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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 274 OF 2016

RICHA MISHRA .....APPELLANT(S)

VERSUS

STATE OF CHHATTISGARH AND ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The  issue  which  arises  for  consideration  in  the  present

appeal  pertains  to  the  appointment  for  the  post  of  Deputy

Superintendent of Police (hereinafter referred to as the 'Dy.S.P.').

Though,  the  appellant  herein  had  participated  in  the  selection

process  and  she  not  only  qualified  at  each  stage  of  the

examination process, her name was still not included in the list of

successful candidates for the said post.  The reason given was

that as per the Chhattisgarh Police Executive (Gazetted) Service

Recruitment and Promotion Rules, 2000 (hereinafter referred to

as Rules, 2000), upper age limit for appointment to the post of

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Dy.S.P. was 25 years and she had already crossed the said age

limit,  and therefore,  she was rendered ineligible for  the post  in

question.   

2. This decision of the respondents in not appointing the appellant

as  Dy. S.P. was  challenged by  the  appellant  by  filing  the  writ

petition in the High Court of Chhattisgarh on the ground that she

was entitled to the benefit of age relaxation on account of being

Government Servant.  It may be noted at this juncture that she

was appointed as Excise Sub Inspector, Bilaspur after  clearing

the CG combined Competitive Examination, 2003 (which is also

called  State  Services Examination,  2003).   She,  thus,  claimed

that  she  was  a  Government  Servant  and  on  that  ground  she

claimed  age  relaxation  as  per  Rule  8  of  the  Rules,  2000.

However, her writ  petition was dismissed by the learned single

Judge  holding  that  she  entered  the  Government  job  vide

appointment order dated 21.04.2006 which was after the cut-off

date as 01.01.2006 for the post of Dy.S.P. and, therefore, was not

entitled to the benefit of age relaxation.  The appellant filed the

writ appeal before the Division Bench and claimed benefit of age

relaxation  under  Madhya  Pradesh  Civil  Services  (Special

Provision  for  appointment  of  women)  Rules,  1997  (hereinafter

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referred to as the 'Rules, 1997'). However, even on this ground

she  has  not  succeeded  as  the  High  Court  vide  impugned

judgment dated March 10, 2010 has dismissed the writ appeal.     

3. We  would  like  to  point  out  at  this  stage  that  number  of  writ

petitions were filed in the High Court which were taken up by the

learned single Judge analogously and decided by the common

judgment  dated  November  16,  2009.   Whereas  some  writ

petitions including that of the appellant herein was dismissed and

some  other  writ  petitions  were  allowed  by  the  learned  single

Judge  holding  that  in  their  cases  they  were  entitled  to  age

relaxation and, therefore, select list should have been prepared

on the basis of merit treating those persons to be within age limit.

The Government had filed writ appeals challenging outcome of

such writ petitions in favour of those candidates.  These appeals

were also taken up by the Division Bench along with the appeal of

the appellant herein.  The High Court has allowed those appeals

holding that even such persons were not entitled to the benefit of

age relaxation.  We make it clear that we shall be eschewing the

discussion  in  respect  of  those  cases  which  obviously  is  not

necessary.   

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4. Coming to the case of the appellant herein, seminal facts which

need  to  be  recorded  for  deciding the  controversy  are

recapitulated below:

As  mentioned  above,  the  appellant  herein  was  appointed  as

Excise  Sub  Inspector,  Bilaspur  vide  appointment  order  dated

24.01.2006  and  she  joined  the  said  post  on  07.02.2006.   On

27.09.2004,  the  State  Government  sent  requisition  to

Chhattisgarh Public Service Commission (hereinafter referred to

as the 'CPSC') for filling up of various vacancies which included

vacancies to the post of Dy.S.P. as well.  This was followed by

fresh requisition dated 22.03.2005.  In this requisition, the State

Government also mentioned that the vacancies shall be filled up

in accordance with Rules, 2000.  Acting on this requisition, CPSC

issued Advertisement dated 26.08.2005.  Relevant to state that

after the requisition by the State Government sent on 22.03.2005

and  before  the  issuance  of  Advertisement  on  26.08.2005,

Chhattisgarh  Police  Executive  (Gazetted)  Service  Recruitment

and Promotion Rules, 2005 (hereinafter referred to as the 'Rules,

2005')  came  into  force  which  were  published  in  the  Official

Gazette  on  28.06.2005.   The  effect  of  these  Rules  would  be

discussed at the relevant stage.   

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5. Appellant herein had applied for the post of Dy.S.P. and appeared

in the preliminary examination which she duly qualified.  On that

basis,  the  appellant  filled  the  form  for  appearing  in  main

examination.   In this  form,  she stated that  she was entitled to

relaxation of ten years in upper age limit being a woman.  Such a

relaxation was claimed on the basis of  the Rules,  1997 which

were  brought  into  force  w.e.f.  07.02.1997.  The  Rule  4  thereof

provides for such age relaxation.  For our purposes, Rule 2 and

Rule 4 are relevant and are reproduced below:

“2.  Scope and application – Without prejudice to the generality of the provisions contained in any service Rules, these rules shall apply to all persons  to  public  service  and  posts  in connection with the affairs of the State.

4.   Age  Relaxation.  -  There  shall  be  age relaxation of ten years for women candidates for direct  appointment  in  all  posts  in  the  services under the State in addition to the upper age limit prescribed  in  any  service  rules  or  executive instructions.”   

6. The appellant was allowed to participate in the main examination

and she qualified that as well.   Accordingly, she was called for

interview on 12.04.2007.  Final results were declared thereafter.

She obtained 54th position in  the merit  list.   Thereafter, CPSC

prepared the list of selected candidates and sent that list to the

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Government for effecting appointments as per that list. However,

name of appellant was not recommended for Dy.S.P. though two

persons who were below in merit, namely, Tarkeshwar Patel and

Ranu Sahu were recommended.  They had obtained 59th and

60th  position  respectively,  in  the  merit  list.   Appellant  felt

aggrieved  thereby  and  made  a  representation  to  this  effect.

