REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7215 OF 2019 (Arising out of S.L.P.(C) No.30933 of 2017)

THE STATE OF RAJASTHAN & ORS.   … APPELLANT(S)

VERSUS

TRILOK RAM       …  RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1. Leave granted.  

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2. The  appellant  issued  an  advertisement  on

11.8.2013 for recruiting Teachers Grade III (Level I

and II) in the various Zila Parishads in the State of

Rajasthan.   The  advertisement  stipulated  the  last

date  for  submission  of  the  application  form  as

4.9.2013.   The  applicants  were  to  fulfil  the

requisite educational qualifications as on the last

date of the submission of the application form.  The

writ  petitioner  who  is  the  respondent  (hereinafter

referred to as “the respondent”) was undergoing the

B.S.T.C.  Course  (B.S.T.C.  is  an  essential

qualification  stipulated).  He,  however,  applied

pursuant  to  the  advertisement.   The  appellant

discovered  during  the  process  of  verification  that

the  respondent  was  not  holding  the  requisite

qualification of B.S.T.C. as on the last date for

submission  of  application  form.   The  respondent

appeared on the basis of an order passed by the High

Court  permitting  him  and  others  to  submit  their

application however, it was subject to the decision

in SBCWP No.10845/2013.  Thereafter, he completed his

B.S.T.C. second year course and the results were also

declared.  The result of the recruitment examination

was declared on 17.5.2014.   Finding that the result

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of the examination in regard to the respondent and

another  was  not  uploaded  on  the  official  website,

they  filed  writ  petition  No.244/2015.   An  interim

order was passed in the said writ petition to bring

the result of the petitioner in a sealed cover before

the Court.  The High Court further directed that the

results  to  be  declared.   The  respondent  secured

158.41  marks.   The  respondent  was  called  for

verification  of  documents.   Though  the  respondent

secured marks which was more than the cut-off, his

name  was  not  found  in  the  Select  List  dated

16.3.2015.  After representing  and not eliciting the

required response, the writ petition which led to the

present  appeal  (W.P.No.2801/2015)  came  to  be  filed

seeking to quash final select list dated 16.3.2015

and to direct the appellants to declare the selection

list of the respondent as marks secured were higher

than  the  cut-off  in  the  respective  category.

Finally, direction to appoint the respondent to the

post  of  Teacher  Grade  III  (Level  I)  with  all

consequential  benefits  was  sought.   The  appellant

filed counter affidavit.  The learned Single Judge

dismissed the writ petition.  

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     In appeal filed by the respondent, by the

impugned order, however, the division Bench allowed

the writ petition.

3. The controversy which falls to be resolved by us

is whether the High Court was right in holding that

the  proviso  to  Rule  266(3)  of  the  Rajasthan

Panchayati Raj Rules, 1996 (hereinafter referred to

as  “the  Rules”)  which  was  relied  upon  by  the

respondent remained intact despite the substitution

of Rule 266(3) by Notification dated 11.5.2011.  The

proviso read as follows:

“Provided  further  that  the  person  who has  appeared  in  the  B.Ed./B.S.T.C. examination shall be eligible to apply for  the  post  of  primary  and  upper primary school teacher but he shall have to submit proof of having acquired the said  educational  qualification  to  the District Establishment Committee before the declaration of result of the said examination.”

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4. In  short,  if  the  proviso  held  the  field,  the

respondent  would  become  eligible  and  qualified  for

selection and appointment based on merit.  If the

proviso  on  the  other  hand  was  not  available,  the

respondent would not be eligible for the reason that

as contended by the appellants, as on the last date

for filing application the respondent had admittedly

not passed the B.S.T.C. examination.  The respondent

had actually appeared for the examination and taking

shelter under the proviso, the respondent claimed to

be qualified on the terms thereof.  The High Court

after referring to the amendment dated 11.5.2011 to

clause (3) of Rule 266, dwelt upon the purpose of a

proviso.   The  Court  adverted  to  case  law  on  the

point.  It was found that there is no rule that the

proviso must always be restricted to the ambit of the

main provision.  Occasionally in a statute, it was

reasoned a proviso may be unrelated to the subject

matter of the preceding section or contains matter

extraneous  to  that  section.   Under  such

circumstances, it was reasoned by the High Court that

it  would  have  to  be  interpreted  as  a  substantive

provision  dealing  independently  with  the  matter

comprised therein and not as qualifying the main and

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preceding  section.   The  academic  qualifications  in

clause (3) of Rule 266, it was found, were neither

expanded nor qualified by the proviso.  The proviso

dealt with a clearly different area, namely, the time

in which the eligibility prescribed under the Rules

had to be attained.  The amendment to sub-Rule (3)

regarding academic qualifications was necessitated on

account of subsequent legislation.  Even after sub-

rule  (3)  was  substituted  by  amendment  dated

11.5.2011, the proviso continued to hold the field.

