Khem Raj Bhandari vs Union Of India & Others (2019) 17
2021 Latest Caselaw 4704 HP

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     IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 24th DAY OF SEPTEMBER, 2021




                                                         .
                              BEFORE





                HON'BLE MS. JUSTICE JYOTSNA REWAL DUA





CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 1360/2019

         Between :-

         KHEM RAJ BHANDARI,




         S/O LATE SH. CHET RAM BHANDARI,
         R/O VPO DHAROGRA, TEHSIL SUNI,
         DISTRICT SHIMLA, H.P.


                                                 ...PETITIONER

         (BY SH. SHRAWAN DOGRA, SR. ADVOCATE
         WITH SH. BHARAT THAKUR, ADVOCATE)



         AND




    1.   STATE OF HIMACHAL PRADESH,
         THROUGH ITS PRINCIPAL





         SECRETARY (EDUCATION)
         TO THE GOVERNMENT OF HP,
         SHIMLA-2





    2. DIRECTOR OF HIGHER EDUCATION,
       HIMACHAL PRADESH

    3. PITAMBER PIRTA,
       S/O SH. MELA RAM PIRTA,
       R/O MALTI NIWAS, SECTOR-4,
       NEW SHIMLA-9

    4. JEEWAN JYOTI
       S/O AKSHAR PRAKASH,




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         R/O HOUSE NO.54,
         ROURA, SECTOR NO.2,
         NBT BILASPUR,
         DISTRICT BILASPUR, HP




                                                       .

    5. NEELAM KUMARI, D/O SH. AMAR
       NATH SHARMA, C/O DR. RAJEEV
       SEAM, SET NO.3, DOCTORS RESI-





       DENCES, KNH COMPLEX, SHIMLA-1.

    6. DINESH SINGH THAKUR,
       S/O LATE SH. NATHA RAM THAKUR,





       C/O HOUSE NO.105, WARD NO.3,
       PARTAP NAGAR, HAMIRPUR,
       DISTRICT HAMIRPUR, HP

    7. LALIT KUMAR,
       S/O SH. CHHAI RAM,

       R/O NARPUSHAP KUTEER (GF),
       STRAWBERRY HILL, SHIMLA-2

    8.   HIMACHAL PRADESH PUBLIC


         SERVICE COMMISSION,
         THROUGH ITS SECRETARY

                                    ...RESPONDENTS




         (SMT. RITTA GOSWAMI,
          ADDITIONAL ADVOCATE GENERALS





          AND SMT. SEEMA SHARMA,
          DEPUTY ADVOCATE GENERAL
          FOR R-1AND R-2





          SH. NEEL KAMAL SHARMA, ADVOCATE
          FOR R-3 TO R-7
          NONE FOR R-8)

       RESERVED ON: 17.09.2021
       DELIVERED ON: 24.09.2021
       WHETHER APPROVED FOR REPORTING OR NOT? Yes.
    ____________________________________________________




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             This petition coming on for admission this day, Hon'ble

    Ms. Justice Jyotsna Rewal Dua, passed the following :




                                                                 .
                             ORDER

Petitioner claims that for the selection process

undertaken by respondent No.8 in the year 2011 for filling up the

posts of Headmaster by way of direct recruitment, the maximum

age limit prescribed for an applicant was 45 years. The private

respondents had crossed this upper age limit, therefore, they

could not be appointed as Headmasters. Their selection and

appointment as Headmasters being illegal requires to be set

aside and instead petitioner deserves to be appointed as a

Headmaster.

2. Claim & Defence

2(i) Petitioner's case in nutshell is that respondent

No.8/Himachal Pradesh Public Service Commission initiated the

selection process for filling up 212 posts of Headmasters [School

Cadre] Class-II (Non-Gazetted) vide advertisement dated

23.09.2011. Petitioner, respondents No.3 to 7 and various others

participated in the selection process. Respondents No.3 to 7

were selected and appointed as Headmasters vide office order

dated 25.09.2012. The maximum age limit prescribed under the

Recruitment and Promotion Rules for applying to the posts in

question was 45 years. Respondents No.3 to 7 had crossed 45

.

years of age, therefore, they were ineligible for the post. In the

waiting list prepared on the basis of merit amongst General

Category candidates, name of the petitioner figured within next 5

candidates. After exclusion of ineligible persons i.e. respondents

No.3 to 7, the petitioner would be entitled to be appointed as

Headmaster.

