judgement:
Appeal No. 1150 of 1978.
From the Judgment and Order dated 22.9.1976 of the Bombay High Court in Special Civil Appln.
No. 1544 of 1971.
B. Datta, J.P. Pathak and P.H.Parekh for the Appellant.
A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
The facts found in this appeal show that the appellant, Laxmi Bai, was at the relevant time a member of a joint family with her son, the partition pleaded by the appellant not having been accepted as genuine by the author ities concerned.
She terminated the tenancy of the predeces sor in title of the respondents by a notice dated June 24, 1960.
Under the provisions of Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter re ferred to as "the said Act"), April 1, 1957, was declared as the tillers ' day and Section 32 of the said Act provided biter alia that the tenants of the land who fell within any of categories described in sub section (1) of the said section were deemed to have purchased the land held by them as tenants from their landlords, free of all encumbrances subsisting thereon on the said day.
The case of the appel lant is that, in the present case, the tillers ' day was postponed in view of the provisions of clause (a) of sub section (1) of Section 32 F of the said Act, as she was a widow and hence, it must be held that she had terminated the tenancy of tenant, Dayanu, the predecessor in title of the respondents before he became a deemed purchaser of the land.
It is not possible to accept this contention in view of the proviso to sub section (1) of Section 32 F of the said Act which provides, inter alia that the tillers ' day would not get postponed where the widow land owner is a member of a joint family, one of the members whereof was outside the protected categories mentioned under clause (a) of sub section (1) of Section 32 F of the said Act.
In the present case, there is no dispute that the son of the appellant who was joint with her did not fall within any of the categories referred to in clause (a) of sub section (1) of Section 32 F of the said Act.
In these circumstances, Dayanu became the owner of the said land on the tillers ' day as a deemed predecessor and the appellant lost her rights in the said land.
Notice given thereafter is of no avail.
The appeal fails and is dismissed with no order as to costs.
N.P.V Appeal dismissed.

summary/full:
The appellant, was a member of a joint family with her son.
She terminated the tenancy of the predecessor in title of the respondents, by a notice dated June 24, 1960, giving rise to litigation culminating in the appeal before this Court by the appellant, on the question whether the tenant became deemed purchaser of the land in question, in terms of Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, which had declared April 1, 1957 as the tillers ' day and that the tenants of the lands who fell within any of the categories described in sub section (1) were deemed to have purchased the land held by them as tenants from their land lords, free from all encumbrances subsisting thereon on that day.
It was contended that in view of the provisions of clause (a) of subsection (1) of Section 32F of the Act, the tillers ' day was postponed in respect of the land in ques tion as the appellant was a widow, and hence it must be declared that she had terminated the tenancy of the tenant before he became a deemed purchaser of the land.
Dismissing the appeal, this Court, HELD: 1.1.
The proviso to sub section (1) of Section 32F of the Bombay Tenancy and Agricultural Lands Act, 1948, provides inter alia that the tillers ' day would not get postponed where the widow land owner is a member of a joint family, one of the members whereof was outside the protected categories mentioned under clause (a) of sub section (1) of Section 32F of the Act.
[457 F] 1.2 In the instant case, admittedly, the son of the appellant who was joint with her did not fall within any of the categories referred to in clause (a) of sub section (1) of Section 32F of the Act.
Hence the predecessor intitle of the respondents became the owner of the said land on the tillers ' day as a deemed purchaser and the appellant lost her rights in the said 457 land.
Notice given thereafter is of no avail.
[457 G]


judgement:
Appeal No. 5617 of 1990.
From the Judgment and Order dated 9.8.1990 of the Karna taka Administrative Tribunal, Bangalore in Application No. 3155 of 1989.
P.P. Rao, S.R. Bhat, Alok Aggarwal and Ms. Mohini L. Bhat 1or the Appellant.
393 P. Chidambaram, M. Veerappa (N.P.) and K.H Nobin Singh for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Even the General Law later in time, prevails over the earlier Special Law if it clearly and directly supersedes the said Special Law ' is an unexcep tionable proposition of law.
K. Jayachandra Reddy, J. has interpreted Rule 3(2) of General Rules consistently with Rules 1(3)(a), 3(1) and 4(2) of the same Rules.
Giving harmonious construction to various provisions of the General Rules the learned Judge has held that the General Rules do not supersede the Special Rules.
Yogeshwar Dayal, J. on the other hand has focused his attention on the language of Rule 3(2) of the General Rules and has concluded that there is clear indication in the said Rule to supersede the Special Rules.
I have given my thoughtful consideration to the reason ing adopted by the learned Judges in their respective judg ments.
Rule 1(3)(a) of the General Rules, which lays down the extent and applicability of the General Rules, specifi cally provides that the General Rules shall not be applica ble to the State Civil Services for which there are express provisions under any law for the time being in force.
When the General Rules were enforced the Special Rules were already holding the field.
The Special Rules being "law" the application of the General Rules is excluded to the extent the field is occupied by the Special Rules.
I do not agree that the non obstante clause in Rule 3(2) of the General Rules has an overriding effect on Rule, 1(3)(a) of the said Rules.
With utmost respect to the erudite judgment prepared by Yogeshwar Dayal, J. I prefer the reasoning and the conclusions reached by K. Jayachandra Reddy, J. and agree with the judgment proposed by him.
K.JAYACHANDRA REDDY, J.
This appeal is directed against the order of the Administrative Tribunal, Bangalore dismiss ing an application filed by the appellant.
The principal question involved is whether SubRule (2) of Rule 3 of Karna taka Civil Services (General Recruitment) Rules, 1977 ( 'General Rules ' for short) has the overriding effect over the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 ( 'Special Rules ' for short).
For a better appreciation of the question it becomes necessary to state few facts.
The appellant was appointed initially as Inspector of Motor ' Vehicle and was promoted as Assistant Regional Transport Officer in the 394 year 1976 in which year the Special Rules were framed.
In the year 1981 the appellant was promoted as Regional Trans port Officer.
Some of the General Rules of 1977 were amended in the year 1982 and Sub Rule 2 of Rule 3 was inserted in the said Rules.
In the year 1989 the second respondent was promoted as Deputy Commissioner of Transport on seniority cure merit basis alone as purported to have been provided in new Rule 3(2) of General Rules.
Being aggrieved by the same the appellant filed an Application No. 3155/89 before the Karnataka Administrative Tribunal questioning the promotion of second respondent on the ground that the promotion to the post of Deputy Commissioner of Transport should be by selec tion from the cadre of Regional Transport Officers and not merely on seniority cum merit basis.
His application was dismissed by the Tribunal holding that Rule 3(2) of General Rules which was introduced later overrides the earlier Special Rules.
It is this order which is questioned in this appeal.
Shri P.P. Rao, learned counsel appearing for the appel lant contended that the Special Rules are exclusively meant to govern the recruitment and promotion of officers of various cadres of the Motor Vehicle Department and the General Rules which generally regulate the recruitment of all State Civil Services broadly even though later in point of time cannot abrogate the Special Rules and that they are not meant to do so since the Special Rules also are very much in force inasmuch as they are not superseded.
Shri P. Chidambaram, learned counsel for the State of Karnataka contended that the non obstante clause in Rule 3(2) of the General Rules which was introduced later clearly indicate the intention of he Legislature to supersede the Special Rules and promotions from the cadre of Regional Transport Officer to that of Deputy Commissioner of Transport could only be on the basis of seniority cam merit and not by election.
From the rival contentions it emerges that the real question involved is one of construction of non ob stante clause in Rule 3(2) and its fleet on the Special Rules providing for promotion to the post of Deputy Commis sioner of Transport by selection from the cadre of Regional Transport Officers.
We shall now refer to the relevant Special and General Rules.
The special Rules were framed in exercise of the powers conferred by the proviso to Article 309 of the Con stitution of India in the year 1976.
