TMI Blog2012 (9) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... Ministerial Services) Recruitment Rules, 2004 (for short hereinafter referred to as '2004 Rules') from the qualified and eligible candidates for recruitment to the post of Sub- Inspector (Civil), Women Sub-Inspector/Reserve Sub- Inspector CAR/DAR and Special Reserve Sub-Inspector (KSRP) including the persons in service by issuing a notification dated 25.9.2006 under various categories as detailed in the said notification to fill up totally 368 posts. 4. The applicant is a holder of degree in B.Sc. He has also obtained B.Ed. decree with 79% marks. He applied to the post of Police Sub-Inspector (Civil) and submitted his application with necessary documents on 29.10.2006. His date of birth is 20.07.1980. As on the date of the notification, he was aged 26 years 2 months. As per 2004 Rules, the upper age limit for General Merit candidates was 24 years and in case of candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes, it was 26 years. The applicant belongs to category 2A. As he did not satisfy the qualification regarding age and as he was 26 years 2 months old on the day the last date for prescribing the application, he was not called for in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is there from the day when 2004 Rules came into force. The applicant is entitled for the benefit of prescription of the upper age limit under 2009 Rules in view of the substitution of clause relating to the upper age limit. In view of the subsequent developments, the applicant is entitled to have his case considered for selection and appointment under 2009 Rules. If the applicant had not challenged the validity of 2004 Rules, he would not have got the benefit of amendment of the Rules by substituting the age limit of 26 years instead of 24 years for Backward classes during the pendency of the present application. The applicant has not challenged the said notification dated 25.9.2006 calling for applications for recruitment to the post of Police Sub- Inspector. On the other hand, immediately after issuance of the notification, he applied for the said post and filed the application seeking permission to participate in the selection process pending consideration of the application challenging the validity of 2004 Rules. In the instant case, even though 2004 Rules are amended subsequent to the selection process, the applicant is entitled to the benefit of amendment. As the Selection Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises for consideration is:- By the amendment to Rules 2009 where upper age limit was enhanced and the earlier provision was substituted by the amended provision, whether the substituted provision comes into effect from the date of amendment or from the date the original rule came into effect? 13. The Government of Karnataka by virtue of the powers conferred by sub-section(1) of Section 3 read with Section 8 of the Karnataka State Civil Services Act, 1978 made the Karnataka State Police including the Ministerial Services (Recruitment)Rules, 2004, which came into effect from 23rd July 2004. It provided for establishment of the Karnataka State Police services including the Ministerial Services. The category of posts and the scale of pay is specified in Column No.2 of Schedule I. The number of posts (permanent or temporary), method of recruitment and minimum qualification, if any, are specified in the corresponding entries in Columns 3, 4, 5 and 6 thereof. In the said Schedule at Sl.No.10 is the Sub-Inspector of Police(Civil). The age limit for direct recruitment is as under:- Age limit: Notwithstanding any thing contained in rule 6(2-A) of the Karnataka Civil Services(Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate, Thana, Bombay and others [AIR 1952 SC 324] dealing with the interpretation to be placed on a substituted provision held as under:- (7). The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed(except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all . 19. The Apex Court in Vijayalakshmi Rice Mills, New Contractors Co. and others .vs. State of Andhra Pradesh [(1976) 3 Supreme Court Cases 37] explaining the effect of the word substitute appearing in an amendment act held as under:- It is no doubt true that the literal meaning of the word substitute is to replace' but the question before us is from which date the substitution or replacement of the new Schedule took effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... encement of the amendment Act, i.e. from 1.3.1974, acquired lands prior to 5.2.1991, and (2) those by which acquired lands subsequent to 5.2.1991. But Section read as it is, subsequent to amendment does not give scope for such a construction at all. If the amended provisions were to be effective from 5.2.1991, then the expression on and from the date of commencement of Amended Act i.e. 1.3.1974. will have no meaning at all. Legislature, noticing that the section itself has provided as to in respect of what transactions the restriction is applicable which are entered into from particular date, there was no necessity to make the same retrospective at all. We cannot attribute either ignorance to the legislature of the opening words of Section 79-A of the Act or treat the same as surplussage. Section simply states from the date of the commencement of the Amended Act which is 1.3.1974 , those having annual income in excess of ₹ 50,000/- from non-agricultural sources cannot acquire agricultural lands. It is not a case where the legislature classifies transactions depending upon a particular date. On the other hand, the legislature gives rise to certain consequences that wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period from 19-8-1972 to 1-9- 1975. It is settled law that a rule made in exercise of the power conferred