# CHANDRA PRAKASH TIWARI AND ORS v. SHAKUNTALA SHUKLA AND ORS

- **Citation:** [2002] 3 S.C.R. 948
- **Court:** Supreme Court of India
- **Decided:** 2002-05-09
- **Case number:** Civil Appeal Nos. 34413446 of 2002
- **Bench:** G.B. Pattanaik, Umesh C. Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandra-prakash-tiwari-and-ors-v-shakuntala-shukla-and-ors-18600
- **Pages:** 28

## Headnote

Service Law :
Constitution of India, 1950-Article 309 and VI/th Schedule, list II,
C item 2-Police Act, 1861-Sections 2, 7, 12 and 46-U. P. Government Service
(Criteria for Recruitment by PromotiOn) Rules 1991-Selection-Sub-lnspector
of Police for promotion to Inspector-Selection Committee adopting criteria
in terms of specific Police Order of 1965 which stood amended upto 1998 and
not in terms of General Rules of 1994 framed under Article 309-Single Judge
D of High Court negating Selection-Division Bench confirming the same as
criteria under Rules of 1994 not followed-On appeal, held unless the General
Rule specifically repeal effectiveness of Special Rules, Special Rules will not
become ineffective or inoperative, thus High Court erred in negating selection--
Administrative Law.
E
For selection of Sub-Inspectors of Police for promotion to the rank
of Inspector in 1997, Selection Committee adopted the criteria in terms
of specific Police Order of 1965 issued under Police Act 1861, which stood
amended upto 1998 and not in terms of U.P. Government Services
(Criteria for Recruitment by Promotion) Rules 1994 framed under Article
F 309 of the Constitution. Interviews were held under Order of 1965, the
participants participated without demur and candidates were selected.
Aggrieved candidate then challenged the selection. Single Judge of High
Court negated the selection. Division Bench confirmed the same since the
criteria specified in 1994 Rules was not followed and also that Selection
Committee failed to prepare the list for each year.
G
H
The question arose for consideration that the selection as effected
was to be made under the specific Police Order of 1965 or the basis of
seniority under the General U.P. Government Service (Criteria for
Recruitment by Promotion) Rules, 1994 framed under Article 309 of the
Constitution.
948
-
-
CHANDRA PRAKASH TJWARI I'. SHAKUNTALA SHUKLA
949
In appeals before this Court appellants submitted that by reason of A
the order of 1965 being framed under Section 2 of the Police Act, the
applicability of the Rules framed under Article 309 in 1994 is a total nonissue; that the doctrine of estoppel by conduct is applicable due to the
participation by the candidate in the selection process without demur; that
the candidate does not have the right to challenge the appointment upon B
due participation at the interview and also that there is no need for annual
selections and thus can be clubbed.
Respondents contended that the Government Order of 1965 being
in the nature of executive instructions stood obliterated after the date of
notification of the Rules framed under Article 309 since the executive order C
is subordinate to that of the Legislature and as such the Rules framed
under Article 309 would prevail for governing the terms and conditions
of services of subordinate ranks of the police force. Admittedly the
members of the subordinate ranks of the police force come under the
purview of the rule making power of the Governor under Article 309 and
also their service conditions. Order of 1965, falls short of becoming D
statutory order as it is not a Rule made under Section 46(2) of the Police
Act 1861; it is not published in the Official Gazette which is primary
requirement of Section 46(2) and also Section 2 recognises only the
executive power of the State.
Allowing the appeals, the Court
HELD: I.I. The guidelines contained in the Government Order of
1965 have been under and in terms of the provisions of the Police Act.
There is special conferment of power for framing of Rules .which would
prevail over any other Rule. Since no other rule stands formulated and
the Government Order of 1965 being taken as the existing rule pertaining
to the subject matter presently under consideration with recent guidelines,
E
F
its applicability cannot be doubted. Unless the General Rule specifically
repeal the effectiveness of the special rules, question of the latter rule
becoming ineffective or inoperative would not ar

## Text

_Characters 0–39,716 of 67,108. This is a partial read: ask again with offset=39716 for what follows._

A
CHANDRA PRAKASH TIWARI AND ORS.
v.
SHAKUNTALA SHUKLA AND ORS.
MAY 9, 2002
B
[G.B. PATTANAIK AND UMESH C. BANERJEE, JJ.]
Service Law :
Constitution of India, 1950-Article 309 and VI/th Schedule, list II,
C item 2-Police Act, 1861-Sections 2, 7, 12 and 46-U. P. Government Service
(Criteria for Recruitment by PromotiOn) Rules 1991-Selection-Sub-lnspector
of Police for promotion to Inspector-Selection Committee adopting criteria
in terms of specific Police Order of 1965 which stood amended upto 1998 and
not in terms of General Rules of 1994 framed under Article 309-Single Judge
D of High Court negating Selection-Division Bench confirming the same as
criteria under Rules of 1994 not followed-On appeal, held unless the General
Rule specifically repeal effectiveness of Special Rules, Special Rules will not
become ineffective or inoperative, thus High Court erred in negating selection--
Administrative Law.
