RICHA MISHRA Vs. STATE OF CHHATISGARH & ORS.
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 125 - Order for maintenance of wives, children and parents
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 274 of 2016, Judgment Date: Feb 08, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 274 OF 2016
RICHA MISHRA .....APPELLANT(S)
VERSUS
STATE OF CHHATTISGARH AND ORS. .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
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 Promotion Rules, 2000 (hereinafter referred to as Rules,
2000), upper age limit for appointment to the post of Dy.S.P. was 25 years
and she had already crossed the said age limit, and therefore, she was
rendered ineligible for the post in question.
2. This decision of the respondents in not appointing the appellant as
Dy. S.P. was challenged by the appellant by filing the writ petition in the
High Court of Chhattisgarh on the ground that she was entitled to the
benefit of age relaxation on account of being Government Servant. It may
be noted at this juncture that she was appointed as Excise Sub Inspector,
Bilaspur after clearing the CG combined Competitive Examination, 2003
(which is also called State Services Examination, 2003). She, thus,
claimed that she was a Government Servant and on that ground she claimed
age relaxation as per Rule 8 of the Rules, 2000. However, her writ petition
was dismissed by the learned single Judge holding that she entered the
Government job vide appointment order dated 21.04.2006 which was after the
cut-off date as 01.01.2006 for the post of Dy.S.P. and, therefore, was not
entitled to the benefit of age relaxation. The appellant filed the writ
appeal before the Division Bench and claimed benefit of age relaxation
under Madhya Pradesh Civil Services (Special Provision for appointment of
women) Rules, 1997 (hereinafter referred to as the 'Rules, 1997'). However,
even on this ground she has not succeeded as the High Court vide impugned
judgment dated March 10, 2010 has dismissed the writ appeal.
We would like to point out at this stage that number of writ petitions were
filed in the High Court which were taken up by the learned single Judge
analogously and decided by the common judgment dated November 16, 2009.
Whereas some writ petitions including that of the appellant herein was
dismissed and some other writ petitions were allowed by the learned single
Judge holding that in their cases they were entitled to age relaxation and,
therefore, select list should have been prepared on the basis of merit
treating those persons to be within age limit. The Government had filed
writ appeals challenging outcome of such writ petitions in favour of those
candidates. These appeals were also taken up by the Division Bench along
with the appeal of the appellant herein. The High Court has allowed those
appeals holding 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.
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
(Gazetted) Service Recruitment and Promotion Rules, 2005 (hereinafter
referred to as the 'Rules, 2005') came into force which were published in
the Official Gazette on 28.06.2005. The effect of these Rules would be
discussed at the relevant stage.
Appellant herein had applied for the post of Dy.S.P. and appeared in the
preliminary examination which she duly qualified. On that basis, the
appellant filled the form for appearing in main examination. In this form,
she stated that she was entitled to relaxation of ten years in upper age
limit being a woman. Such a relaxation was claimed on the basis of the
Rules, 1997 which were brought into force w.e.f. 07.02.1997. The Rule 4
thereof provides for such age relaxation. For our purposes, Rule 2 and
Rule 4 are relevant and are reproduced below:
“2. Scope and application – Without prejudice to the generality of the
provisions contained in any service Rules, these rules shall apply to all
persons to public service and posts in connection with the affairs of the
State.
4. Age Relaxation. - There shall be age relaxation of ten years for women
candidates for direct appointment in all posts in the services under the
State in addition to the upper age limit prescribed in any service rules or
executive instructions.”
The appellant was allowed to participate in the main examination and she
qualified that as well. Accordingly, she was called for interview on
12.04.2007. Final results were declared thereafter. She obtained 54th
position in the merit list. Thereafter, CPSC prepared the list of selected
candidates and sent that list to the Government for effecting appointments
as per that list. However, name of appellant was not recommended for
Dy.S.P. though two persons who were below in merit, namely, Tarkeshwar
Patel and Ranu Sahu were recommended. They had obtained 59th and 60th
position respectively, in the merit list. Appellant felt aggrieved thereby
and made a representation to this effect. However, her representation did
not elicit any positive response even when it was followed by a reminder
dated 20.05.2007. This apathy of the respondent forced the appellant to
approach the High Court in the form of writ petition filed under Article
226 of the Constitution of India. Her plea was that she had not been
given the benefit of age relaxation even when she was an existing
government 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.
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 spelling out the terms and conditions for
relaxation of age criteria.
53. From bare reading of Rule 8 of the Rules, 2000, it is clear that age
relaxation under the Rules, 1997 is not applicable for recruitment on the
post of Dy.S.P. From advertisement also, it is evident that no relaxation
in age for recruitment for the post of Dy.S.P. was available to the woman
candidates whereas age relaxation under the aforesaid rules have been made
applicable in other categories. Since there was no challenge by the
appellant to the applicability of the Rules, 2000, she cannot be permitted
to assail the impugned judgment on the ground that she was entitled for age
relaxation as provided under Rule 4 of the Rules, 1997.”
As is clear from the aforesaid reasoning given by the High Court, Rule 8 of
Rules, 2000 would prevail upon Rules, 1997 and, therefore, Rules, 1997 are
not applicable for recruitment to the post of Dy.S.P. The High Court has
also been persuaded by the stipulation contained in the advertisement as
per which outer age limit for the post of Dy.S.P. was 25 years. The whole
controversy, therefore, revolves around interplay of Rules, 1997 and Rules
2000 as well as other rules. That was precisely the focus of arguments of
the learned counsel for the parties.
We have already reproduced provisions of Rules 2 and 4 of Rules, 1997. As
can be discerned from bare reading of Rule 4 thereof, it provides for
relaxation of 10 years for women candidates for direct appointment 'in all
posts' in the services under the State and this relaxation is 'in addition'
to the upper age limit prescribed in any service Rules or adjective
instructions. Rule 2 of these rules makes it clear that Rules, 1997 shall
apply to all persons to public service and post in connection with the
affairs of the State, without prejudice to the generality of the provisions
contained in any service rules.
Insofar as Rules, 2000 are concerned, these are the Rules which pertain to
recruitment and promotion to various categories of post in State Police
Executive (Gazetted) Services. The post of Dy. S.P. is admittedly covered
by these Rules and, therefore, eligibility conditions for the aforesaid
post and the method of recruitment etc. as contained in these Rules which
govern the post of Dy. S.P. as well. Since, we are concerned herewith the
conditions 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 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 candidate who is a permanent Government Servant should not be more
than 33 years of age.
(ii) A candidate holding a post temporarily and applying for another post
should not be or more than 33 years of age. This concession shall also be
admissible to the contingency paid employees, work-charged employees and
employees working in the Project Implementation Committee.
(iii) A candidate who is a retrenched Government Servant shall be allowed
to deduct from his age the period of all temporary service previously
rendered by him upto a maximum of 7 years even if it represents more than
one spell provided that the resultant age does not exceed the upper age
limit by three years.
