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2020 DIGILAW 784 (KAR)

High Court Of Karnataka v. S. m. Shivabeeraiah

2020-03-20

ABHAY S.OKA, HEMANT CHANDANGOUDAR

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JUDGMENT Abhay Shreeniwas Oka, CJ. - This appeal takes an exception to the judgment and order dated 10th July 2019 passed by the learned Single Judge on a Writ Petition filed by the respondent. 2. The respondent was appointed as a Civil Judge in Karnataka Judicial Service on the basis of Government order dated 18th March 2014. By order dated 7th February 2015, he was discharged from service in exercise of powers under sub-rule 1 of Rule 6 of the Karnataka Civil Services (Probation) Rules 1977 (for short the Probation Rules). A Writ Petition filed by the respondent for challenging the said order is pending before the learned Single Judge of this Court, in which there is no interim order granted. 3. A notification was published on 30th June 2015 inviting applications for direct recruitment to the posts of District Judges. The notification was issued in exercise of powers under Article 233 of the Constitution of India read with the provisions of the Karnataka Judicial Service (Recruitment) Rules 2004 (for short the Recruitment Rules). The respondent applied pursuant to the said advertisement and appeared for the competitive written examination. By a Circular dated 31st July 2015, a list of candidates whose candidature was rejected was declared. The name of the respondent was incorporated in the list of rejected candidates on the ground that he was discharged from judicial service. The rejection was in purported exercise of powers under Clause (b) of Rule 6 of the Recruitment Rules. This order of rejection was challenged by the respondent by filing a Writ Petition before the learned Single Judge in which impugned order was passed. The prayer in the Writ Petition was for quashing the Circular dated 31st July 2015 insofar as the respondent is concerned. A declaration was also claimed that the rejection of the application of the respondent was arbitrary and illegal. A declaration was also sought to the effect that the order of discharging the respondent from judicial service was void ab initio. The last substantive prayer was for issuing a direction that answer scripts of petitioner be sent for a fresh evaluation. 4. A declaration was also sought to the effect that the order of discharging the respondent from judicial service was void ab initio. The last substantive prayer was for issuing a direction that answer scripts of petitioner be sent for a fresh evaluation. 4. The learned Single Judge, by the impugned order, held that as per Clause (b) of Rule 6 of the Recruitment Rules prior to its amendment made out on 26th April 2016 did not provide discharge simplicitor from judicial service as a disqualification of the candidate for the post of District Judge. The learned Single Judge held that though by amending Clause (b) of Rule 6, a ground of discharge from service during probation period was added, the said amendment will not apply to the case of the respondent as it will be prospective. The learned Judge, therefore, directed the appellant - High Court Administration - to declare the result of the petitioner. The learned Judge proceeded to set aside the order by which the petitioner was held as ineligible or a rejected candidate. The learned Judge also observed that if the result be adverse to the respondent, he is at liberty to question the same before the appropriate forum in accordance with law. 5. Before we refer to the submissions made across the Bar, it is necessary to reproduce Rule 6 of the Recruitment Rules, as the same stood before the Karnataka Judiciary Service (Recruitment) (Amendment) Rules 2016 (for short the Amendment Rules) which came into force on 26th April 2016. Rule 6, as unamended, reads thus: '6. 5. Before we refer to the submissions made across the Bar, it is necessary to reproduce Rule 6 of the Recruitment Rules, as the same stood before the Karnataka Judiciary Service (Recruitment) (Amendment) Rules 2016 (for short the Amendment Rules) which came into force on 26th April 2016. Rule 6, as unamended, reads thus: '6. Disqualification for appointment:- No person shall be eligible for appointment to the service - (a) unless he is a citizen of India; (b) if he is dismissed or removed from service or compulsorily retired by any High Court, Government or statutory or local authority or other employer; (c) if he has been convicted of an offence involving moral turpitude or who is or has been permanently debarred or disqualified by the High Court or the Union Public Service Commission or any State Public Service Commission from appearing for examinations or selections conducted by it or has been removed from its roll by any Bar Council; (d) if any penalty or punishment has been imposed by the Bar Council or any disciplinary authority which in the opinion of selecting authority, makes the applicant unsuitable for a judicial post; (e) if he directly or indirectly influences the recruiting authority by any means for his candidature; (f) if the marital status