Aim of Rules is to Encourage Women, to Become Working Women

0
359
Aim Rules Encourage Women

RICHA MISHRA (THE APPELLANT) AS APPOINTED WAS EXCISE Sub-Inspector, Bilaspur vide appointment order dated 24.1.2006 and she joined the said post on 7.2.2006. On 27.9.2004, the State Government sent requisition to Chhattisgarh Public Service Commission (CPSC) for filling up of various vacancies which included vacancies to the post of Dy. S.P. as well. This was followed by fresh requisition dated 22.3.2005. In this connection, the State Government also mentioned that the vacancies shall be filled up in accordance with Rules, 2000A. cting on this requisition, CPSC issued Advertisement dated 26.8.2005. Relevant to state that after the requisition by the State Government sent on 22.3.2005 and before the issuance of Advertisement on 26.8.2005, Chhattisgarh Police Executive (Gazetted) Service Recruitment and Promotion rules, 2005 (the Rules, 2005) came into force which were published in the Official Gazette on 28.6.2005. The effect of these Rules would be discussed at the relevant stage.

Appellant herein had applied for the post of Dy. S.P. and appeared in the preliminary examination which she duly qualified. On that basis, the appellant filled the form for appearing in main examination. In this form, she stayed that she was entitled to relaxation of ten years in upper age limit being a woman. Such as relaxation was claimed on the basis of the Rules, 1997. The Rule 4 thereof provides for such age relaxation. For our purposes, Rule 2 and Rule 4 are relevant and are reproduced below:

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

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

The appellant was allowed to participate in the main examination and she qualified that as well.Accordingly, she was called for interview on 12.4.2007. Final results were declared thereafter. She obtained 54th position in the merit list. Thereafter, CPSC prepared the list of selected candidates and sent that list to the Government for effecting appointments as per that list. However, name of appellant was not recommended for Dy. S.P. though two persons who were below in merit, namely, Tarkeshwar Patel and Ranu Sahu were recommended. They had obtained 59th and 60th position respectively, in the merit list. Appellant felt aggrieved thereby and made a representation to this effect. However, her representation did not elicit any positive response even when it was followed by a reminder dated 20.5.2007. This apathy of the respondent forced the appellant to approach the High Court in the form of writ petition filed under Article 226 of the Constitution of India. Her plea was that she had not been given the benefit of age relaxation even when she was an existing government servant as she was working in the Excise Department of the State of Chhattisgarh and being a Government Servant, she was entitled to age relaxation for eight years. This plea was rejected by the learned single Judge recording that she has joined the government service after the cut-off date and, therefore, she was not a government employee on the relevant date.

The appellant challenged the aforesaid order of the learned single Judge by filing the writ appeal. In this writ appeal, she did not pursue her case for age relaxation upto eight years on the ground that she was a Government Servant. Instead she relied upon Rule 4 of Rules 1997 wherein relaxation of ten years is available to women candidates in addition to other relaxation in age. The Division Bench has held that benefit of Rule 4 of Rules 1997 shall not enure to her benefit and the entire discussion in support of this conclusion is contained in paras 52 and 53 of the impugned judgement which are reproduced hereunder in entirety:

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

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

Against the judgement of the Division Bench special leave petition was filed. The Supreme Court accepted the appeal, set aside the judgement of the Division Bench, holding that recruitment should have been made under Rules, 2005.

The operative part of the judgement read as under :
The admitted facts are that the process of selection started before Rules, 2005 were promulgated with the regulation dated September 27, 2004 and March 26, 2005 sent by the State Government to the CPSE. At that time, Rules, 2000 were in vogue. For this reason, even in the requisition it was mentioned that appointments are to be made under Rules, 2000. Further, it is also an admitted fact that the vacancies in-question which were to be filled were for the period prior to 2005. Such vacancies needed to be filled in as per those Rules, i.e. Rules, 2000. This is patent legal position which can be discerned from Y.V. Rangaiah and Others v. J. Shreenivasa Rao [1983 (3) SCC 284]. As per the facts of that case a panel had to be prepared every year of list of approved candidates for making appointments to the grade of Sub-Registrar Grade-II by transfer according to the old rules. However, the panel was not prepared in the year 1976 and the petitioners were deprived of their right of being considered for promotion. In the meanwhile, new rules came into force. In this factual background, it was held that the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. The judgement in the case of B.L. Gupta and Another v. M.C.D. [supra] also summarises the legal position in this behalf. The judgement in P . Ganeshwar Rao and Others v. State of Andhra Pradesh and Others [supra] is also to the same effect. 

