Rajasthan High Court - Jodhpur
Ladu Ram vs State Of Rajasthan on 4 January, 2022
Bench: Akil Kureshi, Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 14040/2021
1. Dr. Karanjeet Kaur D/o Shri Jagdish Singh, Aged About 35
Years, R/o 1/132, Shiv Nagar, 3-E Chhoti, Near Sokhal
Medical Store, Ssb Road, Sri Ganganagar, Rajasthan.
2. Dr. Madhu Kumawat D/o Shri Chaina Ram Kumawat, Aged
About 37 Years, R/o 19 A/3, Sir Pratap Colony, Paanch
Batti Circle, Airport Road, Jodhpur, Rajasthan.
3. Shravan Kumar S/o Shri Chhahana Ram, Aged About 30
Years, R/o V/p Hadetar, Tehsil Sanchore, District Jalore,
Rajasthan.
----Petitioners
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Higher Education Department, Government Of Rajasthan,
Secretariat, Jaipur, Rajasthan.
2. Commissioner, Commissionerate Of College Education,
Government Of Rajasthan, Block-Iv, Dr. S. Radhakrishnan
Shiksha Sankul, Jawahar Lal Nehru Marg, Jaipur 302015,
Rajasthan.
3. Rajasthan Public Service Commission, Through Its
Secretary, Ajmer, Rajasthan.
4. University Grants Commission (Ugc), Through The
Secretary, Bahadur Shah Zafar Marg, New Delhi.
----Respondents
Connected With
D.B. Civil Writ Petition No. 12080/2020
Mahendar Singh Bairwa S/o Shri Chitir Lal Bairwa, Aged About 35
Years, Category Sc, R/o Qtr No. E-2, 132 Kv Gss, Vidhyut Colony,
Bhinmal Bypass Road, Jalore, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Higher Education Department, Government Of Rajasthan,
Secretariat, Jaipur, Rajasthan.
2. Commissioner, Commissionerate Of College Education,
Government Of Rajasthan, Block-Iv, Dr. S. Radhakrishnan
Shiksha Sankul, Jawahar Lal Nehru Marg, Jaipur- 302015,
Rajasthan.
3. Rajasthan Public Service Commission, Through Its
Secretary, Ajmer, Rajasthan.
4. University Grants Commission (Ugc), Through The
Secretary, Bahadur Shah Zafar Marg, New Delhi.
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----Respondents
D.B. Civil Writ Petition No. 12318/2020
Ladu Ram S/o Shri Mana Ram, Aged About 41 Years, Category
Sc, R/o Village Dilipgarh, Tehsil Bijowa, District Pali, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Higher Education Department, Government Of Rajasthan,
Secretariat, Jaipur Rajasthan.
2. Commissioner, Commissionerate Of College Education,
Government Of Rajasthan, Block-Iv, Dr. S. Radhakrishnan
Shiksha Sankul, Jawahar Lal Nehru Marg, Jaipur - 302015,
Rajasthan.
3. Rajasthan Public Service Commission, Through Its
Secretary, Ajmer, Rajasthan.
4. University Grants Commission (Ugc), Through The
Secretary, Bahadur Shah Zafar Marg, New Delhi.
----Respondents
D.B. Civil Writ Petition No. 12689/2020
1. Sahi Lal Vishnoi S/o Shri Bhana Ram Vishnoi, Aged About
35 Years, Category Obc, R/o House No. 4, Keshar Bagh,
Jodhpur, Rajasthan.
2. Hanuman Ram Sundwa S/o Shri Kana Ram Sundwa, Aged
About 33 Years, Category Sc, R/o Vpo Altawa, District
Nagaur, Rajasthan.
3. Dr. Vijay Kumar S/o Shri Krishan Lal, Aged About 45
Years, Category Sc, R/o Krishi Mandi Road, Near
Government Hospital, Kuchman City, District Nagaur,
Rajasthan.
4. Pawan Kumar Saini S/o Shri Devendra Kumar Saini, Aged
About 34 Years, Category Obc, R/o Vpo Mehari, Rajviyan,
Tehsil Sardarshahar, District Churu, Rajasthan.
