# [1986] 1 S.C.R. 855

- **Citation:** [1986] 1 S.C.R. 855
- **Court:** Supreme Court of India
- **Decided:** 1986-03-18
- **Case number:** Civil Appeal No. 2999 of 1985
- **Bench:** Sen, Venkataramiah, B.C. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1986-1-s-c-r-855-9361
- **Pages:** 26

## Headnote

U.P. Subordinate Civil Courts Ministerial Establishments
Rules, 1947/Rules for the Recruitment of Ministerial Staff to
the Subordinate offices, 1950/Subordinate Civil Courts Ministerial Establishment
(Amendment)
Rules,
1969 Subordinate
Off tr.es Ministerial Staff (Direct Recruitm~nt) Rules, 1975,
Rules 5, 9-12, and Appendix II
of
194 7 Rules
Recruitment to establishment - 1950 Rules - Applicability of,
Interpretation of statutes : Doctrine of implied repeal
A
B
c
- Applicability of.
D
Recruitment to the ministerial establisbllent in the
Subordinate Civil Courts of the United Provinces was regulated
by the Subordinate Civil Courts Ministerial Establisha!lenta
Rules 1947. Rule 11 provided that the recruitment shall be
based on the results of a competitive examination and an
interview, to be held in the manner laid down in Appendix II.
On July 15, 1950, the Governor in supersession of all existing
rules pr01111lgated the 'Rules for the Recruitment of Ministerial Staff to the Subordinate Offices, 1950' for the
recruit ... nt of ministerial staff to the subordinate offices in
the State including the offices of Subordinate Civil Courts.
These Rules did not expressly say that the 1947 Rul•
had been superseded, but clearly stated that the Governor had
framed them in superaession of all existing rules and orders
on the subject for recruitment to the ministerial establishment of subordinate offices under his control. Rules 9 to 12
and Appendix II of the 1947 Rules were thus 1uperseded. The
two reasons in support thereof are : ( i) that in the defi -
nition of the expression "subordinste office" only the offices
of the Secretariat, the State Legislature, the High Court and
the Public Service Coamf.ssion stood excluded, and (ii) the
E
F
G
H
856
SUPREME COURT REPORTS
[1986] l S.C.R.
A
~
offices of the Subordinate Civil Courts were included in the
Schedule to those Rules. This is evidenced from the letter
dated 12th February, 1973, written by Joint Registrar of the
High Court to all the District Judges in the State. The High
Court on its administrative side also understood that rules 9
to 12 and Appendix II to the 1947 Rules had been superseded by
B
the 1950 Rules.
c
D
E
F
G
H
In the meanwhile, the Governor had promlgated the
Subordinate Civil Courts Ministerial Eatabliohment (Amendment)
Rules, 1969 on September 20, 1969 &Mllding the 1947 Rules. The
existence of these bending Ruleo of 1969 was not taken note
of by the High Court at the ti• when. the said letter was
iHued. The High Court waa following the 1950 Rulos even after
the pr0m1lgation of the 1969 Amending Rul• for purposes of
holding the C011petitive examination for recruit•nt to the
ministerial staff in the Civil Court•• Then Subordinate
Offices
Minioterial Staff
(Direct Recruit•nt) llules 1975
were pro1111lgated by the Governor, in aupersession of all
existing rules and orders on the subject. Rule 2 IUde thae
Rules inapplicable to the Secretariat, the office of the State
Legislature, Lokayukta, Public Service cOmission, High Colart,
the Subordinate Courts under the control and ouperintendence
of the High Court and all the establishments under the control
of
the Advocate-General.
The
1975 Rulos
prescribed the
qualifications and the pattern of a competitive examination
for purposes of recruitment in substitution of what had been
prescribed by the 1950 Rules.
After the proaulgation of the 1975 Rules, a competiti...e
examination waa held by the District Judge of Kanpur in
September, 1981 and its results were announced on July 25,
1983. This competitive examination was held in accordance with
the 1950 Rules and the· 1969 Amending Rules were not followed.
Respondent No.
1, an unsuccessful candidate in the said
competitive examination, filed a writ petition contending that
the competitive examination which had been held in accordance
with the 1950 Rules was an unauthorised one .and that it should
have been held in accordance with the 1947 Rules as &Mnded by
the 1969 Amending Rules. The

## Text

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Vo
AKllILESH KilMAR Sll1lKLA. & ORS,
MARCH 18, 1986
[A.P, SEN, E.S, VENKATARAMIAH AND B.C. RAY, JJ,]
U.P. Subordinate Civil Courts Ministerial Establishments
Rules, 1947/Rules for the Recruitment of Ministerial Staff to
the Subordinate offices, 1950/Subordinate Civil Courts Ministerial Establishment
(Amendment)
Rules,
1969 Subordinate
Off tr.es Ministerial Staff (Direct Recruitm~nt) Rules, 1975,
Rules 5, 9-12, and Appendix II
of
194 7 Rules
Recruitment to establishment - 1950 Rules - Applicability of,
Interpretation of statutes : Doctrine of implied repeal
A
B
c
- Applicability of.
