THE STATE OF RAJASTHAN & ORS. versus TRILOK RAM on 12 September 2019

THE STATE OF RAJASTHAN & ORS.

v.

TRILOK RAM

(Civil Appeal No. 7215 of 2019)

SEPTEMBER 12, 2019

[K. M. JOSEPH AND SANJAY KISHAN KAUL, JJ.]

Rajasthan Panchayati Raj Rules, 1996 – Proviso to r.266(3)– Appellant-State issued advertisement in 2013 for recruitingTeachers Grade III (Level I and II) in the various Zila Parishads –Applicants were to fulfil the requisite educational qualifications ason the last date of the submission of the application form –Respondent was undergoing the B.S.T.C. Course, an essentialqualification, however appeared on the basis of order passed bythe High Court – Thereafter, he completed his B.S.T.C. second yearcourse – Select list was declared– Though the respondent securedmore marks than the cut-off, his name was not found in the SelectList – Writ petition filed by the respondent relying on the proviso tor.266(3) (which if not available, the respondent would not be eligibleon the last date for filing application, as he had admittedly notpassed the B.S.T.C. Course on that date) for quashing the list anddirection to appoint the respondent to the post of Teacher Grade III(Level I) with all consequential benefits – Dismissed– Division Benchallowed the writ petition holding that the proviso to r.266(3) remainedintact despite the substitution of r.266(3) by Notification dtd. 11.5.11– On appeal, held: Proviso was introduced for the first time on1.7.04 – By virtue of the amendment dtd. 28.6.06, the qualificationsin clause (3) of r.266 came to be changed and new qualificationscame to be introduced – Fact that the proviso had ceased to exist asa result of the said substitution is unambiguously demonstrated bythe fact that the rule making authority issued notification dtd.29.11.06, by again inserting the proviso to r.266(3) – Thereafteragain on 11.5.11, r.266(3) came to be substituted – Qualificationsas stipulated by National Council for Teachers Education (NCTE)were inserted – Thus, r.266 (3) as was brought into life by theamending Act dtd. 28.6.06 continued to hold the field till it suffered

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Asubstitution by notification dtd. 11.5.11 – Admittedly after 11.5.11,the proviso has not been brought back to life – Notification dtd.29.11.06 bringing the proviso back to life after the substitution ofclause (3) to r.266 in 2006 was not brought to the notice of theHigh Court– Further, the circular dtd. 29.2.12, replacing therequirement of the candidate possessing qualifications as on theBlast date, stipulated in the advertisement with the provisions of theproviso (though the proviso was not actually there), cannot bepressed into service by the respondent as the advertisementconcerned in the present case is of the year 2013– Impugnedjudgment set aside – Right of Children to Free and CompulsoryCEducation Act, 2009 – s.23 – Rajasthan Panchayati Raj (FourthAmendment) Rules 2004 – Interpretation of Statutes.

Interpretation of Statutes– Substitution of the provision –Effect of– Held: An amendment bringing about substitution of aprovision essentially does two things, in the first place, the provisionDwhich is substituted undergoes a repeal and at the same time, thereis a re-enactment through the newly inserted provisions.

Allowing the appeal, the Court

Conclusion

HELD : 1.1 The proviso was introduced for the first timeon 1.7.2004 (though with variation not relevant to the enquiry) inEthe rules. Rule 266 is a part of Rajasthan Panchayat Raj Rules.The qualifications for teachers for the category concerned with,is undoubtedly, laid down by the National Council for TeachersEducation (NCTE). This is done by virtue of the provisions ofSection 23 of Right of Children to Free and Compulsory EducationFAct, 2009. After the proviso was inserted in 2004 by virtue of theamendment carried out in Rule 266 (3) dated 28.6.2006, thequalifications in clause (3) of Rule 266 came to be changed andnew qualifications came to be introduced through the amendment.It purported to be a substitution of clause (3). The proviso hadbeen earlier inserted in clause (3) of Rule 266 by virtue ofGRajasthan Panchayati Raj (Fourth Amendment) Rules 2004.Thereafter again on 11.5.2011, Rule 266(3) came to besubstituted. Qualifications as stipulated by NCTE, were inserted.[Paras 11, 12] [384-A-D]