2(ii) to Respondents have not disputed private respondents'

(No.3 to 7) crossing over the age of 45 years by the cut-off date.

Their stand is that respondents No.3 to 7 were serving with the

State of Himachal Pradesh at the time of applying for the posts.

They had applied for the posts through proper channel. The

maximum age limit mentioned in the advertisement was not

applicable to the candidates in service of State of Himachal

Pradesh, therefore, appointments of respondents No.3 to 7 were

in order. In support of such stand, reliance was placed by the

respondents upon Rule 6 of the Recruitment and Promotion

Rules 1997 for the posts of Headmasters notified on 5.2.1998 (in

short R&P Rules 1997), the advertisement dated 23.9.2011 and

the Government instructions with respect to age limit for direct

recruitment of applicants in service of the respondent-State.

.

3. Background

For appreciating respective stands taken by the

parties, the rule position, the amendment thereof, stipulations in

the advertisement and the relevant Government instructions need

to be noticed first.

3(i)

The Recruitment and Promotion Rules 1997 for the

post of Headmasters were notified on 5.2.1998. Rule 10 of these

rules provided filling up 75 % vacancies by promotion and 25% by

direct recruitment. Rule 6 stipulated age for direct recruitment

'Between 18 and 35 years'. Rule 6 also carried various provisos.

As per the first proviso, the prescribed upper age limit for direct

recruitment was not applicable to the candidates already in

service of the Government including those who had been

appointed on ad-hoc or on contract basis. Rule 6 of R&P Rules

1997 with all its provisos is extracted as under:-

"6. Age for direct recruitment. Between 18 and 35 years.

Provided that the upper age limit for direct recruits will not be applicable to the candidates already in service of the Govt. in- cluding those who have been appointed on adhoc or on con- tract basis;

Provided further that if a candidate appointed on adhoc basis or on contract basis had become over-age on the date when he was appointed as such he shall not be eligible for any re-

.

laxation in the prescribed age limit by virtue of his such adhoc

or contract appointment;

Provided further that upper age limit is relaxable for Sched-

uled Castes/ Scheduled Tribes/Other categories of persons to the extent permissible under the general or special order(s) of the Himachal Pradesh Government'

Provided further that the employees of all the Public Sector Corporations and Autonomous Bodies who happened to, be Government Servants before absorption in Public Sector Cor- porations/Autonomous Bodies at the time of initial constitu-

tions of such Corporations/Autonomous Bodies shall be al-

lowed age concession in direct recruitment as admissible to Government servant. This concession will not, however, be admissible to such staff of the Public Sector Corporations/Au-

tonomous Bodies who were/are subsequently appointed by such Corporations/Autonomous Bodies and who are/were fi- nally absorbed in the service of such Corporations/Autono-

mous Bodies after initial constitution of the Public Sector Cor- porations/Autonomous Bodies.

Note (1) Age limit for direct recruitment will be reck- oned on the first day of the year in which the Post(s)

is/are advertised for inviting applications or notified to the Employment Exchanges or as the case may be. (2) Age and experience in the case of direct recruit- ment relaxable at the discretion of the HP Public Ser- vice Commission in case the candidate is otherwise well qualified."

3(ii) First amendment to the Recruitment and Promotion

Rules 1997 was notified on 17.03.2003. Regarding Rule 6 of the

.