5. Dilip Kumar S/o Shri Kirpal Das, Aged About 33 Years,
Category Obc, R/o House No. 441, Deendayal Upadhyay
Colony, Jaisalmer, Rajasthan.
6. Kailash Gadhwal S/o Shri Bhoma Ram Gadhwal, Aged
About 35 Years, Category Obc, R/o Mukam Jodhras, Tehsil
Degana, District Nagaur, Rajasthan.
7. Dr. Shri Kishan Ujjwal S/o Shri Chautha Ram Ujjwal, Aged
About 37 Years, Category Sc, R/o 1/a/309, Kudi Bhagtasni
Housing Board, Basni, Jodhpur, Rajasthan.
----Petitioners
Versus
1. State Of Rajasthan, Through The Principal Secretary,
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Higher Education Department, Government Of Rajasthan,
Secretariat, Jaipur Rajasthan.
2. Commissioner, Commissionerate Of College Education,
Government Of Rajasthan, Block-Iv, Dr. S. Radhakrishnan
Shiksha Sankul, Jawahar Lal Nehru Marg, Jaipur 302015,
Rajasthan.
3. Rajasthan Public Service Commission, Through Its
Secretary, Ajmer, Rajasthan.
4. University Grants Commission (Ugc), Through The
Secretary, Bahadur Shah Zafar Marg, New Delhi.
----Respondents
For Petitioner(s) : Mr. Nikhil Jain, Mr. Nihar Jain
For Respondent(s)- : Mr. Manish Vyas, AAG
State Mr. Karan Singh Rajpurohit, AAG
Mr. Kailash Choudhary,
Mr. Rajat Arora
For Respondent- : Mr. Khet Singh Rajpurohit
RPSC
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE SUDESH BANSAL
REPORTABLE Judgment
Reserved on :: 03/12/2021
Pronounced on :: 04/01/2022
By the Court: (Per Akil Kureshi, CJ):
These appeals arise out of common background. They have
been heard together and are being disposed of by this common
judgment. For convenience, we may record the facts as stated in
Civil Writ Petition No. 14040/2021.
2. The petitioners had applied for the post of Assistant
Professor in Government colleges for which the Rajasthan Public
Service Commission ('RPSC', for short) had issued advertisement
dated 18.12.2020 for a total number of 918 posts. According to
the petitioners, the qualifications and the method of recruitment
as provided in the advertisement and which are followed by the
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RPSC, are not in consonance with the guidelines issued by the
University Grants Commission ('UGC', for short) in its latest
regulations.
3. Initially, RPSC had issued an advertisement for recruitment
on 02.11.2020. However, the said advertisement was withdrawn
and a fresh advertisement was issued on 18.12.2020. A
corrigendum was issued on 07.06.2020 with which we are not
concerned. The eligibility criteria prescribed was, good academic
record with at least 55% marks or equivalent grade whenever
grade system is followed and master's degree in the relevant
subject from an Indian university or an equivalent degree from an
accredited foreign university. Besides this, the candidate must
have cleared the National Eligibility Test conducted by the UGC or
the CSIR or similar test, except for candidates who have been
awarded Ph.D. degree in accordance to the UGC (Minimum
Standards and Procedure for Award of M.Phil./Ph.D. Degree)
Regulations, 2009. The definition of 'good academic' record was
adopted from the Government circular dated 21.02.2014 which
provides as under:-
"good academic record means an average of atleast 55
percent marks in 3 examinations proceeding to masters
degree with atleast 50 percent marks in graduation and
any one of the secondary/high school/higher secondary/
senior secondary or equivalent grades in the points
scale wherefrom grading system is followed without
including any grace marks and/or rounding of to make it
55 percent or 50 percent as the case may be".