D
Recruitment to the ministerial establisbllent in the
Subordinate Civil Courts of the United Provinces was regulated
by the Subordinate Civil Courts Ministerial Establisha!lenta
Rules 1947. Rule 11 provided that the recruitment shall be
based on the results of a competitive examination and an
interview, to be held in the manner laid down in Appendix II.
On July 15, 1950, the Governor in supersession of all existing
rules pr01111lgated the 'Rules for the Recruitment of Ministerial Staff to the Subordinate Offices, 1950' for the
recruit ... nt of ministerial staff to the subordinate offices in
the State including the offices of Subordinate Civil Courts.
These Rules did not expressly say that the 1947 Rul•
had been superseded, but clearly stated that the Governor had
framed them in superaession of all existing rules and orders
on the subject for recruitment to the ministerial establishment of subordinate offices under his control. Rules 9 to 12
and Appendix II of the 1947 Rules were thus 1uperseded. The
two reasons in support thereof are : ( i) that in the defi -
nition of the expression "subordinste office" only the offices
of the Secretariat, the State Legislature, the High Court and
the Public Service Coamf.ssion stood excluded, and (ii) the
E
F
G
H
856
SUPREME COURT REPORTS
[1986] l S.C.R.
A
~
offices of the Subordinate Civil Courts were included in the
Schedule to those Rules. This is evidenced from the letter
dated 12th February, 1973, written by Joint Registrar of the
High Court to all the District Judges in the State. The High
Court on its administrative side also understood that rules 9
to 12 and Appendix II to the 1947 Rules had been superseded by
B
the 1950 Rules.
c
D
E
F
G
H
In the meanwhile, the Governor had promlgated the
Subordinate Civil Courts Ministerial Eatabliohment (Amendment)
Rules, 1969 on September 20, 1969 &Mllding the 1947 Rules. The
existence of these bending Ruleo of 1969 was not taken note
of by the High Court at the ti• when. the said letter was
iHued. The High Court waa following the 1950 Rulos even after
the pr0m1lgation of the 1969 Amending Rul• for purposes of
holding the C011petitive examination for recruit•nt to the
ministerial staff in the Civil Court•• Then Subordinate
Offices
Minioterial Staff
(Direct Recruit•nt) llules 1975
were pro1111lgated by the Governor, in aupersession of all
existing rules and orders on the subject. Rule 2 IUde thae
Rules inapplicable to the Secretariat, the office of the State
Legislature, Lokayukta, Public Service cOmission, High Colart,
the Subordinate Courts under the control and ouperintendence
of the High Court and all the establishments under the control
of
the Advocate-General.
The
1975 Rulos
prescribed the
qualifications and the pattern of a competitive examination
for purposes of recruitment in substitution of what had been
prescribed by the 1950 Rules.
After the proaulgation of the 1975 Rules, a competiti...e
examination waa held by the District Judge of Kanpur in
September, 1981 and its results were announced on July 25,
1983. This competitive examination was held in accordance with
the 1950 Rules and the· 1969 Amending Rules were not followed.
Respondent No.
1, an unsuccessful candidate in the said
competitive examination, filed a writ petition contending that
the competitive examination which had been held in accordance
with the 1950 Rules was an unauthorised one .and that it should
have been held in accordance with the 1947 Rules as &Mnded by
the 1969 Amending Rules. The High Court allGwed the petition
holding that the intention of promlgating the 1950 Rules vaa
only to pr•cribe a oyllabuQ different fl"Oll what had been
praacribed in the 1947 Rules but the modification IUde by the
1--
'
Q,P, SHUKLA v. AKHILESH KUMAR
857
1950 Rules did not, however, mdify the rest of the 1947
Rules.
The High Court quashed the examination held in 1981
by
the District Judge of Kanpur and directed all the candidates
who had applied for the 1981 examination to appear for the
fresh examination to be held by the District Judge of Kanpur.
In other districts where similar examinations had been held
under' the 1950 Rules and which had not
been challenged, the
selection and appointment made in pursuance thereof were not
rendered invalid.
A
B
Allowing the appeal by one of the selected candidates in c
the Kanpur Examination to this Court,
llKLD : 1. The judgment of the High Court is set aside
and the writ petition is dismissed. The appellant and all
other successful candidates at the 1981 examination held in
Kanpur shall be appointed in accordance with the rules. If in
D
any other centre, selections and appointments have been made
on the baais of the 1969 Amending Rules, they shall remain
undisturbed. (879 G-H; 880 A-Bl
2, The orders passed by the High Court in the connected
writ petitions Nos. 10224 of 1983 and 5073 of 1984 are set
E
aside. (880 Bl
3. The 1947 Rules made appropriate provisions regarding
the recruitment of candidates to the posts in the ministerial
establishm.!nt in the Subordinate Courts in the former United
Provinces. They w~re continued to be in force till July 11,
F
1950
when
the
1950 Rules
were pronulgated.