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1.2 The proviso was intended to have a different area ofoperation from the main provision whose function was only toenunciate the requisite qualifications. An amendment which bringsabout substitution of a provision essentially does two things. Inthe first place, the provision which is substituted undergoes arepeal. At the same time, there is a re-enactment through thenewly inserted provisions. Therefore, when a substitution wascarried out initially on 28.6.2006, all the provisions of clause (3)of Rule 266, as it stood, suffered a repeal and in its place a newavtaar was born. The proviso was inserted on 1.7.2004 in clause(3) of Rule 266. Therefore, when the rule making authoritysubstituted clause (3) of Rule 266 by the amendment dated28.6.2006, the inevitable result would be the repeal of entireclause (3) of Rule 266 including the proviso. The amendment toRule 266 (3) by substitution did not expressly save the proviso.It is equally important to be not oblivious to the fact that theproviso was an integral part of clause(3) of Rule 266. Since Rule266(3) came to be substituted, having regard to the legalconsequences of the same, the proviso could not survive. Thefact that the proviso had ceased to exist as a result of thesubstitution dated 28.6.2006 is unambiguously demonstrated, bythe fact the rule making authority chose to step in by issuingnotification dated 29.11.2006 by inserting again the proviso toRule 266(3). It is by a subsequent amendment that the words‘District Establishment Committee’ was inserted in place ofRajasthan Public Service Commission.[Paras 14, 16, 18 and 19][386-C, F; 387-H; 388-A-C, E]

1.3 Rule 266 (3) as was brought into life by the amendingAct dated 28.6.2006 continued to hold the field till it sufferedsubstitution by notification dated 11.5.2011. Apparently,consequent upon the need to change the qualifications, Rule266(3) came to be substituted. However, it is not in dispute thatafter the substitution dated 11.5.2011, the proviso relied upon bythe respondent has not been brought back into existence as wasdone in the year 2006. Whatever ambiguity there may have beenas to the actual effect of the substitution, it stands removed bythe legislative history of clause (3) of Rule 266 including theproviso therein. The legislative intention is clear that when rule AB

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Amaker substituted the provisions of clause (3), it intended thatthe entirety of clause (3) would stand obliterated as indeed is theeffect of a repeal and a new set of provisions taking its place. Itis on this understanding that the rule making authority, when itintended that the proviso must govern, it expressly did so, and itissued the notification dated 29.11.2006. Admittedly afterB11.5.2011, the proviso has not been brought back to life.Apparently, the notification dated 29.11.2006 bringing the provisoback to life after the substitution of clause (3) to Rule 266 in2006 was not brought to the notice of the High Court. As far asthe Circular dated 29.2.2012 relied upon by the respondent isCconcerned, it related to the advertisement issued in 2012 thoughlegally the proviso to Rule 266(3) was non-existent. For whateverreasons it may have been, the order came to be issued extendingthe benefit of the proviso but after changing the condition in theadvertisement. It cannot advance the case of the respondent whoapplied pursuant to a later advertisement dated 11.8.2013Dwherein the requirement as to possession of qualifications as onthe last date is clearly indicated. The advertisement concernedis of the year 2013, the Circular dated 29.2.2012 cannot bepressed into service by the respondent both in law and on facts.The candidates must possess the qualifications on the last dateEwhen applying under the advertisement when it is so provided.In view of finding that the proviso had ceased to exist aftersubstitution of Rule 266(3) by notification dated 11.5.2011, therecan be no question of the advertisement being opposed to thestatutory rule. The impugned judgment of the High Court in WritAppeal No.DBCSAW NO.667/2015 shall stand set aside. [ParasF20-24] [388-F-H; 389-A-H]

State of Rajasthan v. Mangilal Pindwal AIR 1996 SC2181 : [1996] 3 Suppl. SCR 98 – relied on.

