Holding

A specific rule made under the Police Act (the 1965 Government Order) prevails over a later general rule under Article 309 unless the latter expressly repeals the former, so the selection under the 1965 Order is valid.

Summary

The case concerned the promotion of Sub‑Inspectors of the Uttar Pradesh police to the rank of Inspector. The Selection Committee had used the criteria laid down in the Government Order of 5 November 1965, a special rule under the Police Act, rather than the Uttar Pradesh Government Service (Criteria for Recruitment by Promotion) Rules, 1994 framed under Article 309 of the Constitution. Aggrieved candidates challenged the selection, and the Allahabad High Court (single judge and later a division bench) set aside the selections, holding that the 1994 Rules applied. The Supreme Court held that the special 1965 Order, being a rule made under the Police Act, prevails over the later general 1994 Rules unless the latter expressly repeals the former; thus the selection was valid. The Court also rejected the applicability of estoppel by conduct and held that irregularities such as non‑annual clubbing or lack of Gazette publication were curable and did not invalidate the selection. Consequently, the High Court judgments were set aside and the appeals were allowed.

Issues considered

Whether the promotion of Sub‑Inspectors to Inspector should be governed by the specific Police Order of 1965 or by the Uttar Pradesh Government Service (Criteria for Recruitment by Promotion) Rules, 1994 framed under Article 309.
Whether the 1994 Rules under Article 309 apply to police personnel.
Whether the selection list is void for non‑compliance with the 1994 Rules.
Whether the doctrine of estoppel by conduct bars the candidates from challenging the selection after participating in the interview.
Whether the lack of annual selection meetings and clubbing of years, or non‑publication of the 1965 Order in the Official Gazette, renders the selection invalid.

Legislation cited

Constitution of Indias. Article 309, s. Article 311, s. Article 313, s. Article 372
Police Act, 1861s. Section 12, s. Section 2, s. Section 46, s. Section 7

Subjects

Service lawPolice promotionArticle 309Special vs general ruleEstoppel by conductSelection criteriaClubbing of yearsGazette publicationAdministrative law

Judgment

A CHANDRA PRAKASH TIWARI AND ORS.
v.
SHAKUNTALA SHUKLA AND ORS.

MAY 9, 2002

B [G.B. PATTANAIK AND UMESH C. BANERJEE, JJ.]

Service Law :

Constitution of India, 1950-Article 309 and VI/th Schedule, list II,
C item 2-Police Act, 1861-Sections 2, 7, 12 and 46-U. P. Government Service
(Criteria for Recruitment by PromotiOn) Rules 1991-Selection-Sub-lnspector
of Police for promotion to Inspector-Selection Committee adopting criteria
in terms of specific Police Order of 1965 which stood amended upto 1998 and
not in terms of General Rules of 1994 framed under Article 309-Single Judge
D of High Court negating Selection-Division Bench confirming the same as
criteria under Rules of 1994 not followed-On appeal, held unless the General
Rule specifically repeal effectiveness of Special Rules, Special Rules will not
become ineffective or inoperative, thus High Court erred in negating selection--
Administrative Law.

E For selection of Sub-Inspectors of Police for promotion to the rank
of Inspector in 1997, Selection Committee adopted the criteria in terms
of specific Police Order of 1965 issued under Police Act 1861, which stood
-
amended upto 1998 and not in terms of U.P. Government Services
(Criteria for Recruitment by Promotion) Rules 1994 framed under Article
F 309 of the Constitution. Interviews were held under Order of 1965, the
participants participated without demur and candidates were selected.
Aggrieved candidate then challenged the selection. Single Judge of High
Court negated the selection. Division Bench confirmed the same since the
criteria specified in 1994 Rules was not followed and also that Selection
Committee failed to prepare the list for each year.
G
The question arose for consideration that the selection as effected
was to be made under the specific Police Order of 1965 or the basis of
seniority under the General U.P. Government Service (Criteria for
Recruitment by Promotion) Rules, 1994 framed under Article 309 of the
Constitution.
H 948
CHANDRA PRAKASH TJWARI I'. SHAKUNTALA SHUKLA 949
In appeals before this Court appellants submitted that by reason of A
the order of 1965 being framed under Section 2 of the Police Act, the
applicability of the Rules framed under Article 309 in 1994 is a total non-
issue; that the doctrine of estoppel by conduct is applicable due to the
participation by the candidate in the selection process without demur; that
the candidate does not have the right to challenge the appointment upon B
due participation at the interview and also that there is no need for annual
selections and thus can be clubbed.