However, her representation did not elicit any positive response

even when it was followed by a reminder dated 20.05.2007.  This

apathy of  the respondent forced the appellant  to approach the

High Court in the form of writ petition filed under Article 226 of the

Constitution of India.   Her plea was that she had not been given

the  benefit  of  age  relaxation  even  when  she  was  an  existing

government  servant  as  she  was  working  in  the  Excise

Department of the State of Chhattisgarh and being a Government

Servant, she was entitled to age relaxation for eight years.  This

plea was rejected by the learned single Judge recording that she

has  joined  the  government  service  after  the  cut-off  date  and,

therefore, she was not a government employee on the relevant

date.  

7. The appellant challenged the aforesaid order of the learned single

Judge by filing the writ appeal.  In this writ appeal, she did not

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pursue her case for age relaxation upto eight years on the ground

that she was a Government Servant.   Instead she relied upon

Rule 4 of Rules 1997 wherein relaxation of ten years is available

to women candidates in addition to other relaxation in age.  The

Division Bench has held that benefit of Rule 4 of Rules 1997 shall

not enure to her benefit and the entire discussion in support of

this conclusion is contained in paras 52 and 53 of the impugned

judgment which are reproduced hereunder in entirety:  

“52.   We are unable to  accept  this  argument. The advertisement clearly mentions that for the post  of  Dy.S.P.,  minimum  and  maximum  age limit would be 20 and 25 years clearly spelling out  the  terms  and  conditions  for  relaxation  of age criteria.

53.  From bare reading of Rule 8 of the Rules, 2000,  it  is  clear  that  age relaxation under the Rules, 1997 is not applicable for recruitment on the post of Dy.S.P.  From advertisement also, it is  evident  that  no  relaxation  in  age  for recruitment for the post of Dy.S.P. was available to  the  woman  candidates  whereas  age relaxation under the aforesaid rules have been made  applicable  in  other  categories.   Since there was no challenge by the appellant to the applicability of the Rules, 2000, she cannot be permitted to assail  the impugned judgment  on the  ground  that  she  was  entitled  for  age relaxation  as  provided  under  Rule  4  of  the Rules, 1997.”  

8. As is clear from the aforesaid reasoning given by the High Court,

Rule  8  of  Rules,  2000  would  prevail  upon  Rules,  1997  and,

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therefore, Rules, 1997 are not applicable for recruitment to the

post of Dy.S.P. The High Court has also been persuaded by the

stipulation contained in the advertisement as per which outer age

limit for the post of Dy.S.P. was 25 years.  The whole controversy,

therefore,  revolves  around interplay  of  Rules,  1997 and Rules

2000  as  well  as  other  rules.  That  was  precisely  the  focus  of

arguments of the learned counsel for the parties.

9. We  have  already  reproduced  provisions  of  Rules  2  and  4  of

Rules, 1997. As can be discerned from bare reading of Rule 4

thereof,  it  provides  for  relaxation  of  10  years  for  women

candidates  for  direct  appointment  'in  all  posts'  in  the  services

under the State and this relaxation is 'in addition' to the upper age

limit  prescribed  in  any  service  Rules  or  adjective  instructions.

Rule 2 of these rules makes it clear that Rules, 1997 shall apply

to all persons to public service and post in connection with the

affairs  of  the  State,  without  prejudice  to  the  generality  of  the

provisions contained in any service rules.

10. Insofar as Rules, 2000 are concerned, these are the Rules which

pertain to recruitment and promotion to various categories of post

in State Police Executive (Gazetted) Services.  The post of Dy.

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S.P. is admittedly covered by these Rules and, therefore, eligibility

conditions for the aforesaid post and the method of recruitment

etc. as contained in these Rules which govern the post of Dy. S.P.

as  well.   Since,  we  are  concerned  herewith  the  conditions  of

eligibility for direct recruitment, it is Rule 8 of the said Rules which

is relevant. This Rule provides for lower and upper age limit as

well.  The  relevant  portion  of  the  provision  relating  to  age,  as

contained in the said Rule, is reproduced below, thereby omitting

the  provisions  pertaining  to  other  conditions  of  eligibility  with

which are are not concerned:-

“8.  Conditions of eligibility for direct recruitment.— In order to  be  eligible  for  competing  in  the  examination  a candidate  shall  have  to  be  satisfy  following conditions, namely:-

(1) Age.—(a) He must have attained the age as specified in column 4 of Schedule III and not attained the age specified in column 5 of the said schedule, on the first day  of  January  next  following  the  date  of commencement of the examination.

(b) The  upper  age  limit  shall  be  relaxable  upto  a maximum of  five  years  if  a  candidate  belonging to Scheduled  Caste,  Scheduled  Tribe  or  Other Backward Class.

(c) The upper age limit shall also be relaxable in respect of candidates who are or have been employees of the Madhya  Pradesh  Government,  to  the  extend  and subject to the conditions specified below:-

(i) A candidate who is a permanent Government Servant should not be more than 33 years of age.

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(ii) A candidate holding a post temporarily and applying for another post should not be or more than 33 years of age.  This concession shall also be admissible to the  contingency  paid  employees,  work-charged employees  and  employees  working  in  the  Project Implementation Committee.

(iii) A candidate who is a retrenched Government Servant shall be allowed to deduct from his age the period of all temporary service previously rendered by him upto a maximum of 7 years even if it represents more than one spell  provided that  the  resultant  age does  not exceed the upper age limit by three years.

Explanation.— The term 'retrenched Government Servant' denotes a person who was in Government Servant of this  State  or  of  any  of  the  constituent  units  for  a continuous  period of  not  less  than six  months  and who  was  discharged  because  of  reduction  in  the number of employees not more than three years prior to  the  date  of  his  registration  in  the  Employment Exchange  or  of  application  made  otherwise  for employment in the Government Service.

