The State of Rajasthan & Ors. vs Trilok Ram

29.11.06 bringing the proviso back to life after the substitution of clause (3) to r.266 in 2006 was not brought to the notice of the High Court– Further, the circular dtd. 29.2.12, replacing the requirement of the candidate possessing qualifications as on the last date, stipulated in the advertisement with the provisions of the proviso (though the proviso was not actually there), cannot be pressed into service by the respondent as the advertisement concerned in the present case is of the year 2013– Impugned judgment set aside – Right of Children to Free and Compulsory Education Act, 2009 – s.23 – Rajasthan Panchayati Raj (Fourth Amendment) Rules 2004 – Interpretation of Statutes. Interpretation of Statutes– Substitution of the provision – Effect of– Held: An amendment bringing about substitution of a provision essentially does two things, in the first place, the provision which is substituted undergoes a repeal and at the same time, there is a re-enactment through the newly inserted provisions. Allowing the appeal, the Court

HELD : 1.1 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 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). The proviso had been earlier inserted in clause (3) of Rule 266 by virtue of Rajasthan Panchayati Raj (Fourth Amendment) Rules 2004. Thereafter again on 11.5.2011, Rule 266(3) came to be substituted. Qualifications as stipulated by NCTE, were inserted. [Paras 11, 12] [384-A-D]

1.2 The proviso was intended to have a different area of operation from the main provision whose function was only to enunciate the requisite qualifications. 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. 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. 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. 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. 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 is by a subsequent amendment that the words ‘District Establishment Committee’ was inserted in place of Rajasthan Public Service Commission.[Paras 14, 16, 18 and 19] [386-C, F; 387-H; 388-A-C, E]

1.3 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. 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. 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. The advertisement concerned 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. The candidates must possess the qualifications on the last date when applying under the advertisement when it is so provided. In view of 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. The impugned judgment of the High Court in Writ Appeal No.DBCSAW NO.667/2015 shall stand set aside. [Paras 20-24] [388-F-H; 389-A-H]

State of Rajasthan v. Mangilal Pindwal AIR 1996 SC 2181 : [1996] 3 Suppl. SCR 98 – relied on.