The special Rules of recruitment for the category of post of Deputy Commissioner of Transport reads thus: 395 Category of Method of Minimum posts recruitment Qualification 1. 2. 3.
Deputy Transport By promotion by Must have put in not Commissioner selection from the less than five years of cadre of Regional service in cadre of Transport Officers Regional Transport Officers.
" It can be seen that this part of Special Rules clearly provides for promotion to the post of Deputy Commissioner of Transport by selection from the cadre of Regional Transport Officers who have put in not less than five years of serv ice.
The General Rules were framed in the year 1977 and Rule 3 reads as under: "Method of recruitment (1) Except as otherwise provided in these rules or any other rules specially made in this behalf, recruitment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority cure merit.
The methods of recruitment and qualifications shall be as specified in the rules of recruitment special ly made in that behalf, ' provided that in respect of direct recruitment to any service or post when the method of recruitment is not specified in the rules of recruitment specially made, the method of recruitment be by selection after an interview by the Commission, the Advisory of Selection Committee or the Appointing Authori ty as the case may be.
Provided further that no person shall be eligible for promotion unless he has satisfac torily completed the period of probation or officiation, as the case may be, in the post held by him.
(2) Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or (a) the promotion to the post of Head of Department or the 396 post of an Additional Head of Department, if it is in a grade equivalent to that of the Head of Department concerned, shall be by selection; Provided that for the purpose of promotion by selection, the number of persons to be consid ered shall be such number of persons eligible for promotion in the order of seniority, as is equal to five times the number of vacancies to be filled.
(b) the promotion to all other posts shall be on the basis of seniority cam merit." (Emphasis supplied) It may be noted that Sub Rule 3(2) with which we are mainly concerned was inserted in the year 1982.
Shri Chidam baram strongly relying on the non obstante clause in Rule 3(2) with which this Sub Rule begins, contended that this general rule dearly supersedes the special law and there fore, according to him, the Tribunal was right in holding that the promotion to the post of Deputy Commissioner of Transport could be only on the basis of seniority cum merit.
It is true that a simple reading of Rule 3(2) appears to lay down that notwithstanding anything contained in the General Rules or in the Special Rules, the promotion to the post of a Head or Additional Head of a Department only shall be by selection and that the promotion to all other posts shall be on the basis Of seniority cum merit.
This clause (b) of Sub Rule (2) is in general terms and as already noted the General Rules indicate that they regulate general recruit ment to all the Karnataka State Civil Services broadly.
It is not in dispute that just like the Special Rules providing for recruitment of the Transport Department there are such special rules in respect of many other departments also.
It is therefore clear that while General Rules broadly indicate that they regulate general recruitment including promotion to all the State Civil Services but at the same time each Department has its own Special Rules of recruitment and they are co existing.
Such Special Rules of recruitment for the Motor Vehicles Department are not repealed by any provision of the General Rules which are later in point of time.
As a matter of fact Rule 21 which provides for repeal does not in any manner indicate that any of the Special Rules stood repealed.
It is in this background that we have to consider the interpretation of non obstante clause in Rule 3(2) of the General Rules.
At this juncture it is necessary to note that some of the rules of the General Rules also provide for promotion by way of selection and that Special Rules providing for such promotion by selection should be adhered 397 to.
They are Rule 1(3)(a), the first part of Rule 3 and Rule 4 which are existing.
In Sub rule 1(3)(a) of the General Rules, we find the following "1(3)(a) These rules shall apply to recruit ment to all State Services and to all posts in connection with the affairs of the State of Karnataka and to members of all State Civil Services and to the holders of posts whether temporary or permanent except to the extent otherwise expressly provided (i) by or under any law for the time being in force; or XX XX (emphasis supplied) This is the opening rule of the General Rules and it abundantly makes it clear that the rest of the rules are subject to any other rules expressly providing for recruit ment.
Then in clause (1) of Rule (3) of the General Rules we find the words "Except as otherwise provided in these Rules or any other rules specially made in this behalf recruitment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selec tion or by promotion which may be either by selection or on the basis of seniority cum merit.
The methods of recruit ment and qualification shall be as specified in the rule of recruitment specially made in that behalf.
" This part of General Rule 3 provides for recruitment by way of promotion either by selection or on the basis of seniority cum merit as specified in the said Rules of recruitment specially made.
Further the opening words of clause (1) "Except as otherwise provided in these Rules or any other Rules spe cially made" give a clue that the special rules would govern and regulate the method of recruitment including promotion by way of selection.
Further Rule 4 of the General Rules which lays down the procedure of appointment contains Sub Rule 2 which reads as under: "4.
Procedure of appointment subject to the provisions of these rules, appointment to any service or post shall be made xxxx xxxx xxxx (2) in the case of recruitment by promotion (a) if it is to a post to be filled by promo tion by, selection, by selection of a 398 person, on the basis of merit and suitability in all respects to discharges the duties of the post with due regard to seniority from among persons eligible for promotion.
(b) if it is to a post other than that re ferred to in sub clause (a) by selection of a person on the basis of seniority cure merit, that is, seniority subject to fitness of the candidate to discharge the duties of the post, from among persons eligible for promotion." (emphasis supplied) Though Rule 3(2) of the General Rules is inserted later, the above mentioned Rules remain undisturbed and they co exist.
They provide for recruitment and promotion by selection to certain categories of posts and for others on the basis of seniority cure merit.
From a combined reading of these provisions of General Rules it follows that re cruitment to any service by promotion as regulated by Special Rules can be by way of selection.
"Then the question is whether Rule 3(2) of the General Rules which is intro duced in 1982 particularly providing the method of promotion by selection to the post of heads and additional heads of departments has altogether dispensed with the promotion by selection to all other posts and whether, the non obstante clause in this rule, in these circumstances can be inter preted as to have the overriding effect as contended by the learned counsel for the respondents.
The non obstante clause is sometimes appended to a section or a rule in the begin ning with a view to give the enacting part of that section or rule in case of conflict, an overriding effect over the provisions or act mentioned in that clause.
Such a clause is usually used in the provision to indicate that the said provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause.
But it has to be noted at this stage that we are concerned with the enforceability of special law on the subject inspire of the general law.
In Maxwell on the Interpretation or Signites, Eleventh Edition at page 168, this principle of law is stated as under: "A general later law does not abrogate an earlier special one by mere implication.
Generalia specialibus non derogant, or, in other words," where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such 399 general words, without any indication of a particular intention to do so.
In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act." In Maharaja Pratap Singh Bahadur vs Thakur Manmohan Dey and ors. ,AIR 1966 S.C. 1931, applying this principle it is held that general law does not abrogate earlier special law by mere implication.
In Eileen Louise Nicoole vs John Winter Nicolle, , Lord Phillimore observed as under: "It is a sound principle of all juris prudence that a prior particular law is not easily to be held to be abrogated by a poste rior law, expressed in general terms and by the apparent generality of its language ap plicable to and covering a number of cases, of which the particular law is but one.
This, as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute, or be the underlying common or customary law of the country.
Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, that earlier and special legislation is not to be held indi rectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.
" In Justiniane Augusto De Piedade Barreto vs Antonio Vicente Da Fortseca and others etc.; , , this Court observed that A law which is essentially general in nature may contain special provisions on certain matters and in respect of these matters it would be classified as a special law.
Therefore unless the special law is abrogated by express repeal or by making provisions which arc wholly inconsistent with it, the special law cannot be held to have been abrogated by mere implication.
I have already noted that even in the General Rules the promotion by selection is provided for and if there are any special rules in that regard they are not abrogated except by an express repeal.
I shall now examine whether the interpretation of non obstante clause in Rule 3(2) of the General Rules as given by the Tribunal is warranted.
The Tribunal has held that the non obstante clause which was 400 introduced in the General Rules clearly indicates the inten tion to supersede the special law.
The Tribunal has also noted even a later general law provision can override earli er special law if it clearly indicates the intention to supersede the special law.
