Rajasthan High Court - Jodhpur
Govind Ram Jakhar vs State Of Rajasthan on 30 September, 2022
Bench: Sandeep Mehta, Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 511/2021
1. Govind Ram Jakhar S/o Sh. Sirdar Ram, Aged About 43
Years, Resident Of Village Jajiwal Jakharo, Post Jajiwal
Kalla, Banar, District Jodhpur.
2. Pancha Ram S/o Sh. Heera Ram, Aged About 42 Years,
Resident Of Village Kurchi, Tehsil Khinwsar, District
Nagaur.
3. Jora Ram S/o Sh. Kistur Ram, Aged About 42 Years,
Resident Of Village Hingoli, Post Surpura Khurd, Tehsil
Bhopalgarh, District Jodhpur.
----Appellants
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Department Of Local Self Government, Secretariat, Jaipur.
2. The Director, Local Bodies Office Of Director, Local Bodies,
G-3, Rajmahal Residency, Near Civil Line Phatak, Jaipur.
3. The Secretary, Rajasthan Municipalities (Administrative
And Technical) (Subordinate And Technical) And
(Subordinate And Ministerial) Service Selection Board, G
3, Rajmahal Residency, Near Civil Line Phatak, Jaipur.
4. Amit Singh S/o Shri Devi Singh, R/o Parmanand Colony,
Didwana, District Nagaur, Rajasthan.
5. Mukesh Kumar Sharma S/o Shri Heera Lal Sharma, R/o
Sarnadungar, Post Khorbisal, Othwara, District Jaipur,
Rajasthan.
6. Suresh Kumar Dhaka S/o Shri Gopal Singh Dhaka, R/ O V
And P Netadwas, Tehsil Dhod, District Sikar, Rajasthan.
7. Prakash Chand Meena S/o Shri Mangi Lal Meena, R/o
Gram Gadh Ki Kothi, Tehsil Bassi, District Jaipur,
Rajasthan.
8. Abhishek Kumar Meena S/o Shri Roop Narayan Meena, R/
o Ayodhya Nagar, Main Road, By Pass Chouraha, Vishal
Computer Ke Pass, Ward No. 1, Saithal Road, District
Dausa, Rajasthan.
9. Rakesh Kumar Gurjar S/o Shri Ramji Lal Gurjar, R/o
Revad Wale Balaji Ke Pass, Khari, Othi Mohalla, District
Dausa.
(Downloaded on 30/09/2022 at 09:26:12 PM)
(2) [SAW-511/2021]
10. Mohan Lal Meena S/o Shri Badri Narayan Meena, R/o Gola
Ki Kotti, Amtera, Gothra, District Dausa, Rajasthan.
11. Sumer Singh S/o Shri Mool Chand Saini, R/o Dhani, Balaji
Nagar, Chak, Jodhpura, Tehsil Udaipurwati, District
Jhunjhunu, Rajasthan.
12. Narsee Ram Bairwa S/o Shri Jagdish Prasad Bairwa, R/o
Vpo Gadarwara, Goojaran, Tehsil Baswa, District Dausa,
Rajasthan.
13. Balbir Singh Jakhar S/o Shri Ramswaroop Jakhar, R/o
Ward No. 15, Dhani Bada Khet, Mau, Tehsil
Shrimadhopur, District Sikar, Rajasthan.
14. Narendra Singh Rathor S/o Shri Navrang Singh Rathor, R/
o Ward No. 10, Aam Chock, Nangal Bhim, Tehsil
Shrimadhopur, District Sikar, Rajasthan.
15. Tahir Khan S/o Shri Saheed Khan, R/o Adarsh Nagar-A,
Sawai Madhopur, District Sawai Madhopur, Rajasthan.
16. Sharvan Lal Kumawat S/o Shri Ram Lal Kumawat, R/o V
And P Gathwadi, Dhani Kumharo Ki, Tehsil Jamva
Ramgarh, District Jaipur, Rajasthan.
17. Jog Singh S/o Shri Mool Singh, R/o Village Joshiyad, Post
Kumari, Tehsil And District Nagaur, Rajasthan.