E
For selection of Sub-Inspectors of Police for promotion to the rank
of Inspector in 1997, Selection Committee adopted the criteria in terms
of specific Police Order of 1965 issued under Police Act 1861, which stood
amended upto 1998 and not in terms of U.P. Government Services
(Criteria for Recruitment by Promotion) Rules 1994 framed under Article
F 309 of the Constitution. Interviews were held under Order of 1965, the
participants participated without demur and candidates were selected.
Aggrieved candidate then challenged the selection. Single Judge of High
Court negated the selection. Division Bench confirmed the same since the
criteria specified in 1994 Rules was not followed and also that Selection
Committee failed to prepare the list for each year.
G
H
The question arose for consideration that the selection as effected
was to be made under the specific Police Order of 1965 or the basis of
seniority under the General U.P. Government Service (Criteria for
Recruitment by Promotion) Rules, 1994 framed under Article 309 of the
Constitution.
948
-
-
CHANDRA PRAKASH TJWARI I'. SHAKUNTALA SHUKLA
949
In appeals before this Court appellants submitted that by reason of A
the order of 1965 being framed under Section 2 of the Police Act, the
applicability of the Rules framed under Article 309 in 1994 is a total nonissue; that the doctrine of estoppel by conduct is applicable due to the
participation by the candidate in the selection process without demur; that
the candidate does not have the right to challenge the appointment upon B
due participation at the interview and also that there is no need for annual
selections and thus can be clubbed.
Respondents contended that the Government Order of 1965 being
in the nature of executive instructions stood obliterated after the date of
notification of the Rules framed under Article 309 since the executive order C
is subordinate to that of the Legislature and as such the Rules framed
under Article 309 would prevail for governing the terms and conditions
of services of subordinate ranks of the police force. Admittedly the
members of the subordinate ranks of the police force come under the
purview of the rule making power of the Governor under Article 309 and
also their service conditions. Order of 1965, falls short of becoming D
statutory order as it is not a Rule made under Section 46(2) of the Police
Act 1861; it is not published in the Official Gazette which is primary
requirement of Section 46(2) and also Section 2 recognises only the
executive power of the State.
Allowing the appeals, the Court
HELD: I.I. The guidelines contained in the Government Order of
1965 have been under and in terms of the provisions of the Police Act.
There is special conferment of power for framing of Rules .which would
prevail over any other Rule. Since no other rule stands formulated and
the Government Order of 1965 being taken as the existing rule pertaining
to the subject matter presently under consideration with recent guidelines,
E
F
its applicability cannot be doubted. Unless the General Rule specifically
repeal the effectiveness of the special rules, question of the latter rule
becoming ineffective or inoperative would not arise. In order to be G
effective, an express mention is re_quired rather an imaginary repeal. It is
now a well settled principle of law for which no dilation is further required
that law Courts rather loath repeal by implication. The General Rule
framed under Article 309 has been for all State Government officials on
and since 1994. 1973-C-FI
H
950
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A
1.2: Police force has a special significance in the administration of
""--
the State and the intent of the framers of our Constitution to empower
the State Government to make rules therefor has its due significance rather
than being governed under a general omnibus rule framed under the
provisions under Article 309. When there is a specific provision unless
B
there is a specific repeal of the existing law, question of an implied repeal
would not arise. In any event, the General Rules are only prospective in
nature and as such could not have affected the selection process which
commenced in the year 1993. (973-G, H; 974-AI
""
A.B. Krishna and Ors. v. State of Karnataka and Ors., (19981 3 sec
•
c 495, referred to.
K. Dayanandalal and Ors. v. State of Kera/a and Ors., [19961 9 sec
728 and Shish Ram and Ors. v. State of H.P. and Ors., [19961 JO SCC 166,
distinguished.
\
D
Broom Legal Maxim, referred to.
1.3. Incidentally, the Legislative intent has to be assessed in its proper
perspective and from the word used therein. The inter-ministerial
.. ""'
correspondence and the understanding apropos the Government Order
stands clear enough to indicate that while General Rules framed in the
E year 1994 are for general government servants, the Police force are to be
guided by the provisions of the Police Act and no exception can be taken
..-.
thereto. (974-8, CJ
1.4. In the instant case there is no precise and unambiguous
representation and any unequivocal assurance prompting the assured to
F alter his position or status thus the participation by the candidate in the
selection process by demur does not make the doctrine of estoppel by
conduct applicable. But the law seem to be well settled that in the event a
candidate appears at the interview and participates therein, only because
• '
the result of the interview is not 'palatable' to him, he cannot turn round
G
and subsequently contend that the process of interview was unfair or there
was some lacuna in the process. Thus the right to challenge an appointment
upon due participation at the interview/selection is barred.·
(971-C, D, E; 973-A)
"">-....,
Tata Iron & Steel Co. Ltd. v. Union of India and Ors., (2001) 2 SCC
H 41; Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., (19861 Supp.