•••••••••••••••••••••••••••••••••••••••••••••••••• •••••••••••

No doubt, under certain exceptional circumstances, Government can take a conscience decisions not to fill the vacancies under the old Rules and, thus, there can be departure of the aforesaid general rule in exceptional cases. This legal precept was recognized in the case of Rajasthan Public Service Commission v. Kailla Kumar Palliwal and another [supra]. 

•••••••••••••••••••••••••••••••••••••••••••••••••• •••••••••••

No doubt, Rule 8 of Rules, 2000, which, inter alia, lays down the provision pertaining to upper and lower age of the candidates, does not make any specific provision for relaxation of age in respect of women candidates. We also are conscious of the fact that Note (2) appended to Rule 8 provides that in no other case, age limit will be relaxed. However, that is not the end of the matter. The legal position is to be examined in conjunction with all other rules which occupy the field and all relevant to determine the issue. We are of the opinion that Rules, 1997 read with State Services Examination Rules, 2003 would get attracted and as these Rules make a specific provision for providing of age relaxation upto ten years that is to be given to women candidates, the appellant herein shall be entitled to the said benefit. 

•••••••••••••••••••••••••••••••••••••••••••••••••• •••••••••••

In the first instance, it is to be borne in mind that Rules 1997 are specific Rules, specially meant to give benefit of age relaxation to women in public service and post in connection with the affairs of the State. These Rules are statutory in nature framed under proviso to Article 309 of the Constitution of India. Such a special provision is made in favour of females in consonance with the Constitutional spirit contained in Article 15(3) of the Constitution of India which empowers the State to make any special provision for women and children. The statutory purpose and objective behind promulgating Rules, 1997 is manifest and can be clearly discerned. It is to encourage women, hitherto known as weaker section, to become working women, by taking up different vocations, including public employment. It would naturally lead to empowerment of women, which is the need of the hour. It is now realized that there is a bidirectional relationship between economic development and women’s empowerment defined as improving the ability of women to access the constituents of development-in particular health, education, earning opportunities, rights, and political participation. Empowerment of women, thus, is perceived as equipping them to be economically independent, self-reliant, with positive esteem to enable them to face any situation and they should be able to participate in the development activities.

•••••••••••••••••••••••••••••••••••••••••••••••••• •••••••••••

Seen in this context, Rule 4 of Rules, 1997 is to be interpreted to have universal application when it comes to women candidates seeking appointment in public service and post in connection with the affairs of the State of Chhattisgarh. After all, that is the primary purpose behind enacting the aforesaid Rule having statutory character.

•••••••••••••••••••••••••••••••••••••••••••••••••• •••••••••••

Even if any doubt arises about the applicability of Rules, 1997 because of absence of any specific provisions in Rules, 2000, that is taken care of by State Services Examination rules, 2003. It is not disputed by the respondents that competitive examination for recruitment to the post of Dy. S.P. was conducted under the aforesaid Rules. Rule 5 of the said Rules deals with eligibility conditions. It specifically lays down provision relating to age of the candidates. After prescribing minimum and maximum age limits as eligibility condition for appearing in the examinations, proviso to the provision of age empowers the State Government to vary the lower and upper age limits for any of the services included in these Rules looking to the exigencies of services. This Rule also makes provision for relaxation in the upper age limit in certain cases. What is relevant for us is that for women candidates, a provision is specifically made providing that as per Rules, 1997, 10 years age relaxation would be given to women candidates.

•••••••••••••••••••••••••••••••••••••••••••••••••• •••••••••••

It can, therefore, be clearly inferred that incorporation in the manner aforesaid Rules, 1997 were made applicable for the examination in question and in this way the lacuna in Rules, 2000 also got filled up. It would not be too much presumptuous to say that omission of Rules, 1997 in Rule 8 of Rules, 2000 was merely accidental and it was not a case or casus omissus. Because of this reason, said omission was also rectified while enacting Rules, 2005 by making a specific provision in Rule 8(f) of Rules, 2005. Therefore, the intention of the rule making authorities had always been to give benefit of relaxation in age to women candidates. After all, we are called upon to interpret subordinate legislation salutary aim whereof is to achieve social purpose and consequently social justice.

•••••••••••••••••••••••••••••••••••••••••••••••••• •••••••••••
Authorities relied upon : 2015 (110 Scale 684, 2007 (10) SCC 402, 1983 (3) SCC 284.
Reference : Supreme Court. Richa Mishra v. State of Chhattisgarh and Ors., civil appeal no. 274 of 2016.