Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 410 (JK)

Suhail Bashir Kar v. State of J&K

2018-06-07

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : 1. The grievance projected in this petition by the petitioners is founded on their plea that once, during the selection process initiated by the Recruitment Board for direct recruitment vis-à-vis certain posts, the Rules prescribing direct recruitment to the posts are repealed and new Rules, prescribing the posts as promotional posts, are promulgated, the selection process initiated cannot be proceeded with. They have, therefore, sought writ of certiorari to quash the relevant advertisement notification bearing no.05 of 2015 dated 01.09.2015 alongwith notice no.SSB/Secy/Set/2017/11243-47 dated 31.10.2017 notifying the schedule for Objective Type Written Test and further sought mandamus to command the respondent no.1 to consider the petitioners for promotion on the posts in question viz. Junior Agriculture Extension Officers in terms of the new Rules. 2. It may at the very outset be observed that the question involved is not res integra and, in fact, there are catena of judgments laying down that a recruitment process, once initiated, would have to be completed under the Rules governing the Service at the commencement of the selection process and that the selection process commences with the issue of the advertisement notice. 3. The facts in context of which the above said plea is raised are noted hereunder. 4. The petitioners had been engaged as Rehbar-e-Ziraat on a monthly stipend of Rs.1500 pursuant to Government order no.20-Agri of 2007 dated 06.02.2007 read with Cabinet Decision no.248/14 dated 23.10.2006. Subsequently, by Government order no.235-Agri of 2011 dated 10.08.2011, issued pursuant to Cabinet Decision no.139/18/2011 dated 04.08.2011, sanction was accorded to the adoption of the policy formulated by the Agriculture Production Department for regularization of these Rehbar-e-Zirat and creation of 2642 posts of Village Agriculture Extension Assistant in the pay band of Rs.9300-34800 and applicable grade pay of Rs.4200, with the breakup of 881 posts in the first phase commencing with effect from 1st April, 2014; 881 posts in the second phase commencing with effect from 1st April, 2015; and 880 posts in the third phase commencing with effect from 1st April, 2016. The conditions of eligibility and mechanism for regularization etc. were provided in the policy annexed to the Government order. 5. The Service, known as the Jammu and Kashmir Agriculture Subordinate Service, was constituted and governed by the Jammu and Kashmir Agriculture (Subordinate) Service Recruitment Rules, 2004 (hereinafter, 2004 Rules). The conditions of eligibility and mechanism for regularization etc. were provided in the policy annexed to the Government order. 5. The Service, known as the Jammu and Kashmir Agriculture Subordinate Service, was constituted and governed by the Jammu and Kashmir Agriculture (Subordinate) Service Recruitment Rules, 2004 (hereinafter, 2004 Rules). There was no post of the nomenclature of Village Agriculture Extension Assistant existing in the Schedules appended to the aforesaid Rules. One of the posts shown in the Executive Cadre of Schedule-II as Class II, Category ‘A’ post was Junior Agriculture Assistant. The method of recruitment to this post was prescribed to be 60% by direct recruitment and 40% by promotion from different categories of posts mentioned therein. 6. On 30.06.2015, the Government of Jammu and Kashmir in the General Administration Department issued notification, SRO 202, notifying the Jammu and Kashmir Special Recruitment Rules, 2015. In terms of Rule 1(2) thereof, these Rules were came in force at once. Rule 3 of the aforesaid Rules provided that these Rules shall apply to all non-gazetted posts borne on the establishment of any department or service of the Government and such gazetted posts, as may be notified by the Government from time to time. Rule 4 thereof provided that all departments shall refer the existing vacancies and also the vacancies that would accrue during the year to the concerned selection agencies within a period of one month from the date of issue of the said Rules, indicating therein the cadre-wise breakup of available vacancies, viz. State, Divisional and District Cadre. Rule 5 thereof says that notwithstanding anything to the contrary contained in any rule or order for the time being in force relating to the method of recruitment and conditions of service for recruitment in any service of to any post under the Government, the appointments to all non-gazetted posts borne on the establishment of any Department or Service of the Government shall be made by the Government on temporary basis on the basis of the selection made by the Selection Committee prescribed thereunder. Rule 7 provided that the selection agency shall prepare a select list and furnish the same to the appointing authority within a period of three months from the date of reference of the vacancies and that the appointing authority shall issue appointment orders strictly in accordance with the select list within a period of 15 days positively. 7. Rule 7 provided that the selection agency shall prepare a select list and furnish the same to the appointing authority within a period of three months from the date of reference of the vacancies and that the appointing authority shall issue appointment orders strictly in accordance with the select list within a period of 15 days positively. 