Case Law Reference

[1996] 3 Suppl. SCR 98relied onPara 17GCIVIL APPELLATE JURISDICTION : Civil Appeal No. 7215of 2019.

From the Judgment and Order dated 18.08.2017 of the High Courtof Judicature for Rajasthan at Jodhpur in D.B. Special Appeal (Writ)No. 667 of 2015.H

Dr. Manish Singhvi, Sr. Adv., Satyendra Kumar, Shailja NandaMishra, Harsha Vinoy, Arpit Prakash, Milind Kumar, Advs. for theAppellants.

Ms. Aishwarya Bhati, Sr. Adv., Ajay Vikram Singh, Ms. PriyankaSingh, Kamlesh Anand, Ms. Archana Pathak Dave, Gp. Capt. KaranSingh Bhati, Advs. for the Respondent.

The Judgment of the Court was delivered by

K. M. JOSEPH, J. 1.Leave granted.

2. The appellant issued an advertisement on 11.8.2013 for recruitingTeachers Grade III (Level I and II) in the various Zila Parishads in theState of Rajasthan. The advertisement stipulated the last date forsubmission of the application form as 4.9.2013. The applicants were tofulfil the requisite educational qualifications as on the last date of thesubmission of the application form. The writ petitioner who is therespondent (hereinafter referred to as “the respondent”) was undergoingthe B.S.T.C. Course (B.S.T.C. is an essential qualification stipulated).He, however, applied pursuant to the advertisement. The appellantdiscovered during the process of verification that the respondent was notholding the requisite qualification of B.S.T.C. as on the last date forsubmission of application form. The respondent appeared on the basisof an order passed by the High Court permitting him and others to submittheir application however, it was subject to the decision in SBCWPNo.10845/2013. Thereafter, he completed his B.S.T.C. second yearcourse and the results were also declared. The result of the recruitmentexamination was declared on 17.5.2014. Finding that the result of theexamination in regard to the respondent and another was not uploadedon the official website, they filed writ petition No.244/2015. An interimorder was passed in the said writ petition to bring the result of the petitionerin a sealed cover before the Court. The High Court further directed thatthe results to be declared. The respondent secured 158.41 marks. Therespondent was called for verification of documents. Though therespondent secured marks which was more than the cut-off, his namewas not found in the Select List dated 16.3.2015. After representingand not eliciting the required response, the writ petition which led to thepresent appeal (W.P.No.2801/2015) came to be filed seeking to quashfinal select list dated 16.3.2015 and to direct the appellants to declare theselection list of the respondent as marks secured were higher than the AB

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Acut-off in the respective category. Finally, direction to appoint therespondent to the post of Teacher Grade III (Level I) with all consequentialbenefits was sought. The appellant filed counter affidavit. The learnedSingle Judge dismissed the writ petition.

In appeal filed by the respondent, by the impugned order, however,Bthe division Bench allowed the writ petition.

3. The controversy which falls to be resolved by us is whether the HighCourt was right in holding that the proviso to Rule 266(3) of the RajasthanPanchayati Raj Rules, 1996 (hereinafter referred to as “the Rules”)which was relied upon by the respondent remained intact despite theCsubstitution of Rule 266(3) by Notification dated 11.5.2011. The provisoread as follows:

“Provided further that the person who has appeared in the B.Ed./B.S.T.C. examination shall be eligible to apply for the post ofprimary and upper primary school teacher but he shall have toDsubmit proof of having acquired the said educational qualificationto the District Establishment Committee before the declaration ofresult of the said examination.”

