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TMI Blog1986 (3) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;). The said Rules were promulgated by the Governor of the United Provinces on August 1, 1947. The expression 'Ministerial Establishment' was defined by rule 2(c) of the 1947 Rules as the staff of the subordinate civil courts consisting of ministerial servants as defined in Fundamental Rule (17), Financial Handbook, Vol.II, Part II. According to the definition given in rule 2(e) of the 1947 Rules the expression 'Subordinate Civil Courts' included the Courts of District and Sessions Judges, Additional District Sessions Judge, Civil and Sessions Judges, Civil Judges, Additional Civil Judges, Munsifs, Additional Munsifs and Courts of Small Causes subordinate to the High Court of Judicature at Allahabad or the Chief Court of Oudh at Lucknow. Rule 5 of the 1947 Rules prescribed the academic qualifications which a person should possess for being a candidate to a post in the ministerial establishment. It read as follows : 5. Academic qualifications - No person who is not already on the staff attached to a subordinate civil court shall be appointed to a post in the ministerial establishment unless; (a) he has passed at least the High School examination conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the commencement of the Constitution. But on July 15, 1950 the Governor of Uttar Pradesh promulgated rules for the recruitment of ministerial staff to the subordinate offices in the State of Uttar Pradesh including the offices of subordinate civil courts in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution of India in supersession of all existing rules and orders on the subject. These rules were called the 'Rules for the Recruitment of Ministerial Staff to the Subordinate Offices, 1950' (hereinafter referred to as 'the 1950 Rules'). Rule 2 of the 1950 Rules defined the term 'Subordinate Office' as including all offices under the control of the Governor of Uttar Pradesh other than those of the Secretariat, the State Legislature, the High Court and the Public Service Commission. Rule 3 of the 1950 Rules provided that the recruitment to the lowest grade of the ministerial staff in a subordinate office shall be made on the basis of a competitive test. Rules 5,6 7 of the 1950 Rules read as follows :- 5. Tests to be held annually - The competitive tests shall be held at least once a year and at the time specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inate offices under his control. The clear effect of the 1950 Rules therefore was that the 1947 Rules stood superseded by the 1950 Rules as regards the subjects prescribed for the test and the manner of the examination to be held for the purpose of selecting candidates for the ministerial staff in the Civil Courts of the State of Uttar Pradesh. To be precise, rules 9 to 12 and Appendix II of the 1947 Rules were superseded. The two reasons in support of G the above view are : (i) that in the definition of the expression 'Subordinate Office' only the offices of the Secretariat, the State Legislature, the High Court and the Public Service Commission stood excluded and (ii) the offices of the Subordinate Civil Courts were included in the Schedule to those Rules. On its administrative side the High Court also understood that the 1950 Rules were applicable insofar as recruitment to the ministerial staff in the Civil Courts was concerned. This is evident from a letter written by Shri M.P. Singh, Joint Registrar of the High Court of Allahabad to all the District Judges in the State of Uttar Pradesh on February R 12, 1973 which is as under :- From: M.P. Singh, B.A., LL.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Employment Exchange. The District Judge should further require that candidates should send advance copies of their applications direct to the District Judge which would go to ascertain p whether all applications have been forwarded to him by the Employment Exchange or not. However, if on receiving the applications from the Employment Exchange, it is found that applications of certain suitable candidates have been withheld by the Employment Exchange, the District Judge may in his discretion, permit such candidates to take the test as contemplated in paragraph 7 of the G.O. dated August 30, 1950 referred to earlier. In the case of candidates who are appointed to fill up casual vacancies without appearing in the regular test prescribed under the rules and are already working on the staff of the civil court concerned, they should be treated as departmental candidates and should be allowed to take the test without any reference to the Employment Exchange in order to enable them to qualify for regular appointment. Yours faithfully, sd/- M.P. Singh Joint Registrar (underlining by us) From the above letter it is clear that the High Court understood that rules 9 to 12 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eto; (b) he possesses a thorough (b)he possesses a thorough knowledge both of Urdu and knowledge both of Urdu and Hindi; Hindi. (c) he possesses in the case (c)he possesses in the case of a candidate for the post of a candidate for the post of Stenographer, a diploma or of Stenographer, a diploma certificate from a University or certificate from a of a recognised Shorthand University or a recognised and typewriting Institution, Shorthand and typewriting showing that he possesses a Institution showing that he speed of at least 100 words possesses a speed of at per minute in Shorthand and least 100 words per minute 35 words per minute in in typewriting. typewriting. __________________________________________________________ 3. AMENDMENT OF APPENDIX II 5. In the said rules for the Appendix as set out in column 1, the Appendix as set in column 2 shall be substituted. Column 1 Column II Existing Appendix II Marks Appendix as hereby Marks substituted. The Examination shall The Examination shall be in three parts: be in three parts: 1. Compulsory subjects 350 1.Compulsory subjects 350 2. Optional subjects 50 2.Optional subjects 50 3. Interview 100 3.Interview ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est grade, other than the posts of stenographer (which are required to be filled by direct recruitment and which are outside tho purview of the Public Service Commission) in all subordinate offices under the control of the Government but excluding the Secretariat, the offices of State Legislature, Lokayukt, Public Service Commission, Uttar Pradesh, High Court the Subordinate Courts under