7. Thereafter, on 01.09.2015, the Jammu and Kashmir Services Selection Board issued Advertisement Notice No.05 of 2015, showing the same to have been issued under the Jammu and Kashmir Special Recruitment Rules, 2015 (for short, the Special Recruitment Rules), notifying 1088 vacancies of different posts mentioned in annexures thereto, which included 54 posts of Junior Agriculture Extension Officers. It appears that the selection process was not completed within the time period prescribed by Rule 7 of the Special Recruitment Rules, so much so that the Recruitment Board is stated to have notified the Schedule of Objective Type Written Examination vide notice dated 31.10.2017. 8. Meanwhile, the Government of Jammu and Kashmir Agriculture Production Department issued notification, SRO 442 on 23.10.2017 whereby it notified the Jammu and Kashmir Agriculture (Subordinate) Service Recruitment Rules, 2017 (hereinafter, 2017 Rules), repealing thereby the 2004 Rules, The Class II, Category ‘A’ post in Schedule II, B-Executive, is shown to be Junior Agriculture Extension Officer carrying the pay scale of 9300-34800 + Grade Pay of Rs.4280. The method of recruitment against this post is prescribed to be 75% by promotion from Class IV Category ‘A’ and 25% by promotion from Class-IV Category ‘B’ with Basic Agriculture Training, having at least three (03) years’ substantive service as such. Class IV, Category ‘A’ is shown to be Agriculture Extension Assistant, the posts the petitioners are holding, and Class-IV, Category ‘B’ is shown to be Compost Inspector Grade-II/Field Assistant Grade-I etc. 9. The case of the petitioners is that since the 2004 Rules stand repealed and in terms of the 2017 Rules the post of Junior Agriculture Extension Officer is to be filled in 100% by promotion from amongst Class IV Category ‘A’ and ‘B’ posts, the selection process pursuant to Advertisement notification dated 01.09.2015 for making direct recruitment against the posts cannot be proceeded with as the 2017 Rules do not prescribe direct recruitment against the posts. They, therefore, have filed this writ petition, seeking the reliefs as mentioned earlier. 10. They, therefore, have filed this writ petition, seeking the reliefs as mentioned earlier. 10. It is curious to note that the sketchy reply stated to be on behalf of the official respondents by Director, Agriculture, Kashmir, on 23.02.2018 admits the claim of the petitioners, saying that as per Rule 14 of SRO 442 of 2017, i.e., the 2017 Rules, all Rules corresponding to these Rules and in force immediately before the commencement thereof were repealed, and that there is no provision in the 2017 Rules to appoint a person directly against the post of Junior Agriculture Extension Officer. One thing is cleared in the reply that the post of Village Agriculture Extension Assistant stands re-designated as Agriculture Extension Assistant in Schedule-I of the 2017 Rules. 11. Subsequently, however, the same State counsel has filed another set of objections signed by Under Secretary to Government, Agriculture Production Department, on 21.04.2018, wherein the stand taken is that the plea of the petitioners for quashing advertisement on the ground of amended Recruitment Rules, 2017 does not merit any consideration, and that the Recruitment Rules issued vide SRO 442 dated 23.10.2017 are applicable from the date of issuance i.e. 23.10.2017, i.e., that they are prospective in application and operation. 12. It may be mentioned here that the petitioners had not impleaded any private respondent in the petition. However, respondents 4 to 14, who claimed to have offered their candidature before the Recruitment Board in response to the Advertisement bearing no.05 of 2015 dated 01.09.2015, sought arraying them as respondents and were so arraigned in the petition. They, in their reply, have vehemently resisted the writ petition, especially on the ground that since the vacancies had occurred when the old Rules of 2004 were applicable and the process of selection also commenced during the applicability of those Rules, the process has to be completed under those Rules only. It is also pointed out that the 2017 Rules are prospective, not retrospective, and that Rule 13(2) of these Rules clearly says that any action taken under the old Rules shall be deemed to have been taken under the 2017 Rules. 13. Heard learned counsel for the parties and considered the matter. The learned counsels have argued on the lines of their respective pleadings. 14. 13. Heard learned counsel for the parties and considered the matter. The learned counsels have argued on the lines of their respective pleadings. 14. The simple question involved in the matter is whether the vacancies which were governed by the 2004 Rules and were advertised vide notification no.05 of 2015 dated 01.09.2015, would be governed by the method of recruitment prescribed by the 2017 Rules? 15. Learned counsel for the petitioners sought to buttress his submissions by the following judgments: i. State of Gujarat v Patel Naranbhai Nathubai, AIR 1990 SC 1232 with specific reference to para 11 thereof; ii. Jai Singh Dalal v State of Haryana, 1993 Supp (2) SCC 600 with specific reference to paras 7 and 10 thereof; iii. State of U. P. v Satya Narain Kapoor, (2004) 8 SCC 630 with specific reference to paras 1, 13 and 14; iv. Marripati Nagaraja v. Government of AP, (2007) 11 SCC 522 with specific reference to paras 14, 15 & 16 thereof; and v. Badrinarayan Shanbkar Bhandari v Omprakash Shankar Bhandari, AIR 2014 Bombay 151. On the other hand, Mr. M.Y. Bhat, learned counsel for respondents 4 to 14 cited and relied upon the following judgments: i. P. Mahendran v State of Kerala, AIR 1990 SC 405 ; ii. N.T. Vevin Kath v Karnataka PSC, AIR 1990 SC 1233 ; iii. State of Uttaranchal v Sidharth Srivastava, AIR 2003 SC 4062 ; iv. Y.V. Rangaiah v. J. Sreenivasa Rao, AIR 1983 SC 852 ; v. State of Rajasthan v Ucchab Lal Chhanwal, (2014) 1 SCC 144 ; vi. Kartar Chand v State of J&K, 2017 (2) JKJ [HC] 416; vii. Fida Iqbal v State of J&K, SWP no.1218/2005 decided on 18.12.2008; 16. There is no controversy on facts. Therefore, it would be advantageous to directly go to the repealing clause of the 2017 Rules. It was referred to and relied upon by learned counsel on both sides. It reads as under: “13. Repeal and Savings:- (1) All rules corresponding to these rules and in force immediately before the commencement of these rules are hereby repealed. (2) Notwithstanding such repeal, any appointment order made or action taken under the provisions of the rules so repealed shall be deemed to have been made or taken under the corresponding provisions of these Rules.” 