Explanation.— The term 'retrenched Government Servant' denotes a person who
was in Government Servant of this State or of any of the constituent units
for a continuous period of not less than six months and who was discharged
because of reduction in the number of employees not more than three years
prior to the date of his registration in the Employment Exchange or of
application made otherwise for employment in the Government Service.
(d) A candidate who is an ex-serviceman shall be allowed to deduct from
his age the period of all defense services previously rendered by him
provided that the resultant age does not exceed the upper age limit by more
than three years.
Explanation.— The terms 'ex-serviceman' denotes a person who belongs to any
of the following categories and who was employed under the Government of
India for a continuous period of not less than six months and who was
retrenched or declared surplus a s a result of the recommendation of
Economy Unit or due to normal reduction in the number of employees not more
than three years from the date of his regi9stration and any employment
exchange or of application made other wise for employment in Government
Service:-
(i) Ex-serviceman released under mustering out concession;
(ii) Ex-serviceman recruited for the second time and discharge on-
(a) completion of short term engagement;
(b) fulfilling the conditions of enrollment;
(iii) Officers (Military and Civil) discharged on completion of their
contract (including Short Service regular commissioned officers);
(iv) Officers discharged after working for more than six months
continuously 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 (ii) of clause (c) and clause(i)
above shall not be eligible for appointment if after submitting the
application they resign from the service either before or after the
selection. They will however continue to be eligible if they are
retrenched from the service or post after submitting the application.
Note (2) In no other case age limits will be relaxed.
Note (3) Department candidates must obtain previous permission of their
appointing authority to appear for the selection.”
Column (4) of Schedule III prescribes minimum age limit of 20 years and
maximum age limit of 25 years for the post of Dy.S.P. (HQ, Training, JNPA,
PTC, PTS, Security, Lines etc.). A reading of the aforesaid provision, in
its entirety, would suggest that relaxation in age of different periods is
provided to the candidates belonging to the following categories:
(i) Scheduled Castes, Scheduled Tribes or Other Backward Classes.
(ii) Employees of the Madhya Pradesh Government holding permanent post or
temporary post or retrenched Government Servant.
(iii) Ex-Serviceman
(iv) Widow/destitute or divorced women candidates
(v) Green card holder candidates under the Family Welfare Programme
(vi) Awarded superior caste partners of a couple under the inter-caste
marriage inceptive programme of the Tribal, Scheduled Castes and Backward
Classes Welfare Department.
(vii) Those candidates who are holding 'Vikram Award'
(viii) Candidates who are employees of Madhya Pradesh State
Corporation/Boards.
(ix) Candidates who are voluntary Home-Guards
Admittedly, case of the appellant does not fall in any of the
aforementioned categories wherein age relaxation is provided. If one has
to go by Rule 8 in isolation, having regard to Note (2), age limit in the
case of appellant cannot be relaxed. In this context, however, the
question arises as to whether Rules, 1997, which contain special provision
for appointment of women, would still be applicable having regard to the
fact that the appellant is a woman candidate. Whereas, the contention of
Mr. Ajit Kumar Sinha, learned senior counsel appearing for the appellant is
that since there are special Rules meant for women candidates in respect of
all posts in the State, this special provision is applicable. On the
other hand, contention of the learned 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.
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 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.”
Taking advantage of this provision, Mr. Sinha argued that since
examinations were conducted under the aforesaid Rules, in view of the said
specific provision, the appellant was entitled to age relaxation, as per
Rules, 1997.
Another submission of Mr. Ajit Kumar Sinha was that in any case it was not
permissible for the respondents to make recruitment in-question on the
basis of Rules, 2000 in view of the fact that in the State of Chhattisgarh,
Chhattisgarh Police Executive (Gazetted) Recruitment and Promotion Rules,
2005 were promulgated vide Notification dated June 28, 2005 issued by the
Governor of the State in exercise of proviso to Article 309 of the
Constitution of India and, these Rules specifically repealed Rules, 2000.
He pointed out that in these Rules specific provision has been made under
Rule 8(f) for giving relaxation upto 10 years to women candidates, in terms
of Rules, 1997. The said provision is as follows:
“8(f) The upper age limit for women candidates shall be relaxable upto 10
years as per Chhattisgarh Civil Service (special provision for appointment
of women) Rules, 1997. this relaxation shall be in addition to the other
age relaxation.”
He submitted that in the instant case, advertisement for the post in-
question, in which the appellant participated, was issued on August 26,
2005, i.e. after the promulgation of Rules, 2005 which became effective
from June 28, 2005 and, therefore, it is Rules, 2005 which were applicable
and as these Rules contain specific provision for relaxation for women
candidates on the applicability of Rules, 1997.
Learned counsel for the respondents countered the aforesaid submissions by
arguing that the first requisition in the instant case was sent by the
State on September 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.”
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 faulted with. In this very line of submission, it was further
argued that once it is accepted that Rules, 2000 govern the field,
admittedly as per these Rules there is no provision for relaxation for
women candidates and, therefore, High Court rightly held that the appellant
was not entitled to any such age relaxation and was, therefore, suffered
from age bar.
From the arguments noted above, the questions that fall for consideration
and need the answers are the following:
(a) Whether the recruitment to the post of Dy.S.P. was governed by Rules,
2005 or it was rightly done under the Rules, 2000?
It may be pointed out at this stage itself that if Rules, 2005 are
applicable then the outcome of the case would clearly be in favour of the
appellant inasmuch as rules specifically provided for relaxation upto 10
years for women candidates. However, if answer to the aforesaid question
is that recruitment process was rightly carried under Rules, 2000 then
further question would arise for consideration, viz.:
(b) Notwithstanding the fact that Rules, 2000 do not contain any
provision for relaxation qua women candidates, whether a relaxation would
still be available to women candidates under Rules, 1997?
There are two incidental facets of question no. (b), which are as
follows:
(i) Whether Rules, 1997 are applicable, which make special provision for
relaxation in upper age limit by 10 years in respect of women candidates?
(ii) Whether Examination Rules, 2003 which specifically contain a
provision for applicability of Rules, 1997 would be treated as applicable
for the examination in-question?
Question No. 1
The High Court held that first and second requisitions to commence
recruitment process against the vacant seats to the post of Dy.S.P. was
made when Rules, 2000 were in force. Therefore, recruitment was rightly
undertaken under Rules, 2000.
The admitted facts are that the process of selection started before
Rules, 2005 were promulgated with the requisitions dated September 27, 2004
and March 26, 2005 sent by the State Government to the CPSE. At that time,
Rules, 2000 were in vogue. For this reason, even in the requisition it was
mentioned that appointments are to be made under Rules, 2000. Further, it
is also an admitted fact that the vacancies in-question which were to be
filled were 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 Others v. J.
