# Jai Prakash Pal v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1721
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-20
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-pal-v-state-of-u-p-ors-45052
- **Pages:** 11

## Headnote

Secretariat Service Rules, 1983: Rules
3(g), 5, 9, 11(i) & (ii), 12; Uttar Pradesh
State Government Servants Confirmation
Rules, 1991: Rule 5(1); Uttar Pradesh
Government Servants Probation Rules,
2013 (Amended Probation Rules, 2016):
Rule 2, 4, 5 - Probation or confirmation will
not be necessary if the source of recruitment
for the post in question is promotion only and
such promotion has been made following the
due procedure of law. (Para 28 & 32)

B. General law Vs. Specific law: When
there is a conflict between specific law and
general law, specific law shall have overriding
effect upon the general law. Therefore,
Confirmation Rules, 1991, Probation Rules,
2013 (Amended Rules, 2016) shall have an
overriding effect on Rule 11 of the Rules, 1983.
(Para 29 & 32)

C. Doctrine of 'reading down' discussed:
Rule of reading down is to be used for the
limited purpose of making a particular
provision workable and to bring it in
harmony with other provisions of the law
- Reading down of Rule 5 of Rules, 1983 has
been applied for the present case as it is found
inconsistent with provisions of Probation Rules,
2013 and Confirmation Rules, 1991 as well as
unworkable as it restricts duly promoted
1 All. Jai Prakash Pal Vs.State of U.P. & Ors.
1723
petitioner to get the benefit of promotion.
(Para 30, 33, 35 to 40)

Writ Petition allowed. (E-4)

Precedent followed: -

## Text

1722 INDIAN LAW REPORTS ALLAHABAD SERIES
not be treated at par to the candidates who
had
undertaken
full
time
training
especially when there was a Government
Order dated 8.5.2000 as well as the
decision
of
the
Commission
dated
31.8.2001 to the contrary that the part time
working and work without remuneration
would not be treated as an experience
under the relevant rules.

25. Learned counsel for the appellant
has failed to show any material that the
part time training is equivalent to the full
time training.

26. The purpose of one year regular
training is that the person must possess
requisite and perfect knowledge of work
and maintenance of the machine required
to be operated. There is no challenge to
any
of
the
requisite
essential
qualifications.

27. Having heard learned counsel for
the parties and having perused the material
on record as well as the impugned
judgment and order passed by the learned
single judge, we are of the considered
opinion that one year part time work that
too without remuneration in Ghaziabad
Automobiles undertaken by the appellant
is nothing but a training acquired by the
appellant with the firm, cannot be covered
and
considered
in
the
category
of
''Working Experience' in terms of the
advertisement. As such there is no
illegality in the impugned judgment and
order of the learned Single Judge, which
calls for no interference by this Court and
the appeal deserves to be dismissed.

28. In view of the above, the appeal
is dismissed. No costs.
----------
(2020)1ILR 1721
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.12.2019

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Bench No. 988 of 2013 (Now S/S)

Jai Prakash Pal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Suresh Chandra Yadava

Counsel for the Respondents:
C.S.C.

A. Service - Promotion - Uttar Pradesh
Secretariat Service Rules, 1983: Rules
3(g), 5, 9, 11(i) & (ii), 12; Uttar Pradesh
State Government Servants Confirmation
Rules, 1991: Rule 5(1); Uttar Pradesh
Government Servants Probation Rules,
2013 (Amended Probation Rules, 2016):
Rule 2, 4, 5 - Probation or confirmation will
not be necessary if the source of recruitment
for the post in question is promotion only and
such promotion has been made following the
due procedure of law. (Para 28 & 32)

B. General law Vs. Specific law: When
there is a conflict between specific law and
general law, specific law shall have overriding
effect upon the general law. Therefore,
Confirmation Rules, 1991, Probation Rules,
2013 (Amended Rules, 2016) shall have an
overriding effect on Rule 11 of the Rules, 1983.
(Para 29 & 32)