17. Repeal and Savings:- (1) All rules corresponding to these rules and in force immediately before the commencement of these rules are hereby repealed. (2) Notwithstanding such repeal, any appointment order made or action taken under the provisions of the rules so repealed shall be deemed to have been made or taken under the corresponding provisions of these Rules.” 17. As is seen, sub-rule (2) of Rule 13 of the 2017 Rules commences with a non-obstante clause, “notwithstanding such repeal” and the enacting part of the sub-rule says “any appointment order made or action taken under the provisions of the rules so repealed shall be deemed to have been made or taken under the corresponding provisions of these Rules.” It is settled law that a non-obstante clause is appended to a provision of law/Rule in the beginning with a view to giving the enacting part of the law/Rule, in case of conflict, an overriding effect over the provision of the law/Rule mentioned in the non-obstante clause. It is equivalent to saying that in spite of what is mentioned in the non-obstante clause, the enactment following it will have its full operation and that the provision embraced in the non-obstante clause would not be an impediment for an operation of the enactment. In simple terms, the non-obstante clause has the effect of excluding the operation of what is said therein [see Union of India v. G.M. Kokil, 1984 (Supp) SCC 196 (para 11), and Chandavarkar S.R. Rao v. Ashalata S. Guram, (1986) 4 SCC 447 (para 67)]. 18. Coming to the instant case, the provision of law mentioned in the non-obstante clause is the “repeal” contained in sub-rule (1) of Rule 13 of the 2017 Rules, It is, therefore, equivalent to saying that in spite of the repeal mentioned in the non-obstante clause, the enactment following it, i.e., action taken under the provisions of the rules so repealed will have its full operation and that the provision embraced in the non-obstante clause, i.e., repeal, would not be an impediment for an operation of the enactment. In simple terms, the non-obstante clause has the effect of excluding the operation of repeal on the action taken under the repealed Rules. 19. In simple terms, the non-obstante clause has the effect of excluding the operation of repeal on the action taken under the repealed Rules. 19. The provision contained in the enacting part of sub-rule (2) of Rule 13 of the 2017 Rules does not only save any appointment order made or action taken under the provisions of the repealed Rules; it proceeds a further to say that any order made or action taken under the provisions of the rules so repealed shall be deemed to have been made or taken under the corresponding provisions of these Rules. Meaning thereby that any appointment order made or action taken under the repealed Rules is treated to be made or taken under corresponding provisions of the 2017 Rules. The effect of this provision is that the driving force or power concerning the action taken vis-à-vis the posts in question under the 2004 Rules in the shape of the advertisement notice, i.e. commencement of the selection process, would continue and be deemed to be provided, prescribed and extended under the 2017 Rules. In other words, by legal fiction, what was prescribed vis-à-vis the posts in question in the 2004 Rules, would be deemed to be applicable to the posts in question for the ‘action taken’, i.e., the selection process in question, by reason of the non-obstante clause and the enacting part of sub-rule (2) of Rule 13 of the 2017 Rules, i.e., they will continue to be direct recruitment posts for the selection in question to the extent provided in 2004 Rules. 20. In light of the fact of existence of a clear provision in the shape of Rule 13(2) in the 2017 Rules, I do not feel the necessity to go to the other aspect of the matter concerning the settled position of law that once a selection process is commenced, despite change in the Rules of the Game amidst, the process of selection will have to be completed under the Rules prevalent at the time of commencement of the process, unless the new or the amended Rules are expressly stated to be retrospective in operation. Admittedly, going by Rule 1(2) of the 2017, which says that the Rules shall come into force from the date of their publication in the Government Gazette, which date would essentially fall after the date of the notification SRO 442 which is dated 23.10.2017, the Rules of 2017 are prospective in operation and they will not impact the selection process which commenced with the issuance of advertisement notification bearing no.05 of 2015 dated 01.09.2015. In fact, the judgments cited at the Bar and relied upon during the course of arguments by the learned counsel for the parties, enumerated above, are not attracted to the real point involved in this case concerning the non-obstante clause contained in Rule 13 of the 2017 Rules. Having gone through these judgments, I do not feel it necessary to explain what has been laid down therein. 21. This petition, therefore, being without any merit, is dismissed together with the connected MPs. Interim direction, if any, subsisting shall stand vacated, leaving the Recruitment Board free to proceed ahead with the selection process. 22. No order as to costs.