R&P Rules 1997, the amendment notification provided as under:-

"For the existing provisions against column No.6, the following shall be substituted, namely:-

"Between 18 years and 45 years"

3(iii) The recruitment process for filling up 212 posts of

Headmaster [School Cadre] Class-II (Non-Gazetted) alongwith

various other posts was initiated by the official respondents by

issuing advertisement on 23.9.2011. The posts of Headmasters

were advertised under item No. IX(B). Para-6(i) of the

advertisement set down '45 years and below' as the eligible age

limit to apply for the posts. Para-6(ii) provided relaxation in upper

age limit to the Himachal Pradesh Government employees as

per Government instructions. Complete paragraph-6 pertaining

to 'age' as mentioned in the advertisement runs as under:-

"6. AGE:

(i) FOR ALL POSTS:- 45 YEARS AND BELOW (Except for the posts shown against Item No.IV& X)

(ii) There is five years relaxation in upper age for SC/ST/OBC/WFF/Persons with disabilities of Himachal Pradesh. For H.P. Govt. employees and Ex-servicemen of H.P. relaxation is as per Government instructions.

(iii) Age of a candidate shall be reckoned as on 01- 01-2011."

3(iv) The Government instructions as contained in

Handbook on Personnel matters Volume (I) Chapter 5 provide

.

that upper age limit for direct recruitment will not be applicable to

such candidates who are already in service of Government of

Himachal Pradesh. Relevant instructions are as under:-

"(vi) Candidates already in Government Service The upper age limit for direct recruitment will not be ap-

plicable to the candidates already in service of the Govt. including those who have been appointed on ad- hoc or on contract basis.

Provided that if a candidate appointed on adhoc basis

had become overage on the date when he was ap-

pointed as such he shall not be eligible for any relax- ation in the prescribed age limit by virtue of his such adhoc or contract appointment.

(H.P. Govt. Deptt. of Personnel letter No.Per(AP-II) A (3) 2/80, dated the 3rd August, 1985) (Annexure 5.5).

(vii) Relaxation at (vi) above available only to em- ployees of H.P. Government

It has been clarified by the H.P. Govt. that the upper age limit relaxation to candidates already in the service of the Govt. is available only to the employees of Hi-

machal Pradesh Govt.

(H.P. Govt. Deptt. of Personnel letter No.PER(AP- II)A(3)-2/80 dated 12-4-1988) Annexure 5.7)".

4. The Issue

Stand of the petitioner is that Rule 6 of

Recruitment and Promotion Rules 1997 was completely

substituted by the first amendment of these Rules notified

on 17.03.2003. By virtue of the first amendment, all

.

provisos to Rule 6 figuring in 1997 Rules stood deleted

including the proviso providing relaxation in upper age limit

for direct recruitment to the candidates in service of

Government. Therefore, all aspirants to the posts under

direct recruitment mode had to satisfy the age requirement

of 'Between 18 years and 45 years'. Respondents No.3 to

7 had crossed 45 years of age by the cut-off date,

therefore, were ineligible.

The stand of the respondents is that first

amendment notified on 17.03.2003 did not delete the

provisos to Rule 6 of the R&P Rules 1997. Only the age

limit figuring in Rule 6 of 1997 Rules was substituted by

way of 17.03.2003 notification. The provisos to Rule 6 as

were there in 1997 R&P Rules, remained intact even after

the amendment of rules carried out on 17.03.2003. It was

also submitted by the respondents that the advertisement

initiating the selection process on 23.09.2011, itself

provided that prescribed upper age limit would be relaxed

for H.P. Government Employees as per the Government

instructions. The applicable Government instructions stated

that the upper age limit for direct recruitment will not be

.

applicable to the candidates already in service of the State

Government. It was thus contended that the selection of

respondents No.3 to 7 was in order.

5. Observations

5(i) Hon'ble Supreme Court in Gottumukkala

Venkata Krishamraju Vs. Union of India & Others (2019) 17

SCC 590 noticed the definition of word 'substitution' as

given in Black's Law Dictionary 5 th Edition to mean 'put in

place of another person or thing' or 'to exchange'. Para 16

of the judgment reads as under:-

"16. In the first instance, we have to bear in mind the language/terminology which the

Legislature used while inserting new Section

6 with effect from September 01, 2016. This section stands 'substituted' with the old section. The word 'substituted' has its own significance. In

Government of India & Ors. v. Indian Tobacco Association (2005) 7 SCC 396, this Court noted dictionary meaning of the word 'substitute' as can be seen from para 15 of the said judgment:

"15. The word "substitute" ordinarily would mean "to put (one) in place of another"; or "to replace". In Black's Law Dictionary, 5th Edn., at p. 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 place of an injured colleague".