C. Doctrine of 'reading down' discussed:
Rule of reading down is to be used for the
limited purpose of making a particular
provision workable and to bring it in
harmony with other provisions of the law
- Reading down of Rule 5 of Rules, 1983 has
been applied for the present case as it is found
inconsistent with provisions of Probation Rules,
2013 and Confirmation Rules, 1991 as well as
unworkable as it restricts duly promoted
1 All. Jai Prakash Pal Vs.State of U.P. & Ors.
1723
petitioner to get the benefit of promotion.
(Para 30, 33, 35 to 40)

Writ Petition allowed. (E-4)

Precedent followed: -

1. Rapti Commission Agency Vs. State of U.P.
and others, (2006) 6 SCC 522 (Para 36)

2. Union of India and others Vs. Ind-Swift
Laboratories Limited, (2011) 4 SCC 635 (Para
37)

3. Subramaniam Swamy and others Vs. Raju
through Member, Juvenile Justice Board and
another, (2014) 8 SCC 390 (Para 38)

Petition assails the office memo dated
28.06.2013,
passed
by
the
Under
Secretary of the department.

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri S.C. Yadava, learned
counsel for the petitioner and Sri Vishal
Verma, learned State counsel for the Staterespondents.

2. By means of this petition, the
petitioner has assailed the office memo
dated 28.6.2013 passed by the Under
Secretary of the department holding that
since the petitioner has not completed one
year's probation period on the post of
Deputy Secretary, therefore, he cannot be
promoted on the post of Joint Secretary
under the relevant Rules.

3. The petitioner retired on 30.6.2013
after attaining the age of superannuation.

4. The brief facts of the case are that
the petitioner initially appointed on the
post of Upper Divisional Assistant (now
the nomenclature of the post is known as
Samiksha Adhikari) by the selection held
by the Public Service Commission in the
year 1981 and he has submitted his joining on
such post on 5.8.1983. In the year 1997, the
petitioner was promoted on the post of
Section Officer. On 3.11.1998, the petitioner
was promoted on the post of Under Secretary
and he has submitted his joining accordingly.
On 26.5.2012, the petitioner was promoted on
the post of Deputy Secretary.

5. As per learned counsel for the
petitioner, work and conduct of the
petitioner has been found exemplary, up to
the entire satisfaction of the authorities
concerned and the entire service record of
the petitioner has been unblemished. On
28.5.2013,
the
Principal
Secretary,
Sachivalaya Administration, State of U.P.
has issued an order for sanctioning 10 posts
of Special Secretary and 26 posts of Joint
Secretary. The feeding cadre to be promoted
on the post of Joint Secretary is Deputy
Secretary. On the said post, the petitioner
was discharging his duties w.e.f. 26.5.2012.

6. As soon as the petitioner came to
know that his name has not been placed in
the eligibility list of Deputy Secretaries for
promotion on the post of Joint Secretary,
he
preferred
a
representation
dated
30.5.2013 to the Principal Secretary,
Sachivalaya Administration, State of U.P.
apprising the fact that he is fulfilling all
requisite qualification to be promoted on
the post of Joint Secretary in the selection
year, therefore, requested that he be
considered for promotion on the said post.

7.

Despite
the
aforesaid
representation having been preferred,
name of the petitioner was not considered
in
the
Departmental
Promotion
Committee, which met on 6.6.2013.

8. Feeling aggrieved out of the
aforesaid inaction, the petitioner preferred
1724 INDIAN LAW REPORTS ALLAHABAD SERIES
present writ petition seeking prayer that
the opposite parties be directed to hold the
Department
Promotion
Committee
meeting for promotion to the post of Joint
Secretary in terms of Government Order
dated 19.5.2001 and candidature of the
petitioner be considered for promotion
prior to his retirement i.e. on 30.6.2013
and in the meantime, no promotion order
be issued for the post of Joint Secretary.

9. This Court passed an order dated
19.6.2013 directing the opposite parties to
hold
the
Departmental
Promotion
Committee within a week to consider
petitioner's promotion on the post of Joint
Secretary as contemplated in para-10 of
the Government Order dated 19.5.2001
and
declare
the
result
immediately
thereafter prior to his retirement.

