onstrued
One should not concentrate too much on one rule and pay too little atten tion on the other for that would lead astray and result in hardship such construction should be avoided
955C D  CIVIL APPELLATE JURISDICTION Civil Appeal No 30373038 of 1984 From the Judgment and Order dated 1212
1983 of the Bombay 950 High Court in WP No 1189 of 1980
SK Dholakia AS Bhasme and AM Khanwilkar for the Appellant
NB Shetya SB Bhasme section Ramachandran R Ramachan dran Maknand Adkar and Mrs M Karanjawala for the Respond ents
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
These two appeals by special leave are by the State of Maharashtra
They are directed against the judgment of the High Court of Bombay dated 12th January 1983 by which the High Court issued the following two directives to the State Government 1 To recast the RevisedFinal Sen iority List dated 2012
1982 vis a vis the persons shown in the category of Late Pass ing  and assign them seniority strictly in accordance with Rule 2 and the other Govern ment orders referred to in Paragraph 96 of the judgment and 2 The seniority in the Superintend ent s cadre so fixed should also be considered as seniority for further promotions
 The background to these directives is in outline this Respondents 1 to 8 are Assistant SecretariesSection Officers Superintendents in different departments of the Government of Maharashtra
The State Government prescribed departmental examinations as a condition precedent for promotion to the cadre of Superintendents
The examination was required to be conducted every year and the officials have to pass within the stipulated period
Those who could not pass within the time frame would lose their seniority but they will be promoted as and when they qualify them selves
The Government for some reason or the other could not hold the examinations every year
Particularly in 1968 1969  1970 the Government did not hold the examinations
The Government however did not pass any order extending the period prescribed for passing the examinations nor promoted the seniors subject to their passing the examina tion
The juniors who qualified themselves were promoted overlooking the case of seniors and seniors were only pro moted upon their passing the examination
In the cadre of Superinten 951 dents however the Government revised the seniority list so as to reflect the rankings in the lower cadre irrespective of the date of promotion
The validity of the revision of seniority was challenged before the High Court
The High Court conceded the power to the Government to relax the rules relating to passing of the examination in case of hardship but refused to recognise the power of the Govern ment to give seniority to those who could not pass the examination within the time schedule
The High Court was of opinion that without specific orders of the Government relaxing the conditions of the rules the persons could not be given seniority for Late Passing 
There are also other reasons given by the High Court which we will presently consider
But before that it is important that we should have a chronology of the relevant rules and resolutions of the Government
It is as follows On 22nd August 1951 the Government made a resolution prescribing departmental examination for the members of the Upper Division of the Subordinate Secretariat Service and further directing that only those persons who pass the examination should be promoted as Superintendents
The accompanying rules The 1951 Rules thereunder provided the procedure for passing the examination as well as the conse quences of failure to pass the examination
On 24th August 1955 the Government framed rules The 1955 Rules under the proviso to Article 309 of the Constitution specifically providing power to dispense with or relax the requirements of the operation of any rule regulating the conditions of service of Government servants or of any class thereof if it causes undue hardships in any particular case
On 15th January 1962 the Government issued a circular purporting to restrict the scope of the rule permitting relaxation only in respect of travelling allowance rules leave rules etc
The circular also clarified that the 1955 Rules could not be invoked for conferring benefit on an individual by relaxing the conditions relating to recruitment promotion grant of extension of service or re employment
On 28th December 1961 the Government made the revised rules in supersession of the 1951 Rules
They were brought into force with effect from 1st January 1962 the 1962 Rules
They were made appl icable to all persons recruited to the Upper Division of the Subordinate Secretariate Service on or after that date and also to those who have been in service prior to 1st Jan uary 1962 unless they had already passed the examination under the 1951 Rules
The rules 1 to 5 are as follows 1
Every member of the Upper Divi sion of the Subordinate Secretariat Service will be required to pass within 952 nine years from the date of his entry in the Upper Division a departmental examination for promotion to the posts of Superintendents according to the prescribed syllabus
