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2013 DIGILAW 491 (UTT)

Keshav Datt Tiwari v. State of Uttarakhand

2013-07-29

SUDHANSHU DHULIA

body2013
JUDGMENT : Sudhanshu Dhulia, J. 1. The petitioners before this Court are Firemen working in the Fire Service Department of the State. The next promotion from the post of Fireman is to the post of Leading Fireman. The service conditions of Fireman even in the erstwhile State of Uttar Pradesh was governed by the U.P. Fire Service Act, 1944 (hereinafter referred to as the Act of 1944). It is admitted case that under Section 87 of the U.P. Reorganization Act 2000, the aforesaid provisions of law is also applicable to the State of Uttarakhand. Under Section 25 of the Act of 1944, the State Government has rule making powers, which read as under:- “25. Rule making power. – The State Government may, by notification in the Official Gazette, and subject to the condition of previous publication, make Rules to carry out the purposes of this Act.” 2. However, the Rules for the Firemen were framed under sub-section (2) of Section 241 of the Government of India Act, 1935 which is a similar provision to what we have under Article 309 of the Constitution of India. The Government framed these rules known as “United Provinces Fire Services (Recruitment and Conditions of Service) Rules, 1945 (hereinafter referred to as the Rules of 1945). These rules were notified on 03rd October, 1945 by the Home Department (Police), Lucknow. 3. The argument of the learned senior counsel for the petitioners is that all such rules have been framed under Section 241 (2)(b) of the Government of India Act 1935, but the Government has rule making powers under Section 25 of the Act of 1944 and therefore these rules should be read as framed under the provisions of the Act. This Court is not inclined to accept this argument for the reason that inspite of the powers of the Government to frame rules under Section 25 of the Act of 1944, the fact of the matter is that ultimately the service rules have been framed under Section 241 (2)(b) of the Government of India Act 1935, which is a “similar” provision to what we have now under Article 309 of the Constitution of India, and reads as under:- “241. Recruitment and conditions of service. Recruitment and conditions of service. – (1) "except as expressly provided by this Act, appointments to the civil service of, and civil posts under the Crown of India, shall after the commencement of Part III of this Act, be made- (a) in the case of services of the Federation, and posts in connection with the affairs of the Federation, by the Governor-General or such person as he may direct; (b) in the case of services of a Province, and posts in connection with the affairs of a Province, by the Governor or such person as he may direct. (2) Except as expressly provided by this Act, the conditions of service of persons serving His Majesty in a civil capacity in India shall, subject to the provisions of this section, be such as may be prescribed – (a) in the case of person serving in connection with the affairs of the Federation, by rules made by the Governor-General or by some person or persons authroised by the Governor-General to make rules for the purpose; (b) in the case of persons serving in connection with the affairs of a Province, by rules made by the Governor of the Province or by some person or persons authorized by the Governor to make rules for the purpose: Provided that it shall not be necessary to make rules regulating the conditions of service of persons employed temporarily on the terms that their employment may be terminated on one month’s notice or less, and nothing in this sub-section shall be construed as requiring the rules regulating the conditions of service of any class of persons to extend to any matter which appears to the rule-making authority to be a matter not suitable for regulation by rule in the case of that class. (3) The said rules shall be so framed as to secure - (a) that, in the case of a person who before the commencement of Part III of this Act was serving His Majesty, in a civil capacity in India, no order which alters or interprets to his disadvantage any rule by which his conditions of service are regulated shall be made except by an authority which would have been competent to make such an order on the eighth day of March, nineteen hundred and twenty-six, or by some person empowered by the Secretary of State to give directions in that respect; (b) that every such person as aforesaid shall have the same rights of appeal to the same authorities from any order which- (i) punishes or formally censures him; or (ii) alters or interprets to his disadvantage any rule by which his conditions of service are regulated; or (iii) terminates his appointment otherwise than upon his reaching the age fixed for superannuation. As he would have had immediately before the commencement of Part III of this Act, or such similar rights of appeal to such corresponding authorities as may be directed by the Secretary of State or by some person empowered by the Secretary of State to give directions in that respect; (c) that every other person serving His Majesty in a civil capacity in India shall have at least one appeal against any such order as aforesaid, not being an order of the Governor-General or a Governor. (4) Notwithstanding anything in his section, but subject to any other provision of this Act, Acts of the appropriate Legislature in India may regulate