(d) A  candidate  who  is  an  ex-serviceman  shall  be allowed  to  deduct  from  his  age  the  period  of  all defense  services  previously  rendered  by  him provided that the resultant age does not exceed the upper age limit by more than three years.

Explanation.—  The  terms  'ex-serviceman'  denotes  a person who belongs to any of the following categories and  who  was  employed  under  the  Government  of India  for  a  continuous  period  of  not  less  than  six months and who was retrenched or declared surplus a s a result of the recommendation of Economy Unit or  due  to  normal  reduction  in  the  number  of employees not more than three years from the date of his regi9stration and any employment exchange or of  application  made  other  wise  for  employment  in Government Service:-

(i) Ex-serviceman  released  under  mustering  out concession;

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(ii) Ex-serviceman  recruited  for  the  second  time  and discharge on-

(a) completion of short term engagement;  (b) fulfilling the conditions of enrollment;

(iii) Officers (Military and Civil) discharged on completion of  their  contract  (including  Short  Service  regular commissioned officers);

(iv) Officers discharged after  working for  more than six months continuously against leave vacancies.

(e) General upper age limit shall be relaxable upto five years  in  respect  of  widow,  destitute  or  divorced woman candidates.

(f) Upper age limit shall also be relaxable upto two years in respect of green card holder candidates under the Family Welfare Programme.

(g)The General upper age limit shall be relaxable upto five years in respect of awarded superior caste partners of a couple under the inter caste marriage inceptive Programme  of  the  Tribal,  Scheduled  Castes,  and Backward Classes Welfare Department.

(h) The upper age limit shall also be relax able upto five years in respect of candidates holding 'Vikram Award'

(i) The  upper  age  limit  shall  be  relax  able  upto  a maximum of 33 years of age in respect of candidates (who  are  employees)  of  Madhya  Pradesh  State Corporation/Boards.

(j) The  upper  age  limit  shall  be  relaxed  in  case  of voluntary  Home-Guards  for  the  period  of  service rendered by them subject to the limit of 8 years, but in no case their age should exceed 3 years.

Note  (1)   Candidates  who  are  admitted  to  the  selection under the age concession mentioned in sub-clause(i) and (ii) of clause (c) and clause(i) above shall not be eligible  for  appointment  if  after  submitting  the

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application they resign from the service either before or after the selection.  They will however continue to be eligible if they are retrenched from the service or post after submitting the application.

Note (2) In no other case age limits will be relaxed.

Note  (3)   Department  candidates  must  obtain  previous permission of their appointing authority to appear for the selection.”    

11. Column (4) of Schedule III  prescribes minimum age limit  of 20

years and maximum age limit of 25 years for the post of Dy.S.P.

(HQ, Training, JNPA, PTC, PTS, Security, Lines etc.).  A reading

of  the  aforesaid  provision,  in  its  entirety,  would  suggest  that

relaxation in age of different periods is provided to the candidates

belonging to the following categories:

(i) Scheduled Castes, Scheduled Tribes or Other Backward Classes.

(ii) Employees  of  the  Madhya  Pradesh  Government  holding

permanent  post  or  temporary  post  or  retrenched  Government

Servant.

(iii) Ex-Serviceman

(iv) Widow/destitute or divorced women candidates

(v) Green  card  holder  candidates  under  the  Family  Welfare

Programme

(vi) Awarded superior caste partners of a couple under the inter-caste

marriage  inceptive programme of the Tribal, Scheduled Castes

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and Backward Classes Welfare Department.

(vii) Those candidates who are holding 'Vikram Award'

(viii) Candidates  who  are  employees  of  Madhya  Pradesh  State

Corporation/Boards.

(ix) Candidates who are voluntary Home-Guards

12. Admittedly,  case  of  the  appellant  does  not  fall  in  any  of  the

aforementioned categories wherein age relaxation is provided.  If

one has to go by Rule 8 in isolation, having regard to Note (2),

age  limit  in  the  case  of  appellant  cannot  be  relaxed.   In  this

context, however, the question arises as to whether Rules,  1997,

which contain special provision for appointment of women, would

still be applicable having regard to the fact that the appellant is a

woman candidate.   Whereas,  the contention of  Mr. Ajit  Kumar

Sinha, learned senior counsel appearing for the appellant is that

since  there  are  special  Rules  meant  for  women candidates  in

respect  of  all  posts  in  the  State,  this  special   provision  is

applicable.  On the other hand, contention of the learned counsel

for the respondents is that having regard to Rule 8(1) of Rules,

2000, which provides for provision relating to 'age' specifically for

the post  in-question,  it  is  this  Rule which would determine the

eligibility of candidates insofar as prescription of 'age' therein is

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concerned.

13. We  may  add  here  that  Mr.  Ajit  Kumar  Sinha,  learned  senior

counsel for the appellant had also drawn our attention to States

Service Examination Rules,  dated June 9th,  2003 (Examination

Rules, 2003).  He submitted that the examination in-question was

conducted as per those Rules.  These Rules are applicable to the

post of Dy.S.P. as well  and Rule 5 thereof deals with eligibility

conditions.  Apart  from  prescribing  nationality,  minimum

educational  qualification etc.,  It  specifically lays down provision

relating to age of the candidates.  Though, the minimum of age of

21 years and maximum of age 30 years as on first January next

following  the  date  of  commencement  of  the  competitive

examination is stipulated therein, proviso to this provision of age

empowers the State Government  to vary the lower and upper

age limits for any of the services included in these Rules looking

to the exigencies of services. This Rule also makes provision for

relaxation in the upper age limit in certain cases.  What is relevant

for  us is  that  for  women candidates,  a provision is  specifically

made providing that as per Rules, 1997, 10 years  age relaxation

would be given to women candidates, as is clear from the said

provision which reads as under:

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“(xiv) up  to  maximum  10  years:  for  women candidate:   As  per  Rajpatra  (Asadharan)  dated 7.2.1997, Published rule C.G. Civil Service (Special provision of appointment for women) Rule 1997, 10 years  age  relaxation  will  be  given  to  women candidate.”      