of the candidate is bigamous.' (Underline supplied) 6. Clause (b) of Rule 6 was substituted by the Amendment Rules with effect 26th April 2016. Sub-rule (4) of the Amendment Rules, which incorporates substituted Clause (b), reads thus: '4. Amendment of rule 6:- In rule 6 of the said rules, for clause (b), the following shall be substituted, namely:- '(b) If he/she is compulsorily retired, removed or dismissed from Judicial Service or from service in Government or Statutory or Local Authority or if a candidate after being selected as a Judicial Officer has been discharged from service during probationary period.' (Underline supplied) 7. The first submission of the learned counsel for the appellant is that even in unamended Clause (b) of Rule 6, disqualification on the ground of removal of service was incorporated which will include discharge from service during probationary period. He submitted that the amendment made by the Amendment Rules merely clarifies Clause (b) of Rule 6 of the Recruitment Rules and therefore, the amendment to Clause (b) of Rule-6 will have a retrospective operation. He submitted that the amendment made by the Amendment Rules merely clarifies Clause (b) of Rule 6 of the Recruitment Rules and therefore, the amendment to Clause (b) of Rule-6 will have a retrospective operation. Secondly, he submitted that Clause (b) of Rule 6 has been substituted by the Amendment Rules. He submitted that the substituted provision is not repugnant or inconsistent with the original Clause (b) and therefore, substituted Clause (b) of Rule 6 must be construed as if it has been incorporated in the Recruitment Rules ab initio. He would submit that the amendment made by substituting Clause (b) of Rule 6 will have retrospective operation. He relied upon a decision of this Court in the case of the Hassan Co-operative Milk Producers Societies Union Limited and Others v. State of Karnataka, Department of Co-operative Societies and Others ILR 2014 Kar 4257 . He also relied upon a decision of the Apex Court in the case of Zile Singh v. State of Haryana and Others AIR 2004 Supreme Court 5100 . He also relied upon a decision of the Apex Court in the case of S.S. Grewal v. State of Punjab and Others 1993 Supp (3) Supreme Court Cases 234 . He also relied upon another decision of the Apex Court in the case of R. Rajagopal Reddy (Dead) by LRs., and others v. Padmini Chandrashekharan (Dead) by LRs 1995 (2) Supreme Court Cases 630 . He also relied upon a recent decision of the Apex Court in the case of Ram Murti Yadav v. State of Uttar Pradesh and Another 2019 SCC OnLine SC 1589 , for pointing out the nature of the judicial duties and especially the fact that a person discharging judicial duties acts on behalf of the State in discharge of its sovereign functions. 8. The respondent appearing in person submitted that giving retrospective effect to the Amendment Rules amounts to violation of fundamental rights of the respondent under Article 14 of the Constitution of India and Clause (1) of Article 16 of the Constitution of India. He submitted that the Amendment Rules have no retrospective operation. He submitted that even assuming that the amendment is retrospective, the same has to be declared as void being arbitrary. He submitted that the Amendment Rules have no retrospective operation. He submitted that even assuming that the amendment is retrospective, the same has to be declared as void being arbitrary. He submitted that in any event, considering the language used in Clause (b) of Rule 6 as unamended, the amended Rule will apply to discharge of a probationer under Rule 7 of the Probation Rules and not under Rule 6 thereof. 9. The respondent submitted that in the Amendment Rules, there is no indication that the Rule will have retrospective operation. He relied upon a decision of the Apex Court in this behalf in the case of P. Mahendran and others v. State of Karnataka and Others (1990) 1 Supreme Court Cases 411 . He also relied upon a decision of the Apex Court in the case of Sri Vijayalakshmi Rice Mills, New Contractors Co. and others v. State of Andhra Pradesh (1976) 3 Supreme Court Cases 37 . He submitted that as the appellant is relying upon the Amendment Rules for the first time in this appeal, he is entitled to challenge the constitutional validity of the Amendment Rules on the ground that the amended Clause (b) of Rule 6 is highly arbitrary and discriminatory. He relied upon a decision of the Apex Court in the case of K.S. Puttaswamy v. Union of India 2017 (10) SCC 1 and Maneka Gandhi v. Union of India (1978) 1 SCC 248 . He would submit that as the amended Clause (b) of Rule 6 is unconstitutional and void, the appellant cannot rely upon the same. 10. We have considered the submissions. We have already quoted Clause (b) of Rule 6 as it existed prior to its amendment and Clause (b) of Rule 6 after the amendment. Under Clause (b), as unamended, the disqualification for appointment to the posts in judicial service was provided in case of a candidate who is dismissed or removed from service or compulsorily retired by any High Court or Government or statutory or local authority or other employer. In