the conditions of service of persons serving His Majesty in a civil capacity in India and any rules made under this section shall have effect subject to the provisions of any such Act: Provided that nothing in any such Act shall have effect so as to deprive any person of any rights required to be given to him by the provisions of the last preceding sub-section. (5) No rules made under this section and no Act of any Legislature in India shall be construed to limit or abridge the power of the Governor-General or a Governor to deal with the case of any person serving His Majesty in a civil capacity in India in such manner as may appear to him to be just and equitable: Provided that, where any such rule or Act is applicable to the case of any person, the case shall not be dealt with in any manner less favourable to him than that provided by that rule or Act." 4. After the enforcement of the Constitution of India, services under the Union and the State have been given in Chapter I of Part XIV of the Constitution of India. Under Article 309 of the Constitution, the appropriate legislature has been given powers to regulate the recruitment and conditions of service of persons appointed in public services and posts in connection with the affairs of the Union or any State, as the case may be. Such powers (i.e. the power to regulate the recruitment and conditions of service of person) have been given to the State Legislature and only till such a provision is made by the State Legislature, under the proviso to the Article, the Governor of the State has power to frame rules. Article 309 of the Constitution of India reads as under:- “309. Recruitment and conditions of service of persons serving the Union or a State. Article 309 of the Constitution of India reads as under:- “309. Recruitment and conditions of service of persons serving the Union or a State. – Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.” 5. Under proviso to Article 309 of the Constitution, the Governor can only make rules regulating the recruitment and conditions of service of persons serving under the State, “until provisions in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act”. Under the Government of India Act, 1935 more particularly sub-section (4) of Section 241, provision was that “notwithstanding anything in his section, but subject to any other provision of this Act, Acts of the appropriate Legislature in India may regulate the conditions of service of persons serving His Majesty in a civil capacity in India and any rules made under this section shall have effect subject to the provisions of any this Act.” 6. Though, differently worded the intention both in the Government of India Act, 1935 as well in the proviso to Article 309 of the Constitution of India is the same, which is that the power to regulate service condition lies with the Legislature, but where such powers have not been exercised by the State Legislature and the field is not occupied as yet, rules can be framed by the Governor, to regulate the service conditions. 7. 7. Moreover, under Section 25 of the Act of 1944 the powers given to the State Government are powers of a general nature, as these are the powers to make rules “to carry out the purposes of this Act”. In other words, under Section 25 rules can be framed by the State Government to carry out all the purposes of the Act, not just of service conditions! Ultimately, however, the Rules of 1945 has been framed by the Governor of the United Provinces under the provisions of clause (b) of sub-section (1) and clause (b) of sub0-section (2) of Section 241 of the Government of India Act, 1935. The Rules of 1945 will have the same status in law as the rules which had been framed subsequently (which are general service rules) by the State Government under Article 309 of the Constitution of India. 8. It is an admitted case that no Rules were in existence under Section 25 of the Act when Rules were ultimately framed under Section 241(2)(b) of the Government of India Act, 1935, in the year 1945. 9. It is, however, an admitted case that under the aforesaid rules, the criteria for promotion has been laid down i.e. the promotion from the post of Fireman to the post of Leading Fireman. Rule 18(2) of the Rules of 1945 reads as under:- “18. Promotion (1) Promotions to Section 1 of the Service shall be made on the basis of seniority subject to the rejection of the unfit, provided that, in any special case, the Inspector General of Police may promote out of his turn or pass over any member.” (2) Promotion in Section III of the Service shall be by merit only, provided also that the appointing may promote any person of outstaying merit from a lower to a higher section of the Service.” 10. As per Rule 18, the promotion in Section III of the Service shall be made by “merit” only. Section III in Appendix ‘A’ of Rule 4 and 20 reads as under:- “APPENDIX ‘A’ (See Rules 4 & 20) Schedule Serial No. Designation of post Sanctioned number of post Scale of pay Rs. Section I 1 Fire Station Officer …….. ,,,, 180-5-240 2 Fire Station Second Office …….. ,,, 65-2-90-3-120 Section II ,,,, 3 Drivers …….. 19 45-1-1/2-60 Section III 4 Leading Firemen …….. 19 35-1-45 5 Fireman …….. 133 25-1(biennial) -35 11. Section I 1 Fire Station Officer …….. ,,,, 180-5-240 2 Fire Station Second Office …….. ,,, 65-2-90-3-120 Section II ,,,, 3 Drivers …….. 19 45-1-1/2-60 Section III 4 Leading Firemen …….. 19 35-1-45 5 Fireman …….. 