CHANDRA l'RAKASI I TlWARJ I'. SHAKUNT ALA SHUKLA
951
SCC 285 and Madan Lal and Ors. v. State of./ & Kand Ors .. 119951 3 SCC A
486, referred to.
1.5. Gazette publication is required in terms of Section 46{2) and as
such until the Rule specifically required to be framed under Section 46(2),
the mandatory nature of the same cannot be stated to be a requirement.
In a11y event, it is hyper technical in nature since the parties who were
well aware of the 1965 Order, participated at the interview and knew the
contents. 1974-D, El
B
1.6. Regarding the issue of selections and clubbing, in the normal
circumstances annual selections ought to be adhered to but in the event C
of there being no such assessment or selection, it would not render the
subsequent selection void but being an irregularity can be cured. Clubbing
in a later year may not be treated as fatal but curable, more so having
regard to the fact that initiation of a selection process throughout the State
would further take a considerable period of time and the Court's attitude
presently being pragmatic and justice oriented should do away with D
technicalities as technicalities ought not to out-weigh the course of justice.
1974-E, F; 975-C, DI
Union of India and Ors., v. Vipinchandra Hiralal Shah, 119661 6 SCC
721, referred to.
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 34413446 of 2002.
From the Judgment and Order dated 9.7.99 of the Allahabad High
E
Court in S.A. Nos. 167, 169, 171, 175, 188, 192 of 1998.
F
WITH
(C.A. Nos. 3437-3440, 3447, 3449-3452 of 2002.)
Dr. Rajiv Dhawan, Yogeshwar Prasad, P.S. Mishra, R.C. Srivastava,
Dinesh Dwivedi, Raj Kumar Gupta, Sheo Kumar Gupta, Jai Mangal Wadi, G
A.N. Bardiyar, Nandini Gore, Ashok K. Srivastava, Prakash K. Singh, Nalin
Tripathi, R.N. Tripathi, Naveen Tripathi, Vishnu Upadhyay, for Sarla Chandra,
Ms. Rachana Srivastava, Ms. S. Janani, C.K. Sucharita, Ms. Kusum Chaudhary
• '
and Rajesh for the appearing parties.
The Judgment of the Court was delivered by
H
952
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A
BANERJEE, J. Leave granted.
The irksome issue as regards the criterion of selection through placed
before the Court on occasions innumerable but the debate is still on. The
matters presently before this Court pertain to the promotion of police officers
from Sub-Inspector to Inspector in the State of U.P. in 1977 for vacancies for
B the period between 1992 and 1996 and said to be upon due completion of
elaborate selection process - it is however this process which stands scrutiny
before this Court. Whereas the learned Single Judge negated the selections
and allowed the grievance of the writ petitioners upon recording of a
categorical finding that the selection has caused great injustice to the senior
C Sub-Inspectors who had a totally unblemish service record - the appellate
Bench in a very detailed judgment recorded an affirmation to the judgment
of the learned Single Judge though for different set of reason to wit, that the
criteria for selection seniority subject to the rejection of the unfit" as laid
down· in the Rules was not followed and secondly that Selection Committee
failed to prepare the list for each year, keeping in view the number of vacancies
D in that year after considering the Sub-Inspectors of police who were eligible
· and fell within the zone of consideration for selection that year.
The records depict that the select list of 1996-97 stood challenged both
at Allahabad and at Lucknow under various writ petitions and as against the
orders of the learned Single Judge there were pending a large number of
E appeals. The learned Single Judge who was in seisin of the matters at Lucknow,
however, thought it fit to refer the matters to a larger Bench and scripted the
following questions.
F
G
H
I.
Whether the Departmental Selection Committee constituted for
the purpose of selection of Sub-Inspectors, Civil Police for
promotion to the rank of Inspectors, Civil Police, having adopted
the criterion of 'merit' alone for selection, has not contravened
the provisions of "The Uttar Pradesh Govt. Services Criteria for
Recruitment by Promotion Rules, 1994" which lays down that
posts for all services (excepting the post of Head of Department
and Officer immediately below him) to be filled up by promotions,
shall be made on the basis of seniority subject to rejection of the
unfit?
2.
Whether the provisions of the Uttar Pradesh Government Services
Criteria for Recruitment by Promotion Rules 1994 do to apply to
the Police personnel?
-~
. --<--
__ .>-
CHANDRA PRAKASH TIWARI v. SHAKUNTALA SHUKLA [UMESH C. BANERJEE, J.] 953
3.
Whether in case the answer to question No. 1 is in the affirmative A
the selection/select list contained in Annexure No. 1 in some
writ petitions and Annexure No. 1 and 2 in others is not bad in
law and liable to be quashed?