4. In short, if the proviso held the field, the respondent wouldbecome eligible and qualified for selection and appointment based onEmerit. If the proviso on the other hand was not available, the respondentwould not be eligible for the reason that as contended by the appellants,as on the last date for filing application the respondent had admittedlynot passed the B.S.T.C. examination. The respondent had actuallyappeared for the examination and taking shelter under the proviso, therespondent claimed to be qualified on the terms thereof. The High CourtFafter referring to the amendment dated 11.5.2011 to clause (3) of Rule266, dwelt upon the purpose of a proviso. The Court adverted to caselaw on the point. It was found that there is no rule that the proviso mustalways be restricted to the ambit of the main provision. Occasionally ina statute, it was reasoned a proviso may be unrelated to the subjectGmatter of the preceding section or contains matter extraneous to thatsection. Under such circumstances, it was reasoned by the High Courtthat it would have to be interpreted as a substantive provision dealingindependently with the matter comprised therein and not as qualifyingthe main and preceding section. The academic qualifications in clause(3) of Rule 266, it was found, were neither expanded nor qualified by theH

proviso. The proviso dealt with a clearly different area, namely, the timein which the eligibility prescribed under the Rules had to be attained.The amendment to sub-Rule (3) regarding academic qualifications wasnecessitated on account of subsequent legislation. Even after sub-rule(3) was substituted by amendment dated 11.5.2011, the proviso continuedto hold the field. It is found that in such circumstances the condition inthe advertisement being contrary to the proviso it would be illegal for thereason that an executive instruction cannot supplant the rule. The writappeals were allowed. Petitioners were found entitled to benefits ofemployment in the light of their merit position except for back wages.

5. We heard Dr. Manish Singhvi, learned senior counsel appearingon behalf of the appellants and Ms. Aishwarya Bhati, learned seniorcounsel on behalf of the respondent.

6. It is contended by learned counsel for the appellants that theadvertisement dated 11.8.2013 clearly stipulated that applicants shouldhave the requisite educational qualifications on the last date of thesubmission of the application form. The respondent did not possess thesaid qualification admittedly but become qualified only if the proviso ismade applicable. The respondent had not challenged the advertisement.He had participated in the selection, fully aware that under theadvertisement the cut-off point was the last date for determining theissue relating to qualifications. He would also further submit that theamendment dated 5.10.2011 brought about by substitution in clause (3)of Rule 266, swept away the proviso. When clause (3) of Rule 266 wassubstituted by the said amendment, the rule making authority did notthink it fit to continue the proviso relied upon by the respondent. Theadvertisement dated 11.8.2013 was issued after the substitution wascarried out in clause (3) of Rule 266 on 11.5.2011. Therefore, the HighCourt erred in holding that the proviso survived the substitution on thebasis that it was an independent provision having nothing to do with thechange in the qualifications which was brought about through thesubstituted provision of clause (3) of Rule 266 of the Rules. He furthersubmitted that thousands of candidates had applied and were appointedwho were qualified in terms of the advertisement, namely, those whowere possessing qualification on the last date mentioned for making theapplication. He would also highlight that if the view of the High Court isupheld, it would also reach injustice to those candidates who relied uponthe advertisement and were positioned like the respondent who appeared AB

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[2019] 12 S.C.R.

Afor the examination but did not apply on the basis that they were nothaving the qualifications.

7. Per contra, the learned senior counsel for the respondentsupported the High Court judgment. She pointed out that sub-rule (3) ofRule 266 dealt with the qualification to be possessed for appointment asBteachers. The qualifications became amenable to changes based on thequalifications which were stipulated by the competent authority. All thathappened when the amendment dated 11.5.2011 was carried out was anew set of qualifications as stipulated by the competent authority cameto be inserted in sub—rule (3) of Rule 266. The proviso as found by theHigh Court did not deal with the qualifications as such but onlyCcontemplated allowing persons who were not qualified when anadvertisement is issued but had appeared for the examination could alsoapply subject to the conditions therein. The proviso thus only facilitatedgreater participation in the competitive process by throwing open thedoors of recruitment to candidates who would otherwise be ousted. SheDalso further drew our attention to the fact that the proviso in questioncame to be inserted for the first time on 1.7.2004. In 2006, Rule 266(3),it is pointed out came to be amended and a new set of qualificationswere introduced through the said amendment. However, the provisocontinued in Rule 266(3). In fact, she drew our attention to the followingcircular dated 29.2.2012:E“GOVERNMENT OF RAJASTHANRURAL DEVELOPMENT AND PANCHAYATI RAJDEPARTMENT

PANCHAYATI RAJ PRIMARY EDUCATION

FNO. EK 914/(10) Paravi/Prashi/2010/116

To

Dated 29.02.12

All District MagistrateGController of Examination.