service jurisprudence, there is a difference between removal from employment and discharge from employment of a probationer. Dismissal or removal from service is completely different from discharge of a probationer. The dismissal or removal from employment is in the nature of a penalty, but discharge of a probationer is not by way of penalty. In service jurisprudence, there is a difference between removal from employment and discharge from employment of a probationer. Dismissal or removal from service is completely different from discharge of a probationer. The dismissal or removal from employment is in the nature of a penalty, but discharge of a probationer is not by way of penalty. The discharge is normally on the ground of unsuitability or unsatisfactory performance during the probation period. Again, a compulsory retirement is totally different from discharge of a probationer. An order of compulsory retirement of a Judicial Officer can be by way of penalty or on the ground to weed out a deadwood. Therefore, it is impossible to accept the submission that discharge of a probationer was always included in Clause (b) of Rule 6 and in particular, in the category of 'removal from service'. 11. By the Amendment Rules which came into force on 26th April 2016, Clause (b) of Rule 6 was substituted to include additional disqualification of discharge from service during the probationary period. 12. Now, the question is firstly, whether the substituted Clause (b) of Rule 6 is clarificatory in nature. From Sub-Rule (4) of the Amendment Rules by which Clause (b) was substituted and from the language of Clause (b) which is substituted, it is obvious that the ground of discharge from service during the probationary period has been added in addition to the ground of compulsory retirement or removal or dismissal from service. The grounds which existed in the unamended Clause (b) of Rule 6 of the Recruitment Rules are distinct from discharge of a probationer. Hence, the amendment of substituted Clause (b) of Rule 6 cannot be said to be clarificatory in nature. Moreover, in the Amendment Rules, there is no indication that the amendment is clarificatory in nature. 13. It is true that Clause (b) of Rule 6 has been substituted. Whether such a provision will have retrospective operation is a question to be decided. The Full Bench of this Court in the case of Hassan Co-operative Milk Producers Societies Union Limited (supra) relied upon the decision of the Apex Court in the case of Zile Singh (supra). In paragraph No. 21, the Full Bench held thus: '21. Whether such a provision will have retrospective operation is a question to be decided. The Full Bench of this Court in the case of Hassan Co-operative Milk Producers Societies Union Limited (supra) relied upon the decision of the Apex Court in the case of Zile Singh (supra). In paragraph No. 21, the Full Bench held thus: '21. We would also like to examine the effect of amendment by way of substitution and to find out whether amendment by Act No. 3 of 2013, by way of substitution would have retrospective operation. It is true that substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. When the Legislature amends the old provision by way of substitution it intends to keep alive the old provision. The Supreme Court in Zile Singh (supra), while dealing with such situation observed that having regard to the totality of the circumstances centered around the issue the Court can hold that the substitution has the effect of just deleting the old provision and making the new provision operative. The Supreme Court in State of Rajasthan v. Mangilal Pindwal (AIR 1969 SC 2181) upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held the substitution would have the effect of a amending operation of law during the period in which it was in force. Similarly, in Koteswar Vittal Kamath v. K. Rangappa Baliga ( AIR 1969 SC 504 ) , the three Judge Bench of the Supreme Court emphasized the distinction between supersession of rule and substitution of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. Thus, what emerges from the aforesaid judgments of the Supreme Court is that an amendment which has the effect of substitution of a provision has the effect of replacing the old provision by the substituted provision and in the absence of repugnancy, inconsistency and absurdity, must be construed as if it has been incorporated in the Act right from ab initio. In other words, an amendment by way of substitution has retrospective operation.' (Underline supplied) 14. In other words, an amendment by way of substitution has retrospective operation.' (Underline supplied) 14. In the case of Zile Singh (supra), in paragraphs 13 and 14, the Apex Court held thus: '13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only nova constitutio futuris formam imponere debet non praeteritis - a new law ought to regulate what is to follow, not the past. (See: Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, 2004 at p. 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid, p. 440). 