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PETITIONER:

R.S. RAGHUNATH

Vs.

RESPONDENT:

STATE OF KARNATAKA AND ANR.

DATE OF JUDGMENT04/10/1991

BENCH:

KULDIP SINGH (J)

BENCH:

KULDIP SINGH (J)

REDDY, K. JAYACHANDRA (J)

YOGESHWAR DAYAL (J)

CITATION:

1992 AIR 81 1991 SCR Supl. (1) 387

1992 SCC (1) 335 JT 1991 (4) 82

1991 SCALE (2)808

ACT:

Service Law: Karnataka Civil Services (General Recruit-

ment) Rules, 1977--(General Rules)/Karnataka General Service

(Motor Vehicles Branch) Recruitment Rules, 1976--(Special

Rules) Promotion to the post of Deputy Commissioner of

Transport--New Rule 3 (2) inserted in the General

Rule--Stipulating seniority-cum-merit as basis--- Special

Rules providing selection as basis--Whether the General

Rules override the Special Rules,

Non-obstante clause---Whether has the effect of abrogat-

ing the earlier Special law.

Statutory Construction:

Non-obstante clause--Scope of--Whether to be necessarily

and always co-extensive with operative portion--Courts to

examine every word in its context and use it in its widest

sense,

HEADNOTE:

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 3(2) 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 No.1 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

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the ground that Rule 3(2) 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 3(2)

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 3(2) 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 D,E]

Per Majority (By Reddy, J.-Kuldip Singh, .1. concurring)

1. Examining the scope of Rule 3(2) particularly along

with other General Rules, the context in which Rule 3(2) is

made is very clear. It is not enacted to supersede the

Special Rules. [403-G]

2.1 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]

2.2 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 3(2) forms a

part provide for promotion by selection. As a matter of fact

Rules 1(3)(a), 3(1) 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

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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

1(3)(a), 3(1) 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 3(2) 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 1(3)(a), 3(1) and 4(2) 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]

2.4 Where there are no special rules to naturally the

General Rules would be applicable. Just because there is a

non-obstante clause in Rule 3(2) 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 v. Thakur Manmohan Dey and

Ors., AIR 1966 SC 1931; Justiniane Augusto De Piedade Barre-

to v. Antonic Vicente Da Fonseca and Others etc. [1979] 3

SCC 47, relied on.

Muniswamy v. Superintendent of Police, ILR 1986 Karnata-

ka 344, approved.

Eileen Louise Nicolle v. John Winter Nicolle, (1922) I

AC 284; In Re Chance, (1936) Ch. 266; Kunter v. Phillips,

(1891) 2 Q.B. 267, referred to.

3. 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 B,F]

Aswini Kumar Ghosh and Ant. v. Arabinda Bose and Ant,

[1953] SCR 1; The Dominion of India (Now the Union of India)

and Anr. v. Shrinbai A. Irani and Anr, AIR 1954 SC 596;

Union of India andAnother v. G.M. Kokil and Ors. [1984]

Suppl. SCR 196; Chandavarkar Site Ratna Rao v.Ashalata S.

Guram, [1986] 4 SCC 447; State of West Bengal v. Union of

India, [1964] 1 SCR 371; Reserve Bank of India etc. v.

Peerless General Finance and Investment Co. Ltd. & Ors,

[1987] 1 SCC 424; Municipal Council Palai v. T.J. Joseph,

AIR 1963 SC 1561, relied on.

Muniswamy v. Superintendent of Police, ILR 1986 Karnata-

ka 344, approved.

Maxwell on The Interpretation of Statutes, Eleventh

Edition page 168, relied on.

4. 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 (3)(a) 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

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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 1(3) 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 3(2) 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]

3.1 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 3(2) 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]

3.2 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

3.3 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]

3.4 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

3(2) 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

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general law prevails over the earlier Special Law, having

fulfilled not one but both the conditions. [413 F-H; 414 A-

B]

3.5 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. v. Union of India and Ors.,

[1984] 3 SCC 127, relied on.

Maharaja Pratap Singh Bahadur v. Man Mohan Dev, AIR 1966

SC 1931; Muniswamv v. Superintendent of Police, ILR 1986

Karnataka 344, referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5617 of

1990.

From the Judgment and Order dated 9.8.1990 of the Karna-

taka Administrative Tribunal, Bangalore in Application No.

3155 of 1989.

P.P. Rao, S.R. Bhat, Alok Aggarwal and Ms. Mohini L.

Bhat 1or the Appellant.

393

P. Chidambaram, M. Veerappa (N.P.) and K.H Nobin Singh

for the Respondents.

The Judgment of the Court was delivered by

KULDIP SINGH, J. Even the General Law later in time,

prevails over the earlier Special Law if it clearly and

directly supersedes the said Special Law'-- is an unexcep-

tionable proposition of law. K. Jayachandra Reddy, J. has

interpreted Rule 3(2) of General Rules consistently with

Rules 1(3)(a), 3(1) and 4(2) of the same Rules. Giving

harmonious construction to various provisions of the General

Rules the learned Judge has held that the General Rules do

not supersede the Special Rules. Yogeshwar Dayal, J. on the

other hand has focused his attention on the language of Rule

3(2) of the General Rules and has concluded that there is

clear indication in the said Rule to supersede the Special

Rules.