It is found that in such circumstances the condition

in the advertisement being contrary to the proviso it

would be illegal for the reason that an executive

instruction  cannot  supplant  the  rule.   The  writ

appeals  were  allowed.   Petitioners  were  found

entitled to benefits of employment in the light of

their merit position except for back wages.

5. We  heard  Dr.  Manish  Singhvi,  learned  senior

counsel appearing on behalf of the appellants and Ms.

Aishwarya Bhati, learned senior counsel on behalf of

the respondent.  

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6. It  is  contended  by  learned  counsel  for  the

appellants  that  the  advertisement  dated  11.8.2013

clearly  stipulated  that  applicants  should  have  the

requisite educational qualifications on the last date

of  the  submission  of  the  application  form.   The

respondent  did  not  possess  the  said  qualification

admittedly but become qualified only if the proviso

is  made  applicable.   The  respondent  had  not

challenged the advertisement.  He had participated in

the  selection,  fully  aware  that  under  the

advertisement the cut-off point was the last date for

determining the issue relating to qualifications.  He

would also further submit that the amendment dated

5.10.2011 brought about by substitution in clause (3)

of Rule 266, swept away the proviso.  When clause (3)

of Rule 266 was substituted by the said amendment,

the rule making authority did not think it fit to

continue the proviso relied upon by the respondent.

The  advertisement  dated  11.8.2013  was  issued  after

the substitution was carried out in clause (3) of

Rule 266 on 11.5.2011.  Therefore, the High Court

erred  in  holding  that  the  proviso  survived  the

substitution on the basis that it was an independent

provision having nothing to do with the change in the

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qualifications  which  was  brought  about  through  the

substituted provision of clause (3) of Rule 266 of

the Rules.  He further submitted that thousands of

candidates had applied and were appointed who were

qualified  in  terms  of  the  advertisement,  namely,

those who were possessing qualification on the last

date mentioned for making the application.  He would

also highlight that if the view of the High Court is

upheld,  it  would  also  reach  injustice  to  those

candidates who relied upon the advertisement and were

positioned like the respondent who appeared for the

examination but did not apply on the basis that they

were not having the qualifications.

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7. Per contra, the learned senior counsel for the

respondent supported the High Court judgment.  She

pointed out that sub-rule (3) of Rule 266 dealt with

the qualification to be possessed for appointment as

teachers.   The  qualifications  became  amenable  to

changes  based  on  the  qualifications  which  were

stipulated  by  the  competent  authority.   All  that

happened  when  the  amendment  dated  11.5.2011  was

carried  out  was  a  new  set  of  qualifications  as

stipulated  by  the  competent  authority  came  to  be

inserted in sub—rule (3) of Rule 266.  The proviso as

found  by  the  High  Court  did  not  deal  with  the

qualifications as such but only contemplated allowing

persons who were not qualified when an advertisement

is issued but had appeared for the examination could

also apply subject to the conditions therein.  The

proviso thus only facilitated greater participation

in the competitive process by throwing open the doors

of recruitment to candidates who would otherwise be

ousted.  She also further drew our attention to the

fact that the proviso in question came to be inserted

for  the  first  time  on  1.7.2004.   In  2006,  Rule

266(3), it is pointed out came to be amended and a

new set of qualifications were introduced through the

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said amendment.  However, the proviso continued in

Rule 266(3).  In fact, she drew our attention to the

following circular dated 29.2.2012:  

“GOVERNMENT OF RAJASTHAN

RURAL DEVELOPMENT AND PANCHAYATI RAJ

DEPARTMENT

PANCHAYATI RAJ PRIMARY EDUCATION

NO. EK 914/(10) Paravi/Prashi/2010/116

Dated 29.02.12

To

All District Magistrate

Controller of Examination.

Chief Executive Officer

District Council

Additional Controller of Examination.

Sub.: Regarding  Direct  Recruitment  for  Third  grade

Teachers Exam 2012.

Ref: Departmental  letter  No.  94  dated

21.2.12.

