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TMI Blog2016 (2) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... l and Ranu Sahu are appointed. Her seniority and pay shall be fixed on that basis. However, she will not be allowed to make any claim for salary for the intervening period otherwise the intervening period shall count for all other purposes. Appeal allowed. - Civil Appeal No. 274 of 2016 - - - Dated:- 8-2-2016 - A.K. Sikri and Abhay Manohar Sapre, JJ. For Appellant: Ajit Kumar Sinha, Sr. Adv., T.G. Narayanan Nair and K.N. Madhusoodhanan, Advs. For Respondents: Apoorv Kurup, Aniruddha P. Mayee, A.C. Boxipatro, Harsh Pathak, Farrukh Rashee, Siddhartha Shukla and Mohit Choubey, Advs. JUDGMENT A.K. Sikri, 1. The issue which arises for consideration in the present appeal pertains to the appointment for the post of Deputy Superintendent of Police (hereinafter referred to as the 'Dy. S.P.'). Though, the Appellant herein had participated in the selection process and she not only qualified at each stage of the examination process, her name was still not included in the list of successful candidates for the said post. The reason given was that as per the Chhattisgarh Police Executive (Gazetted) Service Recruitment and Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even such persons were not entitled to the benefit of age relaxation. We make it clear that we shall be eschewing the discussion in respect of those cases which obviously is not necessary. 4. Coming to the case of the Appellant herein, seminal facts which need to be recorded for deciding the controversy are recapitulated below: As mentioned above, the Appellant herein was appointed as Excise Sub Inspector, Bilaspur vide appointment order dated 24.01.2006 and she joined the said post on 07.02.2006. On 27.09.2004, the State Government sent requisition to Chhattisgarh Public Service Commission (hereinafter referred to as the 'CPSC') for filling up of various vacancies which included vacancies to the post of Dy. S.P. as well. This was followed by fresh requisition dated 22.03.2005. In this requisition, the State Government also mentioned that the vacancies shall be filled up in accordance with Rules, 2000. Acting on this requisition, CPSC issued Advertisement dated 26.08.2005. Relevant to state that after the requisition by the State Government sent on 22.03.2005 and before the issuance of Advertisement on 26.08.2005, Chhattisgarh Police Executive (Gazet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servant as she was working in the Excise Department of the State of Chhattisgarh and being a Government Servant, she was entitled to age relaxation for eight years. This plea was rejected by the learned single Judge recording that she has joined the government service after the cut-off date and, therefore, she was not a government employee on the relevant date. 7. The Appellant challenged the aforesaid order of the learned single Judge by filing the writ appeal. In this writ appeal, she did not pursue her case for age relaxation upto eight years on the ground that she was a Government Servant. Instead she relied upon Rule 4 of Rules 1997 wherein relaxation of ten years is available to women candidates in addition to other relaxation in age. The Division Bench has held that benefit of Rule 4 of Rules 1997 shall not enure to her benefit and the entire discussion in support of this conclusion is contained in paras 52 and 53 of the impugned judgment which are reproduced hereunder in entirety: 52. We are unable to accept this argument. The advertisement clearly mentions that for the post of Dy. S.P., minimum and maximum age limit would be 20 and 25 years clearly spell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of eligibility for direct recruitment, it is Rule 8 of the said Rules which is relevant. This Rule provides for lower and upper age limit as well. The relevant portion of the provision relating to age, as contained in the said Rule, is reproduced below, thereby omitting the provisions pertaining to other conditions of eligibility with which are not concerned: 8. Conditions of eligibility for direct recruitment.-- In order to be eligible for competing in the examination a candidate shall have to be satisfy following conditions, namely: (1) Age.--(a) He must have attained the age as specified in column 4 of Schedule III and not attained the age specified in column 5 of the said schedule, on the first day of January next following the date of commencement of the examination. (b) The upper age limit shall be relaxable upto a maximum of five years if a candidate belonging to Scheduled Caste, Scheduled Tribe or Other Backward Class. (c) The upper age limit shall also be relaxable in respect of candidates who are or have been employees of the Madhya Pradesh Government, to the extend and subject to the conditions specified below: (i) A candidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly against leave vacancies. (e) General upper age limit shall be relaxable upto five years in respect of widow, destitute or divorced woman candidates. (f) Upper age limit shall also be relaxable upto two years in respect of green card holder candidates under the Family Welfare Programme. (g) The General upper age limit shall be relaxable upto five years in respect of awarded superior caste partners of a couple under the inter caste marriage inceptive Programme of the Tribal, Scheduled Castes, and Backward Classes Welfare Department. (h) The upper age limit shall also be relax able upto five years in respect of candidates holding 'Vikram Award' (i) The upper age limit shall be relax able upto a maximum of 33 years of age in respect of candidates (who are employees) of Madhya Pradesh State Corporation/Boards. (j) The upper age limit shall be relaxed in case of voluntary Home-Guards for the period of service rendered by them subject to the limit of 8 years, but in no case their age should exceed 3 years. Note (1) Candidates who are admitted to the selection under the age concession mentioned in sub-clause(i) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Counsel for the Respondents is that having regard to Rule 8(1) of Rules, 2000, which provides for provision relating to 'age' specifically for the post in-question, it is this Rule which would determine the eligibility of candidates insofar as prescription of 'age' therein is concerned. 