4. The petitioners would point out that in exercise of powers
conferred by the proviso of Article 309 of the Constitution, the
State Government has framed the Rajasthan Educational Service
(Collegiate Branch) Rules, 1986 (hereinafter referred to as 'Rules
(5 of 19) [CW-14040/2021]
of 1986') which pertains to the method of recruitment and service
conditions of various teaching staff in the Government colleges,
one of the posts being that of Lecturer which is now re-designated
as Assistant Professor. As per the Schedule to the said Rules of
1986, the minimum qualification and experience for direct
recruitment for the said post is "as laid down from time to time by
the University of Rajasthan". The State Government amended the
said Rules of 1986 vide notification dated 31.01.2018, by which
the definition of term 'Regulations' has been inserted as to mean
the University Grants Commission (Minimum Qualification for
Appointment of Teachers and other Academic Staff in Universities
and Colleges and Other Measures for Maintenance of Standards in
Higher Education) Regulation, 2010 as amended from time to time
and as adopted by the State Government. Vide this amendment,
the existing Schedule to the Rules of 1986 has also been
substituted. This Schedule provides method of recruitment,
minimum qualifications and experience for direct recruitment etc.
for different teaching posts in the Government colleges, one of
them being Assistant Professor. The minimum qualification and
experience for direct recruitment provided in this Schedule is
same as advertised by RPSC in its advertisement dated
18.12.2020.
5. The petitioners further point out that UGC framed fresh
Regulations called University Grants Commission (Minimum
Qualifications for appointment of Teachers and other Academic
Staff in Universities and Colleges and other Measures for the
Maintenance of Standards in Higher Education) Regulations, 2018
(hereinafter to be referred as the said "Regulation of 2018"). We
would take detail note of these Regulations at a later stage.
(6 of 19) [CW-14040/2021]
However, at this stage we may record that these Regulations
among other things, provide for recruitment and qualifications of
various teaching posts in the universities and colleges. The
concept of a good academic record does not find place in these
Regulations. The Regulations prescribe the criteria for short-listing
the candidates for interview for the post of Assistant Professor in
universities and colleges and further provide that such short-
listing would be only for interview and the selection should be
based on the performance in the interview.
6. The grievance of the petitioners is that the RPSC has not
applied the provisions of UGC Regulations of 2018, though the
recruitment advertisement was issued after promulgation of the
said Regulations. Essentially, the grievance revolves around two
parameters of recruitment. Firstly, with respect to the eligibility
criteria, that a candidate has to show good academic record as
defined and the selection process envisaged by RPSC which
consists of written test followed by oral interview. According to the
petitioners, both these elements are missing from the UGC
Regulations, 2018. They would point out that in these Regulations,
there is no mention of requirement that a candidate, in order to
be eligible, must possess good academic record. The State
Government has inserted a requirement which is not found in the
UGC Regulations. During the course of hearing of the arguments,
however, this grievance was side-stepped as would be clear
hereafter. Main focus of the challenge by the learned counsel for
the petitioners was that the RPSC followed selection process vastly
different from and in conflict with that prescribed by UGC under its
Regulations of 2018.
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7. The RPSC has filed a reply in which it is stated that the
scheme of examination as mentioned in the advertisement for
recruitment is as provided in Rule 19A and Schedule-II inserted
vide notification dated 28.07.2015 in the Rules of 1986. It is
stated that the RPSC is conducting the selection process on behalf
of the State Government who is the recruiting authority. The State
Government is therefore proper authority to prescribe the rules as
regards the selection and appointment of the candidates to the
post in question. It is stated that in response to the advertisement
dated 18.12.2020, the Commission has received 1,55,984
applications. The Commission has thereupon proceeded to conduct
the written examination as per the scheme notified in the
advertisement dated 18.12.2020. The examination was conducted
on 22.09.2021 and the Commission is in the process of declaring
the result.
8. Shri Nikhil Jain, learned counsel appearing for the petitioners
at the outset clarified that all the petitioners satisfy the
requirement of good academic record as provided by the State
Government and as prescribed in the recruitment advertisement.
So far as these petitions are concerned, this issue is not pressed.