18. Rajendra Kumar Saini S/o Shri Jagdish Narian Saini, R/o
V And P Saipura, Dhani Tibara Ki, Tehsil Jamva Ramgarh,
District Jaipur, Rajasthan.
19. Fateh Singh Meena S/o Shri Ghamman Ram Meena, R/o
Village Kothin, Post Baiupara, Tehsil Baswa, District
Dausa, Rajasthan.
20. Deep Chand Yadav S/o Shri Ram Dayal Yadav, R/o Mukam
Post Gordhanpura, Tehsil Kothputali, District Jaipur,
Rajasthan.
21. Vinod Kumar Phulwariva S/o Shri Ram Dayal, R/o Mukam
Post Shishu (Ronali) Tehsil Dataramgarh, District Sikar,
Rajasthan.
22. Roshan Lal Meena S/o Shri Sundar Lal Meena, R/o Meeno
Ka Mohalla, Near Sagar Colony, Ajmer Road, Neer Sagar
Colony, Bhankrota, District Jaipur, Rajasthan.
23. Manmohan Saini S/o Shri Ramji Lal Saini, R/o Jhalra Ka
Bas, Dausa, District Dausa, Rajasthan.
(Downloaded on 30/09/2022 at 09:26:12 PM)
(3) [SAW-511/2021]
24. Narender Kumawat S/o Shri Mohan Lal Kumawat, R/o
Mukam Post Trilokpura, District Sikar, Rajasthan.
----Respondents
For Appellant(s) : Mr. G.R. Punia, Senior Advocate,
assisted by Mr. Rajendra Prasad
For Respondent(s) : Mr. Sunil Beniwal, AAG
Mr. R.S. Choudhary with Mr. S.S. Gour
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MS. JUSTICE REKHA BORANA
Judgment
30th September, 2022
BY THE COURT : (PER HON'BLE BORANA, J.)
The present special appeal has been filed against the
impugned judgment dated 18.08.2021 whereby the writ petition
of the petitioners/appellants was dismissed.
Before adverting into the adjudication of the matter, above
question, entailing of the brief facts would be relevant :
An advertisement for 178 posts of 'Driver-cum-Fire Machine
Operator' was issued by the Rajasthan Municipalities
(Administrative & Technical) and (Subordinate & Technical) and
(Subordinate & Ministerial) Service Selection Board (hereinafter
referred to as 'the Service Board') on 30.12.2015, out of which 22
posts were reserved for ex-servicemen. Because of certain
litigation pertaining to the recruitment in question, a fresh
advertisement was issued on 03.06.2019 and in the said
advertisement, no post for ex-servicemen was reserved. The said
reservation was denied on the ground that notification dated
10.10.2008 had been issued by the State whereby the expression
"Driver" in item no.33 of the Schedule-I of the Rules of 1988, by
(4) [SAW-511/2021]
virtue of which, earlier reservation was provided on the post of
"Driver", was deleted. Instruction no.6 of the fresh advertisement
(impugned notification) dated 03.06.2019 was under challenge
before learned Single Judge in the writ petition.
The writ petition of the petitioners has been dismissed by
learned Single Judge on two grounds : firstly that the Rajasthan
Civil Service (Absorption of Ex-Servicemen) Rules, 1988
(hereinafter referred to as 'the Rules of 1988') being the special
legislation would prevail over the Rajasthan Municipal
(Subordinate and Ministerial Staff) Service Rules, 1963
(hereinafter referred to as 'the Rules of 1963') which is a general
legislation. Therefore, the deletion of the expression "Driver" in
item No.33 of Schedule-I of the Rules of 1988 would have
precedence and thus, the petitioners would not be entitled for
reservation being ex-servicemen and secondly that Rule 2 of the
Rules of 1988 being a provision with a non obstante clause, would
definitely prevail over any other law in existence at the relevant
point of time and therefore, the amendment in the said Rule vide
the notification would definitely prevail over the general Rules of
1963. Moreover, learned Single Judge relied upon the principle of
interpretation "leges posteriores priores contrarias abrogant"
meaning thereby that the Rules of 1988 which were introduced
later in point of time would prevail over the Rules of 1963 by
virtue of the said principle. Aggrieved against the judgment dated
18.08.2021 passed by the learned Single Judge, the present
special appeal has been filed.