10. In compliance of the aforesaid
order of this Court, the impugned office
memo dated 28.6.2013 has been issued
rejecting the claim of the petitioner for
consideration of promotion on the post of
Joint Secretary as the petitioner has not
completed his requisite period being
probationer on the post of Deputy
Secretary for the particular selection year.
The said order has been assailed by means
of amendment and after amendment
application being allowed, office memo
dated 28.6.2013 has been enclosed as
Annexure No.11 to the writ petition.

11.
 Service
condition of
the
petitioner is governed by the Uttar Pradesh
Secretariat
Service
Rules,
1983
(hereinafter referred to as "Rules, 1983").
Rule 3 (g) of the Rules, 1983 explains the
year of recruitment as follows:-

"(g) 'Year of recruitment' means
a period of twelve months commencing
from the first day of July of a calendar
year."

12. Rule 5 (1) to Rule 5 (4) of the
Rules, 1983 are being reproduced herein
below:-

"5. (1) Recruitment to the
various categories of posts in the Service
shall be made from the following sources:

(1) Section
Officer
By promotion from amongst
permanent
Assistant
Superintendents and such
permanent Upper Division
Assistants as have put in at
least
ten
years
service
(including
temporary
service) as Upper Division
Assistants or/ and on any
higher post.
(2) Under
Secreta
ry
By promotion from amongst
permanent Section Officer
who have put in at least five
years
service
(including
temporary
service)
as
Section Officer or/and on
any higher post.
(3) Deputy
Secreta
ry
By promotion from amongst
permanent
Under
Secretaries.
(4) Joint
Secreta
ry
By promotion from amongst
permanent
Deputy
Secretaries.

13. Rule 9 of the Rules, 1983
explains the procedure for recruitment to
the post of Deputy Secretary and Joint
Secretary as follows:-

"9. (1) Recruitment to the post of
Deputy Secretary and Joint Secretary shall
be made on the basis of seniority subject to
1 All. Jai Prakash Pal Vs.State of U.P. & Ors.
1725
the rejection of unfit through a Selection
Committee constituted as follows:

(i) Chief Secretary
....

Chairman

(ii)
Secretary,
Secretariat
Administration

Department

.....

Member

(iii) Secretary to Government to
be nominated

by the Chief Secretary

.......

Member"

14. Rule 11 (i) & (ii) of the Rules,
1983 is being reproduced herein below:-

"Rule 11 (i) A person on
appointment in or against a substantive
vacancy to a post of -

(1)
Section
Officer,
Under
Secretary or a Deputy Secretary shall be
placed on probation for a period of one
year, and

(ii) Joint Secretary shall be
placed on probation for a period of six
months."

15. Rule 12 of the Rules, 1983
explains confirmation, which follows as
under:-

"12. A probationer shall be
confirmed in his appointment at the end of
the period of probation or the extended
period of probation if-

(a) his work and conduct is
reported to be satisfactory;

(b) his integrity is certified; and

(c) the appointing authority is
satisfied that he is otherwise fit for
confirmation."

16. In the light of the aforesaid
Rules, learned counsel for the petitioner
has submitted that the petitioner was
promoted on the post of Deputy Secretary
on 26.5.2012, however he was on
probation for a period of one year and on
6.6.2013, he had completed more than one
year's period on probation serving on the
post of Deputy Secretary, therefore, he
could have been promoted on the post of
Joint Secretary under the Rules. The
reason
for
non-consideration
of
his
candidature for promotion on the post of
Joint Secretary is that as per Rule 3 (g), the
year of recruitment starts from the first day
of July and ends on 30th June, so in the
particular recruitment year for the year
2012-13, some period of the petitioner was
short as it completed on 30.6.2013, but
before the said date, the Departmental
Promotion Committee met on 6.6.2013.

17. Learned counsel for the petitioner
has drawn attention of this Court towards
the Uttar Pradesh State Government
Servants
Confirmation
Rules,
1991
(hereinafter referred to as "Confirmation
Rules, 1991") referring Rule 5 (1) of the
aforesaid Rules, which follows as under:-

"5. (1) Confirmation will not be
necessary if a Government servant is
promoted, on a regular basis, after
following the prescribed procedure to a
post in the cadre where promotion is the
only source of recruitment."