They . were
applicable not merely to the ministerial establishments in
Civil Courts but to the ministerial establishments in several
other offices. Rules 9 to 12 of the 1947 Rules and Appendix II
to it stood superseded, The other parts of the 1947 Rules
remained intact. Tuna, the 1947 Rules were not superseded in G
their entirety by the 1950 Rules. The opening
words 'in
supersession of all exiating rules and orders on the subjeet'
in the 1950 Rules only ref er to those 1111tter1 in the existing
rules which correspond to the utters dealt with by the 1950
Rules. The High Cout -
, therefore, right in observing that
the whole of the 1947 lulaa did not come to an end on the
H
pr01111lgation of the 1950 Rules. (875 B-H; 876 A-Bl
A
B
c
D
E
F
G
H
858
SUPREME COURT REPORTS
[1986] 1 S.C.R.
4. The 1969 Amending Rules specifically amended the 1947
Rules, which appear to have been made after consultation with
the High Court. By these Rules, rule 5 of the 1947 Rules was
amended. Rule 5 dealt with the mini11111D scademic qualification
which a candidate for a post in the ministerial establishment
in a Subordinate Civil Court should possess. The other
amendment related to the substitution of the former Appendix
Il which
related
to
the subjects prescribed
for
the
competitive examination and the marks assigned to each of them
as it obtained before the 1950 Rules came into force by a new
Appendix. (876 A-Bl
5. Rule 11 of the 1947 Rules which required the District
Judge to hold the examination in accordance with the former
Appendix II of the 1947 Rules, which also stood superseded by
the 1950 Rules in view of rules 5 and 7 of the 1950 Rules,
which dealt with the same subject, was however not replaced
nor a corresponding rule authorising the District Judge to
hold the competitive examination in accordance with the new
Appendix Il was introduced by the 1969 Amending Rules into the
1947 Rules si1111ltaneoualy. While the new Appendix II again
re-appeared in the 1947 Rules prescribing certain subjects and
marks assigned to them, the authority who should hold the
competitive-examination was not again prescribed in the 1947
Rules. It was necessary to re-enact Rule ll of the 1947 Rules
because it also stood repealed by the 1950 Rules which had
made provisions with regard to topic contained in the former
Rule 11. (876 F-H; 877 A]
6(a). The legal position that by the pro111Jlgation of the
1950 Rules, the former rules 9 to 12 of the 1947 Rules stood
repealed by necessary implication is accepted even by the High
Court in its letter dated February 12, l973. Therefore, the
former Rule ll should have been re-enacted either in the same
for11 or with modification and brought back to life to give
effect to the new Appendix II, reintroduced in the 1947 Rules.
Without such reintroduction of Appendix 11 in the 1947 Rules
by
the
1969
Amending
Rules
would
be
meaningless
and
ineffective as the authority who can hold the examination
remained unspecified. The method of selection of candidates
also remained unspecified. Whatever was provided in Rules 9 to
12 of the 1947 Rules, which was
needed for conducting the
exaaination and selecting candidates
was
unavailable.
Old
O.P. SHUKLA v. AKHILESH KUMAR
859
Rules 9 to 12 did not get automatically revived along with the
Aperu!ix II without an express provision reintroducing them.
The 1969 Amending Rules do not expressly state that the 1950
Rules would no longer be applicable to the ministerial
establishment of the Subordinate 'Civil Courts. They also did
not repeal the item referring to the Judicial Department -
Subordinate Civil Courts, which fourul a place in the Schedule
to the 1950 Rules. The discontinuance of the application of
the 1950 Rules to the ministerial establishments of the
Subordinate Civil Courts can only be inferred by relying upon
the rule of implied repeal provided the said rule is applicable. [877 A-Fl
6(b). An implied repeal of an earlier law can be
inferred only where there is the enactment of a later law,
which had the p0wer to override the earlier law arul is totally
inconaistent with the earlier law, that is, where the two laws
- the earlier law arul the later law - ·cannot stand together
because the two inconsistent laws cannot both be valid without
contravening the principle of contradiction. The later laws
abrogate earlier contrary laws. The principle is however
subject to the condition that the later law 1111St be effective.
If the later law is not capable of taking the place of the
earlier law arul for some reason cannot be impll!lll!llted, the
earlier law would continue to operate. To such a case the rule
of .Implied repeal is not attracted because the application of
the rule of implied repeal may
result in a vacuum whiclt the
law making authority may not have intended. Appendix II
contains a list of subjects and marks assigned to each of
them. It is only in the presence of rule 11 one can understand
the meaning arul purpose of Appendix II. [877 F-H; 878 A-BJ
7. In the absence of an amendment re-enacting rule 11 in
the 1947 Rules, it is difficult to hold by the application of
the doctrine of implied repeal that the 1950 rules have ceased
to be applicable to the ministeri&l establishllents of the
Subordinate Civil Courts. The High Court overlooked this
aspect of the case and proceeded to bold that on the aere
reintroduction of the new Appendix II into the 1947 Rules the
examination could be held in accordance with the said
Appendix. This Court is not in agreement with this view of the
High Court. [878 B-C]
8. There is also no uterial to show that after the 1969
Aaending Rules, examinations were held in the different
districts of Uttar Pradesh in accordance with the 1947 Rules
as amended by the 1969 Aaending Rules. No body including the
High Cout appears to have taken notice of the -d-.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
860
SUPREME COURT REPORTS
[19S6J 1 s.c.R.