Learned Senior counsel for the appellants submitted that the
Rules of 1963 is a State legislation framed by the legislature under
its rule making authority whereas the Rules of 1988 have been
(5) [SAW-511/2021]
framed by His Excellency the Governor in terms of Article 309 of
the Constitution of India. Therefore, in terms of the settled
proposition of law, the rules framed under Article 309 cannot
supersede rules made by the legislature on the principle of
'Occupied field'. In support of his contention, learned Senior
counsel relied upon the judgment of Hon'ble Apex Court passed in
A.B. Krishna and Others Vs. State of Karnataka and Others;
(1998) 3 SCC 495 and Full Bench judgment of the Allahabad High
Court in Vijay Singh and Others Vs. State of Uttar Pradesh
and Others; 2005 (2) AWC 1191. Second argument raised by
learned Senior counsel for the appellants is that when a provision
of law relating to a particular subject exists and a subsequent law
is enacted containing a provision regarding the same subject,
there can be no presumption that the latter law repeals the earlier
law. If the subsequent law does not specifically repeal the earlier
law, there can be no presumption of an intention of repealing
earlier law. In support of his contention, learned counsel relied
upon a judgment of Hon'ble Apex Court passed in Maya Mathew
Vs. State of Kerala and Others, (2010) 4 SCC 498 and the
Division Bench judgment of Allahabad High Court passed in State
of U.P. and Another Vs. Anil Kumar Bharti 2015 (6) ADJ
306(DB). Learned Senior counsel submitted that in absence of any
law/order/notification repealing Rule 2 of the Rules of 1963, the
same would hold place and would ipso facto not be presumed to
be repealed.
Per contra, learned counsel for the respondents relied upon
the findings as arrived by the learned Single Judge and submitted
that in the present matter the Rules of 1988 being a special
legislation would prevail over the Rules of 1963 which is a general
(6) [SAW-511/2021]
legislation and therefore, the notification dated 10.10.2008 would
definitely apply to the recruitment in question and consequently,
instruction no.6 in the advertisement dated 03.06.2019 is
perfectly valid.
Heard learned counsel for the parties and perused the
material available on record.
It is clear on record that the advertisement in question was
issued by the Service Board on 30.12.2015 under the Rajasthan
Municipal (Administrative and Technical) Service Rules, 1963,
Rajasthan Municipal (Subordinate and Ministerial) Service Rules,
1963 and Rajasthan Scheduled Area Subordinate, Ministerial and
Class IV Service (Recruitment and Other Service Conditions)
Rules, 2014 and the same specifically provided for reservation to
Ex-servicemen. The reservation as provided in the advertisement
was withdrawn in the year 2019 when the process was re-
initiated. The said reservation was withdrawn on the pretext that
by virtue of notification dated 10.10.2008, the post of 'Driver' had
been deleted from the Schedule and therefore, the reservation
provided for in the advertisement dated 30.12.2015 was an
inadvertent mistake which was sought to be rectified in the year
2019.
The first question which would arise for consideration of this
Court would be whether a reservation/benefit once provided can
be withdrawn subsequently on the pretext of a mistake being
committed by the Department. The second question would be
whether there is any repugnancy/contradiction in the Rules of
1963 and the Rules of 1988. The third question would be if there
is any repugnancy/contradiction between a general law and a
special law, which would prevail and the last question would be if
(7) [SAW-511/2021]
during the process of recruitment, the Rules of 1988, which is the
bone of contention in the matter, again stood amended in the year
2019, what would be effect of the same.