18. On the basis of the aforesaid
argument,
learned
counsel
for
the
petitioner has submitted that since the
promotion on the post of Joint Secretary is
to be made only from the feeding cadre i.e.
Deputy
Secretary,
therefore,
if
any
employee is serving on the post of feeding
cadre and the promotion is only source of
recruitment, then confirmation will not be
necessary for the employee. Hence, even if
the petitioner was not confirmed on the
1726 INDIAN LAW REPORTS ALLAHABAD SERIES
post of Deputy Secretary under the Rules,
1983, even then he could have been
promoted on the post of Joint Secretary
treating him confirmed Deputy Secretary
under the Confirmation Rules, 1991.

19. Learned counsel for the petitioner
has referred the Government Order dated
19.5.2001, which explains the modality to
fill up the promotional avenue within the
recruitment year when the vacancies arose
and as per the guidelines it should be
implemented in its letter and spirit. On the
strength of the aforesaid Government
Order, learned counsel for the petitioner
has submitted that the employees should
be given out right with regard to
promotional avenue during the period they
became entitle and the matter should not
be kept pending till they reach at the verge
of superannuation or superannuated from
service. Therefore, the petitioner, who had
competed more than one year's period of
probation on the post of Deputy Secretary,
he should have been considered for
promotion on the post of Joint Secretary.
Since he has been retired from service,
therefore, he should have been given
notional promotion.

20. Learned counsel for the petitioner
has also submitted that the Confirmation
Rules, 1991 are specific rules dealing with
the issue of confirmation and clearly
mandates that the confirmation will not be
necessary if the Government servant is
promoted
on
a
regular
basis
after
following the prescribed procedure to the
post where the promotion is only source of
recruitment and in the given case, the
petitioner was promoted on the post of
Deputy Secretary on the regular basis after
following the prescribed procedure and the
post of Deputy Secretary can only be filled
up through promotion from the post of
Under Secretary, therefore, the specific
rules shall have overriding effect over the
general rules.

21. Learned counsel for the petitioner
has also referred the Uttar Pradesh
Government Servants Probation Rules,
2013 (hereinafter referred to as "Probation
Rules, 2013") referring Rule 5, which
explains the condition where probation is
not required. Rule 5 of the Probation
Rules, 2013 is being reproduced herein
below:-

"5. It will not be necessary to
place a person on probation if he is
promoted on a regular basis after
following the prescribed procedure to a
post belonging to same Group where
promotion
is
the
only
source
of
recruitment."

22. The aforesaid Rule 5 specifically
provides that the employee should not be
placed on probation if he is promoted on a
regular basis after following the prescribed
procedure on the post belonging to the
same group where promotion is the only
source of recruitment.

23. The case of the present petitioner
squarely qualifies the condition of Rule 5
of Confirmation Rules, 2013.

24. The aforesaid Probation Rules,
2013 have been amended by First
Amendment Rules, 2016. By means of the
aforesaid amendment, Rule 5 has been
made absolute mandating that there is no
need to place any person on probation if he
is promoted on regular basis after
following the prescribed procedure to the
post which can be filled up from such
promotional post, which is the only source
of recruitment.
1 All. Jai Prakash Pal Vs.State of U.P. & Ors.
1727

25. Again the Amended Rules, 2016
squarely covers the case of the present
petitioner.

26. However, learned State counsel
has tried to justify the impugned order by
submitting that since the period of one
year of probation of the petitioner on the
post
of
Deputy Secretary
was
not
completed within selection year, therefore,
he could have not been given promotion
on the post of Joint Secretary. On being
confronted
on
the
point
that
the
Confirmation
Rules,
1991,
Probation
Rules, 2013 and Amended Probation
Rules, 2016 clearly provide that in a given
circumstances, the petitioner should not be
placed under probation and even if he is
placed under probation, treating him
confirmed
on
the
post
of
Deputy
Secretary, his candidature should be
considered on the post of Joint Secretary
inasmuch as the specific rules shall have
overriding effect upon the general rules,
learned State counsel has submitted that
since Service Rules, 1983 clearly provide
that those Deputy Secretary can be
promoted on the post of Joint Secretary
when they are permanent and they could
have been made permanent only after
completion of one year's probation period
on the post of Deputy Secretary and since
the petitioner has not assailed those rules
in this writ petition, therefore, he cannot
be given any relief in this writ petition.