133 25-1(biennial) -35 11. Section III of Appendix ‘A’ relates to the posts of Leading Fireman and Fireman. Therefore, the argument would be that under Rule 18(2) of the Rules of 1945, the promotion in Section III of Appendix ‘A’ from Fireman to Leading Fireman can only be based on the criteria of “merit”. 12. It was for this reason that in 2002 an exercise was undertaken by the Government of Uttarakhand for selecting the best Fireman to the post of Leading Fireman, in which the present petitioners participated as did other Fireman. Since the promotion exercise had to be made on the basis of “merit”, there was a two level test, first was range level test and those who qualified the range level test had to compete the Central test. There were about 52 vacancies on which selections were made. All the petitioners before this Court were selected as Leading Fireman in the aforesaid tests. However, since the result was not being declared, a writ petition No.1763 of 2005 (S/S) was filed before this Court wherein directions were given to declare the result. Ultimately, the result was declared and the petitioners were sent for three months training. The petitioners successfully completed the training, but were still not promoted to the post of Leading Fireman and instead the respondent authority gave promotion to 52 other Fireman on “officiating basis”, purely on the basis of their seniority! 13. It was this promotion, the petitioners have challenged in the present petition. In the counter affidavit, the Government has taken a stand that in the erstwhile of Uttar Pradesh, the rules were made in the year 1994 known as Uttar Pradesh Government Servants (Criterion for Recruitment by Promotion) Rules, 1994” (hereinafter referred to as the U.P. Rules 1994) whereby except for the post of Head of Department and the post carrying the pay-scale (the maximum of which is Rs.6,700/-, now increased to Rs.18,300/-), all other promotions have to be done on the basis of “seniority subject to the rejection of unfit”. Later, the State of Uttarakhand had also framed its own rules known as “Uttarakhand Government Servants (Criterion for recruitment by Promotion) Rules, 2004 (hereinafter referred to as Uttarakhand Rules 2004)”, which is pari materia to the Rules of 1994 where again except for the post of Head of Department and the post carrying a particular pay-scale, all promotions have to be made on the basis “seniority subject to the rejection of unfit”. The argument of the State Government is that since the post of Leading Fireman is neither the Head of Department nor is it a pay-scale (i.e. the maximum of which is Rs.6,700/- now increased to Rs.18,300/-), therefore, the promotions from the post of Fireman to the post of Leading Fireman have to be made on the basis of “seniority subject to the rejection of unfit” and therefore promotions will be made to the post of Leading Fireman only on the basis of seniority and not as claimed by the petitioners i.e. on “merit”, inspite of the fact that they have been selected on the basis of merit and have also undertaken a training, as that was done under the Rules which have no application in the matter. 14. The argument of the petitioners on the other hand is that the Rules which would be applicable for promotion from Fireman to Leading Fireman would be the Rules of 1945 where the criteria for promotion is “merit” and the Rules of 2004 are not applicable in their case, where the criteria for promotion is “seniority”, as Rules of 1945 is special rule made specially for Fireman, whereas the Rules of 2004 are the general rules, and on the principle of “special overriding the general” it is the Rules of 1945, which would prevail, and not the Rules of 2004. 15. The argument of Additional Advocate General for the State, on the other hand, would be that Rules of 1945 are not the special rules, as claimed by the petitioners as these Rules have not been framed by the Government under Section 25 of the Act of 1944, but these rules have also been framed by the Governor in exercise of powers under Section 241 of the Government of India Act, 1935, as are the 2004 Rules under a similar provision contained in the proviso to Article 309 of the Constitution of India. He would also contend that the Uttarakhand Rules 2004 start with a non-obstante clause and therefore such rules would prevail over all other rules on the subject. 16. Mr. Bahuguna, Senior Advocate for the petitioners, however, argues that the fact that the Uttarakhand Rule start with a non-obstante clause will have no material effect in the present case, as they would prevail over all other “general rules” only and not prevail over the “special rules”. The non-obstante clause would not apply as the rules being the Special Rules shall have an overriding effect over the General Rules. 17. This aspect has been elaborated and dealt with in a judgment of Hon’ble Apex Court in Maya Mathew Vs. State of Kerala and Others (2010) 4 SCC 498 . 