As a proposition of law one cannot dispute this part of the finding but I am not able to agree with the finding of the Tribunal that the non obstante clause in Rule 3(2) clearly abrogates earlier special law.
This very question was considered by Karnataka High Court in Muniswamy vs Superintendent of Police, ILR 1986 Karnataka 344 (Vol. 36).
In that case also the same General Rules and particularly Rule 3(2) inserted later came up for consideration.
The Special Rules were that of Karnataka State Police State Recruitment Rules, 1967.
The Director General of Police issued a circular for the purpose of recruitment of Head Constables on purely seniority cum merit basis.
It was contended that the posts of the Head Consta bles have to be filled up by promotion by selection as provided in the Special Rules and Rule 3(2) of the General Rules cannot have an overriding effect inspire of a non obstante clause.
The Division Bench of the Karnataka High Court held that Sub rule (2) of Rule (3) which is an amend ment to the General Rules cannot be treated as an amendment to the Special Police Rules and that Rule 3(2) cannot be read as amending all other special rules of recruitment of all other department of Government in general.
It also further observed that this amendment to the General Rules must be read as subordinate to the application of Rules declared by Rule 1(3) of the Rules and cannot be read as enlarging the scope.
This judgment rendered by the High Court in the year 1986 has become final.
The fact that the State did not appeal or repeal the Special Rules suitably in spite of the decision clinchingly shows that it accepted this position.
In Aswini Kumar Ghosh and Another vs Arabinda Bose and Another, ; , it was observed as under: "It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment.
" It was further held that: 401 "Nor can we read the non obstante clause as specifically repealing only the particular provisions which the learned Judges below have been at pains to pick out from the Bar Coun cils Act and the Original Side Rules of the Calcutta, and Bombay High Courts.
If, as we have pointed out, the enacting part of section 2 covers all Advocates of the Supreme Court, the non obstante clause can reasonably be read as overriding "anything contained" in any relevant existing law which is inconsistent with the new enactment, although the draftsman appears to have had primarily in his mind a particular type of law as conflicting with the new Act.
The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for, even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it.
Posteriors leges priores contrarias abrogant (Broomo 's Legal Maxims, 10th Edn., p.347)." (emphasis supplied) In The Dominion of India (Now the Union of India) and another vs Shribai A. Irani and another; , , it was observed as under: "While recognising the force of this argument it is however necessary to observe that al though ordinarily there should be a close approximation between the non obstante clause and the operative part of the section, 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.
If the words of the enactment are clear and are capable of only one interpretation on a plain and gram matical construction of the words thereof a 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 Legisla ture by way of abundant caution and not by way of limiting the ambit and scope of the opera tive part of the enactment".
(emphasis supplied) In Union of India and Another.
vs G.M. Kokil and 0 hers.
, it was observed as under: "It is well known that a 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 Chandavarkar Sita Ratna Rao vs Ashalata section Guram, [ ; , the scope of non obstante clause is ex plained in the following words: "A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of con flict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause.
It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment.
" 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 overrid ing 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 interpreta tion 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 Spe cial Rules.
Further, the influence of a non obstante clause has to be considered on the basis of the context also in which it is used.
In State of West Bengal vs Union of India, [1964] 1 SCR 371, it is observed as under: "The Court must ascertain the intention of the legislature by 403 directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs.
" It is also well settled that the Court should examine every word of a statute in its context and to use context in its widest sense.
In Reserve Bank of India etc.
vs Peerless General Finance and Investment Co. Ltd. & Ors. ; , it is observed that "That interpretation is best which makes the textual interpretation match the contextual".
In this case, Chinnapa Reddy, J. noting the importance of the context in which every word is used in the matter of inter pretation of statutes held thus: 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 we know why it was enacted.
With this knowl edge, 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.
With these glasses we 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".
If we examine the scope of Rule 3(2) particularly along with other General Rules, the context in which Rule 3(2) is made is very clear.
It is not enacted to supersede the Special Rules.
As already noted, there should be a clear inconsistency between the two enactments before giving an overriding effect to the non obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to non obstante clause.
In the instant case we have noticed that even the General Rules of which Rule 404 3(2) forms a part provide for promotion by selection.
As a matter of fact Rules 1(3)(a) and 3(1) and 4 also provide for the enforceability of the Special Rules.
The very Rule 3 of the General Rules which provides for recruitment also pro vides for promotion by selection and further lays down that the methods of recruitment shall be as specified in the Special Rules, if any.
In this background if we examine the General Rules it becomes dear that the object of these Rules only is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular department.
In such a situation both the Rules including Rule 1(3)(a), 3(1)and 4 of general rules should be read together.
If so read it becomes plain that there is no inconsistency and that amendment by inserting Rule 3(2) is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules.
The Amendment also must be read as being subject to Rules 1(3)(a), 3(1) and 4(2) of the General Rules themselves.
The amendment cannot be read as abrogating all other Special Rules in respect of all departments.
In a given case where there are no Special Rules then naturally the General Rules would be applicable.
Just because there is a non obstante clause, in Rule 3(2) it cannot be interpreted that the said amendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which co exists particularly when no patent conflict or inconsistency can be spelt out.
As already noted Rules 1(3)(a), 3(1) and 4 of the General Rules themselves provide for promotion by selection and for enforceability of the Special Rules in that regard.
Therefore there is no patent conflict or inconsistency at all between the General and the Special Rules.
Shri P. Chidambaram, in this context, however, submit ted that the intention of the Legislature is to do away with promotion by selection and instead of amending every special rule, the General Rule in the form of Rule 3(2) is inserted and therefore by virtue of non obstante clause all other special rules governing the recruitment to all departments stand abrogated.
I am unable to agree.
If such was the intention of the amendment then I see no reason as to why even in the General Rules as noted above the promotion by selection is recognised and provided for and these Rules remain unaffected.
This is also clear from the fact that the Government did not even appeal against the High Court deci sion rendered in Muniswamy 's case.
Shri P. Chidambaram, however, further submitted that a plain reading of Rule 3(2) which is later in point of time would clearly indicate that 405 the Special Rule providing for promotion by selection is repealed at least by implication.
There is no doubt that a later statute may repeal an earlier one either expressly or by implication.
In the instant case we have already noted that there is no express repeal of the Special Rule provid ing for promotion by selection.
The Courts have not favoured such repeal by implication.
On the other hand it is indicat ed by the courts that if earlier and later statutes can reasonably be construed in such a way that both can be .
given effect to, the same must be done.
In Re Chance Farewell, J. observed that "If it is possible it is my duty so to read the section . . as not to effect an implied repeal of the earlier Act".
In Kunter vs Phi/lips it is held that: "It is only when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one then only the two cannot stand together and the earlier stands abrogated by the later".
In Municipal Council Palai vs T.J. Joseph, ; , this Court has observed that there is a presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation.
It is further observed that such a presumption can be rebutted and repeal by necessary implication can be inferred only when the provisions of the later Act are so inconsist ent with or repugnant to the provisions of the earlier Act, that the two cannot stand together.
I am satisfied that there is no patent inconsistency between the General and Special Rules but on the other hand they co exist.
Therefore, there is no scope whatsoever to infer the repeal by implication as contended by the learned counsel Shri.
Chidambaram.
In the result the appeal is allowed and the Government is directed to consider the case of the appellant for promo tion to the post of Deputy Commissioner of Transport on the basis of promotion by selection, as provided in the Special Rules namely Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976.
In the circumstances of the case there will be no order as to costs.
YOGESHWAR DAYAL, J.
I have had the pleasure of going through the judgment prepared by my learned brother, Justice K.J. Reddy.
However, with due respect, 1 regret 1 have not been able to persuade myself to 406 agree to either his reasoning or the conclusion.
There is no quarrel that general principle is that special law prevails over general law but the learned Judge has failed to note that even there is an exception to such a general law, namely it is a later general law which prevails over the earlier special law if it clearly indicates the intention to supersede the special law.