27. Heard learned counsel for the
parties and perused the material available
on record.

28. In the present case, the question
to be considered as to whether there is any
fruitful purpose to place an employee on
probation if such employee has been
promoted on the regular basis after
following the prescribed procedure on the
post which can only be filled up through
promotion as promotion is the only source
of recruitment.

29. The second question is to be
considered as to whether if there is conflict
between specific rules and general rules,
what rule would prevail.

30. The third question is to be
considered is that if any rule has not been
assailed
but
it
appears
that
its
interpretation is not harmonious with other
rules, so for making that particular rule
workable and to bring it in harmony with
other provisions of statute/ statutes, the
said provisions can be read down.

31. So far as to answer the first
question, I would like to first refer Rules 5
of the Rules, 1983, which clearly mandates
that the source of recruitment on the post
of Deputy Secretary is by way of
promotion only from the post of Under
Secretary and likewise. The source of
recruitment on the post of Joint Secretary
is the post of Deputy Secretary only by
way of promotion. The modality thereof
has been prescribed under Rule 9 of the
Rules, 1983 that the recruitment to the post
of Deputy Secretary and Joint Secretary
shall be made on the basis of seniority
subject to the rejection of unfit through the
Selection Committee constituted under the
law. Therefore, if any Deputy Secretary or
Joint Secretary is recruited, the same could
have been recruited by way of promotion
following the procedure. In the present
case, the petitioner was promoted on the
post of Under Secretary and on the post of
Deputy Secretary strictly in accordance
with law, therefore, there was no fruitful
purpose to place the petitioner on
probation on the post of Deputy Secretary
1728 INDIAN LAW REPORTS ALLAHABAD SERIES
in view of Rule 5 of the Probation Rules,
2013 as amended in the year 2016. The
Probation Rules 2013 have been made by
the Hon'ble Governor exercising powers
under Article 309 of the Constitution of
India and shall apply to all the persons
holding a civil post in connection with the
affairs of Uttar Pradesh. Rule 2 of the
Probation Rules, 2013 clearly mandates
that 'the provisions of these rules shall
have effect notwithstanding anything to
the contrary contained in any other rules
made by the Governor under the proviso to
Article 309 of the Constitution, or orders,
for the time being in force'. Likewise, Rule
5 (1) of the Confirmation Rules, 1991
clearly mandates that confirmation will not
be necessary if the Government servant is
promoted on regular basis after following
the prescribed procedure to a post in the
cadre where promotion is the only source
of recruitment. These rules have also been
made by the Hon'ble Governor exercising
power of Article 309 of the Constitution of
India.

32. When the aforesaid specific rules
clearly
provide
that
probation
or
confirmation will not be necessary if the
source of recruitment for the post in
question is promotion only and such
promotion has been made following the
due procedure of law, then the employee
concerned should be treated confirmed on
the promotional post without placing him
on probation. The law is trite on the point
that when there is conflict between
specific law and general law, specific law
shall have overriding effect upon the
general law, therefore, the second question
is being replied accordingly in favour of
the petitioner.

33. Now the question as to whether
Rule 5 of Rules, 1983 can be read down
for the present case; the answer would be
'yes' for the reason that Rule 5 does not
appear to be workable in the given
circumstances and does not appear to be in
harmony
with
other
provisions
of
statute/statutes.

34. The term 'probation' has been
explained under Probation Rules, 2013
itself. For brevity, Rule 4 of the Probation
Rules, 2013 is being reproduced herein
below:-

"4.(1) A person on substantive
appointment to a post through direct
recruitment shall be placed on probation
for a period of two years. The appointing
authority may, for reasons to be recorded,
extend
the
period
of
probation
in
individual cases specifying the date upto
which the extension is granted:

Provided
that,
save
in
exceptional circumstances, the period of
probation shall not be extended beyond
one year and in no circumstance beyond
two years.