18. In the above case, the Hon’ble Apex Court discussed the application of law where a subject matter is governed by two set of rules. It is best to reproduce here which has been said:- “12. The rules of interpretation when a subject is governed by two sets of Rules are well settled. They are: (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 later 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; (ii) When two provisions of law - one being a general law and the other being special law govern a matter, the court should endeavour to apply a harmonious construction to the said provisions. But where the intention of the rule making authority is made clear either expressly or impliedly, as to which law should prevail, the same shall be given effect. (iii) If the repugnancy or inconsistency subsists in spite of an effort to read them harmoniously, the prior special law is not presumed to be repealed by the later general law. The prior special law will continue to apply and prevail in spite of the subsequent general law. (iii) If the repugnancy or inconsistency subsists in spite of an effort to read them harmoniously, the prior special law is not presumed to be repealed by the later general law. The prior special law will continue to apply and prevail in spite of the subsequent general law. But where a clear intention to make a rule of universal application by superseding the earlier special law is evident from the later general law, then the later general law, will prevail over the prior special law. (iv) Where a later special law is repugnant to or inconsistent with an earlier general law, the later special law will prevail over the earlier general law.” 19. In our case the provisions for the promotion from the post of Fireman to the post of Leading Fireman are given in the special rules. Under the special rules in Appendix ‘A’, a break up of the service into three sections is given, i.e. Section I relates to Fire Station Officer & Fire Station Second Officer, Section-II relates to Drivers and Section III relates to Leading Fireman and Fireman. Thereafter, Rule 18 talks about promotion, which we have already cited above i.e. the promotions have to be on “merit”. 20. The general rules have also been framed under Article 309 of the Constitution of India known as “The Uttaranchal Government Servants (Criterion for Recruitment by Promotion) Rules, 2004”. Rule 4 reads as under:- “4. Criterion for Recruitment by Promotion – Recruitment by promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any Service carrying the pay scale the maximum of which is Rs.18,300 or above shall be made on the basis of merit, and to the rest of the posts in all services to be filled by promotion, including a post where promotion is made from a Non-gazetted post to a Gazetted post or from one Service to another Service, shall be made on the basis of seniority to the rejection of the unfit.” 21. Apart from this, Rule 2 of Uttarakhand Rules 2004 is a non-obstante clause, which reads as under:- “2. Apart from this, Rule 2 of Uttarakhand Rules 2004 is a non-obstante clause, which reads as under:- “2. Overriding effect – These rules shall have effect notwithstanding anything to the contrary contained in any other Service rules made by the Governor under the proviso to Article 309 of the Constitution, or Orders, for the time being in force.” 22. Now, there would be no difficulty at all had the special rules been later in time to the general rules. In the present case, however, the special rules are earlier in time to the general rules. Nevertheless, even though the general rules are later in time, it would not be presumed that the prior special rules stood repealed by the later general rules. When two provisions of law - one being a general law and the other being special law govern a matter, the court should endeavour to apply a harmonious construction to the said provisions. But where the intention of the rule making authority is made clear either expressly or impliedly, as to which law should prevail, the same shall be given effect.{per Maya Mathew (supra)}. If the repugnancy or inconsistency subsists in spite of an effort to read them harmoniously, the prior special law is not presumed to be repealed by the later general law. The prior special law will continue to apply and prevail in spite of the subsequent general law, except where a clear intention to make a rule of universal application by superseding the earlier special law is evident from the later general law, in that case, the later general law will prevail over the prior special law. 23. In another judgment i.e. in R.S. Raghunath v. State of Karnataka and another reported in (1992) 1 SCC 335 by a majority (2:1) the Hon’ble Apex Court has held that looking at the language of non obstante clause in the General Rules which though later in time to the Special Rules, it will not prevail over the earlier Special Rules. 24. What this Court therefore has to see is whether there was a clear intention in the later general Rules to supersede the earlier special rules. 25. The general rules in our case apply to all civil service in Uttarakhand for which no consultation with the State Public Service Commission is required. 24. What this Court therefore has to see is whether there was a clear intention in the later general Rules to supersede the earlier special rules. 25. The general rules in our case apply to all civil service in Uttarakhand for which no consultation with the State Public Service Commission is required. Sub-rule (1) & (2) of Rule 1 of Uttarakhand Rules 2004 reads as under :- “(1) They shall come into force at once. (2) They shall apply to a recruitment by promotion to a post or service for which no consultation with the Public Service Commission is required on the principles to be followed in making promotions under the Uttaranchal Public Service Commission (Limitation of Functions) Regulation, 2003, as amended from time to time.” 26. Therefore, the general rules broadly regulates the general recruitment by promotion to all State civil services, but at the same time we cannot loose sight of the fact that there may be some department or service in the State of Uttarakhand which has its own special rules of recruitment and they can always co-exist inspite of the general rules although the general rules are later in time and have a non-obstante clause. 