Coming on to the first question, a perusal of the
advertisement dated 30.12.2015 makes it clear that the same was
issued in terms of the Rajasthan Municipal (Administrative and
Technical) Service Rules, 1963, Rajasthan Municipal (Subordinate
and Ministerial) Service Rules, 1963 and Rajasthan Scheduled
Area Subordinate, Ministerial and Class IV Service (Recruitment
and Other Service Conditions) Rules, 2014. Further, a perusal of
the impugned notification dated 3.6.2019 whereby the process of
recruitment was re-initiated, also makes it clear that it was the
decision of the Department that the complete selection process
would be conducted in terms of the provisions of the Rules of
1963. So far as Rules of 1963 are concerned, it is an admitted
position that Rule 9(2) of the said Rules specifically provided for
12.5% of reservation to Ex-servicemen. Therefore, it is clear on
record that the complete recruitment process was intended to be
completed by the department in terms of Rules of 1963 only which
specifically provided reservation to Ex-servicemen independent of
the Rules of 1988. It is also admitted on record that vide Rules of
1988, Rule 9 of the rules of 1963 was never sought to be
repealed. Meaning thereby, Rule 9 of the Rules of 1963 remained
in the Statute Book and it exists till date. In the case of Maya
Mathew Vs. State of Kerala and Others; (2010) 4 SCC 498,
the Hon'ble Apex Court held as under:
"The rules of interpretation when a subject is governed by
two sets of rules are well settled. They are:
(8) [SAW-511/2021]
(i) When a provision of law regulates a particular
subject and a subsequent law contains a provision
regulating the same subject, there is no
presumption that the latter law repeals the
earlier law. The rule- making authority while
making the later rule is deemed to know the existing
law on the subject. If the subsequent law does
not repeal the earlier rule, there can be no
presumption of an intention to repeal the
earlier rule;
_____
_____."
In view of the ratio as laid down in Maya Mathew's case
(supra), it can be concluded that rule 9 of the Rules of 1963 was
never repealed and sustains till date. Therefore, the reservation
extended in the advertisement of the Year 2015 by virtue of the
Rules of 1963 cannot be held to be bad or an inadvertent error by
the department. It was extended by virtue of the provisions of law
and the same could not have been withdrawn subsequently when
the Rules, by virtue of which the same was extended, still existed
in the statute book. Moreover, the recruitment process was re-
initiated in the year 2019 and was a process in continuity.
Therefore, even otherwise, in terms of the settled proposition of
law, the conditions of the advertisement could not have been
amended/modified after the recruitment process having
commenced. To conclude, it is held that the benefit of reservation
provided to ex-servicemen in the advertisement of the year 2015
could not have been withdrawn by the Department, subsequently
in the year 2019 on the wrong pretext of an inadvertent error.
Now coming on to the second question-whether there is any
repugnancy/contradiction in the Rules of 1963 and the Rules of
1988. To find an answer to this question, a perusal of the
notification dated 10.10.2008 is essential. On 10.10.2008, in all,
four notifications were issued by the Department of Personnel.
Vide three notifications, the amendments were introduced in
(9) [SAW-511/2021]
Rajasthan Various Service (8th amendment) Rules, 2008,
Rajasthan Forest subordinate Service (second amendment) Rules,
2008 and Amendment in Rajasthan Jail Subordinate Service Rules,
1998. Vide all the three amendments, the clause for reservation to
the ex-servicemen was introduced in the concerned Service Rules
itself. Vide the fourth amendment in the Rules of 1988 (the
amendment in question), the expression 'Driver/Forest Guard' was
deleted from Schedule-I appended to the Rules. Meaning thereby,
the reservation provided to the ex-servicemen on the post of
'Driver/Forest Guard' by virtue of the Rules of 1988 was taken
away and on the same hand, the said reservation was provided in
the concerning Service Rules itself. Therefore, the intention of the
legislation is very clear. It was never to deprive the ex-servicemen
from the benefit of reservation on the post of Driver but as the
same was provided in the relevant/concerned Service Rules itself,
the same was deleted from the Rules of 1988. Admittedly, the
Rules of 1963 governing the present recruitment in question
already had a provision for reservation to ex-servicemen and
therefore, no amendment was required to be made in the said
Rules. It is therefore, crystal clear that the intention of State was
always to provide reservation to the extent of 12.5% to the ex-
servicemen and therefore, the amendment in the Rules of 1988
cannot be read or interpreted in a manner totally contrary to the
intention of the legislation. The said conclusion is rather
substantiated from the notification dated 17.4.2018 issued by the
Department of Personnel whereby again an amendment was
introduced to Rule 2 of the Rules of 1988 and it was provided that
the reservation to the ex-servicemen would be -"such
percentage of posts as reserved under relevant Service
(10) [SAW-511/2021]
Rules, whichever is higher". Meaning thereby, it was
specifically provided that the reservation would be granted to the
ex-servicemen either in terms of the percentage as provided in
the said Rule or in terms of the percentage as provided under the
relevant Service Rules. That is to say, if a reservation has been
provided under the relevant Service Rules, that would prevail.
Admittedly, the Rules of 1963, which are the relevant Service
Rules governing the present recruitment in question provides for a
reservation of 12.5% to the ex-servicemen. Keeping in view the
overall scenario and the above interpretation, it is clear that there
is no repugnancy/contradiction in the Rules of 1963 and the Rules
of 1988 (amended vide notification dated 10.10.2008). Giving a
harmonious construction to both the provisions of law, the only
conclusion that can be arrived at is that the Rules of 1963 and the
Rules of 1988 are complementary to each other and not
repugnant.
Coming on to the third question, as we have already
concluded that there is no repugnancy in the Rules of 1963 and
the Rules of 1988, the said question is not required to be gone
into by this Court. Even if, the same is to be interpreted, in the
case of A.B. Krishna (supra), the Hon'ble Apex Court held as
under :
"9. It is no doubt true that the rule-making authority
under Article 309 of the Constitution and Section 39 of
the Act is the same, namely, the Government (to be
precise, the Governor, under Article 309 and the
Government under Section 39), but the two
jurisdictions are different. As has been seen above,
power under Article 309 cannot be exercised by the
Governor, if the legislature has already made a law
and the field is occupied. In that situation, rules can
be made under the law so made by the legislature and
not under Article 309. It has also to be noticed that
(11) [SAW-511/2021]
rules made in exercise of the rule-making power
given under an Act constitute delegated or
subordinate legislation, but the rules under
Article 309 cannot be treated to fall in that
category and, therefore, on the principle of
"occupied field", the Rules under Article 309
cannot supersede the rules made by the
legislature.
14. Applying the above principle to the instant case, it
will be noticed that the Rules made by the State
Government under Section 39 of the Act prescribe the
qualifying examination as a condition precedent for
promotion to the post of Leading Firemen. These rules
have not been touched, altered or amended and they
exist in their original form. What had been done by the
Government is that it has amended the General
Recruitment Rules by providing therein the at any
promotion made on the higher post would not be on
the basis of examination, if any prescribed, but on the
basis of seniority. This is a rule made by the
Executive, namely, the Governor under Article 309 of
the Constitution. The amendment in the General
Recruitment Rules would not have the effect of
displacing or altering the Rules made under Section 39
of the Fire Force Act, 1964 as the Act of the
legislature would have precedence over any rule
made by the Executive under the proviso to
Article 309."
It is an admitted case that the Rules of 1988 are the Rules
framed under Article 309 by His Excellency the Governor and the
Rules of 1963 is a piece of legislation framed by the State.
Therefore also, in view of the ratio laid down in A.B. Krishna's
case (supra), the Rules of 1963 would prevail.
Coming on to the last question, as observed in the preceding
para, an amendment was again introduced in the Rules of 1988 by
virtue of notification of the year 2019. Although it cannot be held
that the same would govern the recruitment process of the year
2015 but an interpretation of the same would be essential to read
out the intention of the legislation. As observed in the preceding
paras, vide the said amendment of the year 2019, the intention of
(12) [SAW-511/2021]
the legislation has been fortified that it intended to provide the
benefit of reservation to ex-servicemen in all services of the State.
In view of the above observations and the conclusion arrived
at, the present special appeal is allowed. The judgment under
appeal dated 18.08.2021 passed by the learned Single Judge is
set aside, instruction no.6 of the notification dated 3.6.2019 is
declared to be void and non est but keeping in consideration that
the recruitment process is over by now, the benefit of the same
would be extendable only to the extent of the present appellants.
Consequently, the respondents are directed to afford
appointment to the present writ petitioners in the reserved
category of 'Ex-servicemen' as per their merit and if they are
otherwise found eligible. It is made clear that because of the said
appointments, the appointments of the private respondents would
not be disturbed.
No order as to costs.
(REKHA BORANA),J (SANDEEP MEHTA),J
vij/-
Powered by TCPDF (www.tcpdf.org)