The core question thus falling for consideration before this Court thus·
runs as below :
Whether the selection as effected was to be made under the specific
police related order of 5th November, 1965 or the basis of seniority
under the General UP Government Service (Criteria for Recruitment
by Promotion) rules, 1994 framed under Article 309 of the
B
Constitution?
C
Admittedly, the impugned selection of Sub-Inspectors of police for
promotion to the rank of Inspectors was effected in terms of the Government
Order dated 5th November, 1965. In order, however, to appreciate the
contentions raised in a manner proper and effective, the Government Order
spoken of earlier, ought to be noticed in extenso for its true purport. The D
Government Order as below :
"From :
Shri R.K. Dar,
UP. Sachiv,
Uttar Pradesh Shasan
To,
The Inspector General of Police,
Uttar Pradesh
Allahabad/Lucknow
Dated Lucknow: November 5, 1965
Home (Police-A)
Sub : Method of Selection of Sub-Inspectors for promotion to the
rank of Inspectors.
Sir,
E
F
G
With reference to Deputy Inspector General of Police,
Headquarters letter No. V-500-51, dated August 18, 1964, on the H
954
SUPREME COURT REPORTS
[2002) 3 S.C.R.
A
subject noted above, I am directed to say that after_ careful consideration
~-
of the recommendations contained in para 246 of the U.P. Police
Commissions Report, 1960, the Governor in supersession of the
povisions in the Police Regulations and in modification of the present
orders on the subject, has been pleased to order that the procedure for
B
selection of Sub Inspectors for their promotion to the cadre of Inspector
shall henceforth be as follows :
(A) The existing quota system by which a certain number of Sub
. '\.
Inspectors are at present selected from each Range should be
abolished. Sub Inspectors Civil Police who hav~ put in not less
c
than 10 years service as such (and are below 50 years of age) on
the I st day of January of the year in which the selection is made
will now be eligible for promotion to the post of Inspector. The
range Deputy Inspector General of Police will send to the Police
Headquarters every year the following list.
D
(i)
Lists of Sub Inspectors, Civil Police considered suitable for
officiating promotion as Inspector in order of seniority in a
prescribed form, which may be laid down by the Police
'}>-
Headquarters.
(ii) Lists of Sub Inspectors, Civil Police, who are not considered fit
E
for officiating promotion with brief reasons.
The Departmental Selection Committee will thereafter have a
final consolidated list prepared of Sub Inspectors Civil Police,
considered suitable for officiating promotion arranged in the order
of their seniority. From the final consolidated list, four times the
F
number of Inspectors required to be approved for officiating
y
promotion will be called for interview by the Departmental
..._
Selection Committee as constituted by Government vide G.O.
No. 4381-A/VIIl-A-268/1961, dated August 2, 1962. The
assessment made by the Committee will be done by selection on
merit, and a list of approved candidates will be prepared on
G
which the names of selected candidates will arrange in order of
their seniority. Those who are borne on the approved list of an
earlier year will rank above those selected and brought on an
approved list of a later year.
7- .....
(B) On the occurrence of substantive vacancies appoi·ntment to them
H
shall be made from amongst the candidates on the approved list
CHANDRA PRAKASH TIWARI , .. SHAKUNTALA SHUKLA [UMESH C. BANERJEE, J.] 955
prepared under para 'A' on the basis of suitability. The claims A
of the candidates passed over will be considered in the subsequent
selection. The selection will be made by the Departmental
Selection Committee and there will be no further interview of
the candidates for filling in the substantive vacancies.
(CJ Candidates selected for substantive appointment will be placed B
on two years probation in accordance with the provisions of para
403(3) of the Police Regulations. The period of service rendered
by them as Inspector of Police in a temporary or officiating
capacity will be counted towards the period of probation.
2.
The above orders shall come into force with immediate effect. C
Yours faithfully,
Sd/- R.K. Dar,
Up Sachiv." D
It is needless, however, to record that selection of Inspectors in Uttar
Pradesh stands effected on the basis of merit arranged in order of seniority
and the Government Order dated 5.11.1965 being the backgrounder thereto.
Adverting at this juncture to U.P. Government Service (Criterion for
Recruitment by Promotion) Rules, 1994 made by the Governor of the State E
in exercise of powers conferred by the proviso to Article 309 of the
Constitution and published in the U.P. Gazette (Extraordinary) Part IV Section
(Ka) dated 10th October, 1994 vide Notification No. 13/34/19-Ka-l/1994
dated October I 0, 1994, it may be noticed that the same visualised the criterion
of the seniority 'subject t~ the rejection of unfit' for promotion to the posts F
in all services to be filled by promotion excepting the post of the Head of
Department, a post one rank below the post of Head of Department and a
post in any service carrying the pay scale, the maximum of which is Rs.