I have given my thoughtful consideration to the reason-

ing adopted by the learned Judges in their respective judg-

ments. Rule 1(3)(a) of the General Rules, which lays down

the extent and applicability of the General Rules, specifi-

cally provides that the General Rules shall not be applica-

ble to the State Civil Services for which there are express

provisions under any law for the time being in force. When

the General Rules were enforced the Special Rules were

already holding the field. The Special Rules being "law"

the application of the General Rules is excluded to the

extent the field is occupied by the Special Rules. I do not

agree that the non-obstante clause in Rule 3(2) of the

General Rules has an overriding effect on Rule, 1(3)(a) of

the said Rules. With utmost respect to the erudite judgment

prepared by Yogeshwar Dayal, J. I prefer the reasoning and

the conclusions reached by K. Jayachandra Reddy, J. and

agree with the judgment proposed by him.

K.JAYACHANDRA REDDY, J. This appeal is directed against

the order of the Administrative Tribunal, Bangalore dismiss-

ing an application filed by the appellant. The principal

question involved is whether SubRule (2) of Rule 3 of Karna-

taka Civil Services (General Recruitment) Rules, 1977

('General Rules' for short) has the overriding effect over

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the Karnataka General Service (Motor Vehicles Branch)

(Recruitment) Rules, 1976 ('Special Rules' for short).

For a better appreciation of the question it becomes

necessary to state few facts. The appellant was appointed

initially as Inspector of Motor' Vehicle and was promoted as

Assistant Regional Transport Officer in the

394

year 1976 in which year the Special Rules were framed. In

the year 1981 the appellant was promoted as Regional Trans-

port Officer. Some of the General Rules of 1977 were amended

in the year 1982 and Sub-Rule 2 of Rule 3 was inserted in

the said Rules. In the year 1989 the second respondent was

promoted as Deputy Commissioner of Transport on seniority-

cure-merit basis alone as purported to have been provided in

new Rule 3(2) of General Rules. Being aggrieved by the same

the appellant filed an Application No. 3155/89 before the

Karnataka Administrative Tribunal questioning the promotion

of second respondent on the ground that the promotion to the

post of Deputy Commissioner of Transport should be by selec-

tion from the cadre of Regional Transport Officers and not

merely on seniority-cum-merit basis. His application was

dismissed by the Tribunal holding that Rule 3(2) of General

Rules which was introduced later overrides the earlier

Special Rules. It is this order which is questioned in this

appeal.

Shri P.P. Rao, learned counsel appearing for the appel-

lant contended that the Special Rules are exclusively meant

to govern the recruitment and promotion of officers of

various cadres of the Motor Vehicle Department and the

General Rules which generally regulate the recruitment of

all State Civil Services broadly even though later in point

of time cannot abrogate the Special Rules and that they are

not meant to do so since the Special Rules also are very

much in force inasmuch as they are not superseded. Shri P.

Chidambaram, learned counsel for the State of Karnataka

contended that the non-obstante clause in Rule 3(2) of the

General Rules which was introduced later clearly indicate

the intention of he Legislature to supersede the Special

Rules and promotions from the cadre of Regional Transport

Officer to that of Deputy Commissioner of Transport could

only be on the basis of seniority-cam-merit and not by

election. From the rival contentions it emerges that the

real question involved is one of construction of non-ob-

stante clause in Rule 3(2) and its fleet on the Special

Rules providing for promotion to the post of Deputy -Commis-

sioner of Transport by selection from the cadre of Regional

Transport Officers.

We shall now refer to the relevant Special and General

Rules. The special Rules were framed in exercise of the

powers conferred by the proviso to Article 309 of the Con-

stitution of India in the year 1976. The special Rules of

recruitment for the category of post of Deputy Commissioner

of Transport reads thus:

395

Category of Method of Minimum

posts recruitment Qualification

1. 2. 3.

Deputy Transport By promotion by Must have put in

not

Commissioner selection from the less than five

years of

cadre of Regional service in cadre of

Transport Officers Regional Transport

Officers."

It can be seen that this part of Special Rules clearly

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provides for promotion to the post of Deputy Commissioner of

Transport by selection from the cadre of Regional Transport

Officers who have put in not less than five years of serv-

ice. The General Rules were framed in the year 1977 and Rule

3 reads as under:

"Method of recruitment-(1) Except as otherwise

provided in these rules or any other rules

specially made in this behalf, recruitment to

any service or post shall be made by direct

recruitment which may be either by competitive

examination or by selection, or by promotion

which may be either by selection or on the

basis of seniority- cure- merit. The methods

of recruitment and qualifications shall be as

specified in the rules of recruitment special-

ly made in that behalf,'

provided that in respect of direct

recruitment to any service or post when the

method of recruitment is not specified in the

rules of recruitment specially made, the

method of recruitment be by selection after an

interview by the Commission, the Advisory of

Selection Committee or the Appointing Authori-

ty as the case may be.

Provided further that no person shall be

eligible for promotion unless he has satisfac-

torily completed the period of probation or

officiation, as the case may be, in the post

held by him.

(2) Notwithstanding anything contained in

these rules or in the rules of recruitment

specially made in respect of any service or

(a) the promotion to the post of Head of

Department or the

396

post of an Additional Head of Department, if

it is in a grade equivalent to that of the

Head of Department concerned, shall be by

selection;

Provided that for the purpose of promotion by

selection, the number of persons to be consid-

ered shall be such number of persons eligible

for promotion in the order of seniority, as is

equal to five times the number of vacancies to

be filled.

(b) the promotion to all other posts shall be

on the basis of seniority-cam-merit."

(Emphasis supplied)

It may be noted that Sub-Rule 3(2) with which we are

mainly concerned was inserted in the year 1982. Shri Chidam-

baram strongly relying on the non-obstante clause in Rule

3(2) with which this Sub-Rule begins, contended that this

general rule dearly supersedes the special law and there-

fore, according to him, the Tribunal was right in holding

that the promotion to the post of Deputy Commissioner of

Transport could be only on the basis of seniority-cum-merit.