Admittedly, the examinations were held in 1981 in ac:cordance
with the 1950 llules and not in accordance with the 1947 llules
as amended by the 1969 Amending llules. The High Court treated
the 1950 llules as the existing llules in 1973 even after the
1969 Amending llules came into force. [878 C-F]
9. In the year 1981 in some other districts of Uttar
Pradesh also examinations were held as per the 1950 llules
because the High Court expressed its reluctance to set aside
the results of the examinations in other districts and
confined the operation of its judgment to Kanpur district
only. The 1969 Amending Rules appear to have been ignored by
some District Judges. Having regard to the lacuna created by
the non-repr01111lgation of rule 11 of the 1947 Rules it hu to
be held that there was no effective substitution of the 1950
Rules l>rought about by the 1969 Amending llules. The 1950 Rules
should, therefore, be held to be operating even in the year
1981. Hence the examination held according to them cannot be
held to be bad. [879 A-C]
10. 1950 Rules have not been repealed by the 1975 Rules
in so far as the Subordinate Civil Courts are concerned.
Though Rule 20 of the 1975 Rules clearly stated that the 1950
Rules had been repealed, but the 1975 Rules did not apply to
the Subordinate Courts under the control and superintendence
of the High Court. Hence the 1950 Rules in so far sa they
applied to the Subordinate Courts continued to be in force.
[879 C-D]
In the instant case, the petitioner in the writ petition
should not have been granted any relief. He appeared in the
examination without protest and filed the petition when he
realised that he would not succeed in the examination. The
High Court itself observed that the setting saide of the
result of the examinations held in the other districts would
cause hardship to the candidates who had appeared there. The
same yardstick should have been applied to the candidates in
the District of Kanpur also. [879 E-F]
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 2999 of
1985.
G
From the Judgment and Order dated 12th April, 1985 of
H
the Allahabad High Court in Civil Misc. Writ Petition No. 3961
of 1982.
S.N. Kacker, R.B. Mehrotra for the Appellant.
Arun Deo Sagar and Pramod Dayal for the Respondents.
The Judgment of the Court was delivered by
O.P. SHUKLA v. AKHILESH KUMAR [VENKATARAMIAH, J.]
861
VENKATARA!IIAJI, J. This appeal by special leave is filed
against the judgment and order of the High Court of Allahabad
dated April 12, 1985 in Writ Petition No. 3961 of 1982 by
which the High Court of Allahabad quashed the results of the
competitive examination held by the District Judge of Kanpur
in September, 1981 for selecting candidates for appointment to
the vacancies in Grade III of the ministerial staff in the
Subordinate Courts in the District of Kanpur.
Before the coomencement of the Constitution, recruitment
A
B
to the ministerial establishment in the Subordinate Civil
Courts
of
the
United
Provinces
was
regulated
by
the
Subordinate Civil Courts Ministerial Establishment Rules, 1947
c
(hereinafter referred to as 'the 1947 Rules'). The said Rules
were prom.llgated by the Governor of the United Provinces on
August 1, 1947. The expression 'Ministerial Establishment' was
defined by rule 2(c) of. the 1947 Rules as the staff of the
subordinate civil courts consisting of ministerial servants as
~ defined in Fundamental Rule (17), Financial Handbook, Vol.II,
D
Part II. According to the definition given in rule 2(e) of the
1947 Rules the expression 'Subordinate Civil Courts' included
the Courts of District and Sessions Judge, Additional District
& Sessions Judge, Civil and Sessions Judges, Civil Judges,
Additional Civil Judges,
Munsifs, Additional Munsifs and
Courts of Small Causes subordinate to the High Court of
E
Judicature at Allahabad or the Chief Court of Oudh at Lucknow.
Rule
5
of
the
1947
Rules
prescribed
the
academic
qualifications which a person should possess for being a
candidate to a post in the ministerial establishment. It read
as follows
"5. Academic qualifications - No person who is not
already on the staff attached to a subordinate
civil court shall be appointed to a post in the
ministerial-establishment unless;
F
(a) he has passed at least the High School
G
examination conducted by the Board of High School
and Intermediate Education, United Provinces or any
other examination which has been or may be declared
by the Governor to be equivalent thereto;
(b) he possesses a thorough knowledge both of Urdu
H
and Hindi;
A
B
c
D
E
F
G
H
862
SUPREME COURT REPORTS
[19861 1 s.c.R.
(c) he possesses in the case of a candidate for the
post of stenographer a diploma or certificate from
a
University
or
a
recognised
shorthand
and
typeWriting institution, showing that he possesses
a speed of at least 100 wo-rds in shorthand and 35
words per minute in typewriting."
Rule 11 of the 194 7 Rules which is
relevant for the
}-
purposes of this case read as follows :-
"11. The recruitment shall be based on the results
of a competitive examination, and an interview by
the district Judge at the headquarters of the
judgeship. The examination and the interview sllall
be held in the manner laid down in Appendix n.
Provided that the Distrii:t Judge may delegate any
one or oore of the functions other than the
function of interviewing the candidates to a senior
~
civil judge or senior 111111sif in respect of the
examination held under this rule."