For being eligible to appear for the examination a candidate must have passed the Post Recruit ment Training Examination for Junior Assistant and must have also completed not less than five years  continuous service in the Upper Division
2 Subject to Rule 1 a candidate will be allowed to appear for the examination in three chances which must be availed of within a period of four years
This period of 4 years will not be extended for any reasons irrespective of the fact whether a candidate has availed himself of 3 chances or not during the period
Similarly no candidate will be allowed to take during this period more than 3 chances
A candidate who does not pass the examination at the end of 9 years service in the Upper Division will lose his seniority to all those candidates who pass the examination before he passes it
3 No persons shall be appointed to the post of Superintendent unless he has passed the Superintendents  Examination
Provided that this rule shall not apply to short term vacancies not exceeding two months
4 Subject to the condition of loss of seniority laid down in rule 2 a candidate will be allowed to take the examina tion in any number of chances after the com pletion of 9 years  service
5 The examination will be held once a year
XXX XXX XXX XXX  On December 28 1970 proviso to above rule 3 has been added
The said proviso reads Provided that if the Superintendent s Examination is not held in any year a person who has completed 9 years service and who has not exhausted all the permissible chances may be promoted to the post of Superintendent provided further that he is otherwise suitable for promo tion subject to the clear condition that he will have to pass 953 the examination at the earliest opportunity whenever it is held It is further clarified that promo tions to the posts of Superintendents should in view of the above amendments be given only after ensuring that there are no persons who have passed the Superintendents Examination earlier for being promoted to the posts of Superintendents
 We may incidentally refer to the subsequent rules made by the Government although it is not applicable to the present case
On June 6 1977 the Government framed the rules called The Maharashtra Government Subordinate Service Rules 1977
Rule 7 of the rules provides that if for any reason the examination is not held in any particular year that year shall be excluded in computing the period speci fied under the rules
This is indeed the true reflection of the underlying concept of purpose of the earlier rules
Against this backdrop we may now consider whether the Government was justified in re arranging the seniority by giving benefit to persons in the category of Late Passing
We are not concerned herein about the seniority of persons in whose favour the Government has made individual orders extending the period for passing the examination
We will consider such cases a little later
For the present we may examine the rights of those Late Passing where the Government has not made any specific order relaxing the conditions for passing the examination
Under the 195 1 Rules the candidate could appear for the examination after two years of his entering into the cadre
He has three chances and he must pass within 6 years of his joining service
Under the 1962 Rules the scheme provided was slightly different
Under that scheme candidate was allowed to take the examination only after completing five years service in the cadre
He had three chances for taking the examination and that must be availed of within four years
That means he must pass the examination within the 9 years  service
Under both the Rules the Government was required to hold the examination every year but no examination was held in 1968 1969  1970
This is not in dispute
For a proper appreciation of the question raised we must first try to understand the hardship resulted by not holding the examination in 1968 1969  1970
It is as follows The candidates recruited in 1960 have lost one chance in 1968
Those recruited in 1961 are deprived of two chances in 1968 and 1969
The candidates recruited in 1962 are 954 denied of three chances in 1968 1969  1970 and those of the year 1963 have lost two chances in 1969 and 1970
The last batch to lose one chance in 1970 is of the year 1964
The aforesaid Rules expressly provided power to the Government to grant more chances for passing the examination in any individual case or in class of cases
Under the 1955 Rules the Government preserved power to dispense with or relax the requirements of any rule regulating the condi tions of service of government servants or of any class thereof
In the exercise of this power the Government could dispense or relax the operation of any rule if it causes undue hardships in any particular case
It is need less to state that this power includes the power to relax the conditions prescribed for promotion since promotion is a condition of service
There is no restriction as to the exercise of the power or discretion
The High Court howev er has observed that the scope of this power has been constrained by the circular dated 15th January 1962
The circular states that the 1955 Rules permitting relaxation cannot be utilised to relax the rules which regulate condi tions of service