(2) A person on substantive
appointment to a post by promotion, if
direct recruitment is one of the sources of
recruitment, shall be placed on probation
for a period of two years. The appointing
authority may, for reasons to be recorded,
extend
the
period
of
probation
in
individual cases specifying the date upto
which the extension is granted:

Provided
that,
save
in
exceptional circumstances, the period of
probation shall not be extended beyond
one year and in no circumstance beyond
two years.

(3) A person appointed on a post
by adjustment absorption or merger in
accordance with the procedure prescribed
in the relevant service rules, shall be
placed on probation for a period of one
1 All. Jai Prakash Pal Vs.State of U.P. & Ors.
1729
year. The appointing authority may, for
reasons to be recorded, extend the period
of probation in individual cases specifying
the date upto which the extension is
granted :

Provided that, save in exceptional
circumstances, the period of probation shall
not be extended beyond six months and in no
circumstance beyond one years.

(4)
A person
on
substantive
appointed to a post where promotion is the
only source of recruitment, if the post belongs
to a different Service or Group, shall be placed
on probation for a period of one year. The
appointing authority may, for reasons to be
recorded, extend the period of probation in
individual cases specifying the date upto which
the extension is granted :

Provided
that,
save
in
exceptional circumstances, the period of
probation shall not be extended beyond six
months and in no circumstance beyond
one years."

35. Perusal thereof clearly reveals
that a person on substantive appointment
to the post through direct recruitment
should be placed on probation for a period
prescribed under the law and such period
of probation can be extended strictly in
accordance with law. In the light of the
aforesaid provisions, it appears that no
fruitful purpose is served if any employee,
who is promoted on the post which can be
filled up through promotion only, is placed
on probation, therefore, Rule 5 of the
Probation Rules, 2013 specifically bars
placing any employee on probation where
promotion
is
the
only
source
of
recruitment. Therefore, in the given
circumstances, Rule 5 of Rules, 1983 can
be read down.

36. Hon'ble Apex Court in re; Rapti
Commission Agency v. State of U.P. and
others, (2006) 6 SCC 522 has observed
the condition under which the principle of
reading down can be applied. Para-7 of the
aforesaid judgment is being reproduced
herein below:-

"7. Coming to the plea of alternative
remedy, we find that such a plea does not
appear to have been raised by the respondent
as there is no discussion in the High Court's
judgment in this regard. Further, the
constitutional validity of Section 8-E issue
could not have been decided by the statutory
authorities. Be that as it may, we find that the
High Court has thoroughly confused the
issues. The decisions of this Court in Steel
Authority of India case [(2000) 3 SCC 200]
and Nathpa Jhakri case [(2000) 3 SCC 319]
related to legislative competence in the matter
of deduction of tax under a State statute in
respect of an inter-State transaction. The High
Court commented upon the correctness of the
judgments observing that several larger
Benches' decisions were not considered. To
say the least the High Court's approach is
inappropriate. The decisions in Steel Authority
case [(2000) 3 SCC 200] and Nathpa Jhakri
case [(2000) 3 SCC 319] related to issues on
which there appears to be no contrary view
taken by any larger Bench. The High Court
could not have sat in judgment over the
correctness of the judgments of this Court. The
High Court appears to have proceeded on the
basis that this Court should have read down
the provisions under consideration to uphold
them. What is the basic fallacy in this
approach is illuminatingly analysed in
Minerva Mills Ltd. v. Union of India [(1980) 3
SCC 625] . In paras 64 and 65, the concept of
reading down was succinctly stated as follows:
(SCC p. 657)

"64. ... The principle of reading
down the provisions of a law for the
purpose of saving it from a constitutional
challenge is well known. But we find it
1730 INDIAN LAW REPORTS ALLAHABAD SERIES
impossible to accept the contention of the
learned counsel in this behalf because, to
do so will involve a gross distortion of the
principle of reading down, depriving that
doctrine of its only or true rationale when
words of width are used inadvertently. The
device of reading down is not to be
resorted
to
in
order
to
save
the
susceptibilities of the lawmakers, nor
indeed to imagine a law of one's liking to
have been passed. One must at least take
Parliament at its word when, especially, it
undertakes a constitutional amendment.

