Appeal No 4088 of 1991
From the Judgment and Order dated 2451990 of the Karnataka Administrative Tribunal Bangalore in Application No 887 of 1989 CW A No 21011989
495 Naresh Kaushik Mrs Lalita Kaushik and Shankar Divate for the Appellants
M Veerappa SR Bhatt and Naveen R Nath for the Respond ents
The Judgment of the Court was delivered by KASLIWAL J
Special leave granted
Sri Ashok alias Somanna Gowda appellant No 1 is a Bachelor of Engineering Civil having secured first class with distinction getting 6996 marks from Karnataka Univer sity
Shri Rajendra appellant No 2 is a Bachelor of Engi neering Mech from Karnataka University and secured 6640 marks in the qualifying examination
The Govt
of Karnataka by notification dated 4th April 1985 invited applications for recruitment of Asstt
Engineers Civil and Mech for the Public Works Deptt
The selections were to be made on the basis of marks obtained in the qualifying examination and marks secured in the interview in accordance with the KSCS Direct Recruitment By Selection Rules 1973 hereinafter referred to as the Rules 
According to these Rules total marks for qualifying examination were kept at 100 and 50 for interview
Thus the marks allotted for inter view amounted to 333 of the total marks
Applications were invited for 300 posts of Civil Engineers and 100 Mechanical Engineers initially and subsequently added additional posts of 150 Civil Engineers and 10 Mechanical Engineers thus in all 450 Civil Engineers and 110 Mechanical Engineers
Both the appellants applied for the posts of their choices in the Public Works Department Government of Karnataka
Appellant No 1 secured 2950 marks out of 50 marks in the interview and 6996 marks in the qualifying examination thus in all 9946 marks out of 150
The 2nd appellant obtained 2483 marks in the interview and 6640 marks in the qualifying examination thus in all 9123 marks out of 150
Both the appellants were not selected in merit as the last candidate selected for the above posts secured higher marks than the appellants
The appellants filed a petition before the Karnataka Administrative
Tribunal challenging the Rules on the ground that the percentage of marks for viva voce as 333 were excessive and in violation of the decisions of this Court
The Tribunal by its order dated 24th May 1990 dismissed the petitions and the appellants aggrieved against the aforesaid decision have approached this Court by grant of special leave
It is not necessary to examine  the matter in detail inasmuch as 50 marks for interview out of 150 are clearly in violation of the judgment of this Court in Ashok Kumar Yadav  Ors
vs State of Haryana  Ors
 1988 Sup
SCR 657 and Mohinder Sain Garg vs State of Punjab  Ors J T
On a direction given by this Court on 4th September 1991 the record of the 496 Selection Committee was produced before this Court at the time of hearing
From a perusal of the marks awarded to the selected candidates it is clear that a large number of candidates have been selected though they had secured much lesser marks than the appellants in the qualifying examina tion but had secured very high marks in the viva voce out of 50 marks kept for this purpose
Thus it is an admitted position that if the marks for interview were kept even at 15 of the total marks and merit list is prepared according ly then both the appellants were bound to be selected and a large number of selected candidates would have gone much lower in the merit list than the appellants
In view of the fact that the result of the impugned selections was declared in 1987 and the selected candidates have already joined the posts we do not consider it just and proper to quash the selections on the above ground
Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there is no allegation of any malafides in the matter of the impugned selections
However the Rules are clearly in violation of the dictum laid down by this Court in the above referred cases and in case the marks for viva voce would have been kept say at 15 of the total marks the appellants before us were bound to be selected on the basis of marks secured by them in interview calculated on the basis of converting the same to 15 of the total marks
We therefore allow the appeal and direct the respond ents to give appointment to the appellant Ashok alias Soman na Gowda on the post of Asstt
Engineer Civil and appel lant Rajendra on the post of Asstt
Engineer Mech in Public Works Department within a period of two months of the communication of this order in case the appellants are found suitable in all other respects according to the Rules
Learned counsel appearing on behalf of the State of Karnata ka pointed out that there are many other candidates who had secured much higher marks than the appellants in case the above criteria is applied for selection
In view of the fact that appointments under the impugned Rules were made as back as in 1987 and only the present appellants had approached the Tribunal for relief the case of other candidates cannot be considered as they never approached for redress within reasonable time
We are thus inclined to grant relief only to the present appellants who were vigilant in making griev ance and approaching the Tribunal in time
Learned counsel for the State also submitted that the State Government has already framed new rules and as such we do not find it necessary to quash the Rules under which the present selec tions were made as they are no longer in existence
No order as to costs
