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Madhya Pradesh High Court · body

2012 DIGILAW 676 (MP)

Ram Prakash Singh Tomar v. State of M. P.

2012-07-05

SUJOY PAUL

body2012
JUDGMENT : Since similar questions of facts and law are involved in these matters, with the consent of parties, the matters are analogously heard and decided by this common order. Facts are taken from W. P. No. 8252/2011. 2. In these petitions filed under Article 226 of the Constitution of India, the petitioners have called in question the legality, validity and propriety of the action of the respondents in not permitting them to participate in the selection for the post of Sub Inspector, Subedar and Platoon Commandant. 3. The petitioners are retired Army Personnel and have rendered more than 15 years of service in the Indian Army. An advertisement Annexure P-5 is issued by Professional Examination Board for conducting selection of various posts including the post of Sub Inspector, Subedar and Platoon Commandant. The petitioners submitted their candidature for the said post pursuant to advertisement Annexure P-5. 4. The case of the petitioners is that as per the educational qualification prescribed in column 1.8 of the advertisement, they possess the equivalent qualification of graduation issued by Indian Army (Annexure P-2). Learned counsel for the petitioners submits that as per the statutory rules made under proviso to Rule 309 of the Constitution of India, viz., Madhya Pradesh Ex-servicemen (Reservation of Vacancies in the State Civil Services and Posts Class-III and Class-IV) Rules, 1985 (1985 rules), they are eligible for consideration. The learned counsel for the petitioners submits that the respondents have partially applied these rules and made certain reservation of vacancies for Army Personnel. They provided age relaxation as per Rule 6 of the said rules. By placing heavy reliance on Rule 6(2A) of the said rules, the learned counsel for the petitioners submits that the respondents have a valuable legal right to treat the gradation certificate issued by Indian Army as equivalent to a certificate of gradation issued by another recognized university. By issuing circular dated 15-11-2011 (Annexure P-l), the Home Department of the State Government again emphasized the need of implementation of the Gazette notification dated 13-3-1987. It is noteworthy that by notification dated 13-3-1987, the Rule 6(2A) was inserted in the statute book. Thus, Annexure P-l is also pressed into service for the purpose of claiming relief in this petition. 5. It is noteworthy that by notification dated 13-3-1987, the Rule 6(2A) was inserted in the statute book. Thus, Annexure P-l is also pressed into service for the purpose of claiming relief in this petition. 5. Shri B. Raj Pandey, learned Government Advocate supported the action of the respondents and submits that the petitioners are neither entitled for age relaxation, nor any further relaxation with regard to educational qualification. It is further stated that the Statutory Recruitment Rules governing the service conditions of Police Personnels are known as Madhya Pradesh Police Executive (Non-Gazette) Service Recruitment Rules, 1997. The learned counsel submits that the recruitment in the police service are to be made as per these rules and in absence of any enabling provision in these rules, the petitioners' educational qualification Annexure P-2 cannot be treated as equivalent to a graduation certificate issued by a recognized university. 6. I have heard the learned counsel for the parties and perused the record. 7. A bare perusal of the advertisement Annexure P-5 shows that the respondents have applied the provisions of 1985 Rules and certain posts were earmarked and reserved for Ex-Armymen. Another provision i.e. Clause 1.6.4 was made which provides age relaxation to the Ex-servicemen. Clause 1.6.4 of the rules reads as under : - XXX XXX XXX 8. If Clause 1.6.4 is applied in case of present petitioners, it is crystal clear that after reducing the year of service rendered by them in the Army, they are well within the maximum age limit i.e., 28 years. Thus, this argument and objection of the State is without any merit and substance. 9. Now, the question is whether the certificate Annexure P-2 issued by the Indian Army can be treated as an equivalent educational qualification to a degree issued by University? The graduation certificate Annexure P-2 was issued by the Indian Army to the petitioners. The 1985 rules were issued with a view to regulate reservation of vacancies of State Civil Services and Class-III, and Class-IV posts reserved for Ex-servicemen. Rule 6(2A) reads as under :- "6. Special provisions regarding educational qualification. The graduation certificate Annexure P-2 was issued by the Indian Army to the petitioners. The 1985 rules were issued with a view to regulate reservation of vacancies of State Civil Services and Class-III, and Class-IV posts reserved for Ex-servicemen. Rule 6(2A) reads as under :- "6. Special provisions regarding educational qualification. - (2A) For appointment to any reserved vacancy in Class III posts, a matriculate EX-servicemen (which term includes an Ex-servicemen, who has obtained the Indian Army Special Certificate of Education, or the corresponding certificate in the navy or the Air Force), who has put in not less than 15 years of service in the Armed Forces of the Union may be considered eligible for appointment to the posts for which the essential educational qualification prescribed is graduation and where, - (emphasis supplied) 10. A minute reading of this rule would show that this is a specific provision which has been made for Ex-servicemen. It is made clear in sub-rule (2A) that Ex-servicemen who has obtained Indian Army special certificate of education from Indian Army and has put in more than 15 years of service be considered eligible for appointment to the post for which essential qualification is prescribed as graduation. 