Shreenivasa Rao[1]. 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 Another v. M.C.D.[2] also
summarises the legal position in this behalf. The judgment in P. Ganeshwar
Rao and Others v. State of Andhra Pradesh and Others[3] 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 to
be filled only according to the said Rules. The Rules of 1995 have been
held to be prospective by the High Court and in our opinion this was the
correct conclusion. This being so, the question which arises is whether
the vacancies which had arisen earlier than 1995 can be filled as per the
1995 Rules. Our attention has been drawn by Mr. Mehta to a decision of
this Court in the case of N.T. Devin Katti v. Karnataka Public Service
Commission [(1990) 3 SCC 157]. In that case after referring to the earlier
decisions in the cases of Y.V. Rangaiah1, P. Ganeshwar Rao3, and A.A.
Calton v. Director of Education [(1983) 3 SCC 33] it was held by this Court
that the vacancies which had occurred prior to the amendment of the Rules
would be governed by the old Rules and not by the amended Rules.”
No doubt, under certain exceptional circumstances, Government can take a
conscience decisions not to fill the vacancies under the old Rules and,
thus, there can be departure of the aforesaid general rule in exceptional
cases. This legal precept was recognised in the case of Rajasthan Public
Service Commission v. Keilla Kumar Palliwal and another[4] in the following
words:
“There is no quarrel over the proposition of law that normal rule is that
the vacancy prior to the new Rules would be governed by the old Rules and
not by the new Rules. However, in the present case, we have already held
that the Government has taken conscious decision not to fill the vacancy
under the old Rules and that such decision has been validly taken keeping
in view the facts and circumstances of the cases.”
This position is reaffirmed in State of Punjab v. Arun Kumar Aggarwal[5].
However, as far as present case is concerned, the State sent the
requisition specifically mentioning that the recruitment has to be under
Rules, 2000. This was so provided even in the advertisement. The
appellant never challenged the advertisement and contended that after the
promulgation of Rules, 2005 the recruitment should have been under Rules,
2005 and not Rules, 2000. Therefore, the appellant is even precluded from
arguing that recruitment should have been made under Rules, 2005.
Thus, we answer question no. (i) by holding that recruitment was rightly
made as per Rules, 2000.
Question No. (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 also be
available to women candidates as per Rules, 1997 as noted above.
However, we have already come to a conclusion that Rules, 2005 are
not applicable in respect of selection in question. Therefore, position
will have to be considered keeping in view Rules, 2000 in juxtaposition
with Rules, 1997 and other relevant provisions which were applicable as on
that date.
No doubt, Rule 8 of Rules, 2000, which, inter alia, lays down the provision
pertaining to upper and lower age of the candidates, does not make any
specific provision for relaxation of age in respect of women candidates.
We also are conscious of the fact that Note (2) appended to Rule 8 provides
that in no other case, age limit will be relaxed. However, that is not the
end of the matter. The legal position is to be examined in conjunction
with all other rules which occupy the field and all relevant to determine
the issue. We are of the opinion that Rules, 1997 read with State Services
Examination Rules, 2003 would get attracted and as these Rules make a
specific provision for providing of age relaxation upto ten years that is
to be given to women candidates, the appellant herein shall be entitled to
the said benefit. The reasons for arriving at this finding are explained
hereinafter:
In the first instance, it is to be borne in mind that Rules, 1997 are
specific Rules, specially meant to give benefit of age relaxation to women
in public service and post in connection with the affairs of the State.
These Rules are statutory in nature framed under proviso to Article 309 of
the Constitution of India. Such a special provision is made in favour of
females in consonance with the Constitutional spirit contained in Article
15(3) of the Constitution of India which empowers the State to make any
special provision for women and children. The salutary purpose and
objective behind promulgating Rules, 1997 is manifest and can be clearly
discerned. It is to encourage women, hitherto known as weaker section, to
become working women, by taking up different vocations, including public
employment. It would naturally lead to empowerment of women, which is the
need of the hour. Women in this world, and particularly in India, face
various kinds of gender disabilities and discriminations. It is
notwithstanding the fact that under the Constitution of India, women enjoy
a unique status of 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 bidirectional relationship is explained by
Prof. Amartya Sen by propounding a theory that in one direction,
development alone can play a major role in driving down an equality between
men and women; in another direction, continuing discrimination against
women can hinder development. In this scenario, empowerment can accelerate
development. From whichever direction the issue is looked into, it
provides justification for giving economic empowerment to women. It is,
for this purpose, there is much emphasis on women empowerment (as it leads
to economic development) by United Nations World Bank and other such
Bodies. Interestingly, the 2012 World Development Report (World Bank 2011)
adopts a much more nuanced message. While it emphasizes the “business
case” for women empowerment, it mainly takes it as given that the equality
between women and men is a desirable goal in itself, and policies should
aim to achieve that goal. Poverty and lack of opportunity breed inequality
between men and women, so that when economic development reduces poverty,
the condition of women improves on two counts: first, when poverty is
reduced, the condition of everyone, including women, improves, and second,
gender inequality declines as poverty declines, so the condition of women
improves more than that of men with development. Economic development,
however, is not enough to bring about complete equality between men and
women. Policy action is still necessary to achieve equality between
genders. Such policy action would be unambiguously justified if
empowerment of women also stimulates further development, starting a
virtuous cycle. Empowerment of women, thus, is perceived as equipping them
to be economically independent, self-reliant, with positive esteem to
enable them to face any situation and they should be able to participate in
the development activities.
Keeping in view all the aforesaid and other relevant considerations, when
such affirmative actions are taken by lawmaker, in the form of subordinate
legislation, they need to be enforced appropriately so that the purpose
that is intended is suitably achieved. Seen in this context, Rule 4 of
Rules, 1997 is to be interpreted to have universal application when it
comes to women candidates seeking appointment in public service and post in
connection with the affairs of the State of Chhattisgarh. After all, that
is the primary purpose behind enacting the aforesaid Rule having statutory
character.
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[6] 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: language, purpose,
and discretion. Language shapes the range of semantic possibilities within
which the interpreter acts as a linguist. Once the interpreter defines the
range, he or she chooses the legal meaning of the text from among the
(express or implied) semantic possibilities. The semantic component thus
sets the limits of interpretation by restricting the interpreter to a legal
meaning that the text can bear in its (public or private) language.”
10. Of the aforesaid three components, namely, language, purpose and
discretion 'of the Court', insofar as purposive component is concerned,
this is the ratio juris, the purpose at the core of the text. This purpose
is the values, goals, interests, policies and aims that the text is
designed to actualize. It is the function that the text is designed to
fulfil.
11. We may also emphasize that the statutory interpretation of a provision
is never static but is always dynamic. Though literal rule of
interpretation, till some time ago, was treated as the 'golden rule', it is
now the doctrine of purposive interpretation which is predominant,
particularly in those cases where literal interpretation may not serve the
purpose or may lead to absurdity. If it brings about an end which is at
variance with the purpose of statute, that cannot be countenanced. Not only
legal process thinkers such as Hart and Sacks rejected intentionalism as a
grand strategy for statutory interpretation, and in its place they offered
purposivism, this principle is now widely applied by the Courts not only in
this country but in many other legal systems as well.”
