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2016 DIGILAW 528 (ALL)

DEO SINGH v. STATE OF U. P.

2016-02-15

B.AMIT STHALEKAR

body2016
JUDGMENT Hon’ble B. Amit Sthalekar, J.—Since the controversy involved in all the above writ petitions is similar, therefore all the above writ petitions are being decided by this common order. 2. Heard Sri Anil Kumar Srivastava, learned counsel for the petitioners, Sri K.S. Kushwaha, learned counsel for the respondent No. 2 and Sri Ashok Pandey, learned Additional Advocate General assisted by Sri Mata Prasad, learned Additional Chief Standing Counsel and Sri J.N. Maurya, learned Additional Chief Standing Counsel appearing on behalf of the respondent Nos. 1, 3 and 4. 3. The petitioner is seeking a direction to the respondents to quash the selection process as well as the interview for the post of Assistant Boring Technicians which is scheduled to be held from 15.9.2015 till 6.10.2015 in pursuance of the advertisement dated 29.10.2014. 4. Briefly stated the case of the petitioner is that the U.P. Subordinate Services Selection Commission (hereinafter referred to as “Commission”) was constituted on 20.6.2014 under the Uttar Pradesh Subordinate Services Selection Commission Act, 2014. It is not disputed that the Act applies in relation to direct recruitment to all Group ‘C’ posts. The petitioner’s case is that he did not fill up the form for the post of Assistant Boring Technicians in pursuance of the advertisement dated 29.10.2014 as according to him, the selection was required to be conducted by the Department of Minor Irrigation, U.P., Lucknow and that the Commission was not competent to conduct the examination in pursuance of the advertisement issued by the Chief Engineer, Minor Irrigation Department, U.P., Lucknow and any such selection held by the Commission would be absolutely illegal. 5. According to the petitioner, the recruitment and conditions of services of persons appointed in the Minor Irrigation Department Boring Technicians Service would be governed by the Uttar Pradesh Minor Irrigation Department Boring Technicians Service Rules, 1993 (hereinafter referred to as the “Rules, 1993”). Rule 3(a) defines ‘appointing authority’ to mean the Executive Engineer, Minor Irrigation Department of the concerned Division. Rule 3(d) defines ‘Commission’ to mean the U.P. Subordinate Service Selection Commission. Reference has been made to the provisions of Rule 5 of the Rules, 1993. Part III-Recruitment provides for the sources of recruitment, which reads as under : “Sources of Recruitment 5. Rule 3(a) defines ‘appointing authority’ to mean the Executive Engineer, Minor Irrigation Department of the concerned Division. Rule 3(d) defines ‘Commission’ to mean the U.P. Subordinate Service Selection Commission. Reference has been made to the provisions of Rule 5 of the Rules, 1993. Part III-Recruitment provides for the sources of recruitment, which reads as under : “Sources of Recruitment 5. Recruitment to the various categories of posts in the Service shall be made from the following sources : (a) Boring Technicians-by promotion from amongst substantively appointed Assistant Boring Tech who have completed five years service, as such, on the first day of the years of recruitment; (b) Assistant Boring Technicians-By direct recruitment through the Commission.” Recruitment to the various categories of posts in the Service shall be made from the following sources : (a) Boring Technicians-by promotion from amongst substantively appointed Assistant Boring Tech who have completed five years service, as such, on the first day of the years of recruitment; (b) Assistant Boring Technicians-By direct recruitment through the Commission.” 6. The case of the petitioner is that the Rules, 1993 were amended in 2003 by the Amending Rules dated 27.5.2003 (Annexure-4 to the writ petition) and in Rule 15(1) in place of the word ‘Commission’ it was provided that a Committee would be constituted at the State Level which would hold the Selections and this Committee would comprise of the : (i) Chief Engineer as Chairman; (ii) One Member to be nominated by the Chief Engineer not below the rank of Executive Engineer; and (iii) One Member belonging to the SC/ST/OBC category as the case may be. 7. At the outset the submission of Sri A.K. Srivastava, learned counsel for the petitioner was that the selections could not have been held by the U.P. Subordinate Services Selection Commission and that it ought to have been held by the Selection Committee in terms of the provisions of the amended Rule 15 (1) of the 2003 Rules. But thereafter, when he was confronted with the U.P. Subordinate Services Selection Act, 2014 he changed his stand and submitted that after the coming into force of Act, 2014, it was only the Commission which was the competent authority to hold the selections. But thereafter, when he was confronted with the U.P. Subordinate Services Selection Act, 2014 he changed his stand and submitted that after the coming into force of Act, 2014, it was only the Commission which was the competent authority to hold the selections. But he added that under Section 17 of the Act, 2014, the vacancies were required to be notified by the Commission whereas in the present case, the vacancies have been notified by the Department of Minor Irrigation, Lucknow and therefore, the notification itself was in violation of the provisions of Section 17 (1) of the U.P. Subordinate Services Selection Commission Act, 2014. 