Appendix II of the 1947 Rules which contained the details
regarding the manner in which the competitive examination was
to be held read thus :-
"APPENDIX ll
(Vide Rule 11)
The examination shall be in three parts
(1) Compulsory subjects
(2) Optional subjects
(3) Interview
Compulsory subjects shall be -
350 marks
50 marks
100 marks
(a) Translation from English into Urdu
(b) Translation from English into Hindi
(c) Translation from Urdu into English
(d) Translation from Hindi into English·
(e) Precis writing
(f) Dictation
:Total '--
500
Total
200
50
100
O.P. SHUKLA v. AKHILESH KUMAR [VENKATARAMIAH, J.]
863
A
Optional subjects -
Shorthand and typewriting
50
In the optional subjects no marks shall be awarded
to any candidate who does
not reach the minimwn
B
standard required· in the note to rule 14.
Any clerk who is already on the establishment and
is not qualified as a stenographer may sit.for the
examination in typewriting and shorthand alone and
will be eligible for appointment as stenographer if
he qualifies."
c
By virtue of the provisions of Article 313 and Article
372 of the Constitution, the 1947 Rules continued to be in
force even after the commencement of the Constitution •. But on
July 15, 1950 the Governor of Uttar Pradesh pro111Ulgated rules
for the recruitment of ministerial staff to the subordinate
off ices in the State of Uttar Pradesh including the -Offices of
subordinate civil courts in exercise of the po_werS coriferred
on him by the proviso to Article 309 of the Constitution of
India in supersession of all existing rules and orders on the
subject.
These
rules
were
called
the
'Rules
for
the
Recruitment of Ministerial Staff to the Subordinate Offices,
1950' (hereinafter referred to as 'the 1950 Rules'). Rule 2 of
the 1950 Rules defined the term 'Subordinate Office' as
including all offices under the control of the Governor of
Uttar Pradesh other than those of the Secretariat, the State
Legislature, the High Court and the Public Service Commission.
Rule 3 of the 1950 Rules provided that the recruitment to the
lowest grade of the ministerial staff in a subordinate off ice
shall be made on the basis of a competitive test. Rules 5,6 &
7 of the 1950 Rules read as follows :-
"5. Tests to be held annually -
The competitive
D
E
F
tests shall be held at least once a year and at the
G
time specified in the Schedule by each head of a
subordinate office for posts not requiring technical knowledge, e.g. stenography :
Provided that if the strength of any office does
not warrant annual recruitment, or recruitment in a
H
864
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[1986] l s.c.R.
particular year, a competitive test shall be held
whenever
it
becomes , necessary
to
recruit
a
ministerial servant to the office.
6, Subjects of the tests
(1) The competitive
tests shall comprise a written test as well as an
oral test.
(2) The subject of the tests and the maxill!lm marks
on each subject shall be as follows :
Subjects
Oral
(i) Personality
(ii) General Knowledge and suitability
for the particular post.
Written
(i) Simple drafting
(ii) Essay and Precis writing
(iii) Hindi
Optional
(i) Typewriting and shorthand
(ii) English
x
x
x
Marks
2S
2S
so
so
so
so
so
x
Note :- A candidate 1111St take one of the two
optional subjects and may take both.
7. Selection of candidates - (1) On the results of
the test, the head of the subordinate Office shall
select a number of candidates sufficient to fill
the number of vacancies as ascertained in rule 3 ""'
and offer to them appointments as and when the
vacancies occur, according to the order of merit
_-(
0,P, SlillKLA v. AKHILESH KUMAR [VENKATARAMIAH, J.]
865
disclosed at the test.
(2) No one who has not been selected in accordance
with sub-rule (1) shall be appointed to any vacancy
unless
the
list
of
selected
candidates
is
exhausted.
(3) Casual vacancies may be filled up by appointing
persons who have not taken the test but their
further retention shall depend on their taking the
next test and being selected in it."
In the Schedule attached to the 1950 Rules it was
provided that for the off ices of the subordinate civil courts
the competitive examination should be held in August second
week every year. The relevant entry in that Schedule read as
follows :-
"Judicial (A) Department
(1) Offices of Subordinate Civil Courts - August
second
week"
The 19:>0 Rules did not, however, expressly say that the
194 7 Rules had been superseded by these Rules. But it is
significant to note that the 1950 Rules clearly stated that
the Governor had framed them in supersession of all existing
rules and orders on the subject for recruitment to the
ministerial establishment of subordinate offices under his
control. The clear effect of the 1950 Rules therefore was that
the 1947 Rules stood superseded by the 1950 Rules as regards
the subjects prescribed for the test and the manner of the
examination to be held for the purpose of selecting candidates
for the ministerial staff in the Civil Courts of the State of
Uttar Pradesh. To be precise, rules 9 to 12 and Appendix II of
the 1947 Rules were superseded. Tile two reasons in support of
the above view are 1:
(i) that in the definition of the
expression 'Subordinate Office' only the offices of the
Secretariat, the State Legislature, the High Court and the
Public Service Commission stood excluded and (ii) the offices
of the Subordinate Civil Courts were included in the Schedule
to those Rules. On its administrative side the High Court also
A
B
c
t D
F
G
H
A
B
c
D
•
E
I
F
G
H
866
SUPREME COURT REPORTS
[1986] I S.C.R.
understood that the 1950 Rules were applicable insofar as
recruitment to the ministerial staff in the Civil Courts was
concerned. This is evident from a letter written by Shri M.P.