In para 17 of the above judgment, the Apex

Court held that use of word 'substitute' has the effect of

deleting the old provision and making operative the new

provision. Process of substitution consists of two steps:- (i)

old rule is made to cease to exist and next (ii) new rule is

brought into existence in its place. It is not a universal rule

that word 'substitution' necessarily or always connotes two

severable steps that is to say one of repeal and another of

fresh enactment. Para 18 of the judgment is as follows:-

18. Ordinarily wherever the word 'substitute' or 'substitution' is used by the legislature, it has the effect of deleting the old provision and make the new provision 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. No doubt, 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.

Therefore, we do not think that it is a universal rule

that the word 'substitution' necessarily or always connotes two severable steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps. However, the aforesaid

general meaning is to be given effect to, unless it is found that legislature intended otherwise.

Insofar as present case is concerned, as discussed hereinafter, the legislative intent was

also to give effect to the amended provision even in respect of those incumbents who were in

service as on September 01, 2016."

5(ii) In (2016) 4 SCC 179 titled Richa Mishra Vs.

State of Chhattisgarh and others, the appellant (therein)

despite having qualified the selection process, was not

included in the list of successful candidates on the ground

that she had crossed the upper age limit set down under

R&P Rules 2000. The appellant claimed relaxation on the

basis of special rules of 1997. One of the following

.

questions framed for consideration in the case was:-

"17.2 (b) Notwithstanding the fact that Rules, 2000 do not contain any provision for relaxation qua

women candidates, whether a relaxation would still be available to women candidates under the 1997 Rules? There are two incidental facets of question

no. (b), which are as follows:

(i) Whether the 1997 Rules are applicable, which make special provision for relaxation r in upper age limit by 10 years in respect of

women candidates?

(ii) Whether the 2003 Examination Rules which specifically contain a provision for

applicability of 1997 Rules would be treated as applicable for the examination in-

question?

It was observed that age relaxation provision

available in special rules of 1997 was omitted in 2000 Rules.

The omission was taken note of when 2005 Rules were

framed & situation was remedied by providing for age

relaxation. The position will have to be considered keeping in

view the 2000 Rules in juxtaposition with 1997 Rules and

other relevant provision applicable on the date. Relevant

paras of the judgment are as under:-

"23. No doubt, Rule 8 of Rules, 2000, which, inter alia, lays down the provision pertaining to upper and lower age of the candidates, does not make any

.

specific provision for relaxation of age in respect of women candidates. We also are conscious of the fact that Note (2) appended to Rule 8 provides that

in no other case, age limit will be relaxed. However, that is not the end of the matter. The legal position is to be examined in conjunction with all other rules

which occupy the field and all relevant to determine the issue. We are of the opinion that Rules, 1997 rread with State Services Examination Rules, 2003 would get attracted and as these Rules make a

specific provision for providing of age relaxation upto ten years that is to be given to women candidates, the appellant herein shall be entitled to the said benefit. The reasons for arriving at this

finding are explained hereinafter."

Principles of purposive interpretation were invoked

in paras 30 to 33 of the judgment and was finally concluded

as under:-

"34. When all the aforesaid Rules are seen in juxtaposition and in conjunction with each other, intention of rule making authority becomes apparent and is clearly ascertained. The intention of rule making authority was, and it continues to be so, to give benefit to age relaxation to women candidates. That, according to us, represents the true intention. Otherwise the very purpose of such Rules is

defeated. The rule making authority has manifest its intention by removing the ambiguity and providing a specific provision even in Rules, 2005 which,

.

according to us, is by way of abundant caution so that such kinds of disputes or situations with which we are confronted here, are eliminated.

35. Thus, in ultimate analysis, we hold that the appellant was entitled to age relaxation as per Rule 4 of Rules, 1997 read with State Services

Examination, 2003. She was, therefore, eligible to be considered for the post of DSP......."