65.
...
If
Parliament
has
manifested a clear intention to exercise an
unlimited power, it is impermissible to
read down the amplitude of that power so
as to make it limited. The principle of
reading down cannot be invoked or
applied in opposition to the clear intention
of the legislature. We suppose that in the
history of the constitutional law, no
constitutional amendment has ever been
read down to mean the exact opposite of
what it says and intends. In fact, to accept
the argument that we should read down
Article 31-C, so as to make it conform to
the ratio of the majority decision in
Kesavananda
Bharati
[Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC
225] , is to destroy the avowed purpose of
Article 31-C as indicated by the very
heading ''Saving of certain laws' under
which Articles 31-A, 31-B and 31-C are
grouped. Since the amendment to Article
31-C was unquestionably made with a
view to empowering the legislatures to
pass laws of a particular description even
if those laws violate the discipline of
Articles 14 and 19, it seems to us
impossible to hold that we should still save
Article 31-C from the challenge of
unconstitutionality by reading into that
article words which destroy the rationale
of that article and an intendment which is
plainly
contrary
to
its
proclaimed
purpose."

37. The Hon'ble Apex Court in re;
Union of India and others v. Ind-Swift
Laboratories Limited, (2011) 4 SCC
635, has held in para-19 as under:-

"19. This Court has repeatedly
laid down that in the garb of reading down
a provision it is not open to read words
and
expressions
not
found
in
the
provision/statute and thus venture into a
kind of judicial legislation. It is also held
by this Court that the rule of reading down
is to be used for the limited purpose of
making a particular provision workable
and to bring it in harmony with other
provisions of the statute.............."

38. The Hon'ble Apex Court in re;
Subramanian Swamy and others v.
Raju through Member, Juvenile Justice
Board and another, (2014) 8 SCC 390,
explains the condition under which the
principle of reading down can be applied.
Para-61 of the aforesaid judgment is as
under:-

"61.
Reading
down
the
provisions of a statute cannot be resorted
to when the meaning thereof is plain and
unambiguous and the legislative intent is
clear. The fundamental principle of the
"reading
down"
doctrine
can
be
summarised as follows. Courts must read
the legislation literally in the first
instance.
If
on
such
reading
and
understanding
the
vice
of
unconstitutionality is attracted, the courts
must explore whether there has been an
unintended legislative omission. If such an
intendment can be reasonably implied
without undertaking what, unmistakably,
would be a legislative exercise, the Act
1 All. Jai Prakash Pal Vs.State of U.P. & Ors.
1731
may be read down to save it from
unconstitutionality. The above is a fairly wellestablished and well-accepted principle of
interpretation which having been reiterated by
this Court time and again would obviate the
necessity of any recall of the huge number of
precedents available except, perhaps, the view
of Sawant, J. (majority view) in DTC v.
Mazdoor Congress [1991 Supp (1) SCC 600 :
1991 SCC (L&S) 1213] which succinctly sums
up the position is, therefore, extracted below:
(SCC pp. 728-29, para 255)

"255. It is thus clear that the
doctrine of reading down or of recasting
the statute can be applied in limited
situations. It is essentially used, firstly, for
saving a statute from being struck down on
account of its unconstitutionality. It is an
extension of the principle that when two
interpretations
are
possible--one
rendering it constitutional and the other
making it unconstitutional, the former
should
be
preferred.
The
unconstitutionality may spring from either
the incompetence of the legislature to
enact the statute or from its violation of
any of the provisions of the Constitution.
The second situation which summons its
aid is where the provisions of the statute
are vague and ambiguous and it is
possible to gather the intentions of the
legislature from the object of the statute,
the context in which the provision occurs
and the purpose for which it is made.
However, when the provision is cast in a
definite and unambiguous language and
its intention is clear, it is not permissible
either to mend or bend it even if such
recasting is in accord with good reason
and conscience. In such circumstances, it
is not possible for the court to remake the
statute. Its only duty is to strike it down
and leave it to the legislature if it so
desires, to amend it. What is further, if the
remaking of the statute by the courts is to
lead to its distortion that course is to be
scrupulously
avoided.
One
of
the
situations further where the doctrine can
never be called into play is where the
statute requires extensive additions and
deletions. Not only is it no part of the
court's duty to undertake such exercise,
but it is beyond its jurisdiction to do so."