6,700 or above. Rule 4 of the Rules has some significance and the same reads
as under:
"4. Criterion for recruitment by promotion - Recruitment by Promotion
to the post of Head of Department, to a post just one rank below the
Head of Department and to a post in any service carrying the pay
scale, the maximum of which is Rs. 6700 or above, shall be made on
the basis of merit, and to rest of the posts in all services to be filled
G
by promotion including a post where promotion is made from a non- H
956
A
SUPREME COURT REPORTS
(2002] 3 S.C.R.
gazetted post to a gazetted post or from one service to another service,
shall be made on the basis of seniority subject to the rejection of the
unfit."
Dr. Rajiv Dhawan with his usual erudition and eloquece in support of
the appeals rested his submissions principally on two counts - the first being
B field being already occupied by a statutory rule or order and subsequent rule
though framed under Article 309 cannot but give into the special and specific
rule or order - it is under the first count, however, another incidental issue
was also high-lighted by Dr. Dhawan, to writ: applicability of the doctrine of
estoppel by conduct. Referring to the first count as above Dr. Dhawan drawing
C inspiration from the factual status submitted that in the light of the clarifications
of 1996 (pre-litigation) and 1998 (post-litigation) by the U.P. State
administration and by reason of the order of 1965 being framed under Section
2 of the Police Act, the applicability of the Rules framed under Article 309
in 1994 is a total non-issue. Before however adverting to the same, it would
be apposite to refer to Section 2 of the Police Act, 1861 which postulates for
D establishment and constitution of Police Force. Section 2 of the Act of 1861
(Police Act) reads as below :-
E
F
"(2). Constitution of the force - The entire police establishment
under a State Government shall, for purposes of this Act, be deemed
to be one police force, and shall be formally enrolled;· and shall,
consist of such number of officers and men, and shall be constituted
in such manner, as shall from time to time be ordered by the State
Government.
Subject to the provisions of this Act the pay and all other conditions
of service of members of the subordinate ranks of any a police force
shall be such as may be determined by the State Government."
Incidentally, the Police Act, 1861 being an Act for regulation of police
has the following as its pream.ble : "Whereas it is expedient to re-organise the
police and to make it a more efficient instrument for the prevention and
G detection of crime". The Police Act of 1861, however, remaine~ and
maintained its effectiveness though a pre-constitutional Act by virtue of the
provisions contained in Article 372(1) of the Constitution notwithstanding
the repeal of the Indian Independence Act, 1947 and the Government of
India Act, 1935. It is in this context Article 372 may be of some significance
H as such relevant extracts thereof are set out hereinbelow :
...
CHANDRA PRAKASH TIWARI v. SHAKUNTALA SHUKLA IUMESH C. BANERJEE, J 1 957
"372. Continuance in force of existing laws and their adaptation - (I} A
Notwithstanding the repeal by this constitution of the enactments
referred to in Article 395 but subject to the other provisions of this
Constitution, all the law in force in the territory of India immediately
before the commencement of this Constitution shall continue in force
therein until altered or repealed or amended by a competent legislature B
or other competent authority.
"
At this stage, it would be convenient also to note transitional provisions
as engrafted in Article 3 I 3 of the Constitution. The said Article reads as
~~:
c
"313. Traditional provisions - Until other provisions is made in this
behalf under this Constitution, all the laws in force immediately before
the commencement of this Constitution and applicable to any public
service or any post which continues to exist after the commencement
of this Constitution, as an all-India Service or as service or post under D
the Union or a State shall continue in force so far as consistent with
the provisions of this Constitution."
In this context, Section 46 and in particular sub-sections ·(2) and (3)
may also be noticed here being germane to the issue presently :
"(2) ............. the State Government may, from time to time, by
notification in the Official Gazette, make rules consistent with the
Act -
(a)
(b)
(c)
generally for giving effect to the provisions of this Act.
(3) All rules made under this Act may from time to time, be amended
added to or cancelled by the State Government."
E
F
G
There are thus an administrative order said to have been issued under
the Police Act of 1861 and which stands clarified by issuing amendment
notes thereto and a subsequent General Rule framed under Article 309. We
shall presently deal with Article 309 but before so doing one redeeming
feature which comes up for consideration pertains to the issue as to whether
the rules framed under Article 309 impliedly repeal the earlier administrative H
"
958
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A order framed under a statute - needless to repeat that clarification of the
administrative order was effected as late as in the year 1998, depicting thereby,
of course, adaptation of the same by the State Government - it is on this
factual backdrop that the issue arises as to whether it would be justifiable
conclusion that since the rules stand framed under Article 309 in the year
1994 governing the service conditions in general, there has been a repeal by
B implication of certain administrative order framed under a special legislature?