Taking advantage of this provision, Mr. Sinha argued that since

examinations were conducted under the aforesaid Rules, in view of the

said specific provision, the appellant was entitled to age relaxation, as

per Rules, 1997.

14. Another submission of Mr. Ajit Kumar Sinha was that in any case

it was not permissible for the respondents to make recruitment

in-question on the basis of Rules, 2000 in view of the fact that in

the  State  of  Chhattisgarh,  Chhattisgarh  Police  Executive

(Gazetted)  Recruitment  and  Promotion  Rules,  2005  were

promulgated vide Notification dated June 28, 2005 issued by the

Governor of the State in exercise of proviso to Article 309 of the

Constitution of India and, these Rules specifically repealed Rules,

2000.  He pointed out that in these Rules specific provision has

been made under Rule 8(f) for giving relaxation upto 10 years to

women candidates, in terms of Rules, 1997. The said provision is

as follows:

“8(f) The upper age limit for women candidates shall be relaxable upto 10 years as per Chhattisgarh

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Civil  Service  (special  provision  for  appointment  of women)  Rules,  1997.   this  relaxation  shall  be  in addition to the other age relaxation.”  

15. He submitted that in the instant case, advertisement for the post

in-question,  in  which the appellant  participated,  was issued on

August 26, 2005, i.e. after the promulgation of Rules, 2005 which

became effective from June 28, 2005 and, therefore, it is Rules,

2005 which were applicable and as these Rules contain specific

provision for relaxation for women candidates on the applicability

of Rules, 1997.

16. Learned  counsel  for  the  respondents  countered  the  aforesaid

submissions by arguing that the first requisition in the instant case

was sent by the State on September 27, 2004 which was followed

by 2nd requisition on March 23, 2005.  These requisitions were in

respect of post which had fallen vacant at that time and as on the

dates of these requisitions, Rules 2000 were applicable.  It is for

this  reason  that  even  in  the  requisition  it  was  specifically

mentioned that post in-question shall be filled up in accordance

with Rules, 2000.  The learned counsel, therefore, argued  that

since the process was initiated under Rules, 2000, it was clearly

saved  in  Rules,  2005  as  is  evident  from  proviso  to  Rule  27

dealing with repeal and saving.  It reads as under:

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   “27. Repeal and Saving :   

Provided that any order made or action taken under rules so repealed,  shall  be  deemed  to  have  been  made  or taken  under  the  corresponding  provisions  of  these rules.”

17. It  was  argued  that  precisely  for  this  reason  even  in  the

advertisement, it was mentioned that the post will be filled  up as

per Rules, 2000.  It was further contended that this advertisement

was never challenged by the appellant and, therefore, recruitment

made under Rules, 2000 in respect of vacancies which were for

the  period  when  Rules,  2000  were  applicable,  could  not  be

faulted with.  In this very line of submission, it was further argued

that  once  it  is  accepted  that  Rules,  2000  govern  the  field,

admittedly as per these Rules there is no provision for relaxation

for women candidates and, therefore, High Court rightly held that

the appellant was not entitled to any such age relaxation and was,

therefore, suffered from age bar.  

18. From  the  arguments  noted  above,  the  questions  that  fall  for

consideration and need the answers are the following:

(a) Whether the recruitment to the post of Dy.S.P. was governed by

Rules, 2005 or it was rightly done under the Rules, 2000?

It may be pointed out at this stage itself that if Rules, 2005 are

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applicable  then  the  outcome  of  the  case  would  clearly  be  in

favour of the appellant inasmuch as rules specifically provided for

relaxation  upto  10  years  for  women  candidates.   However,  if

answer to the aforesaid question is that recruitment process was

rightly  carried  under  Rules,  2000  then  further  question  would

arise for consideration, viz.:

(b) Notwithstanding  the  fact  that  Rules,  2000  do  not  contain  any

provision  for  relaxation  qua  women  candidates,  whether  a

relaxation  would  still  be  available  to  women candidates  under

Rules, 1997?   

There are two incidental facets of question no. (b), which are as

follows:    

(i) Whether  Rules,  1997  are  applicable,  which  make  special

provision for relaxation in upper age limit by 10 years in respect of

women candidates?

(ii) Whether  Examination  Rules,  2003 which  specifically  contain  a

provision  for  applicability  of  Rules,  1997  would  be  treated  as

applicable for the examination in-question?

19. Question No. 1

The High Court held that first  and second requisitions to commence

recruitment process against the vacant seats to the post of Dy.S.P. was

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made  when  Rules,  2000  were  in  force.  Therefore,  recruitment  was

rightly undertaken under Rules, 2000.

The admitted facts are that the process of selection started before

Rules, 2005 were promulgated with the requisitions dated September

27, 2004 and March 26, 2005 sent by the State Government to the

CPSE. At that time, Rules, 2000 were in vogue. For this reason, even in

the  requisition  it  was  mentioned that  appointments  are  to  be  made

under   Rules,  2000.   Further,  it  is  also  an  admitted  fact   that  the

vacancies in-question which were to be filled were for the period prior

to 2005.  Such vacancies needed to be filled in as per those Rules, i.e.