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With reference to above cited subject it

is  stated  that  a  video  conferencing  was

convened regarding Third Grade Teachers Direct

Recruitment  through  competitive  examination,

2012  on  28.2.2012  wherein  Chief  Executive

Officers raised following points:-

1. Whether the candidates who have qualified

the Teachers Eligibility  Test 2011 but  took

part in training examination and consequently

results were not declared can appear in the

Direct  Recruitment  competitive  examination

for Third Grade Teachers?

In  this connection, it is clarified that

a departmental letter No.94 dated 21.2.2012

was  uploaded  on  the  website  and  in  the

advertisement  at  Point  No.7  (7)  “the

eligibilities  mentioned  therein  about  have

been acquired till the last date of filing

application” has been replaced by the words

“Such  person  who  has  appeared  in

B.Ed./BSTC/DSE/B.ED.  (General/special

education) examination or appearing shall be

eligible  for  filing  application  for  the

primary or higher primary  school Teachers

(Common Education/Special Education) post but

he  has  to  furnish  the  proof  of  having

acquired the  educational qualification prior

to the declaration of result of competitive

examination.” The same be read accordingly.

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2. For  the  Third  Grade  Teachers  Direct

Recruitment Competition Examination, 2012, no

mention is made about the posts advertised

about the language of the special teachers

(Mentally  retarted,  Visually  impaired,

Hearing Impaired) in the post advertised?

On this point, it is clarified with the

concurrence  of  Chief  Secretary,  School

Education  Department  that  for  Third  Grade

Teachers, Second level Class 6 to 8 (higher

primary  school),  language  for  special

teachers  (Mentally  retarted,  visually

impaired, hearing impaired) shall be Hindi –

English.  Hence,  the  candidates  having

certificates  for  Teachers  Eligibility  Test

Second level for class 6 to 8 in language

Hindi, English shall be eligible.  

Hence  please  ensure  that  the  above

modifications be placed on the website today

for conducting further proceedings regarding

Third  Degree  Teachers  Direct  Recruitment

Competitive Examination, 2012.

Sd/- ADDITIONAL CHIEF SECRETARY

RURAL DEVELOPMENT AND

PANCHAYATI RAJ DEPARTMENT”

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8. She  would  therefore,  submit  that  despite  the

fact  that  sub-Rule  (3)  of  Rule  266  came  to  be

substituted in 2006, as already noticed, the proviso

remained  intact  and  there  is  no  basis  for  the

appellant to contend otherwise.  She emphasised that

it  was  the  understanding  of  the  authorities

themselves  that  the  proviso  did  not  die  in  the

process of substitution carried out in clause (3) of

Rule 266.  She also commended the reasoning of the

High Court for our acceptance, namely, the area of

the  operation  of  the  proviso  was  independent  and

different from the province covered by clause (3) of

Rule 266.  It was pointed out that several persons

are affected by the proviso.  It was further pointed

out that in view of the fact that the proviso held

the field, the participation of the respondent under

the advertisement was not fatal.  The provisions in

an  advertisement  which  did  not  square  with  the

requirement  of  the  statutory  rules  must  naturally

perish and be ignored.

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9. In reply to the same the learned counsel for the

appellant  agreed  with  the  contention  of  the

respondent  that  the  proviso  was  first  inserted  on

1.7.2004.  He also agreed that Rule 266 underwent an

amendment  dated  28.6.2006.   The  substitution  of

clause (3) of Rule 266 makes no mention about the

omission of the proviso. However, most pertinent it

is  argued  by  him,  that  on  29.11.2006  a  further

amendment was carried out in Rule 266(3) and under

the  said  amendment  the  proviso  was  resurrected.

There was a further amendment in the proviso to Rule

266,  wherein  in  place  of  Rajasthan  Public  Service

Commission,  the  expression,  District  Establishment

Committee came to be substituted.  However, he would

point out on 11.5.2011 again clause (3) of Rule 266

came  to  be  substituted.   In  fact,  there  is  no

controversy that such an amendment was carried out.

His argument however is unlike what happened in 2006

when  consequent  upon  the  changes  brought  about  in

Rule 266(3), the proviso which existed earlier prior

to the substitution came to be brought back to life,

after the substitution which took place on 11.5.2011,

the proviso suffered a burial from which it has not

been brought back to life.  In other words, after the

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admitted substitution of clause (3) to Rule 266 in

2011, the proviso has not been inserted again as was

done in the year 2006.  This meant that after the

substitution of 11.5.2011, the proviso had ceased to

exist.  Thereafter, it has never been brought back in

rules in question.