c
D
E
F
It is on this context Broom's legal Maxim in reference to two Latin Maxims
stated as below :
"It is then, an elementary rule that an earlier Act must give place to
a later of the two cannot be reconciled lex posterior derogat priori -
non et nonum ut priores leges ad posteriores trahantur (Emphasis
supplied) - and one Act may repeal another by express words or by
implication ; for it is enough if there be words which by necessary
implication repeal it. But a repeal by implication is never to be
favoured, and must not be imputed to the legislature without necessity,
or strong reason, to be shown by the party imputing it. It is only
effected where the provisions of the later enactment are so inconsistent
with, or repugnant to, those of the earlier that the two cannot stand
together; unless the two Acts ·are so plainly repugnant to each other
than effect cannot be given to both at the same time a repeal cannot
be implied; and special Acts are not repealed by general Acts unless
there be some express reference to the previous legislation, or a
necessary inconsistency in the two Acts standing together, which
prevents the maxim generalia specialibus non derogant (Emphasis
supplied) from being applied. For where there are general words in
a later Act capable of reasonable application without being extended
to subjects specially dealt with by earlier legislation, then, in .the
absence of an indication of a particular intention to that effect, the
presumption is that the general words were not intended to repeal the
earlier and special legislation, or to take away a particular privilege
of a particular class of persons."
G
Let us, at this juncture, have a look at Article 309 of the Constitution
H
which provides as.under.
"309. Recruitment and conditions of service of persons serving the
Union of a State - Subject to the provisions of this Constitution, Acts
of the Appropriate Legislature may regulate the recruitment, and
conditions of service of persons appointed, to, public services and
,,_
...
CHANDRA PRAKASH TIWARI v. Sl-IAKUNTALA SHUKLA fUMESl-1 C HANERJEE, .I.] 959
__ A
posts in connection· with the affairs of the Union or of any State :
A
Provided that it shall be competent for the President or such
person as he may direct in the case of services and posts in connection
with the affairs of the Union, and for the Governor of a State or such
person as he 1nay direct in the case of services and posts in connection
\Vith the affairs of the State, to 1nake rules regulating the recruit111ent, B
"
and the conditions of the service of persons appointed, to such services
and posts until provision in that behalf is 1nade by or under an Act
_,
of the appropriate Legislature under this article and any rules so
made shall have effect subject to the provisions of any such Act."
It is in this context as well the decision of this Court in A.B. Krishna c
(A.B. Krishna and Ors. v. State of Karnataka and Ors., [1998] 3 SCC 495
wherein this Court upon reference to Maxwells Interpretation of Statutes
(I Ith Edn. p. 168) as also oft cited decision pertaining to the maxim in Vera
Cruz (Seward v. Vera Cruz: (1884) I AC 59) States as below :
"9. It is no doubt true that the rule-making authority under Article D
"'
309 of the Constitution and Section 39 of the Act is the same, namely,
the Government (to be precise, the Governor, under Article 309 and
the Government under Section 39), but the two jurisdictions are
different. As has been seen above, power under Article 309 cannot be
exercised by the Governor, if the legislature has already made a law E
and the field is occupied. In that situation, rules can be made under
the law so made by the legislature and not under Article 309. It has
also to be noticed that rules made in exercise of the rule-making
power given under an Act constitute delegated or subordinate
legislation, but the rules under Article 309 cannot be treated to fall F
',(
in that category and, therefore, on the principle "occupied field", the
rules under Article 309 cannot supersede the rules made by the
legislature.
I 0. So far as the question of implied suppression of the rules made
under Section 39 of the Act by the General Recruitment Rules as G
amended in 1977, is concerned, it may be pointed out that the basic
principle, as set out in Maxwell's Interpretation of Statutes (11th
Edn. p. 168) is that :
--" .....
"A general later law does not abrogate an earlier special one by mere
i1nplication. Generalia specialibus non derogant, or, in other words, H
960
A
B
c
D
E
F
SUPREME COURT REPORTS
[2002] 3 S.C.R.
'where there are general words in a later Act capable of reasonable
and seosible application without extending them to subjects specially
dealt with by e?rlier legislation, you are to hold that earlier and special
legislation indirectly repealed, altered, or derogated from merely by
force of such general words, without any indication of a particular
intention to do so'. In such cases, it is presumed to have only general
cases in view, and not particular cases which have been already
otherwise provided by the Special Act."
11. This principle was reiterated in Vera Cruz case (Seward v'. Vera
'(__.
Cruz, ( 1884) I 0 AC 59 as under :
"Where there are general words in a later Act capable of reasonable
and sensible application without extending them to subjects specially
dealt with by earlier legislation that... ... earlier and special legislation
is not to be held indirectly repealed, altered or derogated from merely
by force, of such general words, without any indication of a particular
intention to do so."
12. Vera Cruz case (supra) was followed in Eileen Louise Nicolle v.
John Winter Nicolle ( 1992) I AC 284 as under:
"It is no doubt a sound principle of all jurisprudence that a prior
particular law is not easily to be held to be abrogated by a posterior
law, expressed in general terms and by the apparent generality of its
lanljuage applicable to and covering a number of cases of which the
parficular law is but one."