This appeal by Special Leave has been filed by Sri R.S. Raghunath against the order of the Karnataka Administrative Tribunal, Bangalore, dated 9th August, 1990.
Before the Tribunal the appellant sought a declaration that the promo tion of Shri I.K. Devaiah, respondent No. 2 herein, was illegal and to direct the respondent No. 1 to consider the case of the appellant for promotion to the cadre of Deputy Transport Commissioner with all consequential benefits.
The Tribunal dismissed the application filed by the appellant.
The Tribunal was called upon to construe Rule 3(2) of the Karnataka Civil Services (General Recruitment) Rules, 1977 as amended in June, 1982 (hereinafter referred to as "the General Rules ')The Tribunal, after considering the general Rules took the view that the non obstante clause in Rule 3(2) of the General Rules which was introduced after framing of the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 (in short 'the Special Rules ') clearly indicates the intention to supersede the special law.
The Tribunal took the view that the general principle that the special law prevails over the general law has one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law.
The Tribunal held that a non obstante clause in Rule 3(2) of the General Rules, which was enacted after the Special Rules, clearly indicates the intention to supersede the special law.
The controversy rises in the following circumstances.
The Special Rules came into force on or about 10th December, 1976 on the publication of the same in the Karna taka Gazette (Extraordinary).
It consisted of only two Rules (I) and (II).
The first Rule gave the 'title and commencement ' and the second Rule dealt with the 'method of recruitment and minimum qualifications '.
There was a sched ule attached to Rule 1I.
In the schedule for the post speci fied in column 1 thereof the method of recruitment and minimum qualification were specified in corresponding en tries in columns 2 and 3 thereof.
It dealt with roughly 35 categories of posts.
I may mention that there was only one post, namely the post of Deputy Transport Commissioner for which the method of recruitment was by selection from the cadre of Regional Transport Officers who must have put in not less than five years of service in that cadre.
407 For all the rest of the posts in the schedule there was no provision for recruitment by way of promotion by selection.
For all the posts the method of recruitment was either by promotion or by deputation or by direct recruitment, or both by direct recruitment and promotion or by merely posting a suitable officer or by direct recruitment through employment exchange etc.
The only recruitment to the post of Deputy Transport Commissioner was by method of promotion by selec tion.
At the time when the aforesaid Special Rules were enact ed the Karnataka State Civil Services (General Recruitment ) Rules, 1957 (in short the General Rules of 1957 ) were in operation which were repelled by the General Rules.
So long as the General Rules of 1957 continued the Special Rules continued to govern the method of recruitment of the posts as specified in the schedule attached to the said Special Rules.
The General Rules of 1957, as stated earlier, were repelled by the General Rules which came into force on 25th June, 1977.
Rule 1(3)(a) of the General Rules provided thus: "1.(3) (a) These rules shall apply to re cruitment to all State Services and to all posts in connection with the affairs of the State of Karnataka and to members of all State Civil Services and to the holders of posts whether temporary or permanent except to the extent otherwise expressly provided (i) by or under any law for the time being in force; or (ii) in respect of any member of such service by a contract or agreement subsisting between such member and the State Government".
It is thus clear from the provision of Rule 1(3)(a) that the General Rules were applicable for all purposes to mem bers of all State Civil Services including the Motor Vehi cles Branch except to the extent otherwise expressly provid ed by the Special Rules.
The Special Rules, as mentioned earlier, dealt with the method of recruitment and qualifica tion for the Motor Vehicles Branch and so far as the post of Deputy Transport Commissioner was concerned, the method of recruitment was "promotion by selection".
The Special Rules dealt with nothing else.
It is also clear from Rule 1(3) of the General Rules itself as to what is the scope of its applicability.
It was applicable to all posts except to the extent otherwise expressly provided for by the Special Rules.
Rule 3(1) of the General 408 Rules, before the insertion of sub rule (2), reads as fol lows: "3.
Method of recruitment (1) Except as otherwise provided in these rules or any other rules specially made in this behalf, recruit ment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority cum merit.
The methods of recruitment and qualifications shall be as specified in the rules of recruit ment specially made in that behalf: Provided that in respect of direct recruitment to any service or post when the method of recruitment is not specified in the rules of recruitment specially made, the method of recruitment shall be by selection after an interview by the Commission, the Advisory or Selection Committee or the Appointing Authori ty as the case may be.
Provided further that no person shall be eligible for promotion unless he has satisfac torily completed the period of probation or officiation as the case may be, in the post held by him.
" The substantive part of Rule 3(1) described various methods of recruitment but stated that the methods of re cruitment and qualifications shall be as specified in the rules of recruitment specially made in that behalf.
The first proviso described that when in the Special Rules for recruitment no provision is made for direct recruitment, the method of recruitment shall be by selection after an inter view by the Commission, the Advisory or Selection Committee to the Appointing Authority, as the case may be.
The second proviso to Rule 3(1) contemplated that no person shall be eligible for promotion unless he has satisfied three com pleted years of probation or officiation, as the case may be, in the post held by him.
The second proviso is by way of abundant caution in view of the Karnataka Civil Services (Probation) Rules, 1977 (hereinafter referred to as 'the Probation Rules ') because of Probation Rules contemplated that the period of probation shall be as may be provided for in the rules of recruitment specially made for any service or post, which shall not be less than two years '.
The Proba tion Rules also contemplated declaration of satisfactory completion of probation at the end of the prescribed period of probation as extended or reduced by the appointing au thority.
It may be useful to note that Rule 19 of the Gener al Rules also dealt with probation and appointments by promotion.
It is clear from reading of Rules 1, 2 and 409 3, as originally enacted, of the General Rules that so far as the Special Rules expressly provided to any particular branch of the State Service that was to prevail over the General Rules.
Rule 3A, as amended, provided for qualifica tion in respect of ex servicemen, irrespective of the provi sions of the Special Rules.
Rule 4 provided the procedure of appointment.
It also provided that if the appointment is by way of selection, how a selection has to be conducted and if the recruitment is by way of promotion, how it has to be done.
Rule 5 provided for disqualification for appointment.
Rule 6 provided the age limit for appointment.
Rule 8 pro vided for reservation of appointments for scheduled castes, scheduled tribes, backward tribes etc.
Rule 9 contained provision for ex servicemen and physically handicapped notwithstanding anything contained in the Special Rules.
Rule 10 contemplated conditions relating to suitability and certificates of character.
Rule 11 provided for procedure how the applications have to be made by the Government servants for recruitments.
Rule 16 provided for relaxation notwithstanding the provisions contained in the General Rules or the Special Rules.
Rule 16 A provided for appoint ment by transfer.
Rule 17 dealt with appointment by direct recruitment or by promotion in certain cases notwithstanding anything contained in the General or Special Rules.
All these Rules arc applicable to all the posts except to the extent as contemplated by Rule(3) of the General Rules.
This was the position at the time of enactment of General Rules in 1977.
appears that Rule 3 of the General Rules was amended and subrule (2) was added to Rule 3.
Rule 3(2) of the Gener al Rules, so added in June, 1982, reads thus: "3(2).
Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post (a) the promotion to the post of Head of Department of the post of an Additional Head of Department, if it is in a grade equivalent to that of the Head of Department concerned, shall be by selection: Provided that for the purpose of promotion by selection, the number of persons to be consid ered shall be such number of persons eligible for promotion in the order of seniority, as is equal to five times the number of vacancies to be filled.
410 (b) the promotion to all other posts shah be on the basis of seniority cum merit".
We are really concerned with the scope of Rule 3(2) of the General Rules for proper decision of this case.
Both the General Rules and the Special Rules have been framed by the Government of Karnataka in exercise of powers under Article 309 of the Constitution of India.
It is clear from Rule 1(3)(a) of the General Rules that the General Rules apply to recruitment to all State Services and to all posts in connection with the affairs of the State.