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10. As regards the circular dated 29.2.2012 relied

upon, learned counsel pointed out that it related to

the advertisement in the year 2012.  At that time

though the proviso was actually not there and the

advertisement was issued on the said basis namely the

candidates were expected to be in possession of the

qualifications as on the last dated fixed under the

advertisement, a decision was taken to replace the

said  clause  in  the  advertisement  itself  for

introducing the provisions of the proviso.  In other

words,  though  originally  the  advertisement

contemplated  the  last  date  for  determining  the

possession  of  qualifications,  a  conscious  decision

was taken to amend the advertisement itself on the

basis that the proviso would govern the situation.

He would further point out that we are concerned not

with  the  advertisement  of  2012  but  with  the

advertisement dated 11.8.2013.  As far as the current

advertisement in question is concerned, the Circular

dated 29.2.2012 would have no application.  As far as

the advertisement in question, the authorities have

also not changed the requirement that the candidate

should  possess  the  qualifications  as  on  the  last

date.  The requirement of the candidate possessing

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qualifications as on the last date stipulated in the

advertisement is in consonance with Rule 266(3) sans

the proviso.  The advertisement, thus is in harmony

with the statutory rules holding the field.  He would

no  doubt  submit  that  few  persons  may  have  been

appointed on the basis that proviso would operate.

It  is  appellants  case  that  proceedings  have  been

initiated in this regard.  He would emphasize however

that  the  correct  legal  position  must  govern,

illegality should not be perpetuated and the proviso

indeed cannot hold the field after 2011.

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11. We have already noticed the proviso.  The proviso

was introduced for the first time on 1.7.2004 (though

with variation not relevant to the enquiry) in the

rules. Rule 266 is a part of Rajasthan Panchayat Raj

Rules.   The  qualifications  for  teachers  for  the

category we are concerned with, is undoubtedly, laid

down by the National Council for Teachers Education

(NCTE).  This is done by virtue of the provisions of

Section  23  of  Right  of  Children  to  Free  and

Compulsory Education Act, 2009.  After the proviso

was  inserted  in  2004  by  virtue  of  the  amendment

carried  out  in  Rule  266  (3)  dated  28.6.2006,  the

qualifications in clause (3) of Rule 266 came to be

changed and new qualifications came to be introduced

through  the  amendment.   It  purported  to  be  a

substitution of clause (3).  It must be remembered

that the proviso had been earlier inserted in clause

(3) of Rule 266 by virtue of Rajasthan Panchayati Raj

(Fourth Amendment) Rules 2004.

12. Thereafter again on 11.5.2011, Rule 266(3) came

to be substituted.  Qualifications as stipulated by

NCTE, were inserted.  It reads as follows:

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“In exercise of the powers conferred by Section

102 of the Rajasthan Panchayati Raj Act, 1994

(Act  No.13  of  1994)  and  all  other  powers

enabling  it  in  this  behalf,  the  State

Government  hereby  makes  the  following  rules

further to amend the Rajasthan Panchayati Raj

Rules, 1996, namely:-  

1. Short  title  and  commencement.-  (1)  These

rules may be called the Rajasthan Panchayati Raj

(Second Amendment) rules, 2011.

2. Amendment of rule 266.-The existing clause

(3) of rule 266 of the Rajasthan Panchayati Raj

Rules, 1996, hereinafter referred to as the said

rules,  shall  be  substituted  by  the  following,

namely:-

(3)Primary and Upper Primary

School Teacher (100% by direct  Recruitment)

(a)General Education

Level-(i) Classes I to V   Qualification as  

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laid  down  by National  Council for  Teacher Education  (NCTE) under  the provisions  of  sub- section  (1)  of Section  23  of  the Right  of  Children to  Free  and compulsory Education Act, 2009 (Central  Act  No.35 of 2009) from time to time.

Level-(ii) Classes VI to   VIII Qualifications  as

laid  down  by National Council for Teacher  Education (NCTE)  under  the provisions  of  sub- section  (1)  OF Section  23  of  the Right of Children to Free  and  Compulsory Education  Act,  2009 (Central  Act  No.35 of  2009)  from  time to time.

(b) Special Education

Level-(i) Classes I to V Qualifications as  laid  down  by National Council for Teacher  Education (NCTE)  under  the provisions  of  sub- section  (1)  OF Section  23  of  the Right of Children to Free  and  Compulsory Education  Act,  2009 (Central  Act  No.35 of  2009)  from  time to time.