14. The presumption against retrospective operation is not applicable to declaratory statutesIn determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect (ibid, pp. 468-469).' (Underline supplied) In paragraphs 24 and 25 of the said decision, the Apex Court held thus: '24. The substitution of one text for the other pre-existing text is one of the known and well-recognized practices employed in legislative drafting. Substitution has to be distinguished from supersession or a mere repeal of an existing provision. 25. 468-469).' (Underline supplied) In paragraphs 24 and 25 of the said decision, the Apex Court held thus: '24. The substitution of one text for the other pre-existing text is one of the known and well-recognized practices employed in legislative drafting. Substitution has to be distinguished from supersession or a mere repeal of an existing provision. 25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (See Principles of Statutory Interpretation, ibid, p. 565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. and Ors. v. State of U.P. and Ors., (2002) 2 SCC 645 , State of Rajasthan v. Mangilal Pindwal, (1996) 5 SCC 60 , Koteswar Vittal Kamath v. K. Rangappa Baliga and Co., (1969) 1 SCC 255 and A.L.V.R.S.T. Veerappa Chettiar v. S. Michael and ors., AIR 1963 SC 933 . In West U.P. Sugar Mills Association and Ors.s case (supra) a three Judge Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centering around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwals case (supra) this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswars case (supra) a three Judge Bench of this Court emphasized the distinction between supersession of a rule and substitution of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place.' (Underline supplied) 15. Coming back to Clause (b) of Rule 6, as unamended, the disqualification incorporated was on the basis of dismissal or removal from service which is by way of penalty or on the ground of compulsory retirement. By no stretch of imagination, discharge of a probationer can be included in the concept of removal/dismissal from service or compulsory retirement. 16. Coming back to Clause (b) of Rule 6, as unamended, the disqualification incorporated was on the basis of dismissal or removal from service which is by way of penalty or on the ground of compulsory retirement. By no stretch of imagination, discharge of a probationer can be included in the concept of removal/dismissal from service or compulsory retirement. 16. Perusal of the Amendment Rules and in particular, Rule 4 by which Clause (b) of Rule 6 was substituted gives no indication that the amendment is declaratory in nature that the amendment will have retrospective effect. While substituting Clause (b), additional ground of disqualification being discharge from judicial service of a probationer has been included which is distinct and separate from the existing grounds of disqualification in the unamended Clause (b). Thus, the substituted Clause (b) of Rule 6 is to that extent inconsistent with the grounds in the original Clause (b) of Rule 6. For that reason and for another reason that in the Amendment Rules there is no indication that the substitution of Clause (b) of Rule 6 will have retrospective operation, it cannot be held that the amendment made by substituting Clause (b) of Rule 6 operates retrospectively. Neither the Amendment Rules nor the amended Rule give an indication that the amendment is merely clarificatory. 17. Therefore, the learned Single Judge has rightly held that on the date on which the respondent was held to be disqualified for the post of District Judge, Clause (b) of Rule 6 was not substituted and in the original Clause (b) of Rule 6, the ground of discharge of a probationer under sub-Rule (1) of Rule 6 of Probation Rules was not included. Therefore, to that extent, it is difficult to find fault with the view taken by the learned Single Judge. 18. We had called upon the Registry to produce the result of the petitioner in the competitive examination. The result shows that the respondent has failed. Therefore, we are upholding the view taken by the learned Single Judge that the petitioner was not disqualified by virtue of Clause (b) of Rule 6 considering the Recruitment Rules as they stood when the respondent appeared for competitive examination. However, we have found that the respondent had failed in the competitive examination. Therefore, we are upholding the view taken by the learned Single Judge that the petitioner was not disqualified by virtue of Clause (b) of Rule 6 considering the Recruitment Rules as they stood when the respondent appeared for competitive examination. However, we have found that the respondent had failed in the competitive examination. Hence, no further relief can be granted as the respondent is not entitled to seek appointment to the post for which he had applied. 19. Subject to the clarification made above and subject to recording that the respondent has failed in the competitive examination, no interference is called for with the impugned order and the appeal is accordingly dismissed. 20. We, however, make it clear that the direction in the impugned order to declare the result of the respondent need not be implemented.