rules and statutory orders."
This principle has been explained by the Supreme Court in the case of P.V. Hemlatha v. Kattamkadi Puthiya Maliackal Saheeda17.
Thus, it is evident that the Rules, 2001, which has a general application for promotion in all the subordinate offices, has an overriding effect and it is later rule. The intention of the rule-making authority is very clear that in respect of promotion of all Class-IV employees the criterion shall be merit. The said criterion is in the public interest. Therefore, Rules 16 & 17 of the special rule, being Rules of 1983, will give way to the general rule only for a limited application for the purposes of the promotion. Thus, both, the Rules, 1983 and the Rules, 2001 can be reconciled in a way that the Rules, 1983 will not be applicable for promotions. The application of the Rules, 2001 shall be limited only to the promotion of Class-IV to Class-III post. Such reconciliation is in terms of the intention of the rule making authority.
Learned counsel for the petitioner has relied on the judgment of this Court in Virendra Kumar Mishra (supra). In the said case a selection was held for promotion from Class-IV employees to the post of Junior Clerk. The petitioner therein could not succeed in the aforesaid selection and he filed Civil Misc. Writ Petition No. 42186 of 1999, which was disposed of on 08th January, 1999 permitting him to make a representation to the authorities concerned. The petitioner's representation was rejected and his contention that selection ought to have been held in accordance with the U.P. Government Servants (Criterion for Recruitment by Promotion) Rules, 1994 was rejected on the ground that the petitioner had participated in the selection and having failed to qualify, cannot be allowed to challenge the same. Against the said order, the writ petition filed by the petitioner therein was dismissed on the ground that he has undertaken written examination and having failed, he cannot challenge it. The special appeal against the said order has also been dismissed. Moreover, in that case the issue was with regard to applicability of the aforesaid Rules of 1994 and Regulation 6 of the Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954. The Court found that the said Regulations of 1954 were not applicable to service and post, to which appointment is regulated by specific rules and orders. In the said case the Rules, 2001 was not considered, therefore, the said case has no application in the present case. In the case of Revati Raman Pandey (supra) the issue was with regard to promotion of Class-IV employees to Class-III posts on the basis of seniority subject to rejection of the unfit. In the said case the Government Order dated 31st August, 1982 and the Government order of 1995 were in issue. In the said case also, the applicability of the Rules, 2001 was neither raised nor considered. Moreover, the juniors to the petitioners therein were given promotion in the year 1998. Thus, the facts of the said case are distinguishable.
In Vijay Singh and others (supra), which has been relied upon by the learned counsel for the petitioner, the dispute was entirely different. All the questions referred to the Full Bench for consideration were: "(1) Whether a Rule made under Article 309 of the Constitution of India can be set at naught by an executive fiat? (2) Whether the Fundamental Right of a citizen to equal opportunity in the matter of employment guaranteed under Article 16(1) of the Constitution has been denied to the appellants by lowering the upper age limit? (3) Whether change in criterion and age made by executive order without any authority of law and/or reason can be upheld on the anvil of Articles 14 and 16(1) of the Constitution of India or are mala fide? (4) ....". From the reference itself it is clear that there was no issue with regard to inconsistency between the special rule and the general rule. Hence, the said case has no applicability in the present case.
Sri Anil Tiwari has placed heavy reliance on the judgment of the Supreme Court in Prasad Kurien (supra).
I have carefully gone through the said judgment of Prasad Kurien (supra). To my understanding, this case helps the submission of the respondents. The Supreme Court in this case also was considering two maxims 'generaliabus specialia derogant' and 'generalia specialibus non derogant'. The Supreme Court has followed the judgment of S. Prakash (supra). In the said case, there was a conflict between the Kerala State and Subordinate Services Rules, 1958 and a special rule being Kerala Excise and Prohibition Subordinate Service Rules, 1974. The said Rules of 1958 was a general rule and the Rules of 1974 was a special rule. The Court reading the two sets of provisions harmoniously held as under:
"28. Learned counsel for the appellant tried to distinguish the decision in S. Prakash18 and submitted that in fact this case related to the recruitment to the post of Sales Tax Officer in the Income Tax and Sales Tax Departments and there a provision was that proportion of 20% of successive substantive vacancies shall be filled or reserved to be filled by direct recruitment and the remaining shall be filled or reserved to be filled by transfer of Assistant Sales Tax Officers. The attempt on the part of learned Senior Counsel for the appellants to distinguish this case is futile. The percentage may vary. Here it is 25%, there it may be 20% of the successive vacancies. But the principle which has been laid down by this Court in S.Prakash clearly governs this case also as we have already dealt with in detail that the principle, generaliabus specialia derogant will not be applicable in the present case but what is applicable is generalia specialibus non derogant which means general things do not derogate from special things. In this case, the general rule which has come in the later point of time and which governs all service rules and not derogant to the special rules will prevail and not the Special Rules. In fact both could be read harmoniously as the intention of both the Rules, if read together is the ratio of 75%: 25% is to be maintained in the whole of the cadre and was accordingly reflected in the subsequent amendment which was brought about in Rules of 1958 in purported exercise of the power under Act of 1958. Therefore, this General Rule which is not repugnant with the Rules of 1974 will prevail and the ratio of 75% promotion and 25% direct recruit is to be maintained on the basis of the cadre strength."
As a sequel to the above, I find that the intention of the rule-making authority is that for promotion of Class-IV employees the merit shall be criterion. As held above, the said criterion is to enhance the administrative efficiency, hence both the Rules i.e. Rules, 1983 and Rules, 2001 can be construed harmoniously. Save in the matter of promotion, the employees of Directorate of Education shall continue to be governed under the special rule i.e. Rules, 1983 but the Rules, 2001 shall have a limited application for promotion of the employees. Accordingly, the writ petition lacks merit and it is dismissed.
No order as to costs.
Order Date :- 27th May, 2016.
S.Sharma/SKT Hon'ble Pradeep Kumar Singh Baghel, J.
The writ petition is dismissed.
For order, see my order of the date passed on the separate sheets (twenty-one pages).
Dt. 27.05.2016 SKT/-