Singh, Joint Registrar of the High Court of Allahabad to all
the Dist.rict Judges in the State of Uttar Pradesh on February
12, 1973 which is as under :-
"From:
To
M,P. Singh, B.A., LL.B.
Joint Registrar,
High Court of Judicature at Allahabad.
All the District Judges,
Subordinate to the High Court of
Judicature at Allahabad •
No. 14/Ve-4 Dated Allahabad February 12, 1973.
Subject :- Recruitment to the establishment of the Subordinate
Civil Courts.
Sir,
It has been brought to tr' notice of the Court that
many District Judges face a lot of difficulties at the
instance of Employment Exchange in making recruitments to
their
establishments.
Broadly
speaking
the difficulties
pointed out by them are as under :-
l.
Quite often the District Judges, on the list of
approved
candidates
having
exhausted,
have -to
recruit
candidates directly without subjecting them to a regular test
prescribed under the rules for filling up casual vacancies and
for meeting the requirements of newly created additional
courts at short not ice and such candidates continue in the
employment of the civil courts for a considerable time, but
when a test is held for recruitment, the Employment Exchsng•
O.P. SHUKLA v. AKHILESH KUMAR [VENKATARAMIAH, J.]
867
either refuses to sponsor the names of those candidates or
withholds their applications for one reason or the other and
consequently such candidates are prevented from taking up the
test.
2. Some times the Employment Exchange, while forwarding
the applications of candidates, withholding applications of
such candidates who appear to be deserving the suitable to the
District Judges without assigning any reason and this compel
the District Judges to recruit candidates only from aioongst
the
candidates
whose applications are forwarded
by the
Employment Exchange.
In order to obviate the difficulties, the court haa
examined the whole scheme and the rules and within frame work
of the existing rules and Government orders on the subject,
the following procedure is laid down for our guidance :-
While following the procedure laid down in existing
rules, published under Government Notification No.0-111/-
Xl-8-50 dated July 11, 1950 (which was adopted in supersession
of rules 9 to 12 of the U.P. Subordinate Civil Courts
Ministerial Establishment Rules 1947) and amplified in G.D.
llo. C>-2248/II-8-III-1950 dated August 30, 1950, the District
Judge should in addition himself advertise his requirement
under intimation to the Employment Exchange and while doing so
he should take care to make it clear that all applications are
to be addressed to him and routed through the Employment
Exchange. The District Judge should further require that
candidates should send advance copies of their applications
direct to the District Judge which would go to ascertain
whether all applications have been forwarded to him by the
Employment Exchange or not. However, if on receiving the
applications from the Employment Exchange, it is found that
applications of certain suitable candidates have been withheld
by the Employment Exchange, the District Judge may in his
discretion, permit such candidates to take the test as
contemplated in paragraph 7 of the G.O. dated August 30,
1950
referred to earlier.
ln the case of candidates who are appointed to fill
up casual vacancies without appearing in the regular test
prescribed under the rules and are already working on the
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SUPREME COURT REPORTS
[1986] l S.C.R.
staff of the civil court concerned, they should be treated as
departmental candidates and should be allowed to take the test
without any reference to the Employment Exchange in order to
enable them to qualify for regular appointment.
Yours faithfully,
sd/- M.P. Singh
Joint Registrar
11
(underlining by us)
From the above letter it is clear that the High Court
C
understood that rules 9 to 12 of the 1947 Rules including rule
II which prescribed the manner of examination and Appendix II
to the 1947 Rules which prescribed details regarding the
subjects in the examination had to be held had been superseded by the 1950 Rules.
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In the meanwhile in exercise of his powers under proviso
to
Article
309
of
the Constitution,
the Governor
had
pro'1lllgated
the
Subordinate
Civil
Courts
Ministerial
Establishment (Amendment) Rules, 1969 on September 20, 1969
amending the 1947 Rules (hereinafter referred to as 'the 1969
Amending Rules'). The 1969 Amending Rules read as follows
"No. 49(1)/69-Nyaya (Ka-2)
September 20, 1969.
In exercise of the powers under proviso to Article
309 of the Constitution, the Governor is pleased to
make the following rules with a view to amend the
subordinate Civil Court Ministerial Establishment
Rules, 1947 publlshed with Government notification
No.2494/VII-612-40 dated August 1, 1947.
RULES
1.
Short title and commencement : (i) These Rules
may
be
called
the
subordinate
Civil
Courts
Ministerial Establishment (Amendment)
Rules, 1969
(iii) They shall come into force with effect from
the date of their publication in the Gazette.
0,P. SHUKLA v. AKllILESH KUMAR [VENKATARAMIAH, J,]
869
2.
Amendment of rule 5: In the Subordinate Civil
Courts
Ministerial
Establishment
Rules,
1947
(hereinafter referred to as the said rules, for the
rules as set out in Column 1, the rule as set out
A
in column 4 shall be substituted.