We therefore have not gone into this aspect of the matter, namely,
where in face of the UCG Regulations 2018, the State Government
can prescribe the requirement of good academic record as one of
the eligibility criteria, though there is no such prescription in the
UGC Regulations.
9. Learned counsel for the petitioners however vehemently
contended that the method of selection adopted by the RPSC is
not in consonance with the UGC regulations and the selection
process may therefore be quashed. They drew our attention to the
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UGC Regulations, 2018 in order to highlight that for the post of
Assistant Professor in colleges, the Regulations provide for short-
listing of the candidates on the basis of allotment of marks as
prescribed. Thereafter, the selection has to be based only on oral
interview. In the present case, the RPSC has not followed this
pattern. Instead, a written examination is conducted for all eligible
candidates which will be followed by oral interview. This is directly
in conflict with the UGC Regulations, 2018. He submitted that in
case of conflict between the Central legislation and the State
legislation in a subject contained concurrent list, the Central
legislation must prevail. The UGC Regulations being the Central
legislation, the State legislation must yield to the UGC
Regulations.
10. On the other hand, learned Additional Advocate General
appearing for the State submitted that the State Rules are not in
conflict with the UGC Regulations. Method of recruitment adopted
by the RPSC as laid down by the State Government in its statutory
Rules, is neither in conflict nor opposed to the UGC Regulations.
The State Government has the authority to prescribe its own
method of recruitment. The eligibility criteria are in conformity
with the UGC regulations. Prescription of good academic record
even if not laid down in the UGC Regulations, 2018 can always be
provided by the State Government since this would be in addition
to the eligibility criteria laid down by the UGC and not in dilution of
or providing lower standards than those prescribed by the UGC.
He pointed out that more than 1,50,000 candidates have applied
in response to the advertisement. It was therefore impossible to
hold oral interviews for large number of candidates even after
applying method for short-listing as suggested by the UGC and
(9 of 19) [CW-14040/2021]
advocated by the petitioners. The method of holding written test
followed by oral interview is therefore just and proper and in any
case not impermissible as per the existing statutory framework.
11. As is well known, education including technical education,
medical education and universities (subject to the provisions of
entries 63, 64, 65 and 66 of List I of Seventh Schedule of the
Constitution), vocational and technical training of labour fall under
entry 25 of the concurrent list of Seventh Schedule. Under list I of
the Union List- the Union legislation has retained the powers to
frame laws with respect to certain specified institutions (entry 63);
institution for scientific or technical education financed by the
Government of India (entry 64); Union agencies and institutions
for professional, vocational or technical training, for promotion of
special studies or research, for scientific or technical assistance in
investigation or detection of crime (entry 65). Entrée 66 of List I
pertains to co-ordination and determination of standards in
institutions for higher education or research and scientific and
technical institutions. Thus, the subject of co-ordination and
determination of standards in institutions of higher education is
within the exclusive domain of the Union legislation whereas
education including technical and medical education and
universities falls within the concurrent jurisdiction of the Union as
well as the State legislations.
12. The University Grants Commission Act, 1956 ('UGC Act
1956', for short) was enacted to make provision for the co-
ordination and determination of standards of universities and for
such purpose establish a University Grants Commission. Section
26 of the Act empowers the Commission to make regulations
consistent with the Act and Rules made thereunder.
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13. In exercise of such powers, the UGC has framed its
Regulations of 2018 which are in supersession of earlier
Regulations of 2010. It provides that the Regulations are framed
for minimum qualifications for appointment and other service
conditions of university and college teachers and cadres of
Librarians, Directors of Physical Education in support for
maintenance of standards in higher education and revision of pay
scales. Regulation 3 pertains to recruitment and qualifications.