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Level-(ii) Classes VI to VIII Qualifications  as

laid   down  by National Council for Teacher  Education (NCTE)  under  the provisions  of  sub- section  (1)  OF Section  23  of  the Right of Children to Free  and  Compulsory Education  Act,  2009 (Central  Act  No.35 of  2009)  from  time to time.”

(emphasis supplied)

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13. The High Court has taken the view that when the

substitution  was  effected  on  11.5.2011,  all  that

happened was one set of qualifications were replaced

by  another  set  of  qualifications.   The  domain  of

clause (3) of Rule 266 was the declaration as to the

qualifications to be possessed by the candidates for

appointment  as  teachers  at  different  levels.   The

proviso which was inserted on 1.7.2004 did not add to

or  take  away  from  the  qualifications  which  were

declared in the main provision.  All that the proviso

purported to achieve was to give an opportunity to

those  candidates  who  had  not  acquired  the

qualifications  as  on  the  last  date  for  making

application but who had appeared for the concerned

examination,  to  apply  for  the  post.   Thus,  the

proviso  was  indeed  a  beneficial  provision  as  it

provided a window of opportunity to those while not

being  qualified  as  such,  were  in  the  process  of

acquiring  qualification  by  having  appeared  in  the

examination.  This  is  no  doubt  subject  to  the

conditions in the proviso.  

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14. We do agree with the High Court and with the

learned counsel for the respondent that the proviso

was intended to have a different area of operation

from the main provision whose function was only to

enunciate the requisite qualifications.

15. The argument also is that in the year 2006 also

when the new set of qualifications was ushered in, it

was facilitated by the substitution of clause (3) of

Rule 266 of the Rules.  Therefore, the contention is,

when  qualifications  changed  as  a  result  of  NCTE

stipulating new qualifications, by substituting the

existing qualifications contained in Rule 266(3), the

rule making authority complied with the requirement

of law.  This has nothing to do with the continued

availability  of  the  beneficial  provisions  of  the

proviso.

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16. We are in this case concerned with the effect of

amending Act which brought about the substitution of

a  provision.   An  amendment  which  brings  about

substitution  of  a  provision  essentially  does  two

things.  In the first place, the provision which is

substituted undergoes a repeal.  At the same time,

there is a re-enactment through the newly inserted

provisions.

17. We may only refer to a decision of this Court in

State of Rajasthan vs. Mangilal Pindwal reported in

AIR 1996 SC 2181, therein this Court inter alia held

as follows:

 “9. As pointed out by this Court, the process of a substitution of statutory provision 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. (See: Koteswar Vittal  Kamath v. K.  Rangappa  Baliga  & Co. [(1969)  1  SCC  255  :  (1969)  3  SCR 40], SCR at p. 48.) In other words, the substitution of a provision results in repeal of the earlier provision and its replacement  by  the  new  provision.  As regards repeal of a statute the law is thus stated in Sutherland on Statutory Construction:

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“The  effect  of  the  repeal  of  a statute where neither a saving clause nor a general saving statute exists to prescribe the governing rule for the  effect  of  the  repeal,  is  to destroy  the  effectiveness  of  the repealed act in futuro and to divest the  right  to  proceed  under  the statute,  which,    except  as  to proceedings  past  and  closed,  is considered  as  if  it  had  never existed.”  (Vol.  I,  para  2042,  pp. 522-523)

10. Similarly  in Crawford's Interpretation of Laws it has been said:

“Effect of Repeal, Generally.— In the first place, an outright repeal will destroy  the  effectiveness  of  the repealed act in futuro and operate to destroy inchoate rights dependent on it, as a general rule. In many cases, however, where statutes are repealed, they continue to be the law of the period  during  which  they  were  in force  with  reference  to  numerous matters.” (pp. 640-641)

11. The  observations  of  Lord  Tenterden and Tindal, C.J. referred in the above- mentioned passages in Craies on Statute Law also  indicate  that  the  principle that on repeal a statute is obliterated is   subject  to  the  exception  that  it exists in respect of transactions past and closed. To the same effect is the law  laid  down  by  this  Court. (See: Qudrat         Ullah v. Municipal Board [(1974) 1 SCC 202 : (1974) 2 SCR 530] , SCR at p. 539)

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12. This  means  that  as  a  result  of repeal  of  a  statute  the  statute  as repealed  ceases  to  exist  with  effect from  the  date  of  such  repeal  but  the repeal  does  not  affect  the  previous operation  of  the  law  which  has  been repealed  during  the  period  it  was operative  prior  to  the  date  of  such repeal  . “