8. Here it will be relevant to refer to the provisions of Section 17 of the Act, 2014, which read as under : “17. Notification of vacancies.—(1) The appointing authority shall determine and intimate to the Commission the number of vacancies to be filled through the Commission during the course of the year of recruitment as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes and the Scheduled Tribes and other categories in accordance with law for the time being in this behalf. (2) The vacancies shall be notified to the Commission in such manner as may be prescribed.” 9. Section 17(1) of the Act provides that the appointing authority shall determine and intimate to the Commission the number of vacancies to be filled through the Commission during the course of the year of recruitment as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Caste and the Scheduled Tribe and other categories in accordance with the law for the time being in force in this behalf. Section 17(2) provides that the vacancies shall be notified ‘to’ the Commission in such manner as may be prescribed. 10. Thus what is noticed is that it is the appointing authority who has to determine the vacancies and after the vacancies have been determined, the same have to be notified to the Commission. Section 17 of the Act itself does not contain any procedure as to who shall issue the advertisement with regard to filling up of the vacancies. This may be because the Act itself came into force on 20.6.2014 and on that date there were no rules of procedure providing for recruitment to the Group ‘C’ posts. Section 17 of the Act itself does not contain any procedure as to who shall issue the advertisement with regard to filling up of the vacancies. This may be because the Act itself came into force on 20.6.2014 and on that date there were no rules of procedure providing for recruitment to the Group ‘C’ posts. These Rules were introduced for the first time in 2015 by notification dated 11.5.2015 known as the Uttar Pradesh Direct Recruitment To Group ‘C’ Posts (Mode and Procedure) Rules, 2015 (hereinafter referred to as the “Rules, 2015”). 11. Rule 4(b) of the Rules, 2015 defines ‘Commission’ to mean the Uttar Pradesh Subordinate Services Selection Commission. Rule 8 of the Rules, 2015 lays down the procedure for inviting applications and the mode of conducting the examination and selections. Rule 8(2)(i) provides that application for permission to appear in the competitive examination shall be invited by the Commission in the form published in the advertisement issued by the Commission. Thus, it was for the first time that vide Rules, 2015 a procedure was laid down that it would be the Commission which would issue the advertisement containing the application form providing the procedure for applying against a Group ‘C’ post. Rule 8(1) and (2) read as under : “8. (1) The procedure for direct recruitment, the syllabus, marks of written examination/interview and the rules relating thereof shall be such as prescribed by the Commission from time to time with the approval of the Government. (2) When, in accordance with the provisions of sub-rule (1) direct recruitment is to made on the basis of written examination and interview, the following procedure shall be followed : (i) Application for permission to appear in the competitive examination shall be invited by the Commission in the form published in the advertisement issued by the Commission.” 12. The learned counsel for the petitioner then submitted that since the Rules had already come into force on 11.5.2015, the advertisement ought not to have been issued on 29.10.2014. 13. The learned counsel for the petitioner then submitted that since the Rules had already come into force on 11.5.2015, the advertisement ought not to have been issued on 29.10.2014. 13. Rebutting the submissions of the learned counsel for the petitioner, it was submitted by Sri Ashok Pandey, learned Additional Advocate General and Sri K.S. Kushwaha for the respondents that prior to the coming into force of the Uttar Pradesh Direct Recruitment to Group ‘C’ Posts (Mode and Procedure) Rules, 2015 there was absolutely no provision providing that advertisement shall be issued by the Commission and it was only under the of Rules of 2015 that Rule 8(2) was introduced for the first time which provided in categorical terms that the advertisement shall be issued by the Commission and therefore, if the impugned advertisement had been issued on 29.10.2014, the same cannot be said to be illegal because on that date the recruitment Rules of 2015 were not in existence. 