the Control and seuperintendence of the High Court, the Advocate General, Uttar Pradesh and of the establishments under the control of the Advocate General. From rule 2 of the 1975 Rules which is set out above, it clear that the said Rules were not made applicable to the Secretariat, the offices, of the State Legislature, Lokayukta, Public Service Commission, High Court, the subordinate Courts under the control and superintendence of the High Court and all the establishments under the control of the Advocate General. The 1975 Rules prescribed the qualifications and the pattern of a competitive examination for purposes of recruitment in substitution of what had been prescribed by the 1950 Rules in respect of subordinate offices to which the 1975 Rules applied. Sub-rule (1) of rule 20 of the 1975 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1969 were framed by the Governor, amending Appendix II of 1947 Rules. The notification dated September 20, 1969, under which the Rules were enforced, does not contain any reference to 1950 Rules. It appears that while amending the 1947 Rules, the Governor failed to notice that Appendix II of 1947 Rules had already been superseded by Rule 6 of 1950 Rules. However, it is evient that the intention was to prescribe different syllabus than that prescribed by 1950 Rules. There is no doubt that by the 1969 Rules, the Governor intended to lay down a syllabus for holding competitive examination for selection and appointment to the ministerial establishment of Subordinate Courts which was quite different to the syllabus prescribed by rule 6 of 1950 Rules as well as Appendix II of 1947 Rules. The 1969 Rules were also framed by the Governor in respect of the same subject matter as laid down by rule 5 of 1950 Rules. Since 1969 Rules were framed later in time by the same authority on the same subject, it must be held that the syllabus prescribed by the Amending Rules superseded the earlier rules on the subject. The High Court gave one more reason for holding that the 1950 Rules were no longe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Uttar Pradesh continued in their posts. Aggrieved by the judgment of the High Court, the appellant who was one of the selected candidates in the Kanpur examination, has filed this appeal by special leave. In this case the deficiencies in the drafting of the rules and the inadvertence on the part of the High Court in complying with them pose some difficulty in arriving at a just solution. There is no dispute that the 1947 Rules made appropriate provisions regarding the recruitment of candidates to the posts in the ministerial establishment in the Subordinate Courts in the former United Provinces and they continued to be in force till July 11, 1950. On July 11, 1950 the 1950 Rules were promulgated. They were applicable not merely to the ministerial establishments in Civil Courts but to the ministerial establishments in several other offices. They were promulgated in supersession of all existing rules and orders on the subject. They prescribed that recruitment to the ministerial staff in a subordinate office to which the said rules were applicable should be made on the basis of a competitive test and also provided for the mode of calculation of vacancies, the period duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication which a candidate for a post in the ministerial establishment in a Subordinate Civil Court should possess. The other amendment related to the substitution of the former Appendix II which related to the subjects prescribed for the competitive examination and the marks assigned to each of them as it obtained before the 1950 Rules came into force by a new Appendix which has already been set out above. Rule 11 of the 1947 Rules which required the District Judge to hold the examination in accordance with the former Appendix II of the 1947 Rules which also stood superseded by the 1950 Rules in view of rules 5 7 of the 1950 Rules which dealt with the same subject, was however not replaced nor a corresponding rule authorising the District Judge to hold the competitive examination in accordance with the new Appendix II was introduced by the 1969 Amending Rules into the 1947 Rules simultaneously. The result was that while the new Appendix II again re-appeared in the 1947 Rules prescribing certain subjects and marks assigned to them, the authority who should hold the competitive examination was not again prescribed in the 1947 Rules. It was necessary to re-enact rule 11 of the 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e place of the earlier law and for some reason cannot be implemented, the earlier law would continue to operate. To such a case the rule of implied repeal is not attracted because the application of the rule of implied repeal may result in a vacuum which the law making authority may not have intended. Now, what does Appendix II contain? It contains a list of subjects and marks assigned to each of them. But who tells us what that list of subjects means? It is only in the presence of rule 11 one can understand the meaning and purpose of Appendix II. In the absence of an amendment re-enacting rule 11 in the 1947 Rules, it is difficult to hold by the application of the doctrine of implied repeal that the 1950 Rules have ceased to be applicable to the ministerial establishments of the Subordinate Civil Courts. The High Court overlooked this aspect of the case and proceeded to hold that on the mere reintroduction of the new Appendix II into the 1947 Rules, the examinations could be held in accordance with the said Appendix. We do not agree with this view of the High Court. There is also no material before the Court to show that after the 1969 Amending Rules, examinations were held in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey applied to the subordinate courts continued to be in force. The finding of the High Court on this question is erroneous and is liable to be set aside. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination. For the foregoing reasons we feel that the judgment of the High Court should be set aside. We accordingly set aside the judgment of the High Court and dismiss the Writ Petition. The appellant and all other successful candidates at the 1981 examination held in Kanpur shall be appointed in accordance with the Rules. We further direct that they shall be given the salary, allowances, increments and seniority to which they would have been en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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