13. We may add here that Mr. Ajit Kumar Sinha, learned senior Counsel for the Appellant had also drawn our attention to States Service Examination Rules, dated June 9th, 2003 (Examination Rules, 2003). He submitted that the examination in-question was conducted as per those Rules. These Rules are applicable to the post of Dy. S.P. as well and Rule 5 thereof deals with eligibility conditions. Apart from prescribing nationality, minimum educational qualification etc., It specifically lays down provision relating to age of the candidates. Though, the minimum of age of 21 years and maximum of age 30 years as on first January next following the date of commencement of the competitive examination is stipulated therein, proviso to this provision of age empowers the State Government to vary the lower and upper age limits for any of the services included in these Rules looking to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptember 27, 2004 which was followed by 2nd requisition on March 23, 2005. These requisitions were in respect of post which had fallen vacant at that time and as on the dates of these requisitions, Rules 2000 were applicable. It is for this reason that even in the requisition it was specifically mentioned that post in-question shall be filled up in accordance with Rules, 2000. The learned Counsel, therefore, argued that since the process was initiated Under Rules, 2000, it was clearly saved in Rules, 2005 as is evident from proviso to Rule 27 dealing with repeal and saving. It reads as under: 27. Repeal and Saving: Provided that any order made or action taken under rules so repealed, shall be deemed to have been made or taken under the corresponding provisions of these rules. 17. It was argued that precisely for this reason even in the advertisement, it was mentioned that the post will be filled up as per Rules, 2000. It was further contended that this advertisement was never challenged by the Appellant and, therefore, recruitment made Under Rules, 2000 in respect of vacancies which were for the period when Rules, 2000 were applicable, could not be faulte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the period prior to 2005. Such vacancies needed to be filled in as per those Rules, i.e. Rules, 2000. This is patent legal position which can be discerned from Y.V. Rangaiah and Ors. v. J. Shreenivasa Rao (1983) 3 SCC 284. As per the facts of that case a panel had to be prepared every year of list of approved candidates for making appointments to the grade of Sub-Registrar Grade-II by transfer according to the old rules. However, the panel was not prepared in the year 1976 and the Petitioners were deprived of their right of being considered for promotion. In the meanwhile, new rules came into force. In this factual background, it was held that the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. The judgment in the case of B.L. Gupta and Anr. v. M.C.D. (1998) 9 SCC 223 also summarises the legal position in this behalf. The judgment in P. Ganeshwar Rao and Ors. v. State of Andhra Pradesh and Ors. 1988 (Supp) SCC 740 is also to the same effect. Para 9 of the judgment laying down the aforesaid proposition of law, is reproduced below: 9. When the statutory rules had been frame din 1978, the vacancies had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. (ii) - As noted above, Rue 8 of Rules 2000, which, inter alia, deals with age criteria that has to be fulfilled by the candidate, does not make any provision for age relaxation insofar as women candidates are concerned. On the other hand, we have Rules, 1997 which also have statutory force as they are also framed under proviso to Article 309 of the Constitution of India. These Rules contain special provisions for appointment of women candidates and are made applicable to the public service and posts in connection with the affairs of the State. The question is as to whether these Rules would not be applicable in those cases where recruitment is made Under Rules, 2000 which not only contains specific provision for age relaxation but does not make any provision for age relaxation in favour of women candidates and on the contrary categorically provides under Note (2) that 'in no other case age limits will be relaxed'. Significantly, this omission in Rules, 2000 has taken note of when Rules, 2005 were framed and, therefore, the situation was remedied in Rule 8 of Rules, 2005 by specifically providing Under Sub-rule (f) of Rule 8 that relaxation in the upper age limit would al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equality with men. In reality, however, they have yet to go a long way to achieve this Constitutional status. It is now realised that real empowerment would be achieved by women, which would lead to their well-being facilitating enjoyment of rights guaranteed to them, only if there is an economic empowerment of women as well. Till sometime back, the focus was to achieve better treatment for women and for this