It further states that the scope of the Rules should be limited only to matters relating to travel ling allowance leave etc
But this appears to be an exer cise in vain
The circular is an executive instruction whereas the 1955 Rules are statutory since framed under the proviso to Article 309 of the Constitution
The Government could not have restricted the operation of the statutory rules by issuing the executive instruction
The executive instruction may supplement but not supplant the statutory rules
The High Court was in error in ignoring this well accepted principle
When we turn to the 1962 Rules with the amendments made in 1970 it becomes more clear about the power of the Gov ernment to relax the conditions for passing the examination
The proviso dated 28th December 1970 to rule 3 specifically provides that if the examination is not held in any year a person Could be promoted to the cadre of Superintendent if he has completed nine years  service
The only condition is that he should not have exhausted all the permissible chances
The promotion made should be subject to the condi tion that he will have to pass the examination at the earli est opportunity whenever it is held
The benefit of this proviso was evidently not extended to any of the persons falling into the category of Late Passing
Counsel for the contesting respondents however urged that the proviso does not entitle the candidate to get his legitimate seniority if 955 he does not pass the examination at the end of nine years  service
He depended upon rule 2 of the 1962 Rules which states that the candidate who does not pass the examination within 9 years  service will lose his seniority to all those candidates who pass the examination earlier
He also argued that the proviso is only to rule 3 and not to rule 2 and the Government has no power to restore the seniority of a person who has lost it by the operation of rule 2
This is a question of construction of the rules which form part of the scheme prescribing a condition for promo tion
We do not have to reflect upon the rules of interpre tation since they are well settled
They are now like the habits of driving which have become ingrained
They come to our assistance by instinct
We are to use the different rules meticulously to give effect to the scheme as we use the clutch brake and accelerator for smooth driving
These rules are to be harmoniously construed
We should not con centrate too much on one rule and pay too little attention on the other
That would lead us astray and result in hard ship
We must avoid such construction
Rule 2 of the 1962 Rules no doubt states that a candidate who does not pass the examination at the end of nine years  service will lose his seniority
But this rule cannot be read in isolation as the High Court did
It has to be read along with the other rules since it is a part of the scheme provided for promotion
Rule 5 requires the Government to hold the examination every year
This rule is the basis of the entire scheme and the effect of other rules depends upon holding the examination
If examination is not held in any year the rule 2 cannot operate to the prejudice of a person who has not exhausted all his chances
The person who has not exhausted the avail able chances to appear in the examination cannot be denied of his seniority
It would be unjust unreasonable and arbitrary to penalise a person for the default of the Gov ernment to hold the examination every year
That does not also appear to be the intent or purpose of the 1962 Rules
If the examination is not held in any year the person who has not exhausted all the permissible chances has a right to have his case considered for promotion even if he has completed 9 years  service
The Government instead of promoting such persons in their turn made them to wait till they passed the examination
They are the persons falling into the category of Late Passing
To remove the hardship caused to them the Government wisely restored their legiti mate seniority in the promotional cadre
There is in our opinion nothing improper or illegal in this action and indeed it is in harmony with the object of the 1962 Rules
956 This takes us to the question whether the Government was justified in individual cases to relax the period for pass ing the examination
It is said that the number of persons failing into this category are not more than five
In the rejoinder filed on behalf of the Government it is stated that the Government made some orders extending the period for individuals to pass the examination on administrative grounds or on some genuine hardships
It is also stated that such orders were made upon recommendations by the respective departments and those persons passed the examination within the period extended
There is no reason to doubt the cor rectness of these statements made in the rejoinder
The power to relax the conditions of the rules to avoid undue hardship in any case or class of cases cannot now be gain said
It would be therefore futile for the respondents to make any grievance
In the result and for the reasons stated we allow these appeals and in reversal of the judgment of the High Court we dismiss the writ petitions filed by the contesting re spondents