Rules, 2000.  This is patent legal position which can be discerned from

Y.V. Rangaiah and Others v. J. Shreenivasa Rao1.  As per the facts of

that case a panel had to be prepared every year of list of approved

candidates  for  making  appointments  to  the  grade  of  Sub-Registrar

Grade-II by transfer according to the old rules. However, the panel was

not prepared in the year 1976 and the petitioners were deprived of their

right of being considered for promotion.  In the meanwhile, new rules

came  into  force.   In  this  factual  background,  it  was  held  that  the

vacancies  which  occurred  prior  to  the  amended  rules  would  be

governed by the old rules and not by the amended rules.  The judgment

1 (1983) 3 SCC 284

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in the case of  B.L. Gupta and Another v.  M.C.D.2 also summarises

the legal position in this behalf.  The judgment in  P. Ganeshwar Rao

and Others  v.  State of Andhra Pradesh and Others3 is also to the

same  effect.  Para  9  of  the  judgment  laying  down  the  aforesaid

proposition of law, is reproduced below:

“9.  When the statutory rules had been frame din 1978, the vacancies had to be filled only according to the said Rules.  The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was the correct conclusion.  This being so,  the  question  which  arises  is  whether  the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules.  Our attention has been  drawn  by  Mr.  Mehta  to  a  decision  of  this Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission [(1990) 3 SCC 157]. In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah1, P. Ganeshwar Rao3, and A.A. Calton v. Director of Education [(1983) 3  SCC  33] it  was  held  by  this  Court  that  the vacancies  which  had  occurred  prior  to  the amendment of the Rules would be governed by the old Rules and not by the amended Rules.”

20. No doubt, under certain exceptional circumstances, Government

can take a conscience decisions not to fill  the vacancies under

the old Rules and, thus, there can be departure of the aforesaid

general  rule  in  exceptional  cases.  This  legal  precept  was

recognised  in  the  case  of  Rajasthan  Public  Service

Commission v.  Keilla  Kumar  Palliwal  and  another4 in  the

2 (1998) 9 SCC 223 3 1988 (Supp) SCC 740 4 (2007) 10 SCC 260

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following words:  

“There is no quarrel over the proposition of law that normal  rule  is  that  the vacancy prior  to  the  new Rules would be governed by the old Rules and not by the new Rules.  However, in the present case, we  have  already  held  that  the  Government  has taken  conscious  decision  not  to  fill  the  vacancy under  the  old  Rules  and  that  such  decision  has been validly  taken keeping in view the facts and circumstances of the cases.”  

21. This  position is reaffirmed in  State of Punjab  v.   Arun Kumar

Aggarwal5.

22. However, as far as present case is concerned, the State sent the

requisition specifically mentioning that the recruitment has to be

under  Rules,  2000.   This  was  so  provided  even  in  the

advertisement.   The  appellant  never  challenged  the

advertisement  and  contended  that  after  the  promulgation  of

Rules, 2005 the recruitment should have been under Rules, 2005

and not Rules, 2000.  Therefore, the appellant is even precluded

from  arguing  that  recruitment  should  have  been  made  under

Rules, 2005.   

23. Thus, we answer question no. (i) by holding that recruitment was

rightly made as per Rules, 2000.  

5 (2007) 10 SCC 402

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24. Question No. (ii) – As noted above, Rue 8 of Rules 2000, which,

inter  alia,  deals with age criteria that  has to be fulfilled by the

candidate, does not make any provision for age relaxation insofar

as women candidates are concerned.   On the other  hand, we

have Rules, 1997 which also have statutory force as they are also

framed under proviso to Article 309 of the Constitution of India.

These Rules contain special provisions for appointment of women

candidates and are  made applicable  to  the public  service and

posts in connection with the affairs of the State.  The question is

as to whether these Rules would not be applicable in those cases

where  recruitment  is  made  under  Rules,  2000  which  not  only

contains specific provision for age relaxation but does not make

any provision for age relaxation in favour of women candidates

and on the contrary categorically provides under Note (2) that 'in

no  other  case  age  limits  will  be  relaxed'.  Significantly,  this

omission in  Rules,  2000 has taken note  of  when Rules,  2005

were framed and, therefore, the situation was remedied in Rule 8

of Rules, 2005 by specifically providing under sub-rule (f) of Rule

8 that relaxation in the upper age limit would also be available to

women candidates as per Rules, 1997 as noted above.   

However, we have already come to a conclusion that Rules,

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2005  are  not  applicable  in  respect  of  selection  in  question.

Therefore,  position will  have to be considered keeping in  view

Rules, 2000 in juxtaposition with Rules, 1997 and other relevant

provisions which were applicable as on that date.   

25. No doubt, Rule 8 of Rules, 2000, which, inter alia, lays down the

provision pertaining to upper and lower age of  the candidates,

does  not  make  any  specific  provision  for  relaxation  of  age  in

respect of women candidates.  We also are conscious of the fact

that Note (2) appended to Rule 8 provides that in no other case,

age limit  will  be relaxed.   However, that  is  not  the end of  the

matter.  The legal position is to be examined in conjunction with

all other rules which occupy the field and all relevant to determine

the issue.  We are of the opinion that Rules, 1997 read with State

Services  Examination  Rules,  2003 would  get  attracted  and  as

these  Rules  make  a  specific  provision  for  providing  of  age

relaxation upto ten years that is to be given to women candidates,

the appellant  herein  shall  be entitled  to the said benefit.   The

reasons for arriving at this finding are explained hereinafter:

26. In the first instance, it is to be borne in mind that Rules, 1997 are

specific Rules, specially meant to give benefit of age relaxation to

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women in public service and post in connection with the affairs of

the  State.   These  Rules  are  statutory  in  nature  framed under

proviso to Article 309 of the Constitution of India.  Such a special

provision is made in favour of females in consonance with the

Constitutional spirit contained in Article 15(3) of the Constitution of

India which empowers the State to make any special provision for

women and children.  The salutary purpose and objective behind

promulgating  Rules,  1997  is  manifest  and  can  be  clearly

discerned.  It is to encourage women, hitherto known as weaker

section,  to  become  working  women,  by  taking  up  different

vocations, including public employment.  It would naturally lead to

empowerment of women, which is the need of the hour.  Women

in this world, and particularly in India, face various kinds of gender

disabilities and discriminations.  It is notwithstanding the fact that

under the Constitution of India, women enjoy a unique status of

equality with men.  In reality, however, they have yet to go a long

way to achieve this Constitutional status.  It is now realised that

real empowerment would be achieved by women, which would

lead to their well-being facilitating enjoyment of rights guaranteed

to them, only if there is an economic empowerment of women as

well.   Till  sometime  back,  the  focus  was  to  achieve  better

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treatment for women and for this reason, the concentration was