11. So far the argument of Shri B. Raj Pandey, learned Government Advocate regarding non-availability of enabling provision in the Recruitment Rules is concerned, in my considered opinion, the recruitment rules are general rules whereas the 1985 rules are special rules made for the Ex-Army Personnel. Rule 7 of 1985 rules reads as under :- "7. Amendment of recruitment rules. - All rules regulating the recruitment of persons of Class III and Class IV posts and services under the State Government shall be subject to the provisions of these rules and shall be construed accordingly." (emphasis supplied) 12. A bare perusal of this rule shows that the other rules regulating the recruitment of Personnel shall be subject to the Provisions of 1985 rules. This is settled principle of interpretation of statute that whenever rule is made subject to another rule, it has to be read in consonance with the rule to which it was made subject to. In the considered opinion of this Court, Rule 7 also makes it crystal clear that even recruitment rules have to give way to Ex-servicemen to apply Rule 6(2A) with full force. 13. In the considered opinion of this Court, Rule 7 also makes it crystal clear that even recruitment rules have to give way to Ex-servicemen to apply Rule 6(2A) with full force. 13. Shri B. Raj Pandey has another objection and submits that the word used in Rule 6(2A) are "may be considered eligible". By placing heavy reliance on the words 'may', the learned counsel submits that it is a directory provision and cannot be enforced in the Court of law. In the considered opinion of this Court the word 'may' does not always mean that it is directory in nature. Similarly, the word 'shall' does not always mean that it is mandatory in nature. The word 'may' in the context it is used may be treated as 'shall' mandatory, whereas the word 'shall' in the context it is employed may be treated as 'may'/directory. This view is taken by Supreme Court in AIR 1967 SC 276 (V 54 C 54), State of M.P. vs. M/s Azad Bharat Finance Co. and another and the Apex Court held as under :- "It is well settled that the use of the word "shall" does not always mean that the enactment is obligatory or mandatory; it depends upon the context in which the word "shall" occurs and the other circumstances." In AIR 1963 SC 1618 (V 50 C 242), State of U. P. vs. Jogendra Singh, the Apex Court held as under :- "The word "may" generally does not mean "must" or "shall". But it is well-settled that the word "may" is capable of meaning "must" or "shall" in the light of the context. Where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command." Thus, the basic question is regarding intention of the rule makers and the context in the word "may" is used in the statute. 14. In the considered opinion of this Court, the intention in bringing the 1985 rules was to provide effective provision of entry to the Ex-servicemen and treat their educational qualification as equivalent to gradation. 14. In the considered opinion of this Court, the intention in bringing the 1985 rules was to provide effective provision of entry to the Ex-servicemen and treat their educational qualification as equivalent to gradation. Thus, as per the intention and context of the provision, the word 'may' has to be read as 'shall' and it does not give any discretion to the respondents to apply the rule in one selection by treating the qualification as equivalent and deviating it for another selection. This finding of this Court finds support by the executive instructions issued by Annexure P-1, which shows that the respondents in no uncertain words made it clear that : - XXX XXX XXX 15. Thus, the said argument cannot cut any ice and is hereby rejected. Another objection of learned Government Advocate is that it is prerogative of the selection authority to relax the rules and educational qualifications. This argument is totally misconceived. The petitioners are not seeking any relaxation in the educational qualification. They are seeking equivalence of their certificate Annexure P-2, with a certificate issued by a recognized university. In view of sub-rule 6(2A), it cannot be said that the petitioners are not entitled for such parity and accordingly, the graduation certificate has to be treated as equivalent to a graduation certificate issued by recognized university for the purpose of the selection in question. 16. On the basis of aforesaid analysis, the action of the respondents is held as capricious and arbitrary in nature. It runs contrary to 1985 Rules and the executive instructions dated 15-11-2011. It is noteworthy that this Court as an interim measure, directed the respondents to permit the petitioners to participate in the process of selection but respondents were directed not to declare the result without the leave of this Court. It is reported that petitioners were permitted to participate in the selection process. Consequently, the respondents are directed to declare their results and if they succeed and are entitled for appointment, they be appointed on the said posts. It is made clear that the petitioners cannot be treated as not eligible on the basis of Annexure P-2. 17. Petition stands allowed. No costs. Petition allowed.