(emphasis supplied)

18. Therefore, when a substitution was carried out

initially on 28.6.2006, all the provisions of clause

(3) of Rule 266, as it stood, suffered a repeal and

in its place a new avtaar was born.  It must be at

once  remembered  that  the  proviso  was  inserted  on

1.7.2004 in clause (3) of Rule 266.  Therefore, when

the rule making authority substituted clause (3) of

Rule  266  by  the  amendment  dated  28.6.2006,  the

inevitable  result  would  be  the  repeal  of  entire

clause (3) of Rule 266 including the proviso.  It is

crucial to bear in mind that the amendment to Rule

266 (3) by substitution did not expressly save the

proviso.  It is equally important to be not oblivious

to the fact that the proviso was an integral part of

clause(3) of Rule 266.  Since Rule 266(3) came to be

substituted, having regard to the legal consequences

of the same, the proviso could not survive.

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19. The fact that the proviso had ceased to exist as

a  result  of  the  substitution  dated  28.6.2006  is

unambiguously  demonstrated,  by  the  fact  the  rule

making  authority  chose  to  step  in  by  issuing

notification dated 29.11.2006 by inserting again the

proviso to Rule 266(3).  It read as follows:

“Provided  that  the  person  who  has appeared or is appearing in the B.Ed./ B.S.T.C./DSE/B.Ed.(Special  Education) Examination shall be eligible to apply for  the  post  of  primary  and  upper primary  school  teachers  (General Education/  Special  Education)  but  he shall  have  to  submit  proof  of  having acquired  the  said  educational qualification  to  the  Rajasthan  Public Service  Commission  before  the declaration of result of the competitive examination.”

It  is  by  a  subsequent  amendment  that  the  words

‘District  Establishment  Committee’  was  inserted  in

place of Rajasthan Public Service Commission.

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20. Rule 266 (3) as was brought into life by the

amending Act dated 28.6.2006 continued to hold the

field till it suffered substitution by notification

dated  11.5.2011.   Apparently,  consequent  upon  the

need to change the qualifications, Rule 266(3) came

to be substituted.  However, it is not in dispute

that  after  the  substitution  dated  11.5.2011,  the

proviso relied upon by the respondent has not been

brought back into existence as was done in the year

2006.

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21.   We would think whatever ambiguity there may

have  been  as  to  the  actual  effect  of  the

substitution,  it  stands  removed  by  the  legislative

history  of  clause  (3)  of  Rule  266  including  the

proviso therein.  The legislative intention is clear

that when rule maker substituted the provisions of

clause (3), it intended that the entirety of clause

(3) would stand obliterated as indeed is the effect

of a repeal and a new set of provisions taking its

place.  It is on this understanding that the rule

making authority, when it intended that the proviso

must govern, it expressly did so, and it issued the

notification  dated  29.11.2006.   Admittedly  after

11.5.2011, the proviso has not been brought back to

life.  Apparently, the notification dated 29.11.2006

bringing  the  proviso  back  to  life  after  the

substitution of clause (3) to Rule 266 in 2006 was

not brought to the notice of the High Court.

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22.   As far as the Circular dated 29.2.2012 relied

upon by the respondent is concerned, it related to

the advertisement issued in 2012 though legally the

proviso  to  Rule  266(3)  was  non-existent.    For

whatever reasons it may have been, the order came to

be issued extending the benefit of the proviso but

after  changing  the  condition  in  the  advertisement.

It  cannot  advance  the  case  of  the  respondent  who

applied  pursuant  to  a  later  advertisement  dated

11.8.2013 wherein the requirement as to possession of

qualifications  as  on  the  last  date  is  clearly

indicated.  As far as the advertisement with which we

are concerned which is of the year 2013, the Circular

dated 29.2.2012 cannot be pressed into service by the

respondent both in law and on facts.

23.   The candidates must possess the qualifications

on  the  last  date  when  applying  under  the

advertisement when it is so provided.  In view of our

finding that the proviso had ceased to exist after

substitution  of  Rule  266(3)  by  notification  dated

11.5.2011,  there  can  be  no  question  of  the

advertisement being opposed to the statutory rule.

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24. The upshot of the above discussion is that the

appeal is only to be allowed.  We allow the appeal

and the impugned judgment of the High Court in Writ

Appeal No.DBCSAW NO.667/2015 shall stand set aside.   

.......................J.                    (SANJAY KISHAN KAUL)

.......................J.                  (K.M. JOSEPH)

New Delhi, September 12, 2019.     

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