mainly on the well-being of women.  Now the focus is shifted to

economic  empowerment.   Such  objectives  have  gradually

evolved or broadened to include the active role of women when it

comes to development as well.  No longer the passive recipients

of welfare-enhancing help, women are increasingly seen, by men

as  well  as  women  as  active  agents  of  change:  the  dynamic

promoters of social transformation that can alter the lives of both

women and men.  It is now realised that there is a bidirectional

relationship  between  economic  development  and  women's

empowerment  defined  as  improving  the  ability  of  women  to

access  the  constituents  of  development-in  particular  health,

education, earning opportunities, rights, and political participation.

This bidirectional relationship is explained by Prof. Amartya Sen

by propounding a theory that in one direction, development alone

can play a major role in driving down an equality between men

and  women;  in  another  direction,  continuing  discrimination

against  women  can  hinder  development.   In  this  scenario,

empowerment  can  accelerate  development.   From  whichever

direction the issue is looked into, it provides justification for giving

economic empowerment to women.  It is, for this purpose, there is

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much  emphasis  on  women  empowerment  (as  it  leads  to

economic development) by United Nations World Bank and other

such Bodies.  Interestingly, the 2012 World Development Report

(World  Bank  2011)  adopts  a  much  more  nuanced  message.

While  it  emphasizes  the  “business  case”  for  women

empowerment,  it  mainly  takes  it  as  given  that  the  equality

between women and men is a desirable goal in itself, and policies

should aim to achieve that goal.  Poverty and lack of opportunity

breed  inequality  between  men  and  women,  so  that  when

economic development reduces poverty, the condition of women

improves  on  two  counts:  first,  when  poverty  is  reduced,  the

condition of everyone, including women, improves, and second,

gender inequality declines as poverty declines, so the condition of

women  improves  more  than  that  of  men  with  development.

Economic development,  however, is not  enough to bring about

complete equality between men and women.  Policy action is still

necessary  to  achieve  equality  between  genders.   Such  policy

action  would  be  unambiguously  justified  if  empowerment  of

women also stimulates further  development,  starting a virtuous

cycle.  Empowerment of women, thus, is perceived as equipping

them to be economically  independent,  self-reliant,  with positive

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esteem to enable them to face any situation and they should be

able to participate in the development activities.   

27. Keeping  in  view  all  the  aforesaid  and  other  relevant

considerations,  when  such  affirmative  actions  are  taken  by

lawmaker, in the form of subordinate legislation, they need to be

enforced  appropriately  so  that  the  purpose  that  is  intended  is

suitably achieved.  Seen in this context, Rule 4 of Rules, 1997 is

to be interpreted to have universal application when it comes to

women  candidates  seeking  appointment  in  public  service  and

post in connection with the affairs of the State of Chhattisgarh.

After all, that is the primary purpose behind enacting the aforesaid

Rule having statutory character.   

28. In order to gather the intention of the lawmaker, the principle of

'purposive interpretation' is now widely applied.  This has been

explained  in  the  case  of  Shailesh  Dhairyawan  v.  Mohan

Balkrishna Lulla6 in the following words:

“9.   The  aforesaid  two  reasons  given  by  me,  in addition  to  the  reasons  already  indicated  in  the judgment  of  my  learned  Brother,  would  clearly demonstrate that provisions of Section 15(2) of the Act  require  purposive  interpretation  so  that  the aforesaid objective/purpose of such a provision is achieved  thereby.  The  principle  of  'purposive

6 2015 (11) SCALE 684

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interpretation' or  'purposive construction' is  based on the understanding that the Court is supposed to attach that meaning to the provisions which serve the  'purpose' behind such a provision.  The basic approach  is  to  ascertain  what  is  it  designed  to accomplish? To put  it  otherwise,  by  interpretative process the Court is supposed to realise the goal that the legal text is designed to realise. As Aharan Barak puts it:

“Purposive  interpretation  is  based  on  three components:  language,  purpose,  and  discretion. Language  shapes  the  range  of  semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among  the  (express  or  implied)  semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to  a  legal  meaning  that  the  text  can  bear  in  its (public or private) language.”

10.   Of  the aforesaid  three components,  namely, language,  purpose  and  discretion  'of  the  Court', insofar as purposive component is concerned, this is the ratio juris, the purpose at the core of the text. This purpose is the values, goals, interests, policies and aims that the text is designed to actualize. It is the function that the text is designed to fulfil.

11.   We  may  also  emphasize  that  the  statutory interpretation of  a provision is  never static  but  is always  dynamic.  Though  literal  rule  of interpretation,  till  some time ago,  was treated as the 'golden rule', it is now the doctrine of purposive interpretation which is predominant, particularly in those  cases  where  literal  interpretation  may  not serve the purpose or  may lead to  absurdity. If  it brings about an end which is at variance with the purpose of statute, that cannot be countenanced. Not only legal process thinkers such as  Hart and Sacks rejected intentionalism as a grand strategy for  statutory  interpretation,  and  in  its  place  they offered  purposivism,  this  principle  is  now  widely applied by the Courts not only in this country but in

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many other legal systems as well.”

29. Even if any doubt arises about the applicability of Rules, 1997

because of  absence of  any specific  provisions in Rules,  2000,

that is taken care of by State Services Examination Rules, 2003.