A perusal of different rules in the General Rules makes it clear that the general provisions which apply to recruitment to all posts under the Government are specified in those Rules instead of repeating them in each and every Special Rules of recruitment relating to different depart ments.
For example, provisions relating to age limit for recruitment, disqualification for recruitment, joining time etc.
should find place in Special Rules and normally they should be uniform for all categories of posts.
Instead of repeating them in all Special Rules of each department they have been put in one set of rules known as the General Rules.
It would be impossible to limit the application of the General Rules only for recruitment to posts for which no Special Rules have been made.
If that was so, what arc the provisions relating to disqualification, age limit, joining time etc.
for posts for which Special Rules governing of recruitment have been made ? There are no other rules gov erning the subject except the General Rules.
By the wording of Rule 3(2) of the General Rules it is clear that the Government took conscious and deliberate policy decision and gave a mandate to make only posts of Head of Departments, Additional Head of Departments as selection posts and all other posts on promotion will be filled by the criterion of "seniority cum merit '.
To give effect to that policy decision instead of amending every Special Rules of recruitment relating to different State Civil Services, the Government made a provi sion in the General Rules by incorporating a non obstante clause stating that it would apply to all services and posts j notwithstanding the provisions in the General Rules or in the Special Rules of the State.
This aspect is absolutely clear by a mere reading of Rule 3(2) of the General Rules.
In the case of Maharaja Pratap Singh Bahadur vs Man Mohan Dev.
AIR 1966 SC 1931, the Supreme Court approved the following quotation from Maxwell on Interpretation of Stat ute:/ 411 "A general later law does not abrogate an earlier special one by mere implication.
Generalia specialibus non derogant, or, in other words, "where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt.
with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.
" In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act? ' It is stated therein that for the general principle that the special law prevails over general law there is one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law.
The non obstante clause intro duced by amending Rule 3 of the General Rules by adding Rule 3(2) which was enacted after the Special Rules indicates the clear intention to supersede the Special Law to the extent that for the posts which arc not Head of the Departments or Additional Head of Departments the promotion, if provided for by way of selection, would mean on the basis of seniori ty cum merit and not on the basis of merit only.
As I have noticed earlier if we look at the Special Law it contained various methods of recruitment to about 35 posts mentioned in the Schedule annexed thereto but there is only one post for which the promotion was proposed by selec tion.
Surely it would have been flimsy way of drafting if one particular clause of a particular Special Law was sought to be individually repelled by enacting a repealing clause for that purpose.
To get over that the non obstante clause is introduced later on by the same authority which enacted both the General and Special Laws to give its latest man date.
The latest mandate cannot be ignored.
Rule 1(3) of the General Rules which accepted the ap plicability of Special Rules is itself a part of General Rules and the non obstante clause is not merely to what is mentioned to the contrary in the Special Rules but it is also notwithstanding anything contained in the General Rules itself.
In the present case the respondent No. 2 herein was promoted after the amendment of Rule 3 of the General Rules and there is no dispute about his recruitment by way of promotion on the basis of seniority cummerit and that the earlier Special Rules which contemplated the promotion by selection were not followed in view of the latest intention clearly given 412 by a positive mandate.
The learned counsel for the appellant strongly placed reliance on the decision of the Karnataka High Court in the case of Muniswamy vs Superintendent of Police, dated 18th July, 1986 (Annexure 'F ' pages 66 to 108 of the paper book).
That decision dealt with the General Rules and the Special Rules in relation to Karnataka State Police Service (Re cruitment) Rules,.
We have to construe the meaning of Clause 3(2) for ascertaining the object and purpose which the legislature had in view in enacting the said provision and the context thereof.
It appears to me that the Special Rules for re cruitment to some of the services had been in force provid ing a particular method of either selection or promotion.
It appears that because of the experience the Government had of its working, it was thought proper to change this policy, namely instead of providing selection on the basis of merit to every post, in certain posts, it thought it fit to give due weightage to seniority and merit instead of having the 'best '.
The selection of 'best ' very often has an ele ment of chance which may not be very conducive to proper climate and harmony in service.
It appears that because of that experience the rule making authority thought it fit that the process of promotion by selection should be con fined only to top posts and for rest of the posts the method should be promotion by adopting the principle of seniority cum merit.
I find that there is a clear mandate of latest intention of the rule making authority contained in Rule 3(2) of the General Rules and this must be respected by the Court.
The Courts are not expert body in knowing what is the best method for selection and to assume that the purest method must be found by the Court and implemented even by violation of the Rule, will not be sound rule of construc tion of statute.
I am afraid I have not been able to persuade myself to agree with the reasoning of the learned Division Bench in the aforesaid case of Muniswamy vs Superintendent of Police.
The learned Division Bench had restricted the scope of Rule 3(2) to only such officers whose "service or post is not regulated by any Special Rules.
then and then only the posts of Head of Departments of Government as defined in 1982 Rules had to be filled by promotion by selection and all other posts in such Departments have to be filled by promotion on seniority cure merit basis".
The Division Bench also examined the merits and demerits of various forms of selection at great length and took the view in paragraph 41 of the judgment as under: "We were shocked and surprised when the learned Govern 413 ment Advocate submitted before us that he was supporting the stand urged by Sri Bhat and the circular issued by the Director under instruc tions from Government.
We have no doubt that the Government had not really reflected on the untenable stand it was urging before this Court which, if accepted would have meant death knell to .efficiency in the services of the State.
" I am surprised with this type of approach.
It is not the function of the Court to examine the efficacy of one form of selection or the other.
It is for the recruiting authority, namely the Government to examine it and enforce it in the way it like.
To use such an expression "death knell to efficiency" really gives the mind of the Court that it wants to enforce the particular policy even though the latest mandate is for change of the policy in the name of efficien cy.
This type of reasoning really ignores the specific provision of the non obstante clause applying to even "in the rules of recruitment specially made in respect of any service or post".
In Ajay Kumar Banerjee and others vs Union of India and others, at page 153 Sabyasachi Mukharji, J. (as His Lordship then was) observed thus: "As mentioned herein before if the scheme was held to be valid, then the question what is the general law and what is the special law and which law in case of conflict would pre vail would have arisen and that would have necessitated the application of the principle "Generalia specialibus non derogant".
The general rule to be followed in ease of con flict between the two statutes is that the later abrogates the earlier one.
In other words, a prior special law would yield to a later general law, if either of the two fol lowing conditions is satisfied.
(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment.
If either of these two conditions is ful filled, the later law, even though general, would prevail".
It is thus clear that both the conditions mentioned by Mukharji, J., 414 speaking for the Bench are fulfilled.
In this case whether the promotion has to be by the method of selection or sim plicitor promotion on the basis of seniority cum merit, is the contest.
The Special Law contemplated promotion by selection whereas the later law contemplates promotion by the method of seniority cum merit.
The two are inconsistent with each other.
This fulfills the first condition.
So far as the second condition is concerned there is an express reference in the later general law "in the earlier enact ment".
But as per the proposition of Mukharji, J., if either of the two conditions are fulfilled the later law, even though general, would prevail.
Surely the provision of recruitment contemplated in the Special Police Rules is inconsistent with the latest general provision applicable to all posts in Karnataka.
In the present case the later gener al law prevails over the earlier special law because the non obstante clause specifically mentions its efficacy inspite of the Special Law.
It was for the legislature to choose the method of indicate its intention.
The Courts should not defeat their intention by overlooking it.
The respondent No. 2 has been selected for promotion by follow ing the General Rules amending the Special Rules and I find it was strictly in accordance with law.
I am, therefore, of the considered view that the appeal deserves to be dismissed with parties to bear their own costs.
G.N. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant was initially appointed as Inspector of Motor Vehicles and was promoted as Assistant Regional Trans port Officer In 1976, when the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 were in force.
Karnataka Civil Services (General Recruitment) Rules, 1977 came into being thereafter.