It is true that a simple reading of Rule 3(2) appears to lay

down that notwithstanding anything contained in the General

Rules or in the Special Rules, the promotion to the post of

a Head or Additional Head of a Department only shall be by

selection and that the promotion to all other posts shall be

on the basis Of seniority- cum-merit. This clause (b) of

Sub-Rule (2) is in general terms and as already noted the

General Rules indicate that they regulate general recruit-

ment to all the Karnataka State Civil Services broadly. It

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is not in dispute that just like the Special Rules providing

for recruitment of the Transport Department there are such

special rules in respect of many other departments also. It

is therefore clear that while General Rules broadly indicate

that they regulate general recruitment including promotion

to all the State Civil Services but at the same time each

Department has its own Special Rules of recruitment and they

are co-existing. Such Special Rules of recruitment for the

Motor Vehicles Department are not repealed by any provision

of the General Rules which are later in point of time. As a

matter of fact Rule 21 which provides for repeal does not in

any manner indicate that any of the Special Rules stood

repealed. It is in this background that we have to consider

the interpretation of non-obstante clause in Rule 3(2) of

the General Rules.

At this juncture it is necessary to note that some of

the rules of the General Rules also provide for promotion by

way of selection and that Special Rules providing for such

promotion by selection should be adhered

397

to. They are Rule 1(3)(a), the first part of Rule 3 and Rule

4 which are existing. In Sub-rule 1(3)(a) of the General

Rules, we find the following

"1(3)(a) These rules shall apply to recruit-

ment to all State Services and to all posts in

connection with the affairs of the State of

Karnataka and to members of all State Civil

Services and to the holders of posts whether

temporary or permanent except to the extent

otherwise expressly provided-

(i) by or under any law for the time being in

force; or

XX XX

(emphasis supplied)

This is the opening rule of the General Rules and it

abundantly makes it clear that the rest of the rules are

subject to any other rules expressly providing for recruit-

ment. Then in clause (1) of Rule (3) of the General Rules we

find the words "Except as otherwise provided in these Rules

or any other rules specially made in this behalf recruitment

to any service or post shall be made by direct recruitment

which may be either by competitive examination or by selec-

tion or by promotion which may be either by selection or on

the basis of seniority-cum-merit. The methods of recruit-

ment and qualification shall be as specified in the rule of

recruitment specially made in that behalf." This part of

General Rule 3 provides for recruitment by way of promotion

either by selection or on the basis of seniority-cum-merit

as specified in the said Rules of recruitment specially

made. Further the opening words of clause (1) "Except as

otherwise provided in these Rules or any other Rules spe-

cially made" give a clue that the special rules would govern

and regulate the method of recruitment including promotion

by way of selection. Further Rule 4 of the General Rules

which lays down the procedure of appointment contains Sub-

Rule 2 which reads as under:

"4. Procedure of appointment - subject to the

provisions of these rules, appointment to

any service or post shall be made -

xxxx xxxx xxxx

(2) in the case of recruitment by promotion --

(a) if it is to a post to be filled by promo-

tion by, selection, by selection of a

398

person, on the basis of merit and suitability

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in all respects to discharges the duties of

the post with due regard to seniority from

among persons eligible for promotion.

(b) if it is to a post other than that re-

ferred to in sub-clause (a) by selection of a

person on the basis of seniority-cure-merit,

that is, seniority subject to fitness of the

candidate to discharge the duties of the post,

from among persons eligible for promotion."

(emphasis supplied)

Though Rule 3(2) of the General Rules is inserted

later, the above mentioned Rules remain undisturbed and they

co-exist. They provide for recruitment and promotion by

selection to certain categories of posts and for others on

the basis of seniority-cure-merit. From a combined reading

of these provisions of General Rules it follows that re-

cruitment to any service by promotion as regulated by

Special Rules can be by way of selection. "Then the question

is whether Rule 3(2) of the General Rules which is intro-

duced in 1982 particularly providing the method of promotion

by selection to the post of heads and additional heads of

departments has altogether dispensed with the promotion by

selection to all other posts and whether, the non-obstante

clause in this rule, in these circumstances can be inter-

preted as to have the overriding effect as contended by the

learned counsel for the respondents. The non-obstante clause

is sometimes appended to a section or a rule in the begin-

ning with a view to give the enacting part of that section

or rule in case of conflict, an overriding effect over the

provisions or act mentioned in that clause. Such a clause is

usually used in the provision to indicate that the said

provision should prevail despite anything to the contrary in

the provision mentioned in such non-obstante clause. But it

has to be noted at this stage that we are concerned with the

enforceability of special law on the subject inspire of the

general law. In Maxwell on the Interpretation or Signites,

Eleventh Edition at page 168, this principle of law is

stated as under:

"A general later law does not abrogate an

earlier special one by mere implication.

Generalia specialibus non derogant, or, in

other words," where there are general words in

a later Act capable of reasonable and sensible

application without extending them to subjects

specially dealt with by earlier legislation,

you are not to hold that earlier and special

legislation indirectly repealed, altered, or

derogated from merely by force of such

399

general words, without any indication of a

particular intention to do so. In such cases

it is presumed to have only general cases in

view, and not particular cases which have been

already otherwise provided for by the special

Act."

In Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey

and ors. ,AIR 1966 S.C. 1931, applying this principle it is

held that general law does not abrogate earlier special law

by mere implication. In Eileen Louise Nicoole v. John Winter

Nicolle, [1992] 1 AC 284, Lord Phillimore observed as under:

"It is a sound principle of all juris-

prudence that a prior particular law is not

easily to be held to be abrogated by a poste-

rior law, expressed in general terms and by

the apparent generality of its language ap-

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plicable to and covering a number of cases, of

which the particular law is but one. This, as

a matter of jurisprudence, as understood in

England, has been laid down in a great number

of cases, whether the prior law be an

express statute, or be the underlying common

or customary law of the country. Where

general words in a later Act are capable

of reasonable and sensible application without

extending them to subjects specially dealt

with by earlier legislation, that earlier and

special legislation is not to be held indi-

rectly repealed, altered, or derogated

from merely by force of such

general words, without any indication of a

particular intention to do so."