It is not disputed by the respondents that competitive examination

for recruitment to the post of Dy.S.P. was conducted under the

aforesaid  Rules.   As  already noted above,  Rule  5  of  the said

Rules  deals  with  eligibility  conditions.   Apart  from  prescribing

nationality, minimum educational qualification etc.,  it  specifically

lays  down  provision  relating  to  age  of  the  candidates.   After

prescribing  minimum  and  maximum  age  limits  as  eligibility

condition  for  appearing  in  the  examinations,  proviso  to  this

provision of  age empowers the State Government  to vary the

lower and upper  age limits  for  any of  the services included in

these Rules looking to the exigencies of services. This Rule also

makes provision for  relaxation in the upper age limit  in certain

cases.  What is relevant for us is that for women candidates, a

provision is specifically made providing that as per Rules, 1997,

10 years  age relaxation would be given to women candidates, as

is clear from the said provision which reads as under:

“(xiv) up  to  maximum  10  years:  for  women candidate:   As  per  Rajpatra  (Asadharan)  dated

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7.2.1997, Published rule C.G. Civil  Service (Special provision of appointment for women) Rule 1997, 10 years  age  relaxation  will  be  given  to  women candidate.”      

30. It  can,  therefore,  be  clearly  inferred  that  incorporation  in  the

manner  aforesaid  Rules,  1997  were  made  applicable  for  the

examination in question and in this way the lacuna in Rules, 2000

also got filled up.  It would not be too much presumptuous to say

that omission of Rules, 1997 in Rule 8 of Rules, 2000 was merely

accidental and it was not a case of  casus omissus.  Because of

this reason, said omission was also rectified while enacting Rules,

2005 by making a specific provision in Rule 8(f) of Rules, 2005.

Therefore, the intention of the rule making authorities had always

been to give benefit of relaxation in age to women candidates.

After all,  we are called upon to interpret subordinate legislation

salutary  aim  whereof  is  to  achieve  social  purpose  and

consequently  social  justice.   What  should  be  the  approach  in

interpreting such laws is  explained in  Badshah  v.  Sou.  Urmila

Badshah Godse and  Anr.7 in the following words:

“13.3.  Thirdly,  in  such  cases,  purposive interpretation needs to be given to the provisions of Section  125,  Code  of  Criminal  Procedure  While dealing  with  the  application  of  destitute  wife  or hapless  children  or  parents  under  this  provision,

7 (2014) 1 SCC 188

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the Court is dealing with the marginalized sections of  the society. The purpose is  to  achieve  "social justice" which is the Constitutional vision, enshrined in  the  Preamble  of  the  Constitution  of  India. Preamble to the Constitution of India clearly signals that  we have chosen  the  democratic  path  under rule of law to achieve the goal of securing for all its citizens,  justice,  liberty,  equality  and  fraternity.  It specifically highlights achieving their social justice. Therefore,  it  becomes  the  bounden  duty  of  the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society.

14.  Of late, in this very direction, it is emphasized that the Courts have to adopt different approaches in "social justice adjudication", which is also known as  "social  context  adjudication"  as  mere "adversarial  approach"  may  not  be  very appropriate.  There  are  number  of  social  justice legislations giving special protection and benefits to vulnerable  groups  in  the  society.  Prof.  Madhava Menon describes it eloquently:

It  is,  therefore,  respectfully  submitted that  "social context  judging"  is  essentially  the  application  of equality  jurisprudence  as  evolved  by  Parliament and  the  Supreme  Court  in  myriad  situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are  called  upon  to  dispense  equal  justice.  Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial  process  itself  operates  to  the disadvantage  of  the  weaker  party.  In  such  a situation, the judge has to be not only sensitive to the  inequalities  of  parties  involved  but  also positively  inclined  to  the  weaker  party  if  the imbalance  were  not  to  result  in  miscarriage  of justice.  This  result  is  achieved  by  what  we  call social context judging or social justice adjudication.

15.  The provision of maintenance would definitely fall in this category which aims at empowering the

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destitute  and  achieving  social  justice  or  equality and  dignity  of  the  individual.  While  dealing  with cases  under  this  provision,  drift  in  the  approach from  "adversarial"  litigation  to  social  context adjudication is the need of the hour.

16.   The  law  regulates  relationships  between people. It prescribes patterns of behavior. It reflects the values of  society. The role of  the Court  is to understand the  purpose of  law in  society  and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual  and  social  reality  that  is  constantly changing.  Sometimes  change  in  law  precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result  of  a change in social  reality. Indeed, when social  reality  changes,  the law must  change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society's changing needs.  In  both  Constitutional  and  statutory interpretation,  the  Court  is  supposed  to  exercise direction  in  determining  the  proper  relationship between the  subjective  and  objective  purpose of the law.

17.  Cardozo acknowledges in his classic

...no  system  of  jus  scriptum  has  been  able  to escape the need of it", and he elaborates: "It is true that Codes and Statutes do not render the Judge superfluous,  nor  his  work  perfunctory  and mechanical. There are gaps to be filled. There are hardships  and  wrongs  to  be  mitigated  if  not avoided.  Interpretation is  often  spoken of  as  if  it were nothing but the search and the discovery of a meaning which, however, obscure and latent, had none  the  less  a  real  and  ascertainable pre-existence in the legislator's mind. The process is, indeed, that at times, but it is often something more. The ascertainment of  intention may be the least of a judge's troubles in ascribing meaning to a stature.

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Says Gray in his lecture

The  fact  is  that  the  difficulties  of  so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges  have  to  do  is,  not  to  determine  that  the legislature did mean on a point which was present to  its  mind,  but  to  guess  what  is  would  have intended on a point not present to its mind, if the point had been present.