GN Appeal allowed


Summary:
The appellant was initially appointed as Inspector of Motor Vehicles and was promoted as Assistant Regional Trans port Officer In 1976 when the Karnataka General Service Motor Vehicles Branch Recruitment Rules 1976 were in force
Karnataka Civil Services General Recruitment Rules 1977 came into being thereafter
The appellant was promoted as Regional Transport Officer in 1981
The General Rules of 1977 were amended in 1982 and sub rule 2 of Rule 3 was inserted and as per the new Rule 32 the second Respondent was promoted as Deputy Commissioner of Transport on seniority cum merit basis
The appellant filed an Application before the State Administrative Tribunal questioning the promotion of the second Respondent on the ground that promotion to the post of Deputy Commissioner of Transport should have been made by selection and not on seniority cure merit basis
He also sought a declaration that the promotion of Respondent No 2 was illegal and Respondent No1 be directed to consider the case of the appellant for promotion to the post of Deputy Transport Commissioner with all consequential benefits
The Tribunal dismissed the application on 388 the ground that Rule 32 of the General Rules which was introduced later had the effect of overriding the earlier special Rules and hence the promotion made as per Rule 32 of the General Rule was valid
Aggrieved by the Tribunal s order the appellant pre ferred the present appeal by special leave
On behalf of the appellant it was contended that the Special Rules were exclusively meant to govern the recruit ment and promotion of officers of various cadres of the Motor Vehicles Department and the General Rules which gener ally regulate the recruitment of all State Civil Services broadly even though later in point of time cannot abrogate the Special Rules and that they were not meant to be so since the Special Rules were not superseded and were very much in force
The Respondent State contended that the non obstante clause in Rule 32 of the General Rules which was intro duced later clearly indicate the intention of the Legisla ture to supersede the Special Rules and promotions from the cadre of Regional Transport Officer to that of Deputy Com missioner of Transport could only be on the basis of senior ity cum merit and not by selection
Allowing the appeal this Court HELD By the Court Sub rule 2 of Rule 3 of Karnataka Civil Services General Recruitment Rules 1977 General Rules has the overriding effect over the Karnataka General Service Motor Vehicles Branch Recruitment Rules 1976 Special Rules
400 DE Per Majority By Reddy J Kuldip Singh 1
concurring 1
Examining the scope of Rule 32 particularly along with other General Rules the context in which Rule 32 is made is very clear
It is not enacted to supersede the Special Rules
403 G 21 The non obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict
But the non ob stante clause need not necessarily and always be co exten sive with the operative part so as to have the effect of cutting down 389 the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpreta tion on a plain and grammatical construction of the words the non obstante clause cannot cut down the construction and restrict the scope of its operation
In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the Spe cial Rules
Courts should examine every word of a statute in its context and use it in its widest sense
402 E G 403 B 22 There should be a clear inconsistency between the two enactments before giving an overriding effect to the non obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to non obstante clause
403 G H 23 Even the General Rules of which Rule 32 forms a part provide for promotion by selection
As a matter of fact Rules 13a 31 and 4 also provide for the enforceabili ty of the Special Rules
The very Rule 3 of the General Rules which provides for recruitment also provides for promotion by selection and further lays down that the meth ods of recruitment shall be as specified in the Special Rules if any
The object of these Rules is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular depart ment
In such a situation both the Rules including Rules 13a 31 and 4 of General Rules should be read togeth er
If so read it becomes plain that there is no inconsist ency and that amendment by inserting Rule 32 is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules
The Amendment also must be read as being subject to Rules 13a 31 and 42 of the General Rules themselves
The amendment cannot be read as abrogating all other Special Rules in respect of all departments
403 H 404 A D 24 Where there are no special rules to naturally the General Rules would be applicable
Just because there is a non obstante clause in Rule 32 it cannot be interpreted that the said ammendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which co exists particularly when no patent conflict or inconsistency can be spelt out
404 D E 390 Maharaja Pratap Singh Bahadur vs Thakur Manmohan Dey and Ors AIR 1966 SC 1931 Justiniane Augusto De Piedade Barre to vs Antonic Vicente Da Fonseca and Others etc   relied on
Muniswamy vs Superintendent of Police ILR 1986 Karnata ka 344 approved
Eileen Louise Nicolle vs John Winter Nicolle 1922 I AC 284 In Re Chance  Kunter vs Phillips  referred to
There is no doubt that a later statute may repeal an earlier one either expressly or by implication
In the instant case there is no express repeal of the Special Rule providing for promotion by selection