14. Reference has also been made by the learned counsel for the respondents to the Government Order No.2812/47-KA-3-14-13/7/2006 dated 15.12.2014 which provides that where a process of selection had already been intimated to the Public Service Commission, Uttar Pradesh selection shall thereafter continue to be held only by the U.P. Public Service Commission and therefore, he has drawn an analogy that likewise in the present case also if the advertisement has been issued by the Minor Irrigation Department on 29.10.2014 but thereafter, the U.P. Subordinate Services Selection Commission Act, 2014 came into force w.e.f. 20.6.2014, the same after the date of coming into force of the Act, 2014 would continue to be held by the U.P. Subordinate Services Selection Commission and not under the Uttar Pradesh Minor Irrigation Department Boring Technicians Service Rules, 1993 as amended in 2003. 15. Reference here may be made to the provisions of Section 2 of the Uttar Pradesh Subordinate Services Selection Commission Act, 2014. Section 2 of the Act reads as under : “2. 15. Reference here may be made to the provisions of Section 2 of the Uttar Pradesh Subordinate Services Selection Commission Act, 2014. Section 2 of the Act reads as under : “2. The provisions of this Act shall apply in relation to direct recruitment to all Group ‘C’ posts below Group ‘B’ posts in the Civil Secretariat and also to all Group ‘C’ posts in a Board or a Corporation or any other statutory body established by or controlled by the State Government : Provided that the State Government may, by notification, withdraw from or add any post in the purview of the Commission.” 16. A perusal of the Section 2 of the Act, 2014 shows that the provisions of the Act shall apply in relation to direct recruitment to all Group ‘C’ posts below Group ‘B’ posts including posts in the Civil Secretariat and also to all Group ‘C’ posts in a Board or a Corporation or any other statutory body established or controlled by the State Government. Thus, after the coming into force of the Act, the selection in question would per force have to be held under the Act, 2014 and there would be a presumption in law that the provisions of the erstwhile Rules, 1993 stand repealed in so far as it lays down the procedure for recruitment to Group ‘C’ posts. Although the Act of 2014 does not in so many words expressly repeal the provisions of Rules, 1993 but upon a conjoint reading of the provisions of Rule 15 (1) of the Rules, 1993 and Section 17 of the Act, 2014 there would be no doubt that the two provisions of law would operate within the same field and with regard to the same posts and therefore, the provisions of the Rules, 1993 would stand automatically repealed by the subsequent legislation to the extent of conflict. The law is well settled that where two provisions of law operate in the same field but are in conflict with each other, the erstwhile Rule or Act would stand repealed to the extent of such inconsistency by the subsequent Act or Rule. 17. The law is well settled that where two provisions of law operate in the same field but are in conflict with each other, the erstwhile Rule or Act would stand repealed to the extent of such inconsistency by the subsequent Act or Rule. 17. The law in this regard has been settled by the Supreme Court as far as back in State of Orissa v. M.A. Tulloch and Co., AIR 1964 SC 1284 , wherein the Court has held as under : “The next question is whether the application of that principle could or ought to be limited to cases where a particular form of words is used to indicate that the earlier law has been repealed. The entire theory underlying implied repeals is that there is no need for the later enactment to state in express terms that an earlier enactment has been repealed by using any particular set of words or form of drafting but that if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to effect such supersession, then there is in law a repeal notwithstanding the absence of the word ‘repeal’ in the later statute.” 18. The law was again reiterated in Ratan Lal Adukia v. Union of India, (1989) 3 SCC 537 . Paragraph 18 whereof reads as under : “18. ........The doctrine of implied repeal is based on the postulate that the legislature which is presumed to know the existing state of the law did not intend to create any confusion by retaining conflicting provisions. Courts, in applying this doctrine, are supposed merely to give effect to the legislative intent by examining the object and scope of the two enactments. But in a conceivable case, the very existence of two provisions may by itself, and without more, lead to an inference of mutual irreconcilability if the later set of provisions is by itself a complete code with respect to the same matter. In such a case the actual detailed comparison of the two sets of provisions may not be necessary. It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneously. Section 80 is a special provision. It deals with certain class of suits distinguishable on the basis of their particular subject-matters.” 19. In such a case the actual detailed comparison of the two sets of provisions may not be necessary. It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneously. Section 80 is a special provision. It deals with certain class of suits distinguishable on the basis of their particular subject-matters.” 