In the circumstances of the case however we make no order as to costs
YL Appeals allowed


Summary:
An application for condonation of delay was filed by the petitioner Revenue alongwith statutory appeals against the judgmentorder of the Customs Excise and Gold Control Appellate Tribunal
The application was rejected by a Single Judge of this Court under Order VI Rule 214 of the Su preme Court Rules 1966
The Revenue filed review petitions on the ground that the application for condonation of delay made in statutory appeals under several Acts should be heard by a bench of at least two Judges
It was contended that the effect of the refusal of condonation of delay was dismissal of the appeal itself that the exception in favour of Special Leave Peti tions amounted to hostile discrimination without any basis in that the Special Leave Petitions will be amenable to be dealt with by two Judges while a Single Judge will dispose of applications for condonation of delay under statutory appeals which was irrational and violative of article 14 of the Constitution and therefore the Court should either hold that as dismissal of application for condonation of delay amounted to dismissal of the appeal itself it should be heard by not less than two Judges in terms of Order VII Rule 1 subject to other provisions or refer the matter to a larger bench for re consideration in view of the decision 825 of this Court in Commissioner of Income Tax Bombay City versus RH Pandi Managing Trustees of Trust
Bombay holding that the applications for condonation of filing petitions of appeal were within the Chamber business under Order VI Rule 214
On the question whether a Single Judge has jurisdiction to dismiss applications for condonation of delay in statuto ry appeals
Dismissing the review petitions HELD 11 A Single Judge in Chambers is and was always competent to dismiss all applications for condonation of delay in statutory appeals
There is nothing repugnant in the same that it is not violative of article 14 of the Consti tution
836G 12 Order VI Rule 2 of the Supreme Court Rules provides that the powers of the court in relation to a certain mat ters may be exercised by a Single Judge sitting in Chambers
Rule 214 deals with applications for enlargement or abridgement of time with some exceptions
Reading the rule simply it means all applications for enlargement or abridgement of time would be cognizable by the Single Judge in Chambers except those applications time for which is fixed by the court in terms of Order VII and also applica tions for condonation of delay in filing Special Leave Petitions
831E F 13 On a proper reading the exception made only in favour of the time fixed by the court means court function ing judicially in terms of Order VII Rule 1 as well as time fixed by the rules of the court
All other applications for enlargement or abridgement for time could be heard by the Single Judge
831F G 14 If a separate and distinct provision is made for application for condonation of delay under article 136 of the Constitution it is not violative of article 14 of the Consti tution
Applications under article 136 are a special class and are sui juris
These are and should legitimately be treated separately other than all other applications including applications under statutory appeals
article 136 is the resid uary power of this Court to do justice where the court is satisfied that there is injustice
These are class part
There is therefore no discrimination under article 14 of the Constitution or in Order VI Rule 214
836C D 21 Order VI demarcates the power of the Registrar and the Single Judge and Order VII demarcates the constitution of the divi 826 sion courts powers of a Single Judge and a Vacation Judge
This is arranging the business of the court this is within the power of the court
831G 22 Different treatment in respect of different applica tions has always been within the domain of Court s arrange ment of business
These do not involve any violation of the fundamental rules
836F PN Eswara Iyer etc etc
vs The Registrar Supreme Court of India relied on
31 The practice of one Single Judge disposing of in Chambers applications for delay in statutory appeals is just fair and reasonable
There is no reason either to upset that practice or to cast doubt on the proprietory of such practice which has been valid since 1966 and which has been sanctified by the judicial decision
There is reason in the decision and the practice
836E 831D E Commissioner of Income Tax Bombay City vs RH Pandi Managing Trustees of Trust Bombay  affirmed
32 In the facts and circumstances of the case and in the light of the provisions of the Rules it cannot be said that the earlier decision of this Court in Commissioner of Income Tax Bombay City versus RH Pandi was clearly erro neous and therefore it is not necessary to refer this question to a larger bench or to disturb the settled prac tice of this Court
836B Keshav Mills Co Ltd vs CIT Bombay North  and Pillani Investment Corporation Ltd vs Income Tax Officer A Ward Calcutta and Another  relied on
Promotho Nath Roy vs WA Lee AIR 1921 Calcutta 415 and Ms Mela Ram  Sons vs The Commissioner of Income Tax Punjab   distinguished
Cooker vs Tempest  referred to