13. To the above effect, is also the decision of this Court in Maharaja
Pratap Singh Bahadur v. Thakur Manmohan Dey, AIR ( 1966) SC
(1931), in which it was indicated that an earlier special law cannot be
held to have been abrogated by mere implication. That being so, the
argument regarding implied supersession has to be rejected for both
the reasons set out above."
The issue at this stage thus arises as to the true effect of the Government
G Order of 1965-is it a mere circular without any effect and succumb to rules
under Article 309?: A further question may also arise in this context, namely,
whether a post-independence Government Order having statutory back-up
under Police Act which stands amended or modified upto the year 1998
stands to lose its efficacy by reason of rule under Article 309 of 1994?
H Whereas the Government Order though under a statute and especially
L
-
CllJ\NDRA PRAKl\Sll TJWARI v. SHAKUNTALA 'SHUKLA [UMESH C. 131\NERJEE, J.] 96]
e111powered to fran1e Rules and ad1ninistrative orders. \vas issued under the A
executive power of the State, the rules have been framed by the selfsam~
Government by reason of the power conferred under Article 309-agency is
the same: author is the same-why was it necessary if the same is to give
way to the rules of 1994 to have a clarification issued in 1998. It is on this
score that Dr. Dhawan have been very vocal and criticised the judgment as B
an «inexplic(lble contradiction". Truly a strong criticis111, but \.Ve, however1
find so1ne justification therein.
Contra is the sub1nission of Mr. Misra appearing for the respondents
herein. It has been contended that the Government Order dated 5th November,
1965 being in the nature of executive instructions stood obliterated after C
10.10.1994 (date of notification of the Rules framed under Article 309) since
the executive order is subordinate to that of the Legislature and as such the
Government Order dated I 0.10.1994 would prevail for governing the terms
and conditions of services of subordinate ranks of the police force. Mr. Misra
contended that admittedly the members of the subordinate ranks of the police
force come under the purview of the rule making power of the Governor D
under Article 309 and their service conditions other than those specified in
Section 7 of the Act can be regulated by the Rules made under. the proviso
to Article 309. It is with strong emphasis that Mr. Misra contended that order
of 5th November, 1965 falls sho1t of becoming statutory order as it is not a
Rule made under Section 46(2) of the Police Act, 1861 and Section 2 E
recognises only the executive power of the State. Non-publication in the
Official Gazette has been stated to be a redeeming feature since the same
stands out to be a primary requirement of Section 46(2) of the Police Act.
[t is in this context, strong reliance has been placed on the decision of
Dayanandalal (K. Dayananda/a/ and Ors. v. State of Kera/a and Ors .. [ 1996]
9 SCC 728, wherein this Court in paragraphs 8,9 and 10 stated as below:
"8. Shri P.S. Poti, the learned Senior Counsel appearing in support of
the appeals, has, in the first place, urged that the State and Subordinate
Services Rules are not applicable to the members of the police force
F
in Kerala. The learned counsel has pointed out that initially in the G
Kerala Civil Services (Classification, Control and Appeal) Rules, 1957
(hereinafter referred to as "the 1957 Rules"), Kerala Police Service
was included in Schedule I and Kerala Police Subordinate Service
was included in Schedule II, and the said Rules were applicable to the
Kerala Police Service and the Kerala Police Subordinate Service.
Subsequently, by notification dated 26.5.1958, the 1957 Rules were H
962
A
B
SUPREME COURT REPORTS
[2002] 3 S.C.R.
amended and Kerala Police Service was deleted from Schedule I and
the Kerala Police Subordinate Service was deleted from Schedule II.
The submission was that since the members of the Kerala Police
Subordinate Service were no longer governed by the 1957 Rules, the
members of the said service were also not governed by the State and
Subordinate Services Rules which were made on 17.12.1958, after
the aforementioned notification dated 26.5.1958. We do not find any
merit in this contention. Merely because the Kerala Police Subordinate
Service had been excluded froin the ambit of the 1957 Rules by
notification dated 26.5.1958, it cannot be said that the State and
Subordinate Services Rules, which are independent rules made vide
C
notification dated 17.12.1958, are not applicable to the members of
the Kerala Police Subordinate Service. The question of applicability
of the State and Subordinate Services Rules to the Kerala Police
D
E
F
G
Subordinate Service has to be determined on the basis of the provisions
contained in the State and Subordinate Services Rules, and not on the
basis of the 1957 Rules. We find that the provision with regard to the
applicability of the State and Subordinate Services Rules is contained
in Rule 1 of the General Rules contained in Part II of the State and
Subordinate Services Rules which reads as under:
"I. Scope of the General Rules-These rules in this part shall
apply to all State and subordinate services and the holders of all
posts, whether temporary of permanent in any such service, appointed
thereto before, or after the date on which these rule come into force
as provided in sub-rule (b) of Rule I in Part I except to the extent
otherwise expressly provided (a) by or under any law for the time
being in force, or (b) in respect of any member of such service by a
contract or agreement subsisting between such member and the State
Government."