In Justiniane Augusto De Piedade Barreto v. Antonio

Vicente Da Fortseca and others etc., [1979] 3 SCC 47, this

Court observed that A law which is essentially general in

nature may contain special provisions on certain matters and

in respect of these matters it would be classified as a

special law. Therefore unless the special law is abrogated

by express repeal or by making provisions which arc wholly

inconsistent with it, the special law cannot be held to have

been abrogated by mere implication.

I have already noted that even in the General Rules the

promotion by selection is provided for and if there are any

special rules in that regard they are not abrogated except

by an express repeal.

I shall now examine whether the interpretation of non-

obstante clause in Rule 3(2) of the General Rules as given

by the Tribunal is warranted. The Tribunal has held that

the non-obstante clause which was

400

introduced in the General Rules clearly indicates the inten-

tion to supersede the special law. The Tribunal has also

noted even a later general law provision can override earli-

er special law if it clearly indicates the intention to

supersede the special law. As a proposition of law one

cannot dispute this part of the finding but I am not able to

agree with the finding of the Tribunal that the non-obstante

clause in Rule 3(2) clearly abrogates earlier special law.

This very question was considered by Karnataka High

Court in Muniswamy v. Superintendent of Police, ILR 1986

Karnataka 344 (Vol. 36). In that case also the same General

Rules and particularly Rule 3(2) inserted later came up for

consideration. The Special Rules were that of Karnataka

State Police State Recruitment Rules, 1967. The Director

General of Police issued a circular for the purpose of

recruitment of Head Constables on purely seniority-cum-merit

basis. It was contended that the posts of the Head Consta-

bles have to be filled up by promotion by selection as

provided in the Special Rules and Rule 3(2) of the General

Rules cannot have an overriding effect inspire of a non-

obstante clause. The Division Bench of the Karnataka High

Court held that Sub-rule (2) of Rule (3) which is an amend-

ment to the General Rules cannot be treated as an amendment

to the Special Police Rules and that Rule 3(2) cannot be

read as amending all other special rules of recruitment of

all other department of Government in general. It also

further observed that this amendment to the General Rules

must be read as subordinate to the application of Rules

declared by Rule 1(3) of the Rules and cannot be read as

enlarging the scope. This judgment rendered by the High

Court in the year 1986 has become final. The fact that the

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State did not appeal or repeal the Special Rules suitably in

spite of the decision clinchingly shows that it accepted

this position.

In Aswini Kumar Ghosh and Another v. Arabinda Bose and

Another, [1953] SCR 1, it was observed as under:

"It should first be ascertained what the

enacting part of the section provides on a

fair construction of the words used according

to their natural and ordinary meaning, and the

non obstante clause is to be understood as

operating to set aside as no longer valid

anything contained in relevant existing laws

which is inconsistent with the new enactment."

It was further held that:

401

"Nor can we read the non obstante clause as

specifically repealing only the particular

provisions which the learned Judges below have

been at pains to pick out from the Bar Coun-

cils Act and the Original Side Rules of the

Calcutta, and Bombay High Courts. If, as we

have pointed out, the enacting part of section

2 covers all Advocates of the Supreme Court,

the non obstante clause can reasonably be read

as overriding "anything contained" in any

relevant existing law which is inconsistent

with the new enactment, although the draftsman

appears to have had primarily in his mind a

particular type of law as conflicting with the

new Act. The enacting part of a statute must,

where it is clear, be taken to control the non

obstante clause where both cannot be read

harmoniously; for, even apart from such

clause, a later law abrogates earlier laws

clearly inconsistent with it. Posteriors leges

priores contrarias abrogant (Broomo's Legal

Maxims, 10th Edn., p.347)."

(emphasis supplied)

In The Dominion of India (Now the Union of India) and

another v. Shribai A. Irani and another, AIR 1954 S,C. 596,

it was observed as under:

"While recognising the force of this argument

it is however necessary to observe that al-

though ordinarily there should be a close

approximation between the non-obstante clause

and the operative part of the section, the

non-obstante clause need not necessarily and

always be co-extensive with the operative

part, so as to have the effect of cutting down

the clear terms of an enactment. If the words

of the enactment are clear and are capable of

only one interpretation on a plain and gram-

matical construction of the words thereof a

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 Legisla-

ture by way of abundant caution and not by way

of limiting the ambit and scope of the opera-

tive part of the enactment".

(emphasis supplied)

In Union of India and Another. v. G.M. Kokil and 0 hers.

[1984]

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402

Suppl. SCR 196, it was observed as under:

"It is well-known that a non obstante clause

is a legislative device which is usually

employed to give overriding effect to certain

provisions over some contrary provisions that

may be found either in the same enactment or

some other enactment, that is to say, to avoid

the operation and effect of all contrary

provisions."

In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, [

1986] 4 SCC 447, the scope of non-obstante clause is ex-

plained in the following words:

"A clause beginning with the expression

"notwithstanding anything contained in this

Act or in some particular provision in the Act

or in some particular Act or in any law for

the time being in force, or in any contract"

is more often than not appended to a section

in the beginning with a view to give the

enacting part of the section in case of con-

flict an overriding effect over the provision

of the Act or the contract mentioned in the

non obstante clause. It is equivalent to

saying that in spite of the provision of the

Act or any other Act mentioned in the non

obstante clause or any contract or document

mentioned the enactment following it will have

its full operation or that the provisions

embraced in the non obstante clause would not

be an impediment for an operation of the

enactment."