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Chief Executive OfficerDistrict Council

Additional Controller of Examination.

Sub.:Regarding Direct Recruitment for Third grade Teachers Exam2012.

Ref : Departmental letter No. 94 dated 21.2.12.

With reference to above cited subject it is stated that a videoconferencing was convened regarding Third Grade TeachersDirect Recruitment through competitive examination, 2012 on28.2.2012 wherein Chief Executive Officers raised followingpoints:-

1. Whether the candidates who have qualified the TeachersEligibility Test 2011 but took part in training examination andconsequently results were not declared can appear in the DirectRecruitment competitive examination for Third GradeTeachers?

In this connection, it is clarified that a departmentalletter No.94 dated 21.2.2012 was uploaded on the website andin the advertisement at Point No.7 (7) “the eligibilities mentionedtherein about have been acquired till the last date of filingapplication” has been replaced by the words “Such person whohas appeared in B.Ed./BSTC/DSE/B.ED. (General/specialeducation) examination or appearing shall be eligible for filingapplication for the primary or higher primary school Teachers(Common Education/Special Education) post but he has tofurnish the proof of having acquired the educationalqualification prior to the declaration of result of competitiveexamination.” The same be read accordingly.

2. For the Third Grade Teachers Direct RecruitmentCompetition Examination, 2012, no mention is made about theposts advertised about the language of the special teachers(Mentally retarted, Visually impaired, Hearing Impaired) in thepost advertised?

On this point, it is clarified with the concurrence ofChief Secretary, School Education Department that for ThirdGrade Teachers, Second level Class 6 to 8 (higher primary A

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school), language for special teachers (Mentally retarted,visually impaired, hearing impaired) shall be Hindi – English.Hence, the candidates having certificates for Teachers EligibilityTest Second level for class 6 to 8 in language Hindi, Englishshall be eligible.

Hence please ensure that the above modifications beplaced on the website today for conducting further proceedingsregarding Third Degree Teachers Direct RecruitmentCompetitive Examination, 2012.

Sd/- ADDITIONAL CHIEF SECRETARYRURAL DEVELOPMENT ANDPANCHAYATI RAJ DEPARTMENT”

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8. She would therefore, submit that despite the fact that sub-Rule(3) of Rule 266 came to be substituted in 2006, as already noticed, theDproviso remained intact and there is no basis for the appellant to contendotherwise. She emphasised that it was the understanding of the authoritiesthemselves that the proviso did not die in the process of substitutioncarried out in clause (3) of Rule 266. She also commended the reasoningof the High Court for our acceptance, namely, the area of the operationof the proviso was independent and different from the province coveredEby clause (3) of Rule 266. It was pointed out that several persons areaffected by the proviso. It was further pointed out that in view of thefact that the proviso held the field, the participation of the respondentunder the advertisement was not fatal. The provisions in an advertisementch did not square with the requirement of the statutory rules must naturallyFperish and be ignored.