The appellant was promoted as Regional Transport Officer in 1981.
The General Rules of 1977 were amended in 1982 and sub rule (2) of Rule 3 was inserted, and as per the new Rule 3(2) the second Respondent was promoted as Deputy Commissioner of Transport on seniority cum merit basis.
The appellant filed an Application before the State Administrative Tribunal questioning the promotion of the second Respondent on the ground that promotion to the post of Deputy Commissioner of Transport should have been made by selection and not on seniority cure merit basis.
He also sought a declaration that the promotion of Respondent No. 2 was illegal and Respondent No.1 be directed to consider the case of the appellant for promotion to the post of Deputy Transport Commissioner with all consequential benefits.
The Tribunal dismissed the application on 388 the ground that Rule 3(2) of the General Rules, which was introduced later, had the effect of overriding the earlier special Rules, and hence the promotion made as per Rule 3(2) of the General Rule was valid.
Aggrieved by the Tribunal 's order, the appellant pre ferred the present appeal, by special leave.
On behalf of the appellant it was contended that the Special Rules were exclusively meant to govern the recruit ment and promotion of officers of various cadres of the Motor Vehicles Department and the General Rules which gener ally regulate the recruitment of all State Civil Services broadly even though later in point of time cannot abrogate the Special Rules and that they were not meant to be so since the Special Rules were not superseded and were very much in force.
The Respondent State contended that the non obstante clause in Rule 3(2) of the General Rules which was intro duced later clearly indicate the intention of the Legisla ture to supersede the Special Rules and promotions from the cadre of Regional Transport Officer to that of Deputy Com missioner of Transport could only be on the basis of senior ity cum merit and not by selection.
Allowing the appeal, this Court, HELD: (By the Court) Sub rule (2) of Rule 3 of Karnataka Civil Services (General Recruitment) Rules, 1977 (General Rules) has the overriding effect over the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 (Special Rules).
[400 D,E] Per Majority (By Reddy, J. Kuldip Singh, .1.
concurring) 1.
Examining the scope of Rule 3(2) particularly along with other General Rules, the context in which Rule 3(2) is made is very clear.
It is not enacted to supersede the Special Rules.
[403 G] 2.1 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 ob stante clause need not necessarily and always be co exten sive with the operative part so as to have the effect of cutting down 389 the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpreta tion 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 Spe cial Rules.
Courts should examine every word of a statute in its context and use it in its widest sense.
[402 E G; 403 B] 2.2 There should be a clear inconsistency between the two enactments before giving an overriding effect to the non obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to non obstante clause.
[403 G H] 23 Even the General Rules of which Rule 3(2) forms a part provide for promotion by selection.
As a matter of fact Rules 1(3)(a), 3(1) and 4 also provide for the enforceabili ty of the Special Rules.
The very Rule 3 of the General Rules which provides for recruitment also provides for promotion by selection and further lays down that the meth ods of recruitment shall be as specified in the Special Rules, if any.
The object of these Rules is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular depart ment.
In such a situation both the Rules including Rules 1(3)(a), 3(1) and 4 of General Rules should be read togeth er.
If so read it becomes plain that there is no inconsist ency and that amendment by inserting Rule 3(2) is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules.
The Amendment also must be read as being subject to Rules 1(3)(a), 3(1) and 4(2) of the General Rules themselves.
The amendment cannot be read as abrogating all other Special Rules in respect of all departments.
[403 H; 404 A D] 2.4 Where there are no special rules to naturally the General Rules would be applicable.
Just because there is a non obstante clause in Rule 3(2) it cannot be interpreted that the said ammendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which co exists particularly when no patent conflict or inconsistency can be spelt out.
[404 D E] 390 Maharaja Pratap Singh Bahadur vs Thakur Manmohan Dey and Ors., AIR 1966 SC 1931; Justiniane Augusto De Piedade Barre to vs Antonic Vicente Da Fonseca and Others etc. ; , relied on.
Muniswamy vs Superintendent of Police, ILR 1986 Karnata ka 344, approved.
Eileen Louise Nicolle vs John Winter Nicolle, (1922) I AC 284; In Re Chance, ; Kunter vs Phillips, , referred to.
There is no doubt that a later statute may repeal an earlier one either expressly or by implication.
In the instant case there is no express repeal of the Special Rule providing for promotion by selection.
There is no patent inconsistency between the General and Special Rules but on the other hand they co exist.
Therefore, there is no scope whatsoever to infer the repeal by implication.
[405 B,F] Aswini Kumar Ghosh and Ant.
vs Arabinda Bose and Ant, ; ; The Dominion of India (Now the Union of India) and Anr.
vs Shrinbai A. Irani and Anr, ; ; Union of India andAnother vs G.M. Kokil and Ors. ; Chandavarkar Site Ratna Rao vs
Ashalata section Guram; , ; State of West Bengal vs Union of India, [1964] 1 SCR 371; Reserve Bank of India etc.
vs Peerless General Finance and Investment Co. Ltd. & Ors, ; ; Municipal Council Palai vs T.J. Joseph, ; , relied on.
Muniswamy vs Superintendent of Police, ILR 1986 Karnata ka 344, approved.
Maxwell on The Interpretation of Statutes, Eleventh Edition page 168, relied on.
The Government is directed to consider the case of the appellant for promotion to the post of Deputy Commis sioner of Transport on the basis of promotion by selection, as provided in the Special Rules namely Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976.
[405 F G] Per Yogeshwar Dayal, J. (dissenting): 1.
It is clear from Rule 1 (3)(a) of the General Rules that the General Rules apply to recruitment to all State Services and to all posts in connection with the affairs of the State.
A perusal of different rules in the General Rules makes it clear that the 391 general provisions which apply to recruitment to all posts under the Government are specified in those Rules instead of repeating them in each and every Special Rules of recruit ment relating to different departments.
It would be impossi ble to limit the application of the General Rules only for recruitment to posts for which no Special Rules have been made.
Thus Rule 1(3) of the General Rules which accepted the applicability of Special Rules is itself a part of General Rules and the non obstante clause is not merely to what is mentioned to the contrary in the Special Rules but it is also notwithstanding anything contained in the General Rules itself.
[410 B D; 411 G] 2.
By the wording of rule 3(2) of the General Rules it is clear that the Government took conscious and deliberate policy decision and gave a mandate to make only posts of Head of Departments, Additional Head of Departments as selection posts and all other posts on promotion will be filled by adopting the criterion of "seniority cum merit".
To give effect to that policy decision instead of amending every Special Rules of recruitment relating to different State Civil Services, the Government made a provision in the General Rules by incorporating a non obstante clause stat ing that it would apply to all services and posts not withstanding the provisions in the General Rules or in the Special Rules of the State.
[410 E G] 3.1 The selection of 'best ' very often has an element of chance which may not be very conducive to proper climate and harmony in service.
Probably because of that experience the rule making authority thought it fit that the process of promotion by selection should be confined only to top posts and for rest of the posts the method should be promotion by adopting the principle of seniority cure merit.
There is a clear mandate of latest intention of the rule making author ity contained in Rule 3(2) of the General Rules and this must be respected by the Court.
Court is not expert body in knowing what is the best method for selection and to assume that the purest method must be found by the Court and imple mented even by violation of the Rule, will not be sound rule of construction of statute.
[412 D F] 3.2 It is not the function of the Court to examine the efficacy of one form of selection or the other.
It is for the recruiting authority, namely, the Government to examine it and enforce it in the way it Likes.
[413 C] 392 3.3 In the present case the respondent No. 2 was promoted after the amendment of Rule 3 of the General Rules and there is no dispute about his recruitment by way of promotion on the basis of seniority cum merit and that the earlier Special Rules which contemplated the promotion by selection were not followed in view of the latest intention clearly given by a positive mandate.