On a conspectus of the above authorities it emerges that

the non-obstante clause is appended to a provision with a

view to give the enacting part of the provision an overrid-

ing effect in case of a conflict. But the non-obstante

clause need not necessarily and always be co-extensive with

the operative part so as to have the effect of cutting down

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.

Further, the influence of a non-obstante clause has to

be considered on the basis of the context also in which it

is used. In State of West Bengal v. Union of India, [1964] 1

SCR 371, it is observed as under:

"The Court must ascertain the intention of the

legislature by

403

directing its attention not merely to the

clauses to be construed but to the entire

statute; it must compare the clause with the

other parts of the law and the setting in

which the clause to be interpreted occurs."

It is also well-settled that the Court should examine

every word of a statute in its context and to use context in

its widest sense. In Reserve Bank of India etc. v. Peerless

General Finance and Investment Co. Ltd. & Ors.. [1987] 1 SCC

424, it is observed that "That interpretation is best which

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makes the textual interpretation match the contextual". In

this case, Chinnapa Reddy, J. noting the importance of the

context in which every word is used in the matter of inter-

pretation of statutes held thus:

Interpretation must depend on the

text and the context. They are the bases of

interpretation. One may well say if the text

is the texture, context is what gives the

colour. Neither can be ignored. Both are

important. That interpretation is best which

makes the textual interpretation match the

contextual. A statute is best interpreted when

we know why it was enacted. With this knowl-

edge, the statute must be read, first as a

whole and then section by section, clause by

clause, phrase by phrase and word by word. If

a statute is looked at, in the context of its

enactment, with the glasses of the statute-

maker, provided by such context, its scheme,

the sections, clauses, phrases and words may

take colour and appear different than when the

statute is looked at without the glasses

provided by the context. With these glasses we

must look at the Act as a whole and discover

what each section, each clause, each phrase

and each word is meant and designed to say as

to fit into the scheme of the entire Act. No

part of a statute and no word of a statute can

be construed in isolation. Statutes have to be

construed so that every word has a place and

everything is in its place".

If we examine the scope of Rule 3(2) particularly along

with other General Rules, the context in which Rule 3(2) is

made is very clear. It is not enacted to supersede the

Special Rules.

As already noted, 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. In the instant

case we have noticed that even the General Rules of which

Rule

404

3(2) forms a part provide for promotion by selection. As a

matter of fact Rules 1(3)(a) and 3(1) and 4 also provide for

the enforceability of the Special Rules. The very Rule 3 of

the General Rules which provides for recruitment also pro-

vides for promotion by selection and further lays down that

the methods of recruitment shall be as specified in the

Special Rules, if any. In this background if we examine the

General Rules it becomes dear that the object of these Rules

only 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 department. In such a situation both the Rules

including Rule 1(3)(a), 3(1)and 4 of general rules should be

read together. If so read it becomes plain that there is no

inconsistency and that amendment by inserting Rule 3(2) 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 1(3)(a), 3(1)

and 4(2) of the General Rules themselves. The amendment

cannot be read as abrogating all other Special Rules in

respect of all departments. In a given case where there are

no Special Rules then naturally the General Rules would be

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applicable. Just because there is a non-obstante clause, in

Rule 3(2) it cannot be interpreted that the said amendment

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. As already noted Rules

1(3)(a), 3(1) and 4 of the General Rules themselves provide

for promotion by selection and for enforceability of the

Special Rules in that regard. Therefore there is no patent

conflict or inconsistency at all between the General and the

Special Rules.

Shri P. Chidambaram, in this context, however, submit-

ted that the intention of the Legislature is to do away with

promotion by selection and instead of amending every special

rule, the General Rule in the form of Rule 3(2) is inserted

and therefore by virtue of non- obstante clause all other

special rules governing the recruitment to all departments

stand abrogated. I am unable to agree. If such was the

intention of the amendment then I see no reason as to why

even in the General Rules as noted above the promotion by

selection is recognised and provided for and these Rules

remain unaffected. This is also clear from the fact that the

Government did not even appeal against the High Court deci-

sion rendered in Muniswamy's case.

Shri P. Chidambaram, however, further submitted that a

plain reading of Rule 3(2) which is later in point of time

would clearly indicate that

405

the Special Rule providing for promotion by selection is

repealed at least by implication. There is no doubt that a

later statute may repeal an earlier one either expressly or

by implication. In the instant case we have already noted

that there is no express repeal of the Special Rule provid-

ing for promotion by selection. The Courts have not favoured

such repeal by implication. On the other hand it is indicat-

ed by the courts that if earlier and later statutes can

reasonably be construed in such a way that both can be .

given effect to, the same must be done. In Re Chance [1936]

Ch. 266 Farewell, J. observed that "If it is possible it is

my duty so to read the section ..... as not to effect an

implied repeal of the earlier Act".

In Kunter v. Phi/lips [1891] 2 Q.B. 267 it is held that:

"It is only when the provisions of a later enactment are so

inconsistent with or repugnant to the provisions of an

earlier one then only the two cannot stand together and the

earlier stands abrogated by the later". In Municipal Council

Palai v. T.J. Joseph, AIR 1963 SC 1561, this Court has

observed that there is a presumption against a repeal by

implication; and the reason of this rule is based on the

theory that the Legislature while enacting a law has a

complete knowledge of the existing laws on the same subject

matter and therefore, when it does not provide a repealing

provision, it gives out an intention not to repeal the

existing legislation.

It is further observed that such a presumption can be

rebutted and repeal by necessary implication can be inferred

only when the provisions of the later Act are so inconsist-

ent with or repugnant to the provisions of the earlier Act,

that the two cannot stand together.