9. In reply to the same the learned counsel for the appellant agreedwith the contention of the respondent that the proviso was first insertedon 1.7.2004. He also agreed that Rule 266 underwent an amendmentdated 28.6.2006. The substitution of clause (3) of Rule 266 makes nomention about the omission of the proviso. However, most pertinent it isGargued by him, that on 29.11.2006 a further amendment was carried outin Rule 266(3) and under the said amendment the proviso was resurrected.There was a further amendment in the proviso to Rule 266, wherein inplace of Rajasthan Public Service Commission, the expression, DistrictEstablishment Committee came to be substituted. However, he would H

point out on 11.5.2011 again clause (3) of Rule 266 came to be substituted.In fact, there is no controversy that such an amendment was carriedout. His argument however is unlike what happened in 2006 whenconsequent upon the changes brought about in Rule 266(3), the provisowhich existed earlier prior to the substitution came to be brought back tolife, after the substitution which took place on 11.5.2011, the provisosuffered a burial from which it has not been brought back to life. Inother words, after the admitted substitution of clause (3) to Rule 266 in2011, the proviso has not been inserted again as was done in the year2006. This meant that after the substitution of 11.5.2011, the provisohad ceased to exist. Thereafter, it has never been brought back in rulesin question.

10. As regards the circular dated 29.2.2012 relied upon, learnedcounsel pointed out that it related to the advertisement in the year 2012.At that time though the proviso was actually not there and theadvertisement was issued on the said basis namely the candidates wereexpected to be in possession of the qualifications as on the last datedfixed under the advertisement, a decision was taken to replace the saidclause in the advertisement itself for introducing the provisions of theproviso. In other words, though originally the advertisement contemplatedthe last date for determining the possession of qualifications, a consciousdecision was taken to amend the advertisement itself on the basis thatthe proviso would govern the situation. He would further point out thatwe are concerned not with the advertisement of 2012 but with theadvertisement dated 11.8.2013. As far as the current advertisement inquestion is concerned, the Circular dated 29.2.2012 would have noapplication. As far as the advertisement in question, the authorities havealso not changed the requirement that the candidate should possess thequalifications as on the last date. The requirement of the candidatepossessing qualifications as on the last date stipulated in the advertisementis in consonance with Rule 266(3) sans the proviso. The advertisement,thus is in harmony with the statutory rules holding the field. He wouldno doubt submit that few persons may have been appointed on the basisthat proviso would operate. It is appellants case that proceedings havebeen initiated in this regard. He would emphasize however that thecorrect legal position must govern, illegality should not be perpetuatedand the proviso indeed cannot hold the field after 2011.

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A11.We have already noticed the proviso. The proviso wasintroduced for the first time on 1.7.2004 (though with variation not relevantto the enquiry) in the rules. Rule 266 is a part of Rajasthan PanchayatRaj Rules. The qualifications for teachers for the category we areconcerned with, is undoubtedly, laid down by the National Council forTeachers Education (NCTE). This is done by virtue of the provisions ofBSection 23 of Right of Children to Free and Compulsory Education Act,2009. After the proviso was inserted in 2004 by virtue of the amendmentcarried out in Rule 266 (3) dated 28.6.2006, the qualifications in clause(3) of Rule 266 came to be changed and new qualifications came to beintroduced through the amendment. It purported to be a substitution ofCclause (3). It must be remembered that the proviso had been earlierinserted in clause (3) of Rule 266 by virtue of Rajasthan Panchayati Raj(Fourth Amendment) Rules 2004.

12. Thereafter again on 11.5.2011, Rule 266(3) came to besubstituted. Qualifications as stipulated by NCTE, were inserted. ItDreads as follows:

“In exercise of the powers conferred by Section 102 of theRajasthan Panchayati Raj Act, 1994 (Act No.13 of 1994) and allother powers enabling it in this behalf, the State Governmenthereby makes the following rules further to amend the RajasthanEPanchayati Raj Rules, 1996, namely:-

1. Short title and commencement.- (1) These rules may be calledthe Rajasthan Panchayati Raj (Second Amendment) rules, 2011.

2. Amendment of rule 266.-The existing clause (3) of rule 266ofthe Rajasthan Panchayati Raj Rules, 1996, hereinafter referredFto as the said rules, shall be substituted by the following, namely:-

(3) Primary and Upper Primary

School Teacher (100% by direct

Recruitment)

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(a) General Education

Level-(i) Classes I to V

Qualification as laid down byNational Council for TeacherEducation (NCTE) under theprovisions of sub-section (1) of H

THE STATE OF RAJASTHAN & ORS. v. TRILOK RAM[K. M. JOSEPH, J.]