Sub-regulation 3.1 provides that the direct recruitment to the post
of Assistant Professor, Associate Professor and Professor in
universities and colleges and Senior Professors in universities shall
be on the basis of merit through all India advertisement followed
by duly constituted selection committee as per the provisions
made under these Regulations. Sub-regulation 3.2 provides that
the minimum qualifications for such posts shall be as specified by
the UGC in these Regulations. Sub-regulation 3.12 provides that
no person shall be appointed to such post if such person does not
fulfill the requirements of qualifications as provided in schedule I
of the Regulations. For Assistant Professor, these Regulations
require the eligibility criteria of masters degree with 55 percent
marks or equivalent in the concerned subject from an Indian
university or an equivalent degree from an accredited foreign
university, NET or equivalent pass except as exempt for specified
Ph.D. degree holders. A note appended to this eligibility criteria
reads as under:-
"Note: The Academic score as specified in Appendix II
(Table 3A) for Universities, and Appendix II (Table 3B) for
Colleges, shall be considered for short-listing of the
candidates for interview only, and the selections shall be
based only on the performance in the interview."
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Table 3B referred to this note reads as under:-
Table:3B
Criteria for Short-listing of candidates for Interview for the Post of Assistant
Professors in Colleges
S.N Academic Record Score
.
1. Graduation 80% & 60% to 55% to 45% to
Above less than less than less than
=21 80% = 19 60% = 16 55% =
2. Post-Graduation 80% & 60% to 55% (50% in case of
Above less than SC/ST/OBC (non-
=25 80% = 23 creamy layer)/PWD)
to less than 60% =
3. M.Phil 60% & 55% to less than 60% = 05
above=07
6. Research Publications (2 06
marks for each research
publications published in
Peer-Reviewed or UGC-
listed Journals)
7. Teaching/Post Doctoral 10
Experience (2 marks for
one year each)#
8. Awards
International/National Level 03
(Awards given by
International Organisations/
Government of
India/Government of India
recognised National Level
bodies)
(Awards given by State
Government)
# However, if the period of teaching/post-doctoral experience is less than one
year then the marks shall be reduced proportionately.
Note:
(A)
(i) M.Phil.+ Ph.D. Maximum - 25 Marks
(ii) JRF/NET/SET Maximum - 10 Marks
(iii) In awards category Maximum - 03 Marks"
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14. From the above portion of the Regulation 2018, it can be
seen that besides laying down minimum eligibility criteria, these
regulations also provide in the said note that academic score as
specified in the appendix shall be considered for short-listing the
candidates for interview and the selection shall be based only on
the performance of the interview. As against this, the Government
rules contain a scheme for recruitment which envisages a written
test followed by oral interview of the eligible candidates. Short
question is, is the methodology adopted by RPSC as prescribed by
the State government is permissible in background of these facts?
15. It is undisputed position that in a legislation falling in the
concurrent list, the State legislation must yield to the Central
legislation. In case of a conflict, the provisions made in the Central
legislation must prevail. Under the circumstances, wherever the
statutory body such as UGC has prescribed the qualification and
eligibility criteria for appointment of teaching staff of universities
and colleges, it would not be open for the State authority to dilute
such requirements by prescribing and following criteria lower than
that prescribed by the UGC. However, it is equally well settled that
the standards higher than those prescribed by the Central agency
can still be applied by the State rule making authority. Reference
in this respect can be made to a Constitution Bench judgment of
the Supreme Court in the case of Dr. Preeti Srivastava And
Anr. Vs. State of M.P. And Ors., reported in (1999) 7 SCC
120. In this case it was held that admission to educational
courses must be made on a basis which is consistent with the
standards laid down by a statute or regulation framed by the
Central Government in exercise of its powers under Entry 66 List
I. In such cases the minimum standards as laid down by the
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Central statute or under it have to be applied with by the State
while making admissions. It may in addition lay down other
additional norms for admission or regulate admissions in exercise
of its powers under Entry 25 List III in a manner not inconsistent
with or in a manner which does not dilute the criteria so laid
down. Thus once the minimum standards are laid down by the
authority having the power to do so, any further qualifications laid
down by the State which will lead to the selection of better
students cannot be challenged on the ground that it is contrary to
what has been laid down by the authority concerned, the action of
the State would be valid because it does not adversely impinge on
the standards prescribed by the appropriate authority. Following
observations made be noted:-
"47. There are, however, two cases where there are
observations to the contrary. One is the case of the
State of M.P. Vs. Nivedita Jain, a judgment of a Bench
of three judges. In this case the Court dealt with
admission to the M.B.B.S. course in the medical
colleges of the State of Madhya Pradesh. The Rules
framed by the State provided for a minimum of 50% as
qualifying marks for the general category students for
admission to the medical colleges of the State. But for
the Scheduled Castes and the Scheduled Tribes the
minimum qualifying marks were prescribed as 40%.