[411 G H] 3.4 As laid down by this Court in Ajay Kumar Baner jee 's case a prior special law would yield to a later gener al law if it satisfies either of the two conditions viz., that the two are inconsistent with each other;, that there is some express reference in the later to the earlier enact ment.
In the instant case, the special law contemplated promotion by 'selection ' whereas the later law, viz., Rule 3(2) of the general law contemplated promotion by seniority cum merit.
The two are inconsistent with each other and if fulfills the first condition.
Since the non obstante clause in the later general law specifically men tions its efficacy inspite of the Special Law, the second condition is also fulfilled.
Thus, in this case, the later general law prevails over the earlier Special Law, having fulfilled not one but both the conditions.
[413 F H; 414 A B] 3.5 It was for the legislature to choose the method to indicate its intention.
The Courts should not defeat their intention by over looking it.
Respondent No. 2 has been selected for promotion by following the General Rules amend ing the Special Rules and it was strictly in accordance with law.
[414 C D] Ajay Kumar Banerjee and Ors.
vs Union of India and Ors., , relied on.
Maharaja Pratap Singh Bahadur vs Man Mohan Dev, AIR 1966 SC 1931; Muniswamv vs Superintendent of Police, ILR 1986 Karnataka 344, referred to.


judgement:
vil Appeal Nos. 1227 to 1230 of 1979.
From the Judgment and Order dated 24.11.1978 of the Gujarat High Court in Letters Patent Appeal Nos. 54, 52, 53, 55 of 1973.
B. Datta, J.P. Pathak and P.H. Parekh for the Appellants.
R.N. Sachthey, Bimal Roy Jad and Anip Sachthey for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
These are the appeals by special leave from a common judgment of the Full Bench of the Gujarat High Court disposing of the Letters Patent Appeal Nos.
52 to 55 of 1973 and also Letters Patent Appeal No. 50 of 1973.
It is a common ground that the appellants are the tenants of certain lands which form part of the estate or wanta of a Taluqdar.
The question is whether the provisions of Section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949, are applicable to the lands in question, and whether under the Bombay Taluqdari Tenure Abolition Act, 1949, which came into effect from 15th August, 1950, the said lands became vested in the State and all rights in the said land held by the Taluqdar became the property of the Government.
Under the provisions of Section 6 of the said Act, inter alia, all uncultivated lands excluding the land used for building and other non agricultural purposes, vest in the State.
Section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949, runs as fol lows: "All public roads, lanes and paths, the bridges, ditches, dikes and fences on, or beside, the same.
the bed of the sea and of harbours, creeks below high water mark, and of rivers, streams, nailas, lakes, wells and tanks, and all canals, and water courses, and all standing and flowing water, all unbuilt village site lands, all waste lands and all uncultivated lands (excluding lands used for building or other non agricultural purposes), which are not situate within the limits of the wantas as belonging to a taluqdar in a taluq dari estate shall except in so far as any rights of any person other than the taluqdar may be established in and over the same and except as may otherwise be provided by any law for the time being in force, vest in and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of the Government and all rights held by a taluqdar in such property shall be deemed to have been extinguished and it shall be lawful for the Collector, subject to the 499 general or special orders of the Commis sioner, to dispose them of as he deems fit, subject always to the rights of way and of other rights of the public or of individuals legally subsisting.
Explanation: For the purposes of this section, land shall be deemed to be unculti vated, if it has not been cultivated for a continuous period of three years immediately before the date on which this Act comes into force.
" The question is whether for the purposes of this section the lands in question were uncultivated lands.
It is an admitted position that the lands were leased by the Taluqdar to the tenants.
There is also a clear and categorical find ing of facts that these lands had remained uncultivated for a period of 3 years immediately before the said Act came into force.
Prima facie it would appear that in view of the said explanation to section 6 the lands must be regarded as uncultivated lands for the purposes of section 6 of the said Act and must be deemed to be vested in Government.
Learned Counsel for the appellants, however, contended that as the lands had been put to cultivation earlier for some time even though not cultivated for continuous three years prior to vesting they cannot be regarded as uncultivated lands.
According to learned Counsel, if the land is capable of being cultivated, it cannot be treated as uncultivated land within the meaning of section 6.
He relied on a decision of this Court in State of Gujarat vs Gujarat Revenue Tribunal reported in [1980] 1 SCR page 233.
Our attention has been drawn to the observation made at page 239 of the said re port.
After setting out the provision of Section 6 it has been observed, as follows: "On a fair reading of the section, it would be evident that the vesting is in respect of properties which could be put to public use.
It leaves the private properties of the taluq dar untouched.
The legislative intent is manifested by clear enumeration of certain specific properties not situate within the wantas of a taluqdar.
It begins by specifying 'All public roads, lanes, paths, bridges etc. ' and ends up with 'all village site lands, all waste lands and all uncultivated lands ', and these being public properties situate in a taluqdar 's estate must necessarily vest in the Government because they are meant for public use.
In spite of vesting of such property in the Government, however, the conferral of the rights of an occupant on a taluqdar under section 5(1)(b) in respect of the lands in his actual possession, is saved.
Pausing there, it is fair to observe that the words in parenthesis 'excluding lands used for building or other non agricultural 500 purposes ', exemplify the intention of the legislature not to deprive a taluqdar of such land, even though such property is uncultivated land, due to its inherent charac ter as well as by reason of the Explana tion.
It is, therefore, evident that the determina tion of the question whether a particular category of property belonging to a taluqdar in a taluqdan estate is vested in the Govern ment or not, and the determination of the question whether the rights held by a taluqdar in such property shall be deemed to have been extinguished or not, will depend upon the category of that property.
The expression 'all waste lands ' has been joined by conjunctive 'and ' with the expression 'all uncultivated lands '.
They, therefore, indicate two distinct types of land.
If the legislature had intended that the aforesaid expression should indicate one class of lands, the expression rather would have been 'all waste and uncultivated lands ' as against the expression 'all waste lands and all uncultivated lands '.
Here we have, therefore, two distinct categories of proporties viz. (1) waste lands, and (2) uncultivated lands.
The contention that the grass lands on hilly tracts which are incapa ble of cultivation were 'waste lands ' or 'uncultivated lands ' within the meaning of section 6 cannot be accepted .
" The said decision of this Court and the observation relied on by the learned Counsel do not come in the aid of the contention made by the learned Counsel for the appel lants.
Even according to the appellants themselves, the lands were under cultivation for some time prior to the coming into force of the said Act and hence, it could not be said that they were uncultivable lands.
They were in fact, lands which were capable of cultivation and as a matter of fact subjected to cultivation for some time but, which as found by the High Court were not cultivated for continuous period of three years prior to the coming into force of the said Act.
In these circumstances, the said lands are clearly covered by the definition of the expression "uncultivated land" as set out in the Explanation to section 6.
As the said lands were uncultivated lands within the meaning of section 6, they must be deemed to have been vested in the Government and the contention of the appellants to the contrary must be rejected.
In the result, there is no merit in the appeal and it is dismissed.
There will, however, be no order as to costs.
T.N.A Appeals dismissed.

summary/full:
The appellants were tenants of certain lands which formed part of a Taluqdari Estate.
These lands though cul tivable were not cultivated for a continuous period of 3 years prior to the coming into Iorce of the Bombay Taluqdari Tenure Abolition Act, 1949.
In the tenant 's appeal to this Court, on the question whether these lands were uncultivated lands within the meaning of Section 6 of the 1949 Act and thus became vested in the State: Dismissing the appeals, this Court, HELD: 1.
The lands in question are clearly covered by the definition of the expression "uncultivated land" as set out in the Explanation to Section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949.
[500 F].
1.1 Even according to the appellants themselves, the lands were under cultivation for some time prior to the coming into force of the said Act and hence it could not be said that they were uncultivable lands.
They were in fact lands which were capable of cultivation and as a matter of fact had been subjected to cultivation for some time but were not cultivated 1or continuous period of three years prior to the coming into force of the Act.