I am satisfied that 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 as contended by the learned

counsel Shri. Chidambaram.

In the result the appeal is allowed and the Government

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is directed to consider the case of the appellant for promo-

tion to the post of Deputy Commissioner 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. In the circumstances of

the case there will be no order as to costs.

YOGESHWAR DAYAL, J. I have had the pleasure of going

through the judgment prepared by my learned brother, Justice

K.J. Reddy. However, with due respect, 1 regret 1 have not

been able to persuade myself to

406

agree to either his reasoning or the conclusion. There is no

quarrel that general principle is that special law prevails

over general law but the learned Judge has failed to note

that even there is an exception to such a general law,

namely -- it is a later general law which prevails over the

earlier special law if it clearly indicates the intention to

supersede the special law.

This appeal by Special Leave has been filed by Sri R.S.

Raghunath against the order of the Karnataka Administrative

Tribunal, Bangalore, dated 9th August, 1990. Before the

Tribunal the appellant sought a declaration that the promo-

tion of Shri I.K. Devaiah, respondent No. 2 herein, was

illegal and to direct the respondent No. 1 to consider the

case of the appellant for promotion to the cadre of Deputy

Transport Commissioner with all consequential benefits. The

Tribunal dismissed the application filed by the appellant.

The Tribunal was called upon to construe Rule 3(2) of the

Karnataka Civil Services (General Recruitment) Rules, 1977

as amended in June, 1982 (hereinafter referred to as "the

General Rules')The Tribunal, after considering the general

Rules took the view that the non-obstante clause in Rule

3(2) of the General Rules which was introduced after framing

of the Karnataka General Service (Motor Vehicles Branch)

(Recruitment) Rules, 1976 (in short 'the Special Rules')

clearly indicates the intention to supersede the special

law. The Tribunal took the view that the general principle

that the special law prevails over the general law has one

exception and that is a later general law prevails over

earlier special law if it clearly indicates the intention to

supersede the special law. The Tribunal held that a non-

obstante clause in Rule 3(2) of the General Rules, which was

enacted after the Special Rules, clearly indicates the

intention to supersede the special law. The controversy

rises in the following circumstances.

The Special Rules came into force on or about 10th

December, 1976 on the publication of the same in the Karna-

taka Gazette (Extraordinary). It consisted of only two

Rules- (I) and (II). The first Rule gave the 'title and

commencement' and the second Rule dealt with the 'method of

recruitment and minimum qualifications'. There was a sched-

ule attached to Rule 1I. In the schedule for the post speci-

fied in column 1 thereof the method of recruitment and

minimum qualification were specified in corresponding en-

tries in columns 2 and 3 thereof. It dealt with roughly 35

categories of posts. I may mention that there was only one

post, namely the post of Deputy Transport Commissioner for

which the method of recruitment was by selection from the

cadre of Regional Transport Officers who must have put in

not less than five years of service in that cadre.

407

For all the rest of the posts in the schedule there was no

provision for recruitment by way of promotion by selection.

For all the posts the method of recruitment was either by

promotion or by deputation or by direct recruitment, or both

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by direct recruitment and promotion or by merely posting a

suitable officer or by direct recruitment through employment

exchange etc. The only recruitment to the post of Deputy

Transport Commissioner was by method of promotion by selec-

tion.

At the time when the aforesaid Special Rules were enact-

ed the Karnataka State Civil Services (General Recruitment )

Rules, 1957 (in short the General Rules of 1957 ) were in

operation which were repelled by the General Rules. So long

as the General Rules of 1957 continued the Special Rules

continued to govern the method of recruitment of the posts

as specified in the schedule attached to the said Special

Rules.

The General Rules of 1957, as stated earlier, were

repelled by the General Rules which came into force on 25th

June, 1977. Rule 1(3)(a) of the General Rules provided

thus:-

"1.(3) (a) These rules shall apply to re-

cruitment to all State Services and to all

posts in connection with the affairs of the

State of Karnataka and to members of all State

Civil Services and to the holders of posts

whether temporary or permanent except to the

extent otherwise expressly provided-

(i) by or under any law for the time being in

force; or

(ii) in respect of any member of such

service by a contract or agreement subsisting

between such member and the State

Government".

It is thus clear from the provision of Rule 1(3)(a) that

the General Rules were applicable for all purposes to mem-

bers of all State Civil Services including the Motor Vehi-

cles Branch except to the extent otherwise expressly provid-

ed by the Special Rules. The Special Rules, as mentioned

earlier, dealt with the method of recruitment and qualifica-

tion for the Motor Vehicles Branch and so far as the post of

Deputy Transport Commissioner was concerned, the method of

recruitment was "promotion by selection". The Special Rules

dealt with nothing else. It is also clear from Rule 1(3) of

the General Rules itself as to what is the scope of its

applicability. It was applicable to all posts except to the

extent otherwise expressly provided for by the Special

Rules. Rule 3(1) of the General

408

Rules, before the insertion of sub-rule (2), reads as fol-

lows:-

"3. Method of recruitment - (1) Except as

otherwise provided in these rules or any other

rules specially made in this behalf, recruit-

ment to any service or post shall be made by

direct recruitment which may be either by

competitive examination or by selection, or by

promotion which may be either by selection or

on the basis of seniority-cum-merit. The

methods of recruitment and qualifications

shall be as specified in the rules of recruit-

ment specially made in that behalf:

Provided that in respect of direct recruitment

to any service or post when the method of

recruitment is not specified in the rules of

recruitment specially made, the method of

recruitment shall be by selection after an

interview by the Commission, the Advisory or

Selection Committee or the Appointing Authori-

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ty as the case may be.