Even if any doubt arises about the applicability of Rules, 1997 because of
absence of any specific provisions in Rules, 2000, that is taken care of by
State Services Examination Rules, 2003. It is not disputed by the
respondents that competitive examination for recruitment to the post of
Dy.S.P. was conducted under the aforesaid Rules. As already noted above,
Rule 5 of the said Rules deals with eligibility conditions. Apart from
prescribing nationality, minimum educational qualification etc., it
specifically lays down provision relating to age of the candidates. After
prescribing minimum and maximum age limits as eligibility condition for
appearing in the examinations, 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 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.”
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) of Rules, 2005.
Therefore, the intention of the rule making authorities had always been to
give benefit of relaxation in age to women candidates. After all, we are
called upon to interpret subordinate legislation salutary aim whereof is to
achieve social purpose and consequently social justice. What should be the
approach in interpreting such laws is explained in Badshah v. Sou. Urmila
Badshah Godse and Anr.[7] in the following words:
“13.3. Thirdly, in such cases, purposive interpretation needs to be given
to the provisions of Section 125, Code of Criminal Procedure While dealing
with the application of destitute wife or hapless children or parents under
this provision, the Court is dealing with the marginalized sections of the
society. The purpose is to achieve "social justice" which is the
Constitutional vision, enshrined in the Preamble of the Constitution of
India. Preamble to the Constitution of India clearly signals that we have
chosen the democratic path under rule of law to achieve the goal of
securing for all its citizens, justice, liberty, equality and fraternity.
It specifically highlights achieving their social justice. Therefore, it
becomes the bounden duty of the Courts to advance the cause of the social
justice. While giving interpretation to a particular provision, the Court
is supposed to bridge the gap between the law and society.
14. Of late, in this very direction, it is emphasized that the Courts have
to adopt different approaches in "social justice adjudication", which is
also known as "social context adjudication" as mere "adversarial approach"
may not be very appropriate. There are number of social justice
legislations giving special protection and benefits to vulnerable groups in
the society. Prof. Madhava Menon describes it eloquently:
It is, therefore, respectfully submitted that "social context judging" is
essentially the application of equality jurisprudence as evolved by
Parliament and the Supreme Court in myriad situations presented before
courts where unequal parties are pitted in adversarial proceedings and
where courts are called upon to dispense equal justice. Apart from the
social-economic inequalities accentuating the disabilities of the poor in
an unequal fight, the adversarial process itself operates to the
disadvantage of the weaker party. In such a situation, the judge has to be
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 must change
too. Just as change in social reality is the law of life, responsiveness to
change in social reality is the life of the law. It can be said that the
history of law is the history of adapting the law to society's changing
needs. In both Constitutional and statutory interpretation, the Court is
supposed to exercise direction in determining the proper relationship
between the subjective and objective purpose of the law.
17. Cardozo acknowledges in his classic
...no system of jus scriptum has been able to escape the need of it", and
he elaborates: "It is true that Codes and Statutes do not render the Judge
superfluous, nor his work perfunctory and mechanical. There are gaps to be
filled. There are hardships and wrongs to be mitigated if not avoided.
Interpretation is often spoken of as if it were nothing but the search and
the discovery of a meaning which, however, obscure and latent, had none the
less a real and ascertainable pre-existence in the legislator's mind. The
process is, indeed, that at times, but it is often something more. The
ascertainment of intention may be the least of a judge's troubles in
ascribing meaning to a stature.
Says Gray in his lecture
The fact is that the difficulties of so-called interpretation arise when
the legislature has had no meaning at all; when the question which is
raised on the statute never occurred to it; when what the judges have to do
is, not to determine that the legislature did mean on a point which was
present to its mind, but to guess what is would have intended on a point
not present to its mind, if the point had been present.
18. The Court as the interpreter of law is supposed to supply omissions,
correct uncertainties, and harmonize results with justice through a method
of free decision-"libre recherche sceintifique" i.e. "free Scientific
research". We are of the opinion that there is a non-rebuttable presumption
that the Legislature while making a provision like Section 125 Code of
Criminal Procedure, to fulfill its Constitutional duty in good faith, had
always intended to give relief to the woman becoming "wife" under such
circumstances. This approach is particularly needed while deciding the
issues relating to gender justice. We already have examples of exemplary
efforts in this regard. Journey from Shah Bano, AIR 1985 SC 945 to Shabana
Bano, AIR 2010 SC 305 guaranteeing maintenance rights to Muslim women is a
classical example.
19. In Rameshchandra Daga v. Rameshwari Daga, 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 Co. Rep. 7a, 7b which became the historical
source of purposive interpretation. The court would also invoke the legal
maxim construction ut res magis valeat guam pereat, in such cases i.e.
where alternative constructions are possible the Court must give effect to
that which will be responsible for the smooth working of the system for
which the statute has been enacted rather than one which will put a road
block in its way. If the choice is between two interpretations, the
narrower of which would fail to achieve the manifest purpose of the
legislation should be avoided. We should avoid a construction which would
reduce the legislation to futility and should accept the bolder
construction based on the view that Parliament would legislate only for the
purpose of bringing about an effective result. If this interpretation is
not accepted, it would amount to giving a premium to the husband for
defrauding the wife. Therefore, at least for the purpose of claiming
maintenance under Section 125, Code of Criminal Procedure, such a woman is
to be treated as the legally wedded wife.
21. The principles of Hindu Personal Law have developed in an evolutionary
way out of concern for all those subject to it so as to make fair provision
against destitution. The manifest purpose is to achieve the social
objectives for making bare minimum provision to sustain the members of
relatively smaller social groups. Its foundation spring is humanistic. In
its operation field all though, it lays down the permissible categories
under its benefaction, which are so entitled either because of the tenets
supported by clear public policy or because of the need to subserve the
social and individual morality measured for maintenance.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 274 OF 2016
RICHA MISHRA .....APPELLANT(S)
VERSUS
STATE OF CHHATTISGARH AND ORS. .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
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 Promotion Rules, 2000 (hereinafter referred to as Rules,
2000), upper age limit for appointment to the post of Dy.S.P. was 25 years
and she had already crossed the said age limit, and therefore, she was
rendered ineligible for the post in question.
2. This decision of the respondents in not appointing the appellant as
Dy. S.P. was challenged by the appellant by filing the writ petition in the
High Court of Chhattisgarh on the ground that she was entitled to the
benefit of age relaxation on account of being Government Servant. It may
be noted at this juncture that she was appointed as Excise Sub Inspector,
Bilaspur after clearing the CG combined Competitive Examination, 2003
(which is also called State Services Examination, 2003). She, thus,
claimed that she was a Government Servant and on that ground she claimed
age relaxation as per Rule 8 of the Rules, 2000. However, her writ petition
was dismissed by the learned single Judge holding that she entered the
Government job vide appointment order dated 21.04.2006 which was after the
cut-off date as 01.01.2006 for the post of Dy.S.P. and, therefore, was not
entitled to the benefit of age relaxation. The appellant filed the writ
appeal before the Division Bench and claimed benefit of age relaxation
under Madhya Pradesh Civil Services (Special Provision for appointment of
women) Rules, 1997 (hereinafter referred to as the 'Rules, 1997'). However,
even on this ground she has not succeeded as the High Court vide impugned
judgment dated March 10, 2010 has dismissed the writ appeal.