Accordingly the lands must be regarded as "uncultivated lands" for the purposes of Section 6 of the Act and must be deemed to be vested in the State Government.
[500 E F, 499 C].
State of Gujarat vs Gujarat Revenue Tribunal, [1980]1 SCR233, held inapplicable.
497 498


judgement:
Appeal No. 4088 of 1991.
From the Judgment and Order dated 24.5.1990 of the Karnataka Administrative Tribunal, Bangalore in Application No. 887 of 1989 C/W. A. No. 2101/1989.
495 Naresh Kaushik, Mrs. Lalita Kaushik and Shankar Divate for the Appellants.
M. Veerappa, S.R. Bhatt and Naveen R. Nath for the Respond ents.
The Judgment of the Court was delivered by KASLIWAL, J.
Special leave granted.
Sri Ashok alias Somanna Gowda appellant No. 1 is a Bachelor of Engineering (Civil) having secured. first class with distinction getting 69.96% marks from Karnataka Univer sity.
Shri Rajendra appellant No. 2 is a Bachelor of Engi neering (Mech.) from Karnataka University and secured 66.40 marks in the qualifying examination.
The Govt.
of Karnataka by notification dated 4th April, 1985 invited applications for recruitment of Asstt.
Engineers (Civil) and (Mech.) for the Public Works Deptt.
The selections were to be made on the basis of marks obtained in the qualifying examination and marks secured in the interview, in accordance with the K.S.C.S. (Direct Recruitment By Selection) Rules, 1973 (hereinafter referred to as 'the Rules ').
According to these Rules total marks for qualifying examination were kept at 100 and 50 for interview.
Thus the marks allotted for inter view amounted to 33.3% of the total marks.
Applications were invited for 300 posts of Civil Engineers and 100 Mechanical Engineers initially and subsequently added additional posts of 150 Civil Engineers and 10 Mechanical Engineers thus in all 450 Civil Engineers and 110 Mechanical Engineers.
Both the appellants applied for the posts of their choices in the Public Works Department, Government of Karnataka.
Appellant No. 1 secured 29.50 marks out of 50 marks in the interview and 69.96 marks in the qualifying examination thus in all 99.46 marks out of 150.
The 2nd appellant obtained 24.83 marks in the interview and 66.40 marks in the qualifying examination thus in all 91.23 marks out of 150.
Both the appellants were not selected in merit as the last candidate selected for the above posts secured higher marks than the appellants.
The appellants filed a petition before the Karnataka Administrative.
Tribunal challenging the Rules on the ground that the percentage of marks for viva voce as 33.3 were excessive and in violation of the decisions of this Court.
The Tribunal by its order dated 24th May, 1990 dismissed the petitions and the appellants aggrieved against the aforesaid decision have approached this Court by grant of special leave.
It is not necessary to examine ' the matter in detail inasmuch as 50 marks for interview out of 150 are clearly in violation of the judgment of this Court in Ashok Kumar Yadav & Ors.
vs State of Haryana & Ors.
, [1988] Sup.
S.C.R., 657 and Mohinder Sain Garg vs State of Punjab & Ors., J .T.
On a direction given by this Court on 4th September, 1991 the record of the 496 Selection Committee was produced before this Court at the time of hearing.
From a perusal of the marks awarded to the selected candidates it is clear that a large number of candidates have been selected though they had secured much lesser marks than the appellants in the qualifying examina tion but had secured very high marks in the viva voce out of 50 marks kept for this purpose.
Thus it is an admitted position that if the marks for interview were kept even at 15% of the total marks and merit list is prepared according ly then both the appellants were bound to be selected and a large number of selected candidates would have gone much lower in the merit list than the appellants.
In view of the fact that the result of the impugned selections was declared in 1987 and the selected candidates have already joined the posts, we do not consider it just and proper to quash the selections on the above ground.
Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there is no allegation of any malafides in the matter of the impugned selections.
However, the Rules are clearly in violation of the dictum laid down by this Court in the above referred cases and in case the marks for viva voce would have been kept say at 15% of the total marks, the appellants before us were bound to be selected on the basis of marks secured by them in interview, calculated on the basis of converting the same to 15% of the total marks.
We, therefore, allow the appeal and direct the respond ents to give appointment to the appellant Ashok alias Soman na Gowda on the post of Asstt.
Engineer (Civil) and appel lant Rajendra on the post of Asstt.
Engineer (Mech.) in Public Works Department within a period of two months of the communication of this order in case the appellants are found suitable in all other respects according to the Rules.
Learned counsel appearing on behalf of the State of Karnata ka pointed out that there are many other candidates who had secured much higher marks than the appellants in case the above criteria is applied for selection.
In view of the fact that appointments under the impugned Rules were made as back as in 1987 and only the present appellants had approached the Tribunal for relief, the case of other candidates cannot be considered as they never approached for redress within reasonable time.
We are thus inclined to grant relief only to the present appellants who were vigilant in making griev ance and approaching the Tribunal in time.
Learned counsel for the State also submitted that the State Government has already framed new rules, and as such we do not find it necessary to quash the Rules under which the present selec tions were made as they are no longer in existence.
No order as to costs.
G.N. Appeal allowed.

summary/full:
The Respondent State invited applications for recruit ment of Assistant Engineers (Civil) and (Mech.) for the Public Works Department.
According to the rules governing the recruitment, viz. Karnataka State Civil Services (Direct Recruitment by Selection) Rules, 1973 the marks obtained In the qualifying examination and the marks secured in the interview would be the basis for selection.
The total marks for qualifying examination was kept at 100 and 50 marks were kept for interview.
Thus the marks allotted for interview was 333% of the total marks.
Appellant No. 1 who applied for the post of Assistant Engineer (Civil) secured 29.50 marks out of 50 marks in the interview, his marks in the qualifying examination were 69.96, totalling in all 99.46 marks out of 150.
The second appellant, a candidate for the post of Assistant Engineer (Mech.) secured 24.83 marks in the interview and his marks in the qualifying examination being 66.40, he got 91.23 marks out of the total of 150 marks.
Both the appellants were not selected as they got less marks titan the last candidate selected, and they filed a petition before the State Administrative Tribunal challenging the rides on the ground that the percentage of marks for viva voce fixed at 333 was excessive.
The Tribunal having dismissed the peti tions, the appellants have preferred the present appeal, by special leave.
Allowing the appeal, this Court, HELD: 1. 50 marks for interview out of 150 are clearly in violation of the settled law on this point.
Some candi dates have been selected though 494 they had secured much lesser marks than the appellants in the qualifying examination but had secured very high marks in the viva voce out of 50 marks kept for this purpose.
If the marks for interview were kept even at 15% of the total marks and merit list was prepared accordingly then both the appellants would have been selected and a large number of selected candidates would have gone much lower in the merit list than the appellants.
[495 G, 496 A B] Ashok Kumar Yadav & Ors.
vs State of Haryana & Ors.
, [1988] Supp.
S.C.R. 657; Mohinder Sain Garg vs State of Punjab & Ors., J.T. , relied on.
Though the Karnataka State Civil Services (Direct Recruitment by Selection) Rules are clearly in violation of the dictum laid down by this Court, since the result of the selections was declared in 1987 and the selected candidates have already joined the posts, it would not be just and proper to quash the selections on the above ground.
Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there Is no allegation of any malafides in the matter of selections.
[496 C D] 3.
The respondents are directed to give appointment to the two appellants on the post of Assistant Engineer (Civil) and Assistant Engineer (Mech.), respectively in Public Works Department within a period of two months in case the appel lants are found suitable In all other respects according to the Rules.
[496 E] 4.
Since the appointments under the Rules were made way back in 1987, the case of other candidates cannot be considered as they never approached for redress within reasonable time.
The relief is thus restricted only to the present appellants who were vigilant in making grievance and approaching the Tribunal in time.
[496 F G]