Provided further that no person shall be

eligible for promotion unless he has satisfac-

torily completed the period of probation or

officiation as the case may be, in the post

held by him."

The substantive part of Rule 3(1) described various

methods of recruitment but stated that the methods of re-

cruitment and qualifications shall be as specified in the

rules of recruitment specially made in that behalf. The

first proviso described that when in the Special Rules for

recruitment no provision is made for direct recruitment, the

method of recruitment shall be by selection after an inter-

view by the Commission, the Advisory or Selection Committee

to the Appointing Authority, as the case may be. The second

proviso to Rule 3(1) contemplated that no person shall be

eligible for promotion unless he has satisfied three com-

pleted years of probation or officiation, as the case may

be, in the post held by him. The second proviso is by way of

abundant caution in view of the Karnataka Civil Services

(Probation) Rules, 1977 (hereinafter referred to as 'the

Probation Rules') because of Probation Rules contemplated

that the period of probation shall be as may be provided for

in the rules of recruitment specially made for any service

or post, which shall not be less than two years'. The Proba-

tion Rules also contemplated declaration of satisfactory

completion of probation at the end of the prescribed period

of probation as extended or reduced by the appointing au-

thority. It may be useful to note that Rule 19 of the Gener-

al Rules also dealt with probation and appointments by

promotion. It is clear from reading of Rules 1, 2 and

409

3, as originally enacted, of the General Rules that so far

as the Special Rules expressly provided to any particular

branch of the State Service that was to prevail over the

General Rules. Rule 3A, as amended, provided for qualifica-

tion in respect of ex-servicemen, irrespective of the provi-

sions of the Special Rules. Rule 4 provided the procedure of

appointment. It also provided that if the appointment is by

way of selection, how a selection has to be conducted and if

the recruitment is by way of promotion, how it has to be

done. Rule 5 provided for disqualification for appointment.

Rule 6 provided the age limit for appointment. Rule 8 pro-

vided for reservation of appointments for scheduled castes,

scheduled tribes, backward tribes etc. Rule 9 contained

provision for ex-servicemen and physically handicapped

notwithstanding anything contained in the Special Rules.

Rule 10 contemplated conditions relating to suitability and

certificates of character. Rule 11 provided for procedure

how the applications have to be made by the Government

servants for recruitments. Rule 16 provided for relaxation

notwithstanding the provisions contained in the General

Rules or the Special Rules. Rule 16 A provided for appoint-

ment by transfer. Rule 17 dealt with appointment by direct

recruitment or by promotion in certain cases notwithstanding

anything contained in the General or Special Rules. All

these Rules arc applicable to all the posts except to the

extent as contemplated by Rule(3) of the General Rules. This

was the position at the time of enactment of General Rules

in 1977.

appears that Rule 3 of the General Rules was amended

and subrule (2) was added to Rule 3. Rule 3(2) of the Gener-

al Rules, so added in June, 1982, reads thus:

"3(2). Notwithstanding anything contained in

these rules or in the rules of recruitment

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specially made in respect of any service or

post--

(a) the promotion to the post of Head of

Department of the post of an Additional Head

of Department, if it is in a grade equivalent

to that of the Head of Department concerned,

shall be by selection:

Provided that for the purpose of promotion by

selection, the number of persons to be consid-

ered shall be such number of persons eligible

for promotion in the order of seniority, as is

equal to five times the number of vacancies to

be filled.

410

(b) the promotion to all other posts

shah be on the basis of seniority-cum-merit".

We are really concerned with the scope of Rule 3(2) of

the General Rules for proper decision of this case. Both the

General Rules and the Special Rules have been framed by the

Government of Karnataka in exercise of powers under Article

309 of the Constitution of India.

It is clear from Rule 1(3)(a) 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 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 recruitment relating to different depart-

ments. For example, provisions relating to age limit for

recruitment, disqualification for recruitment, joining time

etc. should find place in Special Rules and normally they

should be uniform for all categories of posts. Instead of

repeating them in all Special Rules of each department they

have been put in one set of rules known as the General

Rules. It would be impossible to limit the application of

the General Rules only for recruitment to posts for which no

Special Rules have been made. If that was so, what arc the

provisions relating to disqualification, age limit, joining

time etc. for posts for which Special Rules governing of

recruitment have been made ? There are no other rules gov-

erning the subject except the General Rules.

By the wording of Rule 3(2) 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 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 provi-

sion in the General Rules by incorporating a non-obstante

clause stating that it would apply to all services and posts

j notwithstanding the provisions in the General Rules or in

the Special Rules of the State. This aspect is absolutely

clear by a mere reading of Rule 3(2) of the General Rules.

In the case of Maharaja Pratap Singh Bahadur v. Man

Mohan Dev. AIR 1966 SC 1931, the Supreme Court approved the

following quotation from Maxwell on Interpretation of Stat-

ute:/

411

"A general later law does not abrogate an

earlier special one by mere implication.

Generalia specialibus non derogant, or, in

other words, "where there are general words in

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a later Act capable of reasonable and sensible

application without extending them to subjects

specially dealt. with by earlier legislation,

you are not to hold that earlier and special

legislation indirectly repealed, altered, or

derogated from merely by force of such general

words, without any indication of a particular

intention to do so." In such cases it is

presumed to have only general cases in view,

and not particular cases which have been

already otherwise provided for by the special

Act?'

It is stated therein that for the general principle that

the special law prevails over general law there is one

exception and that is a later general law prevails over

earlier special law if it clearly indicates the intention to

supersede the special law. The non-obstante clause intro-

duced by amending Rule 3 of the General Rules by adding Rule

3(2) which was enacted after the Special Rules indicates the

clear intention to supersede the Special Law to the extent

that for the posts which arc not Head of the Departments or

Additional Head of Departments the promotion, if provided

for by way of selection, would mean on the basis of seniori-

ty-cum-merit and not on the basis of merit only.