by Article 309 of the Constitution can have retroactive operation. Since sub-rule (2) of Rule 244 of the Rules, as introduced in August, 1972, was operative during the period from 19-8- 1972 to 1-9-1975, it could be amended in exercise of the rule making power under Article 309 of the Constitution so as to operate during the period from 19-8-1972 to 1-9- 1975. The notification dated 11-3-1976, by substituting sub- rule (2) of Rule 244 of the Rules, repealed the said provision that was operative during the period from 19-8-1972 to 1-9-1975 and replaced it by another Provision which was to be operative during the said period. The said notification cannot be held to be invalid on the basis that the said amendment sought to amend a provision which was not in existence. The Statement of Law in Sutherland on Statutory Construction, on which reliance was placed by the learned Judges of the High Court, that a repealed law cannot be amended has no application in the present case. 23. To the similar effect is the judgment of the Apex Court in the case of GOPAL KRUSHNA RATH VS. M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law or the meaning of effect of any statute and it was, therefore, not a declaratory Act. 45. We have already quoted substituted Section 15 of the amending Act but do not find that the amending Act either expressly or by necessary implication intended to supply an omission or to clear up a doubt as to the meaning of previous Section 15 of the parent Act. The previous Section 15 of the parent Act was precise, plain and simple. There was no ambiguity in it. The meaning of the words used in Section 15 of the parent Act was never in doubt and there was no omission in its phraseology which was required to be supplied by the amending Act. Moreover, the amending Act either expressly or by implication was not intended to be retroactive and for that reason we hold that amending Act 10 of 1995 is not a declaratory Act and, therefore, it has no retrospective operation. 47. The result of the aforesaid discussion is that the amending Act being prospective in operation does not affect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the appellate court is not required to take into account or give effect to the substituted Section 15 intr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce. In Koteswar case a three-Judge Bench of this Court emphasized the distinction between 'supersession' of a rule arid 'substitution' of a rule and held that the process of substitution consists of two steps : first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. 26. The word substitute ordinarily would mean to put (one) in place of another ; or to replace . In Black's Law Dictionary, Fifth Edition, at page 1281, the word substitute has been defined to mean To put in the place of another person or thing or to exchange . In Collins English Dictionary, the word substitute has been defined to mean to serve or cause to serve in place of another person or thing ; to replace (an atom or group in a molecule) with (another atom or group) ; or a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. Substitution thus combines repeal and fresh enactment. The substitution has the effect of just deleting the old rule and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective or retrospective, it is the intention of the legislature which is the sole guide. If the procedure adopted for amendment is substitution and in the Amended Act it is specifically stated that the substituted provisions come into effect from the date the amended Rules or Act came into force, the intention of the legislature is clear. On the pretext that it is the case of substitution, the effect cannot be given to that substituted provision from the date of the earlier statute. It has to be necessarily from the date the amended rules came into force. 28. In the field of service law it is settled law that a rule made in exercise of the power conferred by Article 309 of the Constitution can have retroactive operation. Rules operate prospectively. Retrospectively is an exception. Even where the statute permits framing of rule with retrospective effect the exercise of power must not operate discriminately or in violation of any constitutional right so as to affect vested right. The substitution would have the effect of amending the operation of law during the period in which it was in force. In the case of rules relating to recruitment, it is settled law that if a recruitment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was also permitted to attend viva-voce. Ultimately, his name finds a place in the select list. It is during the pendency of the said proceedings, Rules of 2004 are amended by the amendment Rules 2009 raising the upper age limit. Sub-Rule (2) of Rule 1 of the Amendment Rules expressly stated that the said Rules come into force from the date of their publication in the official Gazetted, namely 28-05-2009. It is not given retrospective effect. The said amendment can have only prospective effect. It cannot have any application to the recruitment which is already in process. If the benefit of enhancement of age is given to the applicant, the effect is persons who were similarly placed, who did not apply against the notification on the ground that they were over aged, are denied the opportunity in public employment. The applicant was ineligible to apply. But still he applied. When the legislature expressly has made these rules prospective in nature, the Court by way of interpretive process ignoring the legislative intention cannot make it retrospective either on humanitarian consideration or on any consideration as was done by the Tribunal. Therefore, the order passed by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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