Later on the minimum qualifying marks for the
Scheduled Castes and the Scheduled Tribes were
reduced to 0. The Court observed:
That it was not in dispute and it could not be
disputed that the order in question was in conflict
with the provisions contained in Regulation 2 of the
Regulations framed by the Indian Medical Council."
But it held that Entry 66 of List-I would not apply to the
selection of candidates for admission to the medical
colleges because standards would come in after the
students were admitted. The Court also held that
Regulation 2 of the Regulations for admission to
M.B.B.S. courses framed by the Indian Medical Council,
was only recommendatory. Hence any relaxation in the
rules of selection made by the State Government was
permissible. We will examine the character of the
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Regulations framed by the Medical Council of India a
little later. But we cannot agree with the observations
made in that judgment to the effect that the process of
selection of candidates for admission to medical college
has no real impact on the standard of medical
education; or that the standard of medical education
really comes into the picture only in the course of
studies in the medical colleges or institutions after the
selection and admission of candidates. For reasons
which we have explained earlier, the criteria for the
selection of candidates have an important bearing on
the standard of education which can be effectively
imparted in the medical colleges. We cannot agree with
the proposition that prescribing no minimum qualifying
marks for admission for the Scheduled Castes and the
Scheduled Tribes would not have an impact on the
standard of education in the medical colleges. Of
course, once the minimum standards are laid down by
the authority having the power to do so, any further
qualifications laid down by the State which will lead to
the selection of better students cannot be challenged on
the ground that it is contrary to what has been laid
down by the authority concerned. But the action of the
State is valid because it does not adversely impinge on
the standards prescribed by the appropriate authority.
Although this judgment is referred to in the Constitution
Bench judgment of Indra Sawhney v. Union of India,
the question of standards being lowered at the stage of
post-graduate medical admissions was not before the
Court for consideration. The Court merely said that
since Article 16 was not applicable to the facts in
Kumari Nivedita Jain's case Article 335 was not
considered there. Fort post-graduate medical education,
where the "students" are required to discharge duties
as doctors in hospitals, some of the considerations
underlying Articles 16 and 335 would be relevant as
hereinafter set out. But that apart, it cannot be said
that the judgment in Nivedita Jain is approved in all its
aspects by Indra Sawhney v. Union of India."
16. The question therefore in the present case is, is the
procedure for selection prescribed by RPSC in conflict with the
UGC norms? If we peruse the UGC regulations in this context, we
find that the note reproduced above speaks of the method of
short-listing of candidates for interview for appointment of
teaching staff of universities and colleges. Such method is laid
down in table 3A and 3B. Table 3B, which pertains to Assistant
Professor in colleges prescribes the marks which a candidate
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would score on the basis of his or her academic performance in
various stages. For example if a candidate has secured above 80
percent marks in graduation, 21 marks would be awarded to the
candidate; those who have scored between 60 and 80 marks in
the same examination, 19 marks would be awarded and so on. For
all candidates with Ph.D. degree 25 marks would be awarded.
Extra marks would be provided for research publication, for
teaching experience and awards given at the national and
international level and state level. This exercise is to be conducted
for the purpose of short-listing the candidates for interview. The
note makes it clear that once the candidates are shortlisted, their
scores, as provided in table 3B would lose its significance. The
selection would be made only on the basis of performance in the
interview. Though this exercise of awarding scores is prescribed in
table 3B, there is no cut-off provided for short-listing. In other
words, there is no clarity under the Regulations as to in what
manner the candidates would be short-listed once the scores are
assigned as provided in the concerned table.