27. In Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. 1987 (1) SCC 424 , while interpreting a statute Hon’ble Chinnappa Reddy, J. said as follows:- “Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when the object and purpose of its enactment is known. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses the court must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.” 28. The Act of 1944 was enacted as it was expedient to improve the fire-fighting arrangements in certain towns of the Province, and also to constitute and maintain a Provincial Fire Service for staffing and operating the fire brigades of some of the towns i.e. though initially for Agra, Benaras and Lucknow, it was later extended to many other towns inter alia such as Dehradun, Haridwar, Almora, Nainital etc., which are presently part of the territory of Uttarakhand. 29. Section 9 of the Act of 1944 reads as under:- “9. Penalty for violation of duty and cowardice. – Every member of the U.P. Fire Service who shall be guilty of any violation of duty or willful breach of any provision of this Act or of the rules made thereunder or of any order made by competent authority, or who shall be guilty of cowardice or shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months, or who being absent on leave, shall fail, without reasonable cause, to report himself for duty on the expiration of such leave, or who shall engage without authority in an employment other than his Fire Service duty, shall be liable, on conviction before a Magistrate of the First Class, to a fine not exceeding three months’ pay or to imprisonment with or without hard labour, for a period not exceeding three months, or to both.” 30. Further, the Rules of 1945 (United Provinces) itself provides that a candidate in fire service must have a physical fitness as provided under Rule 12. Further, the Rules of 1945 (United Provinces) itself provides that a candidate in fire service must have a physical fitness as provided under Rule 12. It is for this reason the promotions from the post of Fireman to the post of Leading Fireman were made on the basis of “merit”. 31. It is true that non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. In R. S. Raghunath (supra), the Hon’ble Apex Court held as under:- “On a conspectus of the above authorities it emerges that the non-obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non-obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non-obstante clause cannot cut down the construction and restrict the scope of its operation. In Such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules.” 32. In this light and on a bare reading of the two provisions, this Court finds that a harmonious construction can be possible of the two provisions, as a general rules though later in time will be applicable generally in all other civil services in the State of Uttarakhand in promotion matters, but since the rules for promotion already exist in the special laws for a special service, they will not repeal the provisions of the earlier special law. Moreover, though later in time, in the general Rules of 2004, there is no specific indication that it is in supersession of even the special Rules of 1945. 33. Moreover, though later in time, in the general Rules of 2004, there is no specific indication that it is in supersession of even the special Rules of 1945. 33. Consequently, the rules which would be presently governed, the conditions of Fireman, including the service of promotion from Fireman to Leading Fireman are the Rules of 1945 as these are the special rules where the criteria for promotion is “merit”. 34. Moreover, there is another aspect of this matter which is that the entire exercise had already been undertaken by the Government for promotion from Fireman to Leading Fireman, as per the Rules of 1945, and this Court has been informed that apart from the present petitioners other Fireman also participated in that selection process, including such Fireman who were senior to the petitioners, and who have now been given the officiating charge of Leading Fireman. They participated but failed to be selected. In other words, they participated in examination and they have already been declared unsuccessful in the said examination. Not only were the petitioners selected in one competition based on merit but they were also sent for training. Midway, however, the State Government changed its mind and promoted Fireman, on the basis of their seniority. It is, however, called an “officiating promotion”. But this is only a camouflage. The real intention was to promote on the basis of their “seniority”, which has become clear from the stand taken by the State Government in its counter affidavit. 35. In view of above, the writ petition is allowed and a mandamus is issued to the respondents directing them to issue the appointment letters in favour of the petitioners forthwith, which shall have its effect since 17.12.2005 when “promotions” on the basis of seniority were made. Needful be done within one month from the date of production of a certified copy of this order. All promotions made on the basis of seniority are also set aside. No order as to costs.