19. The judgment of the Supreme Court in the case of M.A. Tulloch (supra) and Ratan Lal Adukia (supra) have been reiterated by the Supreme Court in the case of Fibre Boards Private Limited, Bangalore v. Commissioner of Income Tax, Bangalore, (2015) 10 SCC 333 . 20. Therefore, in view of the above legal positions settled by the Supreme Court, it must be held that the U.P. Subordinate Services Selection Commission Act, 2014 in so far as it provides that after the coming into force of the Act, selection to Group ‘C’ posts shall be held by the Commission, would impliedly repeal the erstwhile provisions of Rule 15 (1) of the Uttar Pradesh Minor Irrigation Department Boring Technicians Service Rules, 1993 as amended by the Rules, 2003. 21. The second leg of the submission of the learned counsel for the petitioner is that the advertisement itself was issued on 29.10.2014 and by that date the U.P. Subordinate Services Selection Commission Act, 2014 had already come into force on 20.6.2014 therefore, the advertisement issued by the Minor Irrigation Department for selection to the post of Assistant Boring Technicians was illegal and such advertisement could only have been issued under the provisions of the U.P. Subordinate Services Selection Commission Act, 2014. 22. The submission of the learned counsel for the petitioner is fallacious for the simple reason that though the ‘Commission Act’ had came into force on 20.6.2014 but Section 17 therein itself did not lay down any procedure for selection or issuance of advertisement except to provide in Section 17 that the vacancies of the year of recruitment shall be determined by the appointing authority and intimated to the Commission applying the reservation roster. 23. Section 17 (2) further provides that the vacancies shall be notified ‘to’ the Commission in such manner as may be prescribed. The principal of interpretation of statutory provisions is well settled. The words in the statute must be read in the manner laid down if the words used are otherwise clear and unambiguous. 23. Section 17 (2) further provides that the vacancies shall be notified ‘to’ the Commission in such manner as may be prescribed. The principal of interpretation of statutory provisions is well settled. The words in the statute must be read in the manner laid down if the words used are otherwise clear and unambiguous. Section 17 (2) of the Act, 2014 does not say that the vacancies shall be notified ’by’ the Commission but it states in so many words that the vacancies shall be notified ’to’ the Commission. There is no provision in the Commission Act, 2014 as to what the Commission will do after the vacancies are notified to it by the appointing authority. This lacuna was subsequently filled by the Uttar Pradesh Direct Recruitment to Group ’C’ Posts (Mode and Procedure) Rules, 2015 which in Rule 8 (2) specifically provided that the application for permission to appear in the competitive examination shall be invited ‘by’ the Commission in the form published in the advertisement ‘issued’ by the Commission. Therefore, in such circumstances there was absolutely no illegality in the issuance of the impugned advertisement by the Minor Irrigation Department on 29.10.2014 but after its issuance the selection rightly proceeded and was conducted by the U.P. Subordinate Services Selection Commission and therefore, there is no illegality or infirmity in the same. After the coming into force of the Commission Act, 2014 the powers vested in the erstwhile ‘Selection Committee’ under the Uttar Pradesh Minor Irrigation Department Boring Technicians Service Rules, 1993 as amended in 2003 stood ousted and came to be vested in the Commission. 24. Therefore, for reasons aforesaid, I do not find any illegality or infirmity in the impugned advertisement dated 29.10.2014 for the post of Assistant Boring Technicians. 25. The writ petition lacks merit and is accordingly, dismissed. 26. So far as the connected writ petitions are concerned, a preliminary objection has been raised by the learned standing counsel for the respondents that few petitioners in the connected writ petitions have appeared in the selections and therefore, they are estopped from questioning the validity of the advertisement or the procedure of selection. 27. In Writ petition No. 47394 of 2014, it is stated in para 5 of the writ petition the petitioner Nos. 27. In Writ petition No. 47394 of 2014, it is stated in para 5 of the writ petition the petitioner Nos. 1, 2 and 3 have appeared in the examination but the petitioner No. 4 could not participate in the examination because no advertisement was published after the constitution of the U.P. Subordinate Services Selection Commission. 28. In Writ petition No. 49520 of 2015, it is stated that petitioner Nos. 3 to 10 have appeared in the examination but it appears that petitioner Nos. 1 and 2 have not appeared in the selection. 29. However, since the Court has examined the validity of the impugned advertisement and the ensuing selection process and held the same to be valid and has dismissed the leading writ petition No. 52112 of 2015, the preliminary objection does not require consideration and the writ petition No. 47394 of 2014 and writ petition No. 49520 of 2015 are also dismissed.