17. As against this, the State Government has followed its
pattern of written test followed by oral interview. To our mind,
though the procedure that is adopted by the State Government
may be somewhat different from what the UGC Regulations
prescribe, this is not a case of irreconcilable conflict between the
Central and the State legislation. The State legislation and RPSC,
as the recruiting agency, have followed the pattern of written test
followed by oral interview, pointing out that it would be impossible
to hold oral interviews for large number of candidates who have
applied in response to the public advertisement. We may recall,
more than 1,50,000 candidates have applied for 918 posts. As
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noted, UGC regulations have not provided any cut-off for short-
listing the candidates on the basis of scores to be allotted in terms
of the table. Even if we permit the degree of latitude to the
recruiting agency and expect calling for oral interview candidates
5 times the number of notified vacancies, this would require
conducting the oral interview close to 5,000 candidates. The
method of written test followed by oral interview adopted by the
State Government cannot be seen as irreconcilable conflict with
the UGC Regulations. When the note contained in the UGC
Regulations refer to purpose of awarding the scores only for
short-listing, the essence is that once this task of short-listing is
over, these marks shall carry no further significance. The stress
therefore is not on the selection to be based only on oral
interview; the stress is that the purpose for assigning scores
prescribed in the table is for the purpose of short-listing only.
18. In case of Forum for People's Collective Efforts (FPCE)
And Anr. Vs. State of West Bengal And Anr., reported in
(2021) 8 SCC 599, the Supreme Court had the occasion to
consider the question of repugnancy of the State law with a
Central legislation on a subject matter which falls in Concurrent
List. Referring to Article 254 of the Constitution it was observed
that such repugnancy would arise under three situations, namely
(i) absolute or irreconcilable conflict, (ii) on the principle of
occupied field, and (iii) overlap over the same subject matter.
After discussing these three situations in detail it was observed
that the primary effort in the exercise of judicial review must be
an endeavor to harmonise. Repugnancy in other words is not an
option of first choice but something which can be drawn where a
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clear case based on the application of one of the three tests arises
for determination. Following portion of the judgment need to be
noted:-
"132. The initial part of Clause (1) alludes to a
law enacted by a state legislature being "repugnant" to
a law enacted by Parliament or to an existing law. The
concluding part of Clause 1 provides for a
consequence, namely that the State law would be void
"to the extent of the repugnancy" and the
Parliamentary enactment shall prevail. The concept of
repugnancy emerges from the decisions of this Court
which have elaborated on the context of Clause (1) of
Article 254. Clause (2) of Article 254 has also employed
the expression "repugnant" while providing that a law
enacted by the legislature of a State which is
repugnant to a law enacted by Parliament or an
existing law on a matter within the Concurrent List
shall, if it has received the assent of the President,
prevail in the State. The decisions of this Court
essentially contemplate three types of repugnancy:
132.1 The first envisages a situation of an absolute or
irreconcilable conflict or inconsistency between a
provision contained in a State legislative enactment
with a Parliamentary law with reference to a matter in
the Concurrent List. Such a conflict brings both the
statutes into a state of direct collision. This may arise,
for instance, where the two statutes adopt norms or
standards of behavior or provide consequences for
breach which stand opposed in direct and immediate
terms. The conflict arises because it is impossible to
comply with one of the two statutes without disobeying
the other;
132.2 The second situation involving a conflict between
State and Central legislations may arise in a situation
where Parliament has evinced an intent to occupy the
whole field. The notion of occupying a field emerges
when a Parliamentary legislation is so complete and
exhaustive as a Code as to preclude the existence of
any other legislation by the State. The State law in this
context has to give way to a Parliamentary enactment
not because of an actual conflict with the absolute
terms of a Parliamentary law but because the nature of
the legislation enacted by Parliament is such as to
constitute a complete and exhaustive Code on the
subject; and
132.3 The third test of repugnancy is where the law
enacted by Parliament and by the State legislature
regulate the same subject. In such a case the
(18 of 19) [CW-14040/2021]
repugnancy does not arise because of a conflict
between the fields covered by the two enactments but
because the subject which is sought to be covered by
the State legislation is identical to and overlaps with
the Central legislation on the subject.