We would like to point out at this stage that number of writ petitions were
filed in the High Court which were taken up by the learned single Judge
analogously and decided by the common judgment dated November 16, 2009.
Whereas some writ petitions including that of the appellant herein was
dismissed and some other writ petitions were allowed by the learned single
Judge holding that in their cases they were entitled to age relaxation and,
therefore, select list should have been prepared on the basis of merit
treating those persons to be within age limit. The Government had filed
writ appeals challenging outcome of such writ petitions in favour of those
candidates. These appeals were also taken up by the Division Bench along
with the appeal of the appellant herein. The High Court has allowed those
appeals holding 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.
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
(Gazetted) Service Recruitment and Promotion Rules, 2005 (hereinafter
referred to as the 'Rules, 2005') came into force which were published in
the Official Gazette on 28.06.2005. The effect of these Rules would be
discussed at the relevant stage.
Appellant herein had applied for the post of Dy.S.P. and appeared in the
preliminary examination which she duly qualified. On that basis, the
appellant filled the form for appearing in main examination. In this form,
she stated that she was entitled to relaxation of ten years in upper age
limit being a woman. Such a relaxation was claimed on the basis of the
Rules, 1997 which were brought into force w.e.f. 07.02.1997. The Rule 4
thereof provides for such age relaxation. For our purposes, Rule 2 and
Rule 4 are relevant and are reproduced below:
“2. Scope and application – Without prejudice to the generality of the
provisions contained in any service Rules, these rules shall apply to all
persons to public service and posts in connection with the affairs of the
State.
4. Age Relaxation. - There shall be age relaxation of ten years for women
candidates for direct appointment in all posts in the services under the
State in addition to the upper age limit prescribed in any service rules or
executive instructions.”
The appellant was allowed to participate in the main examination and she
qualified that as well. Accordingly, she was called for interview on
12.04.2007. Final results were declared thereafter. She obtained 54th
position in the merit list. Thereafter, CPSC prepared the list of selected
candidates and sent that list to the Government for effecting appointments
as per that list. However, name of appellant was not recommended for
Dy.S.P. though two persons who were below in merit, namely, Tarkeshwar
Patel and Ranu Sahu were recommended. They had obtained 59th and 60th
position respectively, in the merit list. Appellant felt aggrieved thereby
and made a representation to this effect. However, her representation did
not elicit any positive response even when it was followed by a reminder
dated 20.05.2007. This apathy of the respondent forced the appellant to
approach the High Court in the form of writ petition filed under Article
226 of the Constitution of India. Her plea was that she had not been
given the benefit of age relaxation even when she was an existing
government 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.
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 spelling out the terms and conditions for
relaxation of age criteria.
53. From bare reading of Rule 8 of the Rules, 2000, it is clear that age
relaxation under the Rules, 1997 is not applicable for recruitment on the
post of Dy.S.P. From advertisement also, it is evident that no relaxation
in age for recruitment for the post of Dy.S.P. was available to the woman
candidates whereas age relaxation under the aforesaid rules have been made
applicable in other categories. Since there was no challenge by the
appellant to the applicability of the Rules, 2000, she cannot be permitted
to assail the impugned judgment on the ground that she was entitled for age
relaxation as provided under Rule 4 of the Rules, 1997.”
As is clear from the aforesaid reasoning given by the High Court, Rule 8 of
Rules, 2000 would prevail upon Rules, 1997 and, therefore, Rules, 1997 are
not applicable for recruitment to the post of Dy.S.P. The High Court has
also been persuaded by the stipulation contained in the advertisement as
per which outer age limit for the post of Dy.S.P. was 25 years. The whole
controversy, therefore, revolves around interplay of Rules, 1997 and Rules
2000 as well as other rules. That was precisely the focus of arguments of
the learned counsel for the parties.
We have already reproduced provisions of Rules 2 and 4 of Rules, 1997. As
can be discerned from bare reading of Rule 4 thereof, it provides for
relaxation of 10 years for women candidates for direct appointment 'in all
posts' in the services under the State and this relaxation is 'in addition'
to the upper age limit prescribed in any service Rules or adjective
instructions. Rule 2 of these rules makes it clear that Rules, 1997 shall
apply to all persons to public service and post in connection with the
affairs of the State, without prejudice to the generality of the provisions
contained in any service rules.
Insofar as Rules, 2000 are concerned, these are the Rules which pertain to
recruitment and promotion to various categories of post in State Police
Executive (Gazetted) Services. The post of Dy. S.P. is admittedly covered
by these Rules and, therefore, eligibility conditions for the aforesaid
post and the method of recruitment etc. as contained in these Rules which
govern the post of Dy. S.P. as well. Since, we are concerned herewith the
conditions 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 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 candidate who is a permanent Government Servant should not be more
than 33 years of age.
(ii) A candidate holding a post temporarily and applying for another post
should not be or more than 33 years of age. This concession shall also be
admissible to the contingency paid employees, work-charged employees and
employees working in the Project Implementation Committee.
(iii) A candidate who is a retrenched Government Servant shall be allowed
to deduct from his age the period of all temporary service previously
rendered by him upto a maximum of 7 years even if it represents more than
one spell provided that the resultant age does not exceed the upper age
limit by three years.
Explanation.— The term 'retrenched Government Servant' denotes a person who
was in Government Servant of this State or of any of the constituent units
for a continuous period of not less than six months and who was discharged
because of reduction in the number of employees not more than three years
prior to the date of his registration in the Employment Exchange or of
application made otherwise for employment in the Government Service.
(d) A candidate who is an ex-serviceman shall be allowed to deduct from
his age the period of all defense services previously rendered by him
provided that the resultant age does not exceed the upper age limit by more
than three years.
Explanation.— The terms 'ex-serviceman' denotes a person who belongs to any
of the following categories and who was employed under the Government of
India for a continuous period of not less than six months and who was
retrenched or declared surplus a s a result of the recommendation of
Economy Unit or due to normal reduction in the number of employees not more
than three years from the date of his regi9stration and any employment
exchange or of application made other wise for employment in Government
Service:-
(i) Ex-serviceman released under mustering out concession;
(ii) Ex-serviceman recruited for the second time and discharge on-
(a) completion of short term engagement;
(b) fulfilling the conditions of enrollment;
(iii) Officers (Military and Civil) discharged on completion of their
contract (including Short Service regular commissioned officers);
(iv) Officers discharged after working for more than six months
continuously 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 (ii) of clause (c) and clause(i)
above shall not be eligible for appointment if after submitting the
application they resign from the service either before or after the
selection. They will however continue to be eligible if they are
retrenched from the service or post after submitting the application.
