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2017 DIGILAW 1869 (RAJ)

Trilok Ram v. State Of Rajasthan

2017-08-18

PRADEEP NANDRAJOG, RAMCHANDRA SINGH JHALA

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JUDGMENT ORDER Pradeep Nandrajog, C.J. - On 11.8.2013 an advertisement was issued inviting applications to fill up the notified vacant posts of Primary and Upper Primary Teachers. In the advertisement, vide Clause 7(7) it was brought to the notice of the applicants that they should have obtained the academic qualifications prescribed to make them eligible for being appointed to the posts in question till the last date of submission of the application forms. The appellants had appeared in the B.Ed./B.S.T.C. examination well before the last date for filling up the application forms but unfortunately for them the results were declared later. 2. The last date for submitting application forms was 4.9.2013 and the results of the B.Ed./B.S.T.C. examination were declared on 31.12.2014. The appellants found their names in the merit list when the result of the competitive test was announced in January, 2015. They had secured marks well above the cut off marks. They were called for verification of the documents and found themselves denied appointments on the ground that the academic qualifications prescribed had been achieved by them after the last date for submission of the application forms i.e. 4.9.2013. 3. The petitioners relied upon a proviso to Sub-rule(3) of Rule 266 of the Rajasthan Panchayati Raj Rules, 1996 to urge before the authorities that as per the proviso the academic qualifications had to be attained before the declaration of the result of the examination conducted by the department. The stand of the department was that the proviso was no longer in existence. 4. This became the centre point of the pleadings of the parties before the learned Single Judge in the writ petitions filed by the writ appellants. The learned Single Judge has held that the proviso was no longer a part of the statute for the reason the proviso was to Sub-rule (3) and because on 11.5.2011 the Sub-rule was substituted by a new Sub-rule, without having any proviso thereto. When the advertisement inviting applications was issued the Sub-rule in question was sans a proviso. 5. The view taken by the learned Single Judge is that in view of Clause 7(7) of the advertisement and the amendment made to Sub-rule(3) of Rule 266 of the Rajasthan Panchayati Raj Rules the appellants had no case at all. 6. When the advertisement inviting applications was issued the Sub-rule in question was sans a proviso. 5. The view taken by the learned Single Judge is that in view of Clause 7(7) of the advertisement and the amendment made to Sub-rule(3) of Rule 266 of the Rajasthan Panchayati Raj Rules the appellants had no case at all. 6. Rule 266 of the Rajasthan Panchayati Raj Rules, 1996 prescribes the academic qualifications for the post of LDC, V.L.W.-cum-Secretary and Primary and Upper Primary School Teachers. Sub-rule (1) relates to the post of LDC. Sub-rule (2) relates to the post of V.L.W.-cum-Secretary. Sub-rule (3) relates to Primary and Upper Primary School Teachers. In the year 2004, with effect from 1.7.2004, a proviso was added to Sub-rule (3). It reads as under:- "Provided further that the person who has appeared in the B.Ed./B.S.T.C. examination shall be eligible to apply for the post of primary and upper primary school teacher but he shall have to submit proof of having acquired the said educational qualification to the Distt. Establishment Committee before the declaration of result of the said examination." 7. In view of the provisions of the National Council for Teacher Education Act and the Right of Children to Free and Compulsory Education Act, 2009 the Rajasthan Panchayati Raj (Second Amendment) Rules, 2011 were promulgated and pertaining to Rule 266, vide Rule 2 of the Second Amendment Rules, 2011, it was notified as under:- "2. Amendment of Rule 266. The existing clause (3) of Rule 266 of the Rajasthan Panchayati Raj Rules, 1996, hereinafter referred to as the said rules, shall be substituted by the following namely:- (a) General Education level (i) Class I  to V Qualification as laid down by National council for Teacher Education (NCTE) under the provisions of sub-sec(1) of Section 23 of the Right of Children to Free and compulsory Education Act, 2009 (Central Act No.35 of 2009) from time to time) Level (ii) Classes VI to VII Qualifications as laid down by National Council for Teacher Education (NCTE) under the provisions of sub-sec(1) of Section 23 of the Right of Children to free and compulsory Education act, 2009 (Central Act No.35 of 2009) from time to time. (b) Special Education Level-(i) Classes I to V Qualifications as laid down by national council for Teacher Education (NCTE) under the provisions of sub-sec(1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act No.35 of 2009) from time to time. Level-(ii) Classes VI to VIII Qualifications as laid down by national council for Teacher Education (NCTE) under the provisions of sub-sec (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act No.35 of 2009) from time to time." 8. The view taken by the learned Single Judge is that the legislature was aware of the existing Sub-rule (3) having a proviso thereto and while substituting the Sub-rule it did not retain the proviso and thus the Sub-rule as amended was sans the proviso, and the consequence was the academic qualifications were required to be obtained by the last date by which the applications were to be submitted. 