B
Column 1
S. Academic qualifications
No person who is not already
on the staff attached to a
subordinate civil court
shall be appointed to a post
in the ministerial establishment unless :-
(a) he has passed at least
the High School examination
conducted by the Board of
High School and Intermediate Education United
Provinces, or any other
examination which has been
or may be declared by the
Governor to be equivalent
thereto;
(b) he possesses a thorough
knowledge both of Urdu and
Hindi;
(c) he possesses in the case
of a candidate for the post
of Stenographer, a diploma or
certificate from a University
of a recognised Shorthand
and typewriting Institution,
showing that he possesses a
speed of at least .100 words
per minute in Shorthand and
35 words per minute in
typewriting.
Column 4
•
Academic qualification • -
No person who is not
already on the staff attached to a subordinate Civil
Court shall be appointed to
a post in the ministerial
establishment unless,:-
(a)he has passed at leaat
the Intermediate Examination conducted by the Board
of High School and Intermediate Education, U.P. or
·any other examination which
has been or may be declared
by the Governor to be the
equivalent thereto.
(b)he possesses a thorough
knowledge both of Urdu and
Hindi.
(c)he possesses in the case
of a candidate for the post
of Stenographer, a diploma
or certificate from a
University or a recognised
Shorthand and typewriting
Institution showing that he
possesses a speed of at
least 100 words per minute
in typewriting.
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[19861 1 s.c.R.
\.._
A
3. AMEN!t1ENT OF APPENDIX II
5. In the said rules for
the Appendix as set out in
column 1, the Appendix as
set in column 2 shall be
substituted.
B
Column 1
--;----:-
Column II
·-
Existing Appendix II
Marks
Appendix as hereby
Marks
substituted.
The Exsmination shall
The Examination shall
be in three parts:
be in three parts:
c
1. Compulsory subjects
350
I.Compulsory subjects
350
2. Optional subjects
50
2,0ptional subjects
50
3. Interview
100
3. Irtterview
100
Total
500
Total
500
D
Compulsory subjects shall
Compulsory subjects shall
be
be
(a) Translation from
Translation from English
English to Urdu
50
to Hindi
50
(b) Translation from
(b) Translation from
E
English to Hindi
50
Hindi to English
50
(c) Translation from Urdu
(c)Hindi Drafting
to English.
50
(Added)
50
(d) Trartslation from
(d)Hindi Precis writing 50
Hindi to English
50
(e) Precis writing
50
(e)English Drafting
50
(f) Dictation
100
(f)Dictation
100
F
OPTIONAL SUBJECTS
OPTIONAL SUBJECTS
Shorthand & Typewriting 50
Shorthand & Typewriting 50
In the optional subject no
In the optional subject
G
marks shall be awarded to
no marks shall be awarded
any candidate who does not
to any candidate who does
reach the miniDllm standard
not reach the minimum
required in the note to
standard required in the
~-
rule 14,
note to rule 14.
H
Any clerk who is already
Any clerk who is already
0,P, SHUKLA v. AKllILESH KmlAR [VENKATARAMIA'I, J,]
Bil
•
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A
on the Establishment and
is not qualified aa, a
stenographer may sit for
the examination in typewriting
and shorthand alone and will
be eligible for appointment
as stenographer if he
qualifies.
on the Establishment and
is not qualified as a
Stenographer may sit for
the examination in typewriting and shorthand alone
and will be eligible for
appointment as Stenographer
if he qualifies."
B
The existence of these Amending Rules of 1969 was not
taken note of by the High Court when the letter of the Joint
Registrar dated February 12, 1973 was addressed to all the
District Judges. It appears from the said letter that the High
C
Court was following the 1950 Rules even after the protDJlgation
of the 1969 Amending Rules for purposes of holding the
competitive examination for. recruitment to the ministerial
staff in the Civil Courts. Then came the Subordinate Offices
Ministerial Staff (Direct Recruitment) Rules,
1975 (herein1
after referred to as 'the 1975 Rules') protDJlgated by the
D
Governor under the proviso to Article 309 of the Constitution.
The said Rules were promulgated in supersession of all
existing rules and orders on the subject. Rule 2 of the 1975
Rules which dealt with their application read as ·follows
"2, Application of these rules. ( l) These rules
shall govern recruitme11t to all the ministerial
posts of the lowest grade, other than the posts of
stenographer (which are required to be filled by
direct
recruitm~nt and
which are outside the
purview of the Public Service Commission) in all
subordinate offices under
the control of the
Government
but
excluding the Secretariat, the
offices of State Legislature, Lokayukt, Public
Service Commission, Uttar Pradesh, High Court the
SUbordinate
Courts
under
tbe
Control
and
superintendence of the High Court, the Advocate
General, Uttar Pradesh and of the establishments
under the control of the Advocate General."
From rule 2 of the 1975 Rules which is set out above, it
it clear that the said Rules were not made applicable to the
Secretariat, the offices, of the State Legislature, Lokayukta,
Public Service Commission, High Court, the Subordinate Courts
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SUPREME COURT REPORTS
[19861 1 s.c.R.
under the control and superintendence of the High Court
and
all the establishments under the control of the AdvocateGeneral. The 1975 Rules prescribed the qualifications and the
pattern of a competitive examination for purposes of recruitment in substitution of what had been prescribed by the 1950
Rules in respect of subordinate offices to which the 1975
Rules applied. Sub-rule (1) of rule 20 of the 1975 Rules
expressly provided thus :
"20, Repeal and validation. ( 1) The Rules for the
recruitment of ministerial staff in the Subordinate
offices published under notificaion No.C-1119/IU-8
50, dated July 11, 1950 as amended from time to
time, shall be, and be deemed to have been repealed
with effect from June 5, 1974.''