As I have noticed earlier if we look at the Special Law

it contained various methods of recruitment to about 35

posts mentioned in the Schedule annexed thereto but there is

only one post for which the promotion was proposed by selec-

tion. Surely it would have been flimsy way of drafting if

one particular clause of a particular Special Law was sought

to be individually repelled by enacting a repealing clause

for that purpose. To get over that the non-obstante clause

is introduced later on by the same authority which enacted

both the General and Special Laws to give its latest man-

date. The latest mandate cannot be ignored.

Rule 1(3) of the General Rules which accepted the ap-

plicability 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.

In the present case the respondent No. 2 herein 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-cummerit and that the

earlier Special Rules which contemplated the promotion by

selection were not followed in view of the latest intention

clearly given

412

by a positive mandate.

The learned counsel for the appellant strongly placed

reliance on the decision of the Karnataka High Court in the

case of Muniswamy v. Superintendent of Police, dated 18th

July, 1986 (Annexure 'F' pages 66 to 108 of the paper-book).

That decision dealt with the General Rules and the Special

Rules in relation to Karnataka State Police Service (Re-

cruitment) Rules,.

1967.

We have to construe the meaning of Clause 3(2) for

ascertaining the object and purpose which the legislature

had in view in enacting the said provision and the context

thereof. It appears to me that the Special Rules for re-

cruitment to some of the services had been in force provid-

ing a particular method of either selection or promotion. It

appears that because of the experience the Government had of

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its working, it was thought proper to change this policy,

namely - instead of providing selection on the basis of

merit to every post, in certain posts, it thought it fit to

give due weightage to seniority and merit instead of having

the 'best'. The selection of 'best' very often has an ele-

ment of chance which may not be very conducive to proper

climate and harmony in service. It appears that because of

that experience the rule making authority thought it fit

that the process of promotion by selection should be con-

fined only to top posts and for rest of the posts the method

should be promotion by adopting the principle of seniority-

cum-merit. I find that there is a clear mandate of latest

intention of the rule making authority contained in Rule

3(2) of the General Rules and this must be respected by the

Court. The Courts are 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 implemented even by

violation of the Rule, will not be sound rule of construc-

tion of statute.

I am afraid I have not been able to persuade myself to

agree with the reasoning of the learned Division Bench in

the aforesaid case of Muniswamy v. Superintendent of Police.

The learned Division Bench had restricted the scope of

Rule 3(2) to only such officers whose "service or post is

not regulated by any Special Rules. then and then only the

posts of Head of Departments of Government as defined in

1982 Rules had to be filled by promotion by selection and

all other posts in such Departments have to be filled by

promotion on seniority-cure-merit basis". The Division

Bench also examined the merits and demerits of various forms

of selection at great length and took the view in paragraph

41 of the judgment as under:

"We were shocked and surprised when the

learned Govern-

413

ment Advocate submitted before us that he was

supporting the stand urged by Sri Bhat and the

circular issued by the Director under instruc-

tions from Government. We have no doubt that

the Government had not really reflected on the

untenable stand it was urging before this

Court which, if accepted would have meant

death knell to .efficiency in the services of

the State."

I am surprised with this type of approach. 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 like. To use such an expression "death knell to

efficiency" really gives the mind of the Court that it wants

to enforce the particular policy even though the latest

mandate is for change of the policy in the name of efficien-

cy. This type of reasoning really ignores the specific

provision of the non-obstante clause applying to even "in

the rules of recruitment specially made in respect of any

service or post".

In Ajay Kumar Banerjee and others v. Union of India and

others, [1984] 3 SCC 127 at page 153 Sabyasachi Mukharji, J.

(as His Lordship then was) observed thus:--

"As mentioned herein before if the scheme was

held to be valid, then the question what is

the general law and what is the special law

and which law in case of conflict would pre-

vail would have arisen and that would have

necessitated the application of the principle

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 21

"Generalia specialibus non derogant". The

general rule to be followed in ease of con-

flict between the two statutes is that the

later abrogates the earlier one. In other

words, a prior special law would yield to a

later general law, if either of the two fol-

lowing conditions is satisfied.

(i) The two are inconsistent with each other.

(ii) There is some express reference in the

later to the earlier enactment.

If either of these two conditions is ful-

filled, the later law, even though general,

would prevail".

It is thus clear that both the conditions mentioned by

Mukharji, J.,

414

speaking for the Bench are fulfilled. In this case whether

the promotion has to be by the method of selection or sim-

plicitor promotion on the basis of seniority-cum-merit, is

the contest. The Special Law contemplated promotion by

selection whereas the later law contemplates promotion by

the method of seniority-cum-merit. The two are inconsistent

with each other. This fulfills the first condition. So far

as the second condition is concerned there is an express

reference in the later general law "in the earlier enact-

ment". But as per the proposition of Mukharji, J., if either

of the two conditions are fulfilled the later law, even

though general, would prevail. Surely the provision of

recruitment contemplated in the Special Police Rules is

inconsistent with the latest general provision applicable to

all posts in Karnataka. In the present case the later gener-

al law prevails over the earlier special law because the

non-obstante clause specifically mentions its efficacy

inspite of the Special Law. It was for the legislature to

choose the method of indicate its intention. The Courts

should not defeat their intention by overlooking it. The

respondent No. 2 has been selected for promotion by follow-

ing the General Rules amending the Special Rules and I find

it was strictly in accordance with law. I am, therefore, of

the considered view that the appeal deserves to be dismissed

with parties to bear their own costs.

G.N. Appeal

allowed.

1

?

415