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TMI Blog1991 (10) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... baram, M. Veerappa (N.P.) and K.H Nobin Singh JUDGMENT 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 unexceptionable 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 reasoning adopted by the learned Judges in their respective judgments. Rule 1(3)(a) of the General Rules, which lays down the extent and applicability of the General Rules, specifically provides that the General Rules shall not be applicable to the State Civil Services for which there are express provisions under any law for the time being in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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Rules and that they are not meant to do so since the Special Rules also are very much in force inasmuch as they are not superseded.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-obstante clause in Rule 3(2) and its fleet on the Special Rules providing for promotion to the post of Deputy Commissioner 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 power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 Chidambaram 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 therefore, 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 recruitment to all the Karnataka State Civil Services broadly. It is not in dispute that just like the Special Rules providing for recruitment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 specially 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 promotion by, selection, by selection of a 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 referred 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 suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral law does not abrogate earlier special law by mere implication. In Eileen Louise Nicoole v. John Winter Nicolle, [1992] 1 AC 284, Lord Phillimore observed as under: "It is a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law, expressed in general terms and by the apparent generality of its language applicable 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 indirectly 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 v. Antonio Vicente Da Fortseca and others etc., [1979] 3 SCC 47, this Court observed that A law which is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Arabinda Bose and Another, [1953] SCR 1, 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: "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 Councils 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conflict 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 overriding 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 interpretation on a plain and grammatical construction of the words the non-obstante clause cannot cut down the construction and res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 provides 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 gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstant case we have already noted that there is no express repeal of the Special Rule providing for promotion by selection. The Courts have not favoured such repeal by implication. On the other hand it is indicated 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 [1936] Ch. 266 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 v. Phi/lips [1891] 2 Q.B. 267 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 v. T.J. Joseph, AIR 1963 SC 1561, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral 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 nonobstante 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 10 th December, 1976 on the publication of the same in the Karnataka 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 schedule attached to Rule 1I. In the schedule for the post specified in column 1 thereof the method of recruitment and minimum qualification were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rules, before the insertion of sub-rule (2), reads as follows:- "3. 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-cum-merit. The methods of recruitment and qualifications shall be as specified in the rules of recruitment 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 Authority as the case may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 appointment 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 General 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 Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices, the Government made a provision 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 v. Man Mohan Dev. AIR 1966 SC 1931, the Supreme Court approved the following quotation from Maxwell on Interpretation of Statute: "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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 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 recruitment to some of the services had been in force providing 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 element 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 confined 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arisen and that would have necessitated the application of the principle "Generalia specialibus non derogant". The general rule to be followed in ease of conflict 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 following 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 fulfilled, the later law, even though general, would prevail". It is thus clear that both the conditions mentioned by Mukharji, J., speaking for the Bench are fulfilled. In this case whether the promotion has to be by the method of selection or simplicitor 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 enactment". But as per th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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