It was after the promulgation of the 1975 Rules that the
competitive examination, with which we are concerned, was held
by the District Judge of Kanpur. The said examination was held
in September 1981 and its results were announced on July 25,
1983. Respondent No. I and many others appeared in the said
examination. The competitive examination was, however, held in
accordance with the 1950 Rules. The 1969 Amending Rules were
not, however, followed. Respondent No.1 who had appeared for
the competitive examination was not successful, Aggrieved by
the result of the examination he filed the writ petition
before the High Court of Allahabad, out of which this appeal
arises. His principal contention before the High Court was
that the competitive examination which had been held in
accordance with the 1950 Rules was an unauthorised one and
that it should have been held in accordance with the 1947
Rules as amended by the 1969 Amending Rules. The High Court
held that it was evident that the intention of promulgating
the 1950 Rules was only to prescribe a syllabus different from
what
had
been
prescribed
in the
1947
Rules
but
the
~odification made by the 1950 Rules did not, however, modify
the rest of the 1947 Rules. The High Court was of the opinion
that "therefore, it follows that the 1950 Rules being later in
time superseded 1947 Rules to the extent of its inconsistency.
After the enforcement of 1950 Rules competitive tests for
holding
selection
for
appointment
to
the
Ministerial
Establishment of Subordinate Courts was required to be held in
accordance with the syllabus of 1950 Rules and not in
;
,
O.P. SHUKLA v. AKl!ILESH KUMAR [VENKATARAMIAH, J.]
873
~
A
accordance with Appendix II of 1947 Rules. In other respects
the 1947 Rules continued to be et'fective."
The High Court then found that on the promulgation of the
1969 Amending Rules the syllabus prescribed by the 1950 Rules
could not be .followed. The High Court observed on this
B
question as follows:
•
"The question, however, arises what was the effect
of
Subordinate
Civil
Courts
Ministerial
Establishment · (Amendment) Rules, 1969. As noted
earlier, the Rules of 1969 were framed by the
Governor, amending Appendix II of 1947 Rules. The
C
notification dated September 20, 1969, under which
the Rules were enforced, does not contain any
reference to 1950 Rules. It appears that while
amending the 1947 Rules, the Governor failed to
notice that Appendix ll of 1947 Rules had already
been "uperseded by Rule 6 of 1950 Rules. llawever,
D
it is evieot that the intenl:ion was to prescribe
different syllabus than that prescribed by 1950
Rules. 1here is .., doubt that by the 1969 Rules,
the Governor intended to lay down a syllabus for
holding competitive examination for selection and
appointment to the ministerial establishment of
E
Subordinate Courts which was quite different to the
syllabus prescribed by rule 6_of 1950 Rules as well
as Appendix II of 1947 Rules. The 1969 Rules were
also framed by the Governor in respect of the same
subject matter as laid down by rule 5 of 1950
Rules. Since 1969 Rules were framed later ir. time
F
by the same authority on the same subject, it Dllst
be held that the syllabus prescribed by the Amending Rules superseded the earlier rules on the
subject.
The High Court gave o~ more reason for holding that the
G
1950 Rules were no longer in force in the year 1981. The High
Court was of the view that the 1950 Rules having been repealed
by rule 20 of the 1975 Rules they were no longer effective
A
from June 5, 1974. It observed thus :
"The 1969 Rules, no doubt, purported to amend Rule
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5 and Appendix II of 1947 Rules. The language of
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SUPREME COURT REPORTS
[1986] l s.c.R.
the Rules of 1969 indicates that apart from the
rules being in the nature of an amendment, the
Governor
intended
to
lay down spedfic rules
prescribing educational qualifications and syllabus
for holding the examination for recruitment to the
Ministerial Staff of the Subordinate Courts. Even
if the 1969 Rules could not be effective during the
period the 1950 Rules were in force, the same would
be fully effective after June 5, 1974, the same
repeal of 1950 Rules. We, therefore, hold that in
any event after June 5, 1974
recruitm~nt to the
ministerial staff of the Subordinate Courts could
be held only in a accordance with 1947 Rules read
with 1969 Rules and not in accordance with 1950
Rules.
The High Court was of the view that since within the
judgeship of Kanpur the examination had not been held in
accordance with the syllabus prescribed by the 1947 Rules as
amended
by the 1969 Amending Rules all those who were
successful and selected for appointment had no legal right to
be appointed. It accordingly quashed the examination held in
1981 by the District Judge of Kanpur, the results of which had
been announced in 1983 by its judgment dated April 12, 1985.
The High Court clarified that all the candidates who had
applied for the 1981 examination were, however, entitled to
appear for the fresh examination to be held by the District
Judge of Kanpur. It further observed that in the other
Districts of Uttar Pradesh where examinations had been held
under the 1950 Rules and which had not been challenged the
selection and appointment made in pursuance thereof should be
treated as valid and would not be rendered invalid on the
ground that any other view would cause great hardship
'which
will not be in the public interest'.