Respondents contended that the Government Order of 1965 being
in the nature of executive instructions stood obliterated after the date of
notification of the Rules framed under Article 309 since the executive order C
is subordinate to that of the Legislature and as such the Rules framed
under Article 309 would prevail for governing the terms and conditions
of services of subordinate ranks of the police force. Admittedly the
members of the subordinate ranks of the police force come under the
purview of the rule making power of the Governor under Article 309 and
also their service conditions. Order of 1965, falls short of becoming D
statutory order as it is not a Rule made under Section 46(2) of the Police
Act 1861; it is not published in the Official Gazette which is primary
requirement of Section 46(2) and also Section 2 recognises only the
executive power of the State.
E
Allowing the appeals, the Court

HELD: I.I. The guidelines contained in the Government Order of
1965 have been under and in terms of the provisions of the Police Act.
There is special conferment of power for framing of Rules .which would
prevail over any other Rule. Since no other rule stands formulated and F
the Government Order of 1965 being taken as the existing rule pertaining

- to the subject matter presently under consideration with recent guidelines,
its applicability cannot be doubted. Unless the General Rule specifically
repeal the effectiveness of the special rules, question of the latter rule
becoming ineffective or inoperative would not arise. In order to be G
effective, an express mention is re_quired rather an imaginary repeal. It is
now a well settled principle of law for which no dilation is further required
that law Courts rather loath repeal by implication. The General Rule
framed under Article 309 has been for all State Government officials on
and since 1994. 1973-C-FI
H
950 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 1.2: Police force has a special significance in the administration of
the State and the intent of the framers of our Constitution to empower
the State Government to make rules therefor has its due significance rather
""--
than being governed under a general omnibus rule framed under the
provisions under Article 309. When there is a specific provision unless
there is a specific repeal of the existing law, question of an implied repeal
B would not arise. In any event, the General Rules are only prospective in
nature and as such could not have affected the selection process which
commenced in the year 1993. (973-G, H; 974-AI

A.B. Krishna and Ors. v. State of Karnataka and Ors., (19981 3 sec "" •
495, referred to.
c
K. Dayanandalal and Ors. v. State of Kera/a and Ors., [19961 9 sec
728 and Shish Ram and Ors. v. State of H.P. and Ors., [19961 JO SCC 166,
distinguished.

Broom Legal Maxim, referred to.
\ D
1.3. Incidentally, the Legislative intent has to be assessed in its proper
perspective and from the word used therein. The inter-ministerial .. ""'
correspondence and the understanding apropos the Government Order
stands clear enough to indicate that while General Rules framed in the
year 1994 are for general government servants, the Police force are to be
E ..-.
guided by the provisions of the Police Act and no exception can be taken
thereto. (974-8, CJ

1.4. In the instant case there is no precise and unambiguous
representation and any unequivocal assurance prompting the assured to
F alter his position or status thus the participation by the candidate in the
selection process by demur does not make the doctrine of estoppel by
conduct applicable. But the law seem to be well settled that in the event a
candidate appears at the interview and participates therein, only because •'
the result of the interview is not 'palatable' to him, he cannot turn round
and subsequently contend that the process of interview was unfair or there
G was some lacuna in the process. Thus the right to challenge an appointment
upon due participation at the interview/selection is barred.·
(971-C, D, E; 973-A)
"">-....,
Tata Iron & Steel Co. Ltd. v. Union of India and Ors., (2001) 2 SCC
H 41; Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., (19861 Supp.
CHANDRA l'RAKASI I TlWARJ I'. SHAKUNT ALA SHUKLA 951

SCC 285 and Madan Lal and Ors. v. State of./ & Kand Ors.. 119951 3 SCC A
486, referred to.

1.5. Gazette publication is required in terms of Section 46{2) and as
such until the Rule specifically required to be framed under Section 46(2),
the mandatory nature of the same cannot be stated to be a requirement.
In a11y event, it is hyper technical in nature since the parties who were B
well aware of the 1965 Order, participated at the interview and knew the
contents. 1974-D, El

1.6. Regarding the issue of selections and clubbing, in the normal
circumstances annual selections ought to be adhered to but in the event C
of there being no such assessment or selection, it would not render the
subsequent selection void but being an irregularity can be cured. Clubbing
in a later year may not be treated as fatal but curable, more so having
regard to the fact that initiation of a selection process throughout the State
would further take a considerable period of time and the Court's attitude
presently being pragmatic and justice oriented should do away with D
technicalities as technicalities ought not to out-weigh the course of justice.
1974-E, F; 975-C, DI

Union of India and Ors., v. Vipinchandra Hiralal Shah, 119661 6 SCC
721, referred to.
E
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 3441-
3446 of 2002.