18.  The Court as the interpreter of law is supposed to  supply  omissions,  correct  uncertainties,  and harmonize results with justice through a method of free decision-"libre recherche sceintifique" i.e. "free Scientific  research".  We  are  of  the  opinion  that there  is  a  non-rebuttable  presumption  that  the Legislature while  making  a provision  like  Section 125  Code  of  Criminal  Procedure,  to  fulfill  its Constitutional  duty  in  good  faith,  had  always intended  to  give  relief  to  the  woman  becoming "wife" under such circumstances.  This approach is particularly  needed  while  deciding  the  issues relating  to  gender  justice.  We  already  have examples  of  exemplary  efforts  in  this  regard. Journey  from  Shah  Bano,  AIR  1985  SC  945  to Shabana  Bano,  AIR  2010  SC  305  guaranteeing maintenance rights to Muslim women is a classical example.

19.  In Rameshchandra Daga v. Rameshwari Daga, AIR 2005 SC 422, the right of another woman in a similar  situation was upheld.  Here the Court  had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act in 1955. The Court had commented that though such marriages are illegal as per the provisions of  the  Act,  they are  not  'immoral'  and hence a  financially  dependent  woman cannot  be denied maintenance on this ground.

20.  Thus, while interpreting a statute the court may not  only  take  into  consideration  the  purpose  for

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which  the  statute  was  enacted,  but  also  the mischief  it  seeks  to  suppress.  It  is  this  mischief rule,  first propounded in Heydon's Case (1854) 3 Co.  Rep.  7a,  7b  which  became  the  historical source of purposive interpretation. The court would also  invoke  the  legal  maxim  construction  ut  res magis valeat guam pereat, in such cases i.e. where alternative  constructions  are  possible  the  Court must give effect to that which will be responsible for the  smooth  working  of  the  system for  which  the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which  would  reduce  the  legislation  to  futility  and should accept the bolder construction based on the view that  Parliament  would  legislate  only  for  the purpose of bringing about an effective result. If this interpretation is not accepted, it  would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125, Code of Criminal Procedure, such a woman is to be treated as the legally wedded wife.

21.   The principles  of  Hindu Personal  Law have developed in an evolutionary way out of  concern for  all  those  subject  to  it  so  as  to  make  fair provision against destitution. The manifest purpose is to achieve the social objectives for making bare minimum  provision  to  sustain  the  members  of relatively  smaller  social  groups.  Its  foundation spring  is  humanistic.  In  its  operation  field  all though,  it  lays  down  the  permissible  categories under its benefaction, which are so entitled either because  of  the  tenets  supported  by  clear  public policy  or  because  of  the  need  to  subserve  the social  and  individual  morality  measured  for maintenance.

22.   In  taking  the  aforesaid  view,  we  are  also encouraged  by  the  following  observations  of  this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal (1978) 4 SCC 70:

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The  brooding  presence  of  the  Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social  relevance.  So viewed,  it  is  possible  to  be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts.”

31. When all  the aforesaid  Rules are  seen in  juxtaposition and in

conjunction  with  each  other,  intention  of  rule  making  authority

becomes apparent and is clearly ascertained.  The intention of

rule  making  authority  was,  and  it  continues  to  be  so,  to  give

benefit to age relaxation to women candidates.  That, according

to us, represents the true intention.  Otherwise the very purpose

of  such  Rules  is  defeated.   The  rule  making  authority  has

manifest its intention by removing the ambiguity and providing a

specific provision even in Rules, 2005 which, according to us, is

by way of  abundant  caution so that  such kinds of  disputes or

situations with which we are confronted here, are eliminated.

32. Thus, in ultimate analysis, we hold that the appellant was entitled

to age relaxation as per Rule 4 of Rules, 1997 read with State

Services Examination, 2003.  She was, therefore, eligible to be

considered  for  the  post  of  Dy.S.P.  The  facts  narrated  above

reveal that she participated in the selection process and in the

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merit  list  prepared,  she was placed at  Serial  No.54.   Persons

below  her  in  the  merit  list  have  been  appointed.   She  was

excluded only because of alleged age bar since we find that this

impediment  would  not  come  in  her  way,  the  present  appeal

warrants  to  be  allowed.   The  direction  is  issued  to  the

respondents to appoint the appellant as Dy.S.P. w.e.f.  the date

her juniors in the merit list, namely, Tarkeshwar Patel and Ranu

Sahu are appointed.  Her seniority and pay shall be fixed on that

basis.  However, she will not be allowed to make any claim for

salary for the intervening period otherwise the intervening period

shall count for all other purposes.   

This appeal is allowed with costs, in aforesaid terms.

.............................................J. (A.K. SIKRI)

.............................................J. (ABHAY MANOHAR SAPRE)

NEW DELHI; FEBRUARY 08, 2016.

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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 274 OF 2016      

Richa Mishra     …….Appellant(s)

VERSUS

State of Chhatisgarh & Ors.             ……Respondent(s)                   

J U D G M E N T

Abhay Manohar Sapre, J.

1. I have had the benefit of reading the elaborate, well considered and

scholarly written draft opinion of my learned Brother.

2.     Having gone through the opinion, I entirely agree with the reasoning

and the conclusion arrived at by my learned Brother.

3. In my considered opinion also, the appellant is entitled to claim age

relaxation as provided to women candidates in Rule 4 of Rules of 1997 read

with proviso to clause (xiv) of  Rule 5 of  the States Services Examination

Rules, which has application to the case of the appellant while considering

her case for the post of Deputy Superintendent of Police. I, however, need

not elaborate my conclusion since I entirely agree with the reasoning of my

learned Brother on this issue.   

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4. I also concur with the subtle observations made by my learned Brother

in  Para  26  where  His  Lordship  has  observed  that  the  very  object  of

promulgating  the  Rules  of  1997  and  especially  Rule  4  is  to  encourage

women’s participation in various State services. In my view, denial of such

benefit to a woman candidate while considering her case for the post in State

services  would  make the  Rule  wholly  nugatory.  Such can never  be  the

intention of the Legislature being against the spirit of Articles 15 and 16 of the

Constitution of India.  

5. With these few words of my own, I fully agree with my learned Brother.

                 …...……..................................J.   [ABHAY MANOHAR SAPRE]

New Delhi; February 08, 2016   

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