5(iii) 2003 amendment of R&P Rules 1997 did not

delete provisos to Rule 6 of 1997 R&P Rules. The

amendment only substituted the age limit mentioned in

Rule 6 of 1997 R&P Rules. By virtue of the 2003

amendment, the words 'Between 18 and 35 years'

occurring in Rule 6 of 1997 Rules were substituted with the

words 'Between 18 years and 45 years'. There was no

amendment for deleting the provisos to Rule 6 as they

existed in Rule 6 of 1997 R&P Rules. There is no document

on record to show that any proposal was moved for

deleting the provisos to Rule 6 by way of amendment. No

such deliberations for deleting the provisos to Rule 6 have

been placed on the record. It cannot be assumed that

entire Rule 6 alongwith all its provisos as it stood in

Recruitment and Promotion Rules 1997 has to be deemed

.

to have been substituted with words 'Between 18 years and

45 years'. By means of amendment notification dated

17.03.2003, only the age limit 'Between 18 to 35 years'

earlier existing in Rule 6 of 1997 R&P Rules was changed

and substituted by 'Between 18 years and 45 years'. The

provisos to Rule 6 of 1997 R&P Rules remained intact even

after the amendment. Respondents No.3 to 7 in their

amended reply filed to the writ petition have placed on

record copy of a communication dated July 2001 sent from

the office of Director of Education Himachal Pradesh

alongwith a proforma at Annexure-'A' regarding amendment

of R&P Rules of posts of Headmasters. In terms of this

Annexure-'A' the classification of post of Headmaster as

Class-III occurring in Rule 3, pay-scale of the post as

Rs.2000-3500 etc. occurring in Rule 4 and the age limit of

'Between 18 years and 35 years' occurring in Rule 6 of

R&P Rules 1997 were to be changed and substituted with

Class-II (Rule 3), Rs.7000-220, 8100-275, 10300-340-

10980 (Rule 4) and 'Between 18 and 45 years (Rule 6)

respectively by amendment of the R&P Rules 1997.

Annexure 'A' gives an insight about the intention behind

.

amendment of Rule 6 of R&P Rules 1997. Only upper age

limit for the posts was proposed to be enhanced by keeping

the provisos to Rule 6 intact. To give the interpretation to

the amendment notification dated 17.03.2003 as projected

by the petitioner would be perverse and illogical. As noticed

earlier, there was no amendment specifically providing for

deletion or substitution of entire Rule 6 of R&P Rules 1997.

The object behind amendment of Rule 6, it seems, was

only to enhance the maximum age limit for applying to the

post. In the given facts and circumstances, purposive

interpretation behind the amendment needs to be given.

Entire Rule 6 of R&P Rules 1997 was not obliterated by

2003 amendment. Substitution was only of maximum age

limit set down in R&P Rules 1997. Therefore, the

contention of the petitioner that all provisos existing in Rule

6 of the R&P Rules 1997 have to be construed to have

been deleted by 2003 amendment is rejected.

5(iv) There is another reason for rejecting the

prayers made in the writ petition. The advertisement

initiating the selection process in question was issued on

23.9.2011. The advertisement specified the age limit for

.

applying to the posts in question as '45 years and below'.

As per Clause 6 of the advertisement, relaxation in upper

age limit as per Government instructions was available to

those applicants who were in service of the respondent-

State. The Government instructions provided that upper

age limit fixed for direct recruitment would not be applicable

to the candidates already in service of State Government.

The advertisement, the terms and conditions of the

advertisement and the Government instructions (all

extracted earlier) are not under challenge in the instant

petition. The petitioner participated under the terms and

conditions mentioned in the advertisement. After

participating in the selection process and failing therein, it is

not open for the petitioner to contend that benefit of

relaxation in upper age limit could not be granted to

candidates (respondents No.3 to 7) in service of

respondent State. Respondents No.3 to 7 were admittedly

in service of State of Himachal Pradesh at the time of

applying. They had applied through proper channel.

Therefore, for direct recruitment to the post in question they

were entitled for the benefit of relaxation in upper age limit

.

as per Government instructions in terms of the

advertisement. Thus, their selections and appointments

were in order.

For all the aforesaid reasons, this petition lacks

merit and is dismissed. Pending miscellaneous

application(s), if any, shall also stand disposed of.

Jyotsna Rewal Dua Judge

24th September, 2021 (rohit)