39. In view of the aforesaid dictums
of Hon'ble Apex Court, I find that Rule 5
of the Rules, 1983 is not harmonious with
the specific provisions of the Probation
Rules, 2013 and Confirmation Rules,
1991. Further, the application of Rule 5 of
Rules, 1983 is not properly workable
which restricts the duly promoted Deputy
Secretary to get the benefit of promotion
on the post of Joint Secretary without
having plausible and fruitful purpose,
therefore, such rule i.e. Rule 5 of Rules,
1983 is hereby read down.

40. It is made clear that reading
down Rule 5 of the Rules, 1983 shall be
applied only for the present case so as to
make the particular provision of law
workable and harmonious with other
provisions of law.

41. Accordingly, the said question is
answered.

42. Considering the facts and
circumstances of the issue in question and
considering the various dictums of the
Hon'ble Apex Court, I hereby quash the
office
memorandum
dated
28.6.2013
passed
by
the
Under
Secretary,
Sachivalaya Administration, Section-1,
State of U.P. (Annexure No.11 to the writ
petition).

43. A writ in the nature of mandamus
is issued commanding the opposite parties
1732 INDIAN LAW REPORTS ALLAHABAD SERIES
to provide the notional service benefits e.g.
benefit of pay scale and retiral benefits
notionally considering the candidature of
the petitioner for promotion to the post of
Joint Secretary w.e.f. the date when his
juniors, if any, have been promoted on the
said post notionally.

44. Liberty is given to the petitioner
to prefer a representation taking all pleas
and grounds enclosing therewith the
copies of relevant documents as well as
certified copy of this order within a period
of three weeks.

45. The opposite parties shall make
compliance of this order with expedition,
preferably within a period of three months
from the date of production of certified
copy of this order.

46. The writ petition is accordingly
allowed.

47. No order as to costs.
----------
(2020)1ILR 1731

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR SRIVASTAVA, J.

Special Appeal No. 1772 of 2010

Smt. Narayani Yadav ...Petitioner
Versus
Nagar Palika Parishad Sikohabad district
Firozabad & Ors. ...Respondents

Counsel for the Petitioner:
Sri H.N. Singh, Sri Rishabh Srivastava

Counsel for the Respondents:
C.S.C., Sahab Tiwari, Sri Satish Mandhyan,
Sri Saurabh Tiwari, Sri Sita Tiwari

A. Allahabad High Court Rules, 1952 -
Chapter VIII Rule 5 & Uttar Pradesh Basic
Education Act, 1972 - Section 9 read with
Rules 1981 - appellant claiming benefit of
end of Academic Session and higher age of
superannuation-School in question was not
established by Board - Section 9 is not
attracted as his appointment was not made
by Board but by EO, NPP,SKB-Rules 1981
will not be applicable as the same were
made available only to such teachers stood
transferred who were employed in Basic
Schools on appointed date i.e. date of
establishment of Board-recognised school
does not come in the purview of Rules 1975
-
Hence,
appellant
has
rightly
been
informed about date of retirement. (Para 5
to 25)

Special Appeal dismissed. (E-6)

List of cases cited: -

1. Smt. Mithlesh Singal Vs. St. of U. P. & Ors. (W. P.
No.46178 of 2009) decided on 03.09.2009

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri H. N. Singh, Senior
Counsel
assisted
by
Sri
Rishabh
Srivastava, learned counsel for appellant
and learned Standing Counsel for Staterespondents.

2. Smt. Narayani Yadav, petitionerappellant
(hereinafter
referred
to
as
"appellant") having failed in getting any
relief before learned Single Judge due to
dismissal of Writ Petiton No.26650 of
2004 vide judgment dated 04.10.2010, has
preferred this intra-Court appeal under
Chapter VIII Rule 5 of Allahabad High
Court Rules, 1952 (hereinafter referred to
as "Rules, 1952). She has prayed for relief
of setting aside aforesaid judgment of
learned Single Judge as also to issue a writ