9. In order to appreciate the purpose a ''proviso'' seeks to serve, it would be instructive to refer to the authoritative treatise penned by Earl T. Crawford titled- ''The Construction of Statutes'', Thomas Law Book Company, 1940 (1989 Reprint), wherein, it has been observed:- "Interstate Commerce Comm. vs. Board, 194 U.S. 25, 24 S.Ct. 563, 48 L. Ed. 860: the general purpose of the proviso, as it is well known, is to except the clause covered by it from the general provisions of the statute, or from some provisions of it, or to qualify the operation of the statute in some particular..."(Page No.604). 10. A Constitution Bench of the Supreme Court in its decision reported as AIR 1968 SC 59 , Commr. of Commercial Taxes vs. Ramkishan Shrikishan Jhaver, reiterated the said position of law and held that in exceptional circumstances a proviso may not be really a proviso in the accepted sense but may operate a substantive provision in itself. 11. Significantly, another Constitution Bench of the Supreme Court in its decision reported as (1976) 1 SCC 128 , Dwarka Prasad vs. Dwarka Das Saraf, pertinently observed that sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain and light up ambiguous edges. 11. Significantly, another Constitution Bench of the Supreme Court in its decision reported as (1976) 1 SCC 128 , Dwarka Prasad vs. Dwarka Das Saraf, pertinently observed that sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain and light up ambiguous edges. It was held that construction of a proviso requires that prima facie it be read in relation to the principal matter to which it is a proviso. In this connection it was further observed that a proviso is not a separate or an independent enactment. Upon a comprehensive survey of various judicial pronouncements holding the field, the Supreme Court in its decision reported as (1985) 1 SCC 591 , S. Sundaram Pillai v . V.R. Pattabiraman, concatenated the myriad circumstances under which the legislature employs a proviso. The luminous observations of their Lordships are extracted hitherto fore: "37. In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself. 43. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes: (1) qualifying or excepting certain provisions from the main enactment: (2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable: (3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision. 44. These seem to be by and large the main purport parameters of a proviso." [Emphasis Supplied] 12. 44. These seem to be by and large the main purport parameters of a proviso." [Emphasis Supplied] 12. The earlier decisions in Dwarka Prasad''s case (supra) and S. Sundaram Pillai''s case (supra) have been respectfully followed by the Supreme Court in its recent pronouncement reported as (2015) 15 SCC 613 , Satya Pal Singh vs. State of Madhya Pradesh & ors. 13. An analysis of the principles governing the construction of proviso''s evinces that on some occasions the legislature does enact independent substantive provisions in the guise of a proviso as opposed to its traditionally accepted sense, and it can be urged that in such situation the proviso assumes a distinct entity in the sense that it does not remain an integral part of the provision to which it stands appended. 14. We find that one of the earliest decisions of the Supreme Court on this subject is reported as AIR 1966 SC 459 , Ishverlal Thakorelal Almaula vs. Motibhai Nagjibhai wherein it was observed that the proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso would be within that clause. However, a caveat to the said principle was enunciated by clarifying that there is no rule that the proviso must always be restricted to the ambit of the main enactment and occasionally in a statute a proviso is unrelated to the subject-matter of the preceding section or contains matters extraneous to that section. Under such circumstances it would have to be interpreted as a substantive provision, dealing independently with the matter comprised therein and not as qualifying the main or the preceding section. 15. The academic qualifications prescribed by Sub-rule (3) of Rule 266 were neither expanded nor qualified by the proviso. The proviso which was inserted in the statute book on 1.7.2004 dealt with an entirely different area. It dealt with the time by which the eligibility prescribed by the Rule had to be attained in the form of the academic qualifications achieved. The amendment to Sub-rule (3) was necessitated on account of subsequent legislations concerning academic qualifications to be appointed as Teachers. Instant case would therefore require it to be held that the proviso was retained in the statute book and when Sub-rule (3) was substituted, it was the main Sub-rule and not the proviso thereto. The amendment to Sub-rule (3) was necessitated on account of subsequent legislations concerning academic qualifications to be appointed as Teachers. Instant case would therefore require it to be held that the proviso was retained in the statute book and when Sub-rule (3) was substituted, it was the main Sub-rule and not the proviso thereto. Under the circumstances the condition of the advertisement being contrary to the proviso to the Rule would be illegal for the reason an executive instruction cannot supplant a Rule. 16. The writ appeals are allowed. Impugned decision by the learned Single Judge is set aside. The writ petitions filed by the petitioners are allowed. The writ petitioners would be entitled to consequential benefits of employment given to them in light of their merit position except for back wages.