9. The language of the said Rule is wide and comprehensive enough
to include all State and Subordinate Ser.vices and all posts whether
temporary of permanent except to the extent otherwise expressly
provided by or under any law for the time being in force or in respect
of any member of such service by contract or agreement subsisting
between such member and the State Government. Shri Poti has not
been able to show any law or statutory rule whereby the members of
the Kerala Police Subordinate Service have been excluded from the
H
ambit of the State and Subordinate Service Rules. We are, therefore,
~--
-
-
_,I.
-
CHANDRA PRAKASH T!WARI" SHAKUNTALA SHUKLA [IIMESH C. BANERJEE, J] 963
of the view that members of the Kerala Police subordinate Service A
are governed by the State and Subordinate Services Rules.
JO. Shri Poli has next submitted that even if the State and Subordinate
Services Rules we'e held to be applicable to the members of the
Kerala Police Subordinate Service, the said Rules have no application
in the matter of promotion of Constables as Head Constables in view B
of rules issued under order dated 17.5.1963. The submission is that
the said Rules are rules made under Section 69 of the Act. This
contention of Shri Poti cannot be accepted for the reason that Section
69 of the Act requires that the rules should be notified in the Gazette
and it has not been shown that the order dated 17 .5.1963 was published C
in the Gazette. Shri Poti has invited our attention to certain circulars
making amendments in the rules issued under order dated 17.5.1963
which were published in the Kerala Police Gazette". The submission
is that the publication of these circulars in the Kerala Police Gazette
indicates that the rules issued under order dated 17.5.1963 were in
the nature of statutory rules made under Section 69 of the Act. We D
are unable to accept this contention. The Kerala Police Gazette is a
publication of the Office of Inspector General of Police issued for
departmental use only. It contains various circulars and standing orders
issued by the State Government as well as the circulars issued by the
Inspector General of Police and other useful information or the
members of the police force. The said Kerala Police Gazette cannot E
be equated with the State Gazette published under the authority of the
State Government. The requirement in Section 69 of the Act regarding
the rules being notified in the Gazette postulates publication of the
rules in the Kerala State Gazette, and publication in the Kerala Police
Gazette (which too is not established) would not be a substitute for F
the requirement of Section 69 regarding publication in the State
Gazette. In our opinion, therefore, the rules issued under order dated
17.5.1963 cannot be held to be rules made under Section 69 of the
Act and the order dated 17.5.1963 must be treated as an executive
order only. Since the provisions contained in Rule IO(ii) of the Rules
contained in the said order are in conflict with the provisions mentioned G
in Rules 28 (b) (IO) and 28(bb) of the State and Subordinate Services
Rules, the said provisions in Rule JO(ii) could not be applied and
promotion of Constables as head Constables could be made only in
accordance with Rules 28(b) (JO) and 28(bb) of the State and
Subordinate Services Rules. We therefore, do not find any infirmity H
A
B
c
D
E
F
G
964
SUPREME COURT REPORTS
[2002) 3 S.C.R.
in the impugned judgments of the High Court and the appeals are
liable to be dismissed".
Some reliance has also been placed on the decision of this Court Shish
Ram and Ors. v. State of H.P. and Ors., (i 996] I 0 SCC 166, wherein th is
Court in paragraph 5 observed as under:
"5. Having given our anxious consideration to the respective
contentions, we think that the case of the appellants is founded on a
sounder footing than that of the respondents. It is true that the
respondents were drawing higher pay scale than that of the appellants
at the initial stage. But, let, when the statutory rules came to be made,
there was jump in the scale of pay of the appellants from Rs. 160-400
to 225-500 while the case of pay of the respondents remained stagnant
at Rs. 160-400 (sic 450). Even in the subsequent revision in the
ministerial cadre, the appellants' scale of pay was higher than that of
the respondents. They were treated as two separate entities as indicated
earlier. When the statutory rules came to be made increasing their
scale of pay and making them eligible for promotion directly to the
post of gazetted cadre Class II from Assistants. Head Accountants,
Stenographers etc. to a pay scale of Rs. 500-900, it would be obvious
that the executive instructions issued earlier had to yield place to the
statutory rules made under provisio to Article 309. It is equally true
that in the subsequent rules made on 13 .6.1978 under proviso· to
Article 309 of the Constitution fusing Accountants and Head Clerks
as eligible for promotion to the post of superintendent, it would be
obvious that in view of the fact that higher scale of pay was given to
the Assistants, Head Clerks in the scale of pay of Rs. 620-1200 while
that of the respondents remained to be Rs. 570-1080, by necessary
implication they cannot be treated to be of the same class for the
purpose of enabling them to seek promotion to the post of Gazetted
Class II. Moreover, the statutory rues do not include Accountants as
a feeder post for promotion as Gazetted Class II.