133. The distinction between the first test on the one
hand with the second and third tests on the other lies
in the fact that the first is grounded in an irreconcilable
conflict between the provisions of the two statutes
each of which operates in the Concurrent List. The
conflict between the two statutes gives rise to a
repugnancy, the consequence of which is that the State
legislation will be void to the extent of the repugnancy.
The expression 'to the extent of the repugnancy'
postulates that those elements or portions of the state
law which run into conflict with the central legislation
shall be excised on the ground that they are void. The
second and third tests, on the other hand, are not
grounded in a conflict borne out of a comparative
evaluation of the text of the two provisions. Where a
law enacted by Parliament is an exhaustive Code, the
second test may come into being. The intent of
Parliament in enacting an exhaustive Code on a subject
in the Concurrent List may well be to promote
uniformity and standardization of its legislative scheme
as a matter of public interest. Parliament in a given
case may intend to secure the protection of vital
interests which require a uniformity of law and a
consistency of its application all over the country. A
uniform national legislation is considered necessary by
Parliament in many cases to prevent vulnerabilities of a
segment of society being exploited by an asymmetry of
information and unequal power in a societal context.
The exhaustive nature of the Parliamentary code is
then an indicator of the exercise of the State's power
to legislate being repugnant on the same subject. The
third test of repugnancy may arise where both the
Parliament and the State legislation cover the same
subject matter. Allowing the exercise of power over the
same subject matter would trigger the application of
the concept of repugnancy. This may implicate the
doctrine of implied repeal in that the State legislation
cannot co-exist with a legislation enacted by
Parliament. But even here if the legislation by the State
covers distinct subject matters, no repugnancy would
exist. In deciding whether a case of repugnancy arises
on the application of the second and third tests, both
the text and the context of the Parliamentary
legislation have to be borne in mind. The nature of the
subject matter which is legislated upon, the purpose of
the legislation, the rights which are sought to be
protected, the legislative history and the nature and
ambit of the statutory provisions are among the factors
that provide guidance in the exercise of judicial review.
(19 of 19) [CW-14040/2021]
The text of the statute would indicate whether
Parliament contemplated the existence of State
legislation on the subject within the ambit of the
Concurrent List. Often times, a legislative draftsperson
may utilize either of both of two legislative techniques.
The draftsperson may provide that the Parliamentary
law shall have overriding force and effect
notwithstanding anything to the contrary contained in
any other law for the time being in force. Such a
provision is indicative of a Parliamentary intent to
override anything inconsistent or in conflict with its
provisions. The Parliamentary legislation may also
stipulate that its provisions are in addition to and not in
derogation of other laws. Those other laws may be
specifically referred to by name, in which event this is
an indication that the operation of those specifically
named laws is not to be affected. Such a legislative
device is often adopted by Parliament by saving the
operation of other Parliamentary legislation which is
specifically named. When such a provision is utilized, it
is an indicator of Parliament intending to allow the
specific legislation which is enlisted or enumerated to
exist unaffected by a subsequent law. Alternatively,
Parliament may provide that its legislation shall be in
addition to and not in derogation of other laws or of
remedies, without specifically elucidating specifically
any other legislation. In such cases where the
competent legislation has been enacted by the same
legislature, techniques such as a harmonious
construction can be resorted to in order to ensure that
the operation of both the statutes can co-exist. Where,
however, the competing statutes are not of the same
legislature, it then becomes necessary to apply the
concept of repugnancy, bearing in mind the intent of
Parliament. The primary effort in the exercise of
judicial review must be an endeavour to harmonise.
Repugnancy in other words is not an option of first
choice but something which can be drawn where a
clear case based on the application of one of the three
tests arises for determination."
19. In the result, we find no reason to interfere. The petitions
are dismissed.
(SUDESH BANSAL),J (AKIL KURESHI),CJ
1,13,14,15-Jayesh/-
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