DEEP CHAND JAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioners were officers of the Rajasthan Administrative Service and feel aggrieved because they have been retired compulsorily under Sub -rule (2) of Rule 244 of the Rajasthan Service Rules, 1951, hereinafter referred to as 'the Rules' As the orders of retirement in the two cases are of the same date (July 29, 1972) and are quite similar, and as common questions of law have been raised by the learned Counsel for the petitioners, the two petitions have been heard together and will be disposed of by this common judgment. Fourteen points have been urged for my consideration and I shall deal with them one by one.

(2.) BEFORE doing so it will be proper to examine the question which arises at the threshold, namely, whether Note 1 appearing below Sub -rule (2) of Rule 244 of the Rules is a part of the sub -rule or is by way of a subsequent executive or administrative instruction in clarification of the basic provision of the sub -rule? The Note appears at the end of the proviso to Sub -rule (2) of Rule 244, in the fourth edition of Rules issued by the Cabinet Secretariat of the State Government, and reads as follows:

(3.) A perusal of the aforesaid notification of August 31, 1963 shows that the rule making authority thought it proper to refer to the rules and Notes separately, so much so that if, as in the case of Clause 2 of the notification, it was thought proper to substitute Clause (a) of Rule 56 and the Note thereunder by a new clause, specific reference was made to the Note also and it was stated that the new clause supplanted the earlier Clause (a) of Rule 56 as well as the Note there under. Similarly, a perusal of Clause 5 of the notification shows that while deleting Rule 242, the rule making authority thought it proper to say that it was deleting not only that rule but also the Note appearing thereunder it is therefore quite clear that in the aforesaid notification of August 31, 1963 (by which the new sub -rule was substituted for the old Sub -rule 244(2), whenever the rule making authority, namely, the Government, wanted to amend a rule he referred to the rule as such, and whenever he wanted to amend the rule and the Note, or only the Note, he made a specific reference to the rule and the Note or the Note. In other words, he thought it proper to make a distinction between the main text of the rule and its Note or Notes, and observed that distinction all through the notification. Thus the rule making authority has made a distinction, while amending Sub -rule 244(2), between the main text of the sub -rule and its Note. It should follow then fore that while the rule making authority has substituted a new Sub -rule 244(2), he has left the later part of the rule, in the form of the Notes. The rule of interpretation to be followed in such cases has been laid down by their Lordships of the Supreme Court in Commissioner of Wealth Tax, Bihar and Orissa v. Kripa Shankar Dayashankar Worah : [1971]81ITR763(SC) . Their Lordships have stated (in paragraph 10 of their judgment) that 'the legislature is competent in the absence of any restrictions placed on it by the Constitution to give its own meaning to the words used by it in a statute'. Their Lordships have further held that if the intention of the legislature is clear and beyond doubt, then the fact that the provision could have been more artistically drafted cannot be a ground to treat any part of the provision as otiose. The decision of their Lordships thus turned on the intention of the legislature, and they have given the direction that the courts have to 'carry out that intention.' The rule of construction as enunciated by their Lordships leaves me in no doubt that it was the intention of the rule making authority that while a new Sub -rule 244(2) should be substituted by the notification dated August 31, 1963, the Note should remain as it was and should be a part of the Rules. It may be stated that in the fourth edition of the Rules, which is a Government publication corrected upto December 31, 1967, the Note has been printed just after the main text of Rule 244(2) as a part of the sub -rule. I have therefore no hesitation in taking the view that Note 1 is a part of Sub -rule (2) of Rule 244 of the Rules. On this point there is in fact no controversy before me at all.