Note (2) In no other case age limits will be relaxed.
Note (3) Department candidates must obtain previous permission of their
appointing authority to appear for the selection.”
Column (4) of Schedule III prescribes minimum age limit of 20 years and
maximum age limit of 25 years for the post of Dy.S.P. (HQ, Training, JNPA,
PTC, PTS, Security, Lines etc.). A reading of the aforesaid provision, in
its entirety, would suggest that relaxation in age of different periods is
provided to the candidates belonging to the following categories:
(i) Scheduled Castes, Scheduled Tribes or Other Backward Classes.
(ii) Employees of the Madhya Pradesh Government holding permanent post or
temporary post or retrenched Government Servant.
(iii) Ex-Serviceman
(iv) Widow/destitute or divorced women candidates
(v) Green card holder candidates under the Family Welfare Programme
(vi) Awarded superior caste partners of a couple under the inter-caste
marriage inceptive programme of the Tribal, Scheduled Castes and Backward
Classes Welfare Department.
(vii) Those candidates who are holding 'Vikram Award'
(viii) Candidates who are employees of Madhya Pradesh State
Corporation/Boards.
(ix) Candidates who are voluntary Home-Guards
Admittedly, case of the appellant does not fall in any of the
aforementioned categories wherein age relaxation is provided. If one has
to go by Rule 8 in isolation, having regard to Note (2), age limit in the
case of appellant cannot be relaxed. In this context, however, the
question arises as to whether Rules, 1997, which contain special provision
for appointment of women, would still be applicable having regard to the
fact that the appellant is a woman candidate. Whereas, the contention of
Mr. Ajit Kumar Sinha, learned senior counsel appearing for the appellant is
that since there are special Rules meant for women candidates in respect of
all posts in the State, this special provision is applicable. On the
other hand, contention of the learned 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.
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 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.”
Taking advantage of this provision, Mr. Sinha argued that since
examinations were conducted under the aforesaid Rules, in view of the said
specific provision, the appellant was entitled to age relaxation, as per
Rules, 1997.
Another submission of Mr. Ajit Kumar Sinha was that in any case it was not
permissible for the respondents to make recruitment in-question on the
basis of Rules, 2000 in view of the fact that in the State of Chhattisgarh,
Chhattisgarh Police Executive (Gazetted) Recruitment and Promotion Rules,
2005 were promulgated vide Notification dated June 28, 2005 issued by the
Governor of the State in exercise of proviso to Article 309 of the
Constitution of India and, these Rules specifically repealed Rules, 2000.
He pointed out that in these Rules specific provision has been made under
Rule 8(f) for giving relaxation upto 10 years to women candidates, in terms
of Rules, 1997. The said provision is as follows:
“8(f) The upper age limit for women candidates shall be relaxable upto 10
years as per Chhattisgarh Civil Service (special provision for appointment
of women) Rules, 1997. this relaxation shall be in addition to the other
age relaxation.”
He submitted that in the instant case, advertisement for the post in-
question, in which the appellant participated, was issued on August 26,
2005, i.e. after the promulgation of Rules, 2005 which became effective
from June 28, 2005 and, therefore, it is Rules, 2005 which were applicable
and as these Rules contain specific provision for relaxation for women
candidates on the applicability of Rules, 1997.
Learned counsel for the respondents countered the aforesaid submissions by
arguing that the first requisition in the instant case was sent by the
State on September 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.”
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 faulted with. In this very line of submission, it was further
argued that once it is accepted that Rules, 2000 govern the field,
admittedly as per these Rules there is no provision for relaxation for
women candidates and, therefore, High Court rightly held that the appellant
was not entitled to any such age relaxation and was, therefore, suffered
from age bar.
From the arguments noted above, the questions that fall for consideration
and need the answers are the following:
(a) Whether the recruitment to the post of Dy.S.P. was governed by Rules,
2005 or it was rightly done under the Rules, 2000?
It may be pointed out at this stage itself that if Rules, 2005 are
applicable then the outcome of the case would clearly be in favour of the
appellant inasmuch as rules specifically provided for relaxation upto 10
years for women candidates. However, if answer to the aforesaid question
is that recruitment process was rightly carried under Rules, 2000 then
further question would arise for consideration, viz.:
(b) Notwithstanding the fact that Rules, 2000 do not contain any
provision for relaxation qua women candidates, whether a relaxation would
still be available to women candidates under Rules, 1997?
There are two incidental facets of question no. (b), which are as
follows:
(i) Whether Rules, 1997 are applicable, which make special provision for
relaxation in upper age limit by 10 years in respect of women candidates?
(ii) Whether Examination Rules, 2003 which specifically contain a
provision for applicability of Rules, 1997 would be treated as applicable
for the examination in-question?
Question No. 1
The High Court held that first and second requisitions to commence
recruitment process against the vacant seats to the post of Dy.S.P. was
made when Rules, 2000 were in force. Therefore, recruitment was rightly
undertaken under Rules, 2000.
The admitted facts are that the process of selection started before
Rules, 2005 were promulgated with the requisitions dated September 27, 2004
and March 26, 2005 sent by the State Government to the CPSE. At that time,
Rules, 2000 were in vogue. For this reason, even in the requisition it was
mentioned that appointments are to be made under Rules, 2000. Further, it
is also an admitted fact that the vacancies in-question which were to be
filled were 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 Others v. J.
Shreenivasa Rao[1]. 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 Another v. M.C.D.[2] also
summarises the legal position in this behalf. The judgment in P. Ganeshwar
Rao and Others v. State of Andhra Pradesh and Others[3] 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 to
be filled only according to the said Rules. The Rules of 1995 have been
held to be prospective by the High Court and in our opinion this was the
correct conclusion. This being so, the question which arises is whether
the vacancies which had arisen earlier than 1995 can be filled as per the
1995 Rules. Our attention has been drawn by Mr. Mehta to a decision of
this Court in the case of N.T. Devin Katti v. Karnataka Public Service
Commission [(1990) 3 SCC 157]. In that case after referring to the earlier
decisions in the cases of Y.V. Rangaiah1, P. Ganeshwar Rao3, and A.A.
Calton v. Director of Education [(1983) 3 SCC 33] it was held by this Court
that the vacancies which had occurred prior to the amendment of the Rules
would be governed by the old Rules and not by the amended Rules.”
No doubt, under certain exceptional circumstances, Government can take a
conscience decisions not to fill the vacancies under the old Rules and,
thus, there can be departure of the aforesaid general rule in exceptional
cases. This legal precept was recognised in the case of Rajasthan Public
Service Commission v. Keilla Kumar Palliwal and another[4] in the following
words:
“There is no quarrel over the proposition of law that normal rule is that
the vacancy prior to the new Rules would be governed by the old Rules and
not by the new Rules. However, in the present case, we have already held
that the Government has taken conscious decision not to fill the vacancy
under the old Rules and that such decision has been validly taken keeping
in view the facts and circumstances of the cases.”