13. The High Court has taken the view that when the substitutionwas effected on 11.5.2011, all that happened was one set of qualificationswere replaced by another set of qualifications. The domain of clause(3) of Rule 266 was the declaration as to the qualifications to be possessed H

Aby the candidates for appointment as teachers at different levels. Theproviso which was inserted on 1.7.2004 did not add to or take awayfrom the qualifications which were declared in the main provision. Allthat the proviso purported to achieve was to give an opportunity to thosecandidates who had not acquired the qualifications as on the last datefor making application but who had appeared for the concernedBexamination, to apply for the post. Thus, the proviso was indeed abeneficial provision as it provided a window of opportunity to those whilenot being qualified as such, were in the process of acquiring qualificationby having appeared in the examination. This is no doubt subject to theconditions in the proviso.C14.We do agree with the High Court and with the learned counselfor the respondent that the proviso was intended to have a different areaof operation from the main provision whose function was only toenunciate the requisite qualifications.

15. The argument also is that in the year 2006 also when the newDset of qualifications was ushered in, it was facilitated by the substitutionof clause (3) of Rule 266 of the Rules. Therefore, the contention is,when qualifications changed as a result of NCTE stipulating newqualifications, by substituting the existing qualifications contained in Rule266(3), the rule making authority complied with the requirement of law.EThis has nothing to do with the continued availability of the beneficialprovisions of the proviso.

16. We are in this case concerned with the effect of amendingAct which brought about the substitution of a provision. An amendmentwhich brings about substitution of a provision essentially does two things.FIn the first place, the provision which is substituted undergoes a repeal.At the same time, there is a re-enactment through the newly insertedprovisions.

17. We may only refer to a decision of this Court in State ofRajasthan vs. Mangilal Pindwalreported in AIR 1996 SC 2181, thereinthis Court inter alia held as follows:G

“9. As pointed out by this Court, the process of a substitution ofstatutory provision consists of two steps; first, the old rule is madeto cease to exist and, next, the new rule is brought into existencein its place. (See: Koteswar Vittal Kamath v. K. RangappaBaliga & Co. [(1969) 1 SCC 255 : (1969) 3 SCR 40], SCR at p.H

48. ) In other words, the substitution of a provision results inrepeal of the earlier provision and its replacement by the newprovision. As regards repeal of a statute the law is thus statedin Sutherland on Statutory Construction:

“The effect of the repeal of a statute where neither a savingclause nor a general saving statute exists to prescribe thegoverning rule for the effect of the repeal, is to destroy theeffectiveness of the repealed act in futuro and to divest theright to proceed under the statute, which, except as toproceedings past and closed, is considered as if it had neverexisted.” (Vol. I, para 2042, pp. 522-523)

10. Similarly in Crawford’s Interpretation of Laws it has beensaid:

“Effect of Repeal, Generally.— In the first place, an outrightrepeal will destroy the effectiveness of the repealed act infuturo and operate to destroy inchoate rights dependent on it,as a general rule.In many cases, however, where statutes arerepealed, they continue to be the law of the period during whichthey were in force with reference to numerous matters.” (pp.640-641)

11. The observations of Lord Tenterden and Tindal, C.J. referredin the above-mentioned passages in Craies on Statute Law alsoindicate that the principle that on repeal a statute is obliterated issubject to the exception that it exists in respect of transactionspast and closed.To the same effect is the law laid down by thisCourt. (See: Qudrat Ullah v. Municipal Board [(1974) 1 SCC202 : (1974) 2 SCR 530] , SCR at p. 539)

12. This means that as a result of repeal of a statute the statute asrepealed ceases to exist with effect from the date of such repealbut the repeal does not affect the previous operation of the lawwhich has been repealed during the period it was operative priorto the date of such repeal. “