reason, the concentration was mainly on the well-being of women. Now the focus is shifted to economic empowerment. Such objectives have gradually evolved or broadened to include the active role of women when it comes to development as well. No longer the passive recipients of welfare-enhancing help, women are increasingly seen, by men as well as women as active agents of change: the dynamic promoters of social transformation that can alter the lives of both women and men. It is now realised that there is a bidirectional relationship between economic development and women's empowerment defined as improving the ability of women to access the constituents of development-in particular health, education, earning opportunities, rights, and political participation. This bidirecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose behind enacting the aforesaid Rule having statutory character. 28. In order to gather the intention of the lawmaker, the principle of 'purposive interpretation' is now widely applied. This has been explained in the case of Shailesh Dhairyawan v. Mohan Balkrishna Lulla 2015 (11) SCALE 684 in the following words: 9. The aforesaid two reasons given by me, in addition to the reasons already indicated in the judgment of my learned Brother, would clearly demonstrate that provisions of Section 15(2) of the Act require purposive interpretation so that the aforesaid objective/purpose of such a provision is achieved thereby. The principle of 'purposive interpretation' or 'purposive construction' is based on the understanding that the Court is supposed to attach that meaning to the provisions which serve the 'purpose' behind such a provision. The basic approach is to ascertain what is it designed to accomplish? To put it otherwise, by interpretative process the Court is supposed to realise the goal that the legal text is designed to realise. As Aharan Barak puts it: Purposive interpretation is based on three components: languag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and upper age limits for any of the services included in these Rules looking to the exigencies of services. This Rule also makes provision for relaxation in the upper age limit in certain cases. What is relevant for us is that for women candidates, a provision is specifically made providing that as per Rules, 1997, 10 years age relaxation would be given to women candidates, as is clear from the said provision which reads as under: (xiv) up to maximum 10 years: for women candidate: As per Rajpatra (Asadharan) dated 7.2.1997, Published rule C.G. Civil Service (Special provision of appointment for women) Rule 1997, 10 years age relaxation will be given to women candidate. 30. It can, therefore, be clearly inferred that incorporation in the manner aforesaid Rules, 1997 were made applicable for the examination in question and in this way the lacuna in Rules, 2000 also got filled up. It would not be too much presumptuous to say that omission of Rules, 1997 in Rule 8 of Rules, 2000 was merely accidental and it was not a case of casus omissus. Because of this reason, said omission was also rectified while enacting Rules, 2005 by making a specific provision in Rule 8(f) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication. 15. The provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from adversarial litigation to social context adjudication is the need of the hour. 16. The law regulates relationships between people. It prescribes patterns of behavior. It reflects the values of society. The role of the Court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 945 to Shabana Bano MANU/SC/1859/2009 : AIR 2010 SC 305 guaranteeing maintenance rights to Muslim women is a classical example. 19. In Rameshchandra Daga v. Rameshwari Daga MANU/SC/1057/2004 : AIR 2005 SC 422, the right of another woman in a similar situation was upheld. Here the Court had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act in 1955. The Court had commented that though such marriages are illegal as per the provisions of the Act, they are not 'immoral' and hence a financially dependent woman cannot be denied maintenance on this ground. 20. Thus, while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon's Case (1854) 3 Company Rep. 7a, 7b which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction ut res magis valeat quam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anifest its intention by removing the ambiguity and providing a specific provision even in Rules, 2005 which, according to us, is by way of abundant caution so that such kinds of disputes or situations with which we are confronted here, are eliminated. 32. Thus, in ultimate analysis, we hold that the Appellant was entitled to age relaxation as per Rule 4 of Rules, 1997 read with State Services Examination, 2003. She was, therefore, eligible to be considered for the post of Dy. S.P. The facts narrated above reveal that she participated in the selection process and in the merit list prepared, she was placed at Serial No. 54. Persons below her in the merit list have been appointed. She was excluded only because of alleged age bar since we find that this impediment would not come in her way, the present appeal warrants to be allowed. The direction is issued to the Respondents to appoint the Appellant as Dy. S.P. w.e.f. the date her juniors in the merit list, namely, Tarkeshwar Patel and Ranu Sahu are appointed. Her seniority and pay shall be fixed on that basis. However, she will not be allowed to make any claim for salary for the intervening period otherwise the intervening p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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