There is no patent inconsistency between the General and Special Rules but on the other hand they co exist
Therefore there is no scope whatsoever to infer the repeal by implication
405 BF Aswini Kumar Ghosh and Ant
vs Arabinda Bose and Ant   The Dominion of India Now the Union of India and Anr
vs Shrinbai A Irani and Anr   Union of India andAnother vs GM Kokil and Ors  Chandavarkar Site Ratna Rao vs
Ashalata section Guram   State of West Bengal vs Union of India 1964 1 SCR 371 Reserve Bank of India etc
vs Peerless General Finance and Investment Co Ltd  Ors   Municipal Council Palai vs TJ Joseph   relied on
Muniswamy vs Superintendent of Police ILR 1986 Karnata ka 344 approved
Maxwell on The Interpretation of Statutes Eleventh Edition page 168 relied on
The Government is directed to consider the case of the appellant for promotion to the post of Deputy Commis sioner of Transport on the basis of promotion by selection as provided in the Special Rules namely Karnataka General Service Motor Vehicles Branch Recruitment Rules 1976
405 F G Per Yogeshwar Dayal J dissenting 1
It is clear from Rule 1 3a of the General Rules that the General Rules apply to recruitment to all State Services and to all posts in connection with the affairs of the State
A perusal of different rules in the General Rules makes it clear that the 391 general provisions which apply to recruitment to all posts under the Government are specified in those Rules instead of repeating them in each and every Special Rules of recruit ment relating to different departments
It would be impossi ble to limit the application of the General Rules only for recruitment to posts for which no Special Rules have been made
Thus Rule 13 of the General Rules which accepted the applicability of Special Rules is itself a part of General Rules and the non obstante clause is not merely to what is mentioned to the contrary in the Special Rules but it is also notwithstanding anything contained in the General Rules itself
410 B D 411 G 2
By the wording of rule 32 of the General Rules it is clear that the Government took conscious and deliberate policy decision and gave a mandate to make only posts of Head of Departments Additional Head of Departments as selection posts and all other posts on promotion will be filled by adopting the criterion of seniority cum merit
To give effect to that policy decision instead of amending every Special Rules of recruitment relating to different State Civil Services the Government made a provision in the General Rules by incorporating a non obstante clause stat ing that it would apply to all services and posts not withstanding the provisions in the General Rules or in the Special Rules of the State
410 E G 31 The selection of best  very often has an element of chance which may not be very conducive to proper climate and harmony in service
Probably because of that experience the rule making authority thought it fit that the process of promotion by selection should be confined only to top posts and for rest of the posts the method should be promotion by adopting the principle of seniority cure merit
There is a clear mandate of latest intention of the rule making author ity contained in Rule 32 of the General Rules and this must be respected by the Court
Court is not expert body in knowing what is the best method for selection and to assume that the purest method must be found by the Court and imple mented even by violation of the Rule will not be sound rule of construction of statute
412 D F 32 It is not the function of the Court to examine the efficacy of one form of selection or the other
It is for the recruiting authority namely the Government to examine it and enforce it in the way it Likes
413 C 392 33 In the present case the respondent No 2 was promoted after the amendment of Rule 3 of the General Rules and there is no dispute about his recruitment by way of promotion on the basis of seniority cum merit and that the earlier Special Rules which contemplated the promotion by selection were not followed in view of the latest intention clearly given by a positive mandate
411 G H 34 As laid down by this Court in Ajay Kumar Baner jee s case a prior special law would yield to a later gener al law if it satisfies either of the two conditions viz that the two are inconsistent with each other that there is some express reference in the later to the earlier enact ment
In the instant case the special law contemplated promotion by selection  whereas the later law viz Rule 32 of the general law contemplated promotion by seniority cum merit
The two are inconsistent with each other and if fulfills the first condition
Since the non obstante clause in the later general law specifically men tions its efficacy inspite of the Special Law the second condition is also fulfilled
Thus in this case the later general law prevails over the earlier Special Law having fulfilled not one but both the conditions
413 F H 414 A B 35 It was for the legislature to choose the method to indicate its intention
The Courts should not defeat their intention by over looking it
Respondent No 2 has been selected for promotion by following the General Rules amend ing the Special Rules and it was strictly in accordance with law
414 C D Ajay Kumar Banerjee and Ors
vs Union of India and Ors  relied on
Maharaja Pratap Singh Bahadur vs Man Mohan Dev AIR 1966 SC 1931 Muniswamv vs Superintendent of Police ILR 1986 Karnataka 344 referred to