(emphasis supplied)

18. Therefore, when a substitution was carried out initially on28.6.2006, all the provisions of clause (3) of Rule 266, as it stood, suffereda repeal and in its place a new avtaar was born. It must be at once A

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Aremembered that the proviso was inserted on 1.7.2004 in clause (3) ofRule 266. Therefore, when the rule making authority substituted clause(3) of Rule 266 by the amendment dated 28.6.2006, the inevitable resultwould be the repeal of entire clause (3) of Rule 266 including the proviso.It is crucial to bear in mind that the amendment to Rule 266 (3) bysubstitution did not expressly save the proviso. It is equally important toBbe not oblivious to the fact that the proviso was an integral part ofclause(3) of Rule 266. Since Rule 266(3) came to be substituted, havingregard to the legal consequences of the same, the proviso could notsurvive.

19. The fact that the proviso had ceased to exist as a result of theCsubstitution dated 28.6.2006 is unambiguously demonstrated, by the factthe rule making authority chose to step in by issuing notification dated29.11.2006 by inserting again the proviso to Rule 266(3). It read asfollows:

“Provided that the person who has appeared or is appearing inDthe B.Ed./ B.S.T.C./DSE/B.Ed.(Special Education) Examinationshall be eligible to apply for the post of primary and upper primaryschool teachers (General Education/ Special Education) but heshall have to submit proof of having acquired the said educationalqualification to the Rajasthan Public Service Commission beforeEthe declaration of result of the competitive examination.”It is by a subsequent amendment that the words ‘DistrictEstablishment Committee’ was inserted in place of Rajasthan PublicService Commission.

20. Rule 266 (3) as was brought into life by the amending ActFdated 28.6.2006 continued to hold the field till it suffered substitution bynotification dated 11.5.2011. Apparently, consequent upon the need tochange the qualifications, Rule 266(3) came to be substituted. However,it is not in dispute that after the substitution dated 11.5.2011, the provisorelied upon by the respondent has not been brought back into existenceGas was done in the year 2006.

21. We would think whatever ambiguity there may have been asto the actual effect of the substitution, it stands removed by the legislativehistory of clause (3) of Rule 266 including the proviso therein. Thelegislative intention is clear that when rule maker substituted the provisionsof clause (3), it intended that the entirety of clause (3) would standH

obliterated as indeed is the effect of a repeal and a new set of provisionstaking its place. It is on this understanding that the rule making authority,when it intended that the proviso must govern, it expressly did so, and itissued the notification dated 29.11.2006. Admittedly after 11.5.2011, theproviso has not been brought back to life. Apparently, the notificationdated 29.11.2006 bringing the proviso back to life after the substitutionof clause (3) to Rule 266 in 2006 was not brought to the notice of theHigh Court.

22. As far as the Circular dated 29.2.2012 relied upon by therespondent is concerned, it related to the advertisement issued in 2012though legally the proviso to Rule 266(3) was non-existent. For whateverreasons it may have been, the order came to be issued extending thebenefit of the proviso but after changing the condition in theadvertisement. It cannot advance the case of the respondent who appliedpursuant to a later advertisement dated 11.8.2013 wherein the requirementas to possession of qualifications as on the last date is clearly indicated.As far as the advertisement with which we are concerned which is ofthe year 2013, the Circular dated 29.2.2012 cannot be pressed into serviceby the respondent both in law and on facts.

23. The candidates must possess the qualifications on the lastdate when applying under the advertisement when it is so provided. Inview of our finding that the proviso had ceased to exist after substitutionof Rule 266(3) by notification dated 11.5.2011, there can be no questionof the advertisement being opposed to the statutory rule.

24. The upshot of the above discussion is that the appeal is only tobe allowed. We allow the appeal and the impugned judgment of theHigh Court in Writ Appeal No.DBCSAW NO.667/2015 shall stand setaside.

Divya Pandey

Appeal allowed.

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