From the Judgment and Order dated 9.7.99 of the Allahabad High
Court in S.A. Nos. 167, 169, 171, 175, 188, 192 of 1998. F
WITH
(C.A. Nos. 3437-3440, 3447, 3449-3452 of 2002.)

Dr. Rajiv Dhawan, Yogeshwar Prasad, P.S. Mishra, R.C. Srivastava,
Dinesh Dwivedi, Raj Kumar Gupta, Sheo Kumar Gupta, Jai Mangal Wadi, G
A.N. Bardiyar, Nandini Gore, Ashok K. Srivastava, Prakash K. Singh, Nalin
Tripathi, R.N. Tripathi, Naveen Tripathi, Vishnu Upadhyay, for Sarla Chandra,
Ms. Rachana Srivastava, Ms. S. Janani, C.K. Sucharita, Ms. Kusum Chaudhary
• ' and Rajesh for the appearing parties.

The Judgment of the Court was delivered by H
-~

952 SUPREME COURT REPORTS [2002] 3 S.C.R.

A BANERJEE, J. Leave granted.

The irksome issue as regards the criterion of selection through placed
before the Court on occasions innumerable but the debate is still on. The
matters presently before this Court pertain to the promotion of police officers
from Sub-Inspector to Inspector in the State of U.P. in 1977 for vacancies for
B the period between 1992 and 1996 and said to be upon due completion of
elaborate selection process - it is however this process which stands scrutiny
before this Court. Whereas the learned Single Judge negated the selections
. --<--
and allowed the grievance of the writ petitioners upon recording of a
categorical finding that the selection has caused great injustice to the senior
C Sub-Inspectors who had a totally unblemish service record - the appellate
Bench in a very detailed judgment recorded an affirmation to the judgment
of the learned Single Judge though for different set of reason to wit, that the
criteria for selection seniority subject to the rejection of the unfit" as laid
down· in the Rules was not followed and secondly that Selection Committee
failed to prepare the list for each year, keeping in view the number of vacancies
D in that year after considering the Sub-Inspectors of police who were eligible
· and fell within the zone of consideration for selection that year.

The records depict that the select list of 1996-97 stood challenged both
at Allahabad and at Lucknow under various writ petitions and as against the
orders of the learned Single Judge there were pending a large number of
E appeals. The learned Single Judge who was in seisin of the matters at Lucknow,
however, thought it fit to refer the matters to a larger Bench and scripted the
following questions.

I. Whether the Departmental Selection Committee constituted for
the purpose of selection of Sub-Inspectors, Civil Police for
F promotion to the rank of Inspectors, Civil Police, having adopted
the criterion of 'merit' alone for selection, has not contravened
the provisions of "The Uttar Pradesh Govt. Services Criteria for
Recruitment by Promotion Rules, 1994" which lays down that
posts for all services (excepting the post of Head of Department
G and Officer immediately below him) to be filled up by promotions,
shall be made on the basis of seniority subject to rejection of the
unfit?
2. Whether the provisions of the Uttar Pradesh Government Services
Criteria for Recruitment by Promotion Rules 1994 do to apply to
H the Police personnel?
CHANDRA PRAKASH TIWARI v. SHAKUNTALA SHUKLA [UMESH C. BANERJEE, J.] 953

__ .>- 3. Whether in case the answer to question No. 1 is in the affirmative A
the selection/select list contained in Annexure No. 1 in some
writ petitions and Annexure No. 1 and 2 in others is not bad in
law and liable to be quashed?

The core question thus falling for consideration before this Court thus·
runs as below : B
Whether the selection as effected was to be made under the specific
police related order of 5th November, 1965 or the basis of seniority
under the General UP Government Service (Criteria for Recruitment
by Promotion) rules, 1994 framed under Article 309 of the
Constitution? C
Admittedly, the impugned selection of Sub-Inspectors of police for
promotion to the rank of Inspectors was effected in terms of the Government
Order dated 5th November, 1965. In order, however, to appreciate the
contentions raised in a manner proper and effective, the Government Order
spoken of earlier, ