TaxTMI 
TaxTMI 
1986 (3) TMI 329
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, 1947 (hereinafter referred to as 'the 1947 Rules'). The said Rules were promulgated by the Governor of the United Provinces on August 1, 1947. The expression 'Ministerial Establishment' was defined by rule 2(c) of the 1947 Rules as the staff of the subordinate civil courts consisting of ministerial servants as defined in Fundamental Rule (17), Financial Handbook, Vol.II, Part II. According to the definition given in rule 2(e) of the 1947 Rules the expression 'Subordinate Civil Courts' included the Courts of District and Sessions Judges, Additional District & Sessions Judge, Civil and Sessions Judges, Civil Judges, Additional Civil Judges, Munsifs, Additional Munsifs and Courts of Small Causes subordinate to the High Court of Judicature at Allahabad or the Chief Court of Oudh at Lucknow. Rule 5 of the 1947 Rules prescribed the academic qualifications which a person should possess for being a candidate to a post in the ministerial establishment. It read as follows : "5. Academic qualifications - No person who is not already on the staff attached to a subordinate civil court shall be appointed to a post in the ministerial establishment unless; (a) he h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bsp; 100 Optional subjects - Shorthand and typewriting 50 In the optional subjects no marks shall be awarded to any candidate who does not reach the minimum standard required in the note to rule 14. Any clerk who is already on the establishment and is not qualified as a stenographer may sit for the examination in typewriting and shorthand alone and will be eligible for appointment as stenographer if he qualifies." By virtue of the provisions of Article 313 and Article 372 of the Constitution, the 1947 Rules continued to be in force even after the commencement of the Constitution. But on July 15, 1950 the Governor of Uttar Pradesh promulgated rules for the recruitment of ministerial staff to the subordinate offices in the State of Uttar Pradesh including the offices of subordinate civil courts in exercise of the powers conferred on him by the proviso to Article 309 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es is exhausted. (3) Casual vacancies may be filled up by appointing persons who have not taken the test but their further retention shall depend on their taking the next test and being selected in it." In the Schedule attached to the 1950 Rules it was provided that for the offices of the subordinate civil courts the competitive examination should be held in August second week every year. The relevant entry in that Schedule read as follows :- "Judicial (A) Department (1) Offices of Subordinate Civil Courts - August second week" The 1950 Rules did not, however, expressly say that the 1947 Rules had been superseded by these Rules. But it is significant to note that the 1950 Rules clearly stated that the Governor had framed them in supersession of all existing rules and orders on the subject for recruitment to the ministerial establishment of subordinate offices under his control. The clear effect of the 1950 Rules therefore was that the 1947 Rules stood superseded by the 1950 Rules as regards the subjects prescribed for the test and the manner of the examination to be held for the purpose of selecting candidates for the ministerial staff in the Civil Courts of the State of U....
X X X X Extracts X X X X
X X X X Extracts X X X X
....whose applications are forwarded by the Employment Exchange. In order to obviate the difficulties, the court has examined the whole scheme and the rules and within frame work of the existing rules and Government orders on the subject, the following procedure is laid down for our guidance :- While following the procedure laid down in existing rules, published under Government Notification No.0-111/-XI- 8-50 dated July 11, 1950 (which was adopted in supersession of rules 9 to 12 of the U.P. Subordinate Civil Courts Ministerial Establishment Rules 1947) and amplified in G.O. No. 0-2248/II-8-1950 dated August 30, 1950, the District Judge should in addition himself advertise his requirement under intimation to the Employment Exchange and while doing so he should take care to make it clear that all applications are to be addressed to him and routed through the Employment Exchange. The District Judge should further require that candidates should send advance copies of their applications direct to the District Judge which would go to ascertain p whether all applications have been forwarded to him by the Employment Exchange or not. However, if on receiving the applications from the Em....
X X X X Extracts X X X X
X X X X Extracts X X X X
...._________________________ 5. Academic qualifications :- Academic qualification :- No person who is not already No person who is not on the staff attached to a already on the staff atta- subordinate civil court ched to a subordinate Civil shall be appointed to a post Court shall be appointed to in the ministerial establi- a post in the ministerial shment unless :- establishment unless :- (a) he has passed at least (a)he has passed at least the High School examination the Intermediate Examina- conducted by the Board of tion conducted by the Board High School and Inter- of High School and Inter- mediate Education United mediate Education, U.P. Or Provinces, or any other any other examination which examination which has been has been or may be declared or may be declared by the by the Governor to be the Governor to be equivalent equivalent thereto. thereto; (b) he possesses a thorough (b)he possesses a thorough knowledge both of Urdu and knowledge both of Urdu and Hindi; Hindi. (c) he possesses in the case (c)he possesses in the case of a candidate for the post of a candidate for the post of Stenographer, a diploma or of Stenographer, a diploma certificate from a University....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... minimum required in the note to standard required in the rule 14. note to rule 14. Any clerk who is already Any clerk who is already On the Establishment and on the Establishment and is not qualified as, a is not qualified as a stenographer may sit for Stenographer may sit for the examination in typewriting the examination in typewri- and shorthand alone and will ting and shorthand alone be eligible for appointment and will be eligible for as stenographer if he appointment as Stenographer qualifies. if he qualifies." The existence of these Amending Rules of 1969 was not taken note of by the High Court when the letter of the Joint Registrar dated February 12, 1973 was addressed to all the District Judges. It appears from the said letter that the Nigh Court was following the 1950 Rules even after the promulgation of the 1969 Amending Rules for purposes of holding the competitive examination for recruitment to the ministerial staff in the Civil Courts. Then came the subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975 (hereinafter referred to as 'the 1975 Rules') promulgated by the Governor under the proviso to Article 309 of the Constitution. The said....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it petition before the High Court of Allahabad, out of which this appeal arises. His principal contention before the High Court was that the competitive examination which had been held in accordance with the 1950 Rules was an unauthorised one and that it should have been held in accordance with the 1947 Rules as amended by the 1969 Amending Rules. The High Court held that it was evident that the intention of promulgating the 1950 Rules was only to prescribe a syllabus different from what had been prescribed in the 1947 Rules but the modification made by the 1950 Rules did not, however, modify the rest of the 1947 Rules. The High Court was of the opinion that "therefore, it follows that the 1950 Rules being later in time superseded 1947 Rules to the extent of its inconsistency. After the enforcement of 1950 Rules competitive tests for holding selection for appointment to the Ministerial Establishment of Subordinate Courts was required to be held in accordance with the syllabus of 1950 Rules and not in accordance with Appendix II of 1947 Rules. In other respects the 1947 Rules continued to be effective." The High Court then found that on the promulgation of the 1969 Amending Rules....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ance with 1947 Rules read with 1969 Rules and not in accordance with 1950 Rules. The High Court was of the view that since within the judgeship of Kanpur the examination had not been held in accordance with the syllabus prescribed by the 1947 Rules as amended by the 1969 Amending Rules all those who were successful and selected for appointment had no legal right to be appointed. It accordingly quashed the examination held in 1981 by the District Judge of Kanpur, the results of which had been announced in 1983 by its judgment dated April 12, 1985. The High Court clarified that all the candidates who had applied for the 1981 examination were, however, entitled to appear for the fresh examination to be held by the District Judge of Kanpur. It further observed that in the other Districts of Uttar Pradesh where examinations had been held under the 1950 Rules and which had not been challenged the selection and appointment made in pursuance thereof should be treated as valid and would not be rendered invalid on the ground that any other view would cause great hardship 'which will not be in the public interest'. The result of the judgment was that only those who had been selecte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ir entirety by the 1950 Rules relying upon the opening words of the 1950 Rules which read thus : G "In exercise of the powers conferred by Article 309 of the Constitution of India, and in supersession of all existing rules and orders on the subject................. (Emphasis supplied) "In supersession of all existing rules and orders on the subject" can only refer to those matters in the existing rules which correspond to the matters dealt with by the 1950 Rules. We have explained earlier the other subjects in the 1947 Rules which were not covered by 1950 Rules. Hence the argument based on the assumption that the entire 1947 Rules had been repealed by implication and no amendment could be made to the 1947 Rules has to be rejected. The High Court was, therefore, right in observing that the whole of the 1947 Rules did not come to an end on the promulgation of the 1950 Rules. The problem, however, does not get solved thereby as we shall presently show. The 1969 Amending Rules specifically amended the 1947 Rules. These 1969 Amending Rules appear to have been made after consultation with the High Court as can be seen from the letter dated November 30, 1968 written by the Joint Reg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2 of the 1947 Rules which was needed for conducting the examination and selecting candidates was however unavailable. It is not correct to assume that the old rules 9 to 12 also automatically revived along with Appendix II without an express provision reintroducing them. Here we are not trying to be technical. It is to be noted that the 1969 Amending Rules do not expressly state that the 1950 Rules would no longer be applicable to the ministerial establishments of the Subordinate Civil Courts. They also did not repeal the item referring to the Judicial Department Subordinate Civil Courts, which found a place in the schedule to the 1950 Rules. The discontinuance of the application of the 1950 Rules to the ministerial establishments of the subordinate Civil Courts can only be inferred by relying upon the rule of implied repeal provided the said rule is applicable.. An implied repeal of an earlier law can be inferred only where there is the enactment of a later law which had the power to override the earlier law and is totally inconsistent with the earlier law, that is, where the two laws - the earlier law and the later law - cannot stand together. This is a logical necessity because ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ersession of rules 9 to 12 of the U.P subordinate Civil Courts ministerial establishment Rules 1947) and amplified in G.O. No.0-2248/II-8-III-1950 dated August 30, 1950, the District Judge should....................... " (emphasis added) Further it appears that in the year 1981 in some other districts of Uttar Pradesh examinations were held as per the 1950 Rules. This is borne out by the observation of the High Court in its judgment where it has expressed its reluctance to set aside the results of the examinations in the other districts and confined the operation of its judgment to Kanpur District only. The 1969 Amending Rules appear to have been ignored by some District Judges. In the circumstances having regard to the lacuna created by the non-repromulgation of rule 11 of the 1947 Rules it has to be held that there was no effective substitution of the 1950 Rules brought about by the 1969 Amending Rules. The 1950 Rules should therefore be held to be operating even in the year 1981. Hence the examinations held according to them cannot be held to be bad. We do not agree with the view of the High Court that the 1950 Rules have been repealed by the 1975 Rules insofar as the Subo....