This position is reaffirmed in State of Punjab v. Arun Kumar Aggarwal[5].
However, as far as present case is concerned, the State sent the
requisition specifically mentioning that the recruitment has to be under
Rules, 2000. This was so provided even in the advertisement. The
appellant never challenged the advertisement and contended that after the
promulgation of Rules, 2005 the recruitment should have been under Rules,
2005 and not Rules, 2000. Therefore, the appellant is even precluded from
arguing that recruitment should have been made under Rules, 2005.
Thus, we answer question no. (i) by holding that recruitment was rightly
made as per Rules, 2000.
Question No. (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 also be
available to women candidates as per Rules, 1997 as noted above.
However, we have already come to a conclusion that Rules, 2005 are
not applicable in respect of selection in question. Therefore, position
will have to be considered keeping in view Rules, 2000 in juxtaposition
with Rules, 1997 and other relevant provisions which were applicable as on
that date.
No doubt, Rule 8 of Rules, 2000, which, inter alia, lays down the provision
pertaining to upper and lower age of the candidates, does not make any
specific provision for relaxation of age in respect of women candidates.
We also are conscious of the fact that Note (2) appended to Rule 8 provides
that in no other case, age limit will be relaxed. However, that is not the
end of the matter. The legal position is to be examined in conjunction
with all other rules which occupy the field and all relevant to determine
the issue. We are of the opinion that Rules, 1997 read with State Services
Examination Rules, 2003 would get attracted and as these Rules make a
specific provision for providing of age relaxation upto ten years that is
to be given to women candidates, the appellant herein shall be entitled to
the said benefit. The reasons for arriving at this finding are explained
hereinafter:
In the first instance, it is to be borne in mind that Rules, 1997 are
specific Rules, specially meant to give benefit of age relaxation to women
in public service and post in connection with the affairs of the State.
These Rules are statutory in nature framed under proviso to Article 309 of
the Constitution of India. Such a special provision is made in favour of
females in consonance with the Constitutional spirit contained in Article
15(3) of the Constitution of India which empowers the State to make any
special provision for women and children. The salutary purpose and
objective behind promulgating Rules, 1997 is manifest and can be clearly
discerned. It is to encourage women, hitherto known as weaker section, to
become working women, by taking up different vocations, including public
employment. It would naturally lead to empowerment of women, which is the
need of the hour. Women in this world, and particularly in India, face
various kinds of gender disabilities and discriminations. It is
notwithstanding the fact that under the Constitution of India, women enjoy
a unique status of 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 bidirectional relationship is explained by
Prof. Amartya Sen by propounding a theory that in one direction,
development alone can play a major role in driving down an equality between
men and women; in another direction, continuing discrimination against
women can hinder development. In this scenario, empowerment can accelerate
development. From whichever direction the issue is looked into, it
provides justification for giving economic empowerment to women. It is,
for this purpose, there is much emphasis on women empowerment (as it leads
to economic development) by United Nations World Bank and other such
Bodies. Interestingly, the 2012 World Development Report (World Bank 2011)
adopts a much more nuanced message. While it emphasizes the “business
case” for women empowerment, it mainly takes it as given that the equality
between women and men is a desirable goal in itself, and policies should
aim to achieve that goal. Poverty and lack of opportunity breed inequality
between men and women, so that when economic development reduces poverty,
the condition of women improves on two counts: first, when poverty is
reduced, the condition of everyone, including women, improves, and second,
gender inequality declines as poverty declines, so the condition of women
improves more than that of men with development. Economic development,
however, is not enough to bring about complete equality between men and
women. Policy action is still necessary to achieve equality between
genders. Such policy action would be unambiguously justified if
empowerment of women also stimulates further development, starting a
virtuous cycle. Empowerment of women, thus, is perceived as equipping them
to be economically independent, self-reliant, with positive esteem to
enable them to face any situation and they should be able to participate in
the development activities.
Keeping in view all the aforesaid and other relevant considerations, when
such affirmative actions are taken by lawmaker, in the form of subordinate
legislation, they need to be enforced appropriately so that the purpose
that is intended is suitably achieved. Seen in this context, Rule 4 of
Rules, 1997 is to be interpreted to have universal application when it
comes to women candidates seeking appointment in public service and post in
connection with the affairs of the State of Chhattisgarh. After all, that
is the primary purpose behind enacting the aforesaid Rule having statutory
character.
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[6] 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: language, purpose,
and discretion. Language shapes the range of semantic possibilities within
which the interpreter acts as a linguist. Once the interpreter defines the
range, he or she chooses the legal meaning of the text from among the
(express or implied) semantic possibilities. The semantic component thus
sets the limits of interpretation by restricting the interpreter to a legal
meaning that the text can bear in its (public or private) language.”
10. Of the aforesaid three components, namely, language, purpose and
discretion 'of the Court', insofar as purposive component is concerned,
this is the ratio juris, the purpose at the core of the text. This purpose
is the values, goals, interests, policies and aims that the text is
designed to actualize. It is the function that the text is designed to
fulfil.
11. We may also emphasize that the statutory interpretation of a provision
is never static but is always dynamic. Though literal rule of
interpretation, till some time ago, was treated as the 'golden rule', it is
now the doctrine of purposive interpretation which is predominant,
particularly in those cases where literal interpretation may not serve the
purpose or may lead to absurdity. If it brings about an end which is at
variance with the purpose of statute, that cannot be countenanced. Not only
legal process thinkers such as Hart and Sacks rejected intentionalism as a
grand strategy for statutory interpretation, and in its place they offered
purposivism, this principle is now widely applied by the Courts not only in
this country but in many other legal systems as well.”
Even if any doubt arises about the applicability of Rules, 1997 because of
absence of any specific provisions in Rules, 2000, that is taken care of by
State Services Examination Rules, 2003. It is not disputed by the
respondents that competitive examination for recruitment to the post of
Dy.S.P. was conducted under the aforesaid Rules. As already noted above,
Rule 5 of the said Rules deals with eligibility conditions. Apart from
prescribing nationality, minimum educational qualification etc., it
specifically lays down provision relating to age of the candidates. After
prescribing minimum and maximum age limits as eligibility condition for
appearing in the examinations, 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 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.”
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) of Rules, 2005.
Therefore, the intention of the rule making authorities had always been to
give benefit of relaxation in age to women candidates. After all, we are
called upon to interpret subordinate legislation salutary aim whereof is to
achieve social purpose and consequently social justice. What should be the
approach in interpreting such laws is explained in Badshah v. Sou. Urmila
Badshah Godse and Anr.[7] in the following words:
“13.3. Thirdly, in such cases, purposive interpretation needs to be given
to the provisions of Section 125, Code of Criminal Procedure While dealing
with the application of destitute wife or hapless children or parents under
this provision, the Court is dealing with the marginalized sections of the
society. The purpose is to achieve "social justice" which is the
Constitutional vision, enshrined in the Preamble of the Constitution of
India. Preamble to the Constitution of India clearly signals that we have
chosen the democratic path under rule of law to achieve the goal of
securing for all its citizens, justice, liberty, equality and fraternity.
It specifically highlights achieving their social justice. Therefore, it
becomes the bounden duty of the Courts to advance the cause of the social
justice. While giving interpretation to a particular provision, the Court
is supposed to bridge the gap between the law and society.
14. Of late, in this very direction, it is emphasized that the Courts have
to adopt different approaches in "social justice adjudication", which is
also known as "social context adjudication" as mere "adversarial approach"
may not be very appropriate. There are number of social justice
legislations giving special protection and benefits to vulnerable groups in
the society. Prof. Madhava Menon describes it eloquently:
It is, therefore, respectfully submitted that "social context judging" is
essentially the application of equality jurisprudence as evolved by
Parliament and the Supreme Court in myriad situations presented before
courts where unequal parties are pitted in adversarial proceedings and
where courts are called upon to dispense equal justice. Apart from the
social-economic inequalities accentuating the disabilities of the poor in
an unequal fight, the adversarial process itself operates to the
disadvantage of the weaker party. In such a situation, the judge has to be
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 must change
too. Just as change in social reality is the law of life, responsiveness to
change in social reality is the life of the law. It can be said that the
history of law is the history of adapting the law to society's changing
needs. In both Constitutional and statutory interpretation, the Court is
supposed to exercise direction in determining the proper relationship
between the subjective and objective purpose of the law.
17. Cardozo acknowledges in his classic
...no system of jus scriptum has been able to escape the need of it", and
he elaborates: "It is true that Codes and Statutes do not render the Judge
superfluous, nor his work perfunctory and mechanical. There are gaps to be
filled. There are hardships and wrongs to be mitigated if not avoided.
Interpretation is often spoken of as if it were nothing but the search and
the discovery of a meaning which, however, obscure and latent, had none the
less a real and ascertainable pre-existence in the legislator's mind. The
process is, indeed, that at times, but it is often something more. The
ascertainment of intention may be the least of a judge's troubles in
ascribing meaning to a stature.
Says Gray in his lecture
The fact is that the difficulties of so-called interpretation arise when
the legislature has had no meaning at all; when the question which is
raised on the statute never occurred to it; when what the judges have to do
is, not to determine that the legislature did mean on a point which was
present to its mind, but to guess what is would have intended on a point
not present to its mind, if the point had been present.
18. The Court as the interpreter of law is supposed to supply omissions,
correct uncertainties, and harmonize results with justice through a method
of free decision-"libre recherche sceintifique" i.e. "free Scientific
research". We are of the opinion that there is a non-rebuttable presumption
that the Legislature while making a provision like Section 125 Code of
Criminal Procedure, to fulfill its Constitutional duty in good faith, had
always intended to give relief to the woman becoming "wife" under such
circumstances. This approach is particularly needed while deciding the
issues relating to gender justice. We already have examples of exemplary
efforts in this regard. Journey from Shah Bano, AIR 1985 SC 945 to Shabana
Bano, AIR 2010 SC 305 guaranteeing maintenance rights to Muslim women is a
classical example.
19. In Rameshchandra Daga v. Rameshwari Daga, 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 Co. Rep. 7a, 7b which became the historical
source of purposive interpretation. The court would also invoke the legal
maxim construction ut res magis valeat guam pereat, in such cases i.e.
where alternative constructions are possible the Court must give effect to
that which will be responsible for the smooth working of the system for
which the statute has been enacted rather than one which will put a road
block in its way. If the choice is between two interpretations, the
narrower of which would fail to achieve the manifest purpose of the
legislation should be avoided. We should avoid a construction which would
reduce the legislation to futility and should accept the bolder
construction based on the view that Parliament would legislate only for the
purpose of bringing about an effective result. If this interpretation is
not accepted, it would amount to giving a premium to the husband for
defrauding the wife. Therefore, at least for the purpose of claiming
maintenance under Section 125, Code of Criminal Procedure, such a woman is
to be treated as the legally wedded wife.
21. The principles of Hindu Personal Law have developed in an evolutionary
way out of concern for all those subject to it so as to make fair provision
against destitution. The manifest purpose is to achieve the social
objectives for making bare minimum provision to sustain the members of
relatively smaller social groups. Its foundation spring is humanistic. In
its operation field all though, it lays down the permissible categories
under its benefaction, which are so entitled either because of the tenets
supported by clear public policy or because of the need to subserve the
social and individual morality measured for maintenance.
22. In taking the aforesaid view, we are also encouraged by the following
observations of this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal
(1978) 4 SCC 70:
The brooding presence of the Constitutional empathy for the weaker sections
like women and children must inform interpretation if it has to have social
relevance. So viewed, it is possible to be selective in picking out that
interpretation out of two alternatives which advances the cause - the cause
of the derelicts.”
When all the aforesaid Rules are seen in juxtaposition and in conjunction
with each other, intention of rule making authority becomes apparent and is
clearly ascertained. The intention of rule making authority was, and it
continues to be so, to give benefit to age relaxation to women candidates.
That, according to us, represents the true intention. Otherwise the very
purpose of such Rules is defeated. The rule making authority has manifest
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.
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 period
shall count for all other purposes.
This appeal is allowed with costs, in aforesaid terms.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ABHAY MANOHAR SAPRE)
NEW DELHI;
FEBRUARY 08, 2016.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 274 OF 2016
Richa Mishra …….Appellant(s)
VERSUS
State of Chhatisgarh & Ors. ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. I have had the benefit of reading the elaborate, well considered and
scholarly written draft opinion of my learned Brother.
2. Having gone through the opinion, I entirely agree with the reasoning
and the conclusion arrived at by my learned Brother.
3. In my considered opinion also, the appellant is entitled to claim age
relaxation as provided to women candidates in Rule 4 of Rules of 1997 read
with proviso to clause (xiv) of Rule 5 of the States Services Examination
Rules, which has application to the case of the appellant while considering
her case for the post of Deputy Superintendent of Police. I, however, need
not elaborate my conclusion since I entirely agree with the reasoning of my
learned Brother on this issue.
4. I also concur with the subtle observations made by my learned Brother
in Para 26 where His Lordship has observed that the very object of
promulgating the Rules of 1997 and especially Rule 4 is to encourage
women’s participation in various State services. In my view, denial of such
benefit to a woman candidate while considering her case for the post in
State services would make the Rule wholly nugatory. Such can never be the
intention of the Legislature being against the spirit of Articles 15 and 16
of the Constitution of India.
5. With these few words of my own, I fully agree with my learned
Brother.
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
February 08, 2016
-----------------------
[1] (1983) 3 SCC 284
[2] (1998) 9 SCC 223
[3] 1988 (Supp) SCC 740
[4] (2007) 10 SCC 260
[5] (2007) 10 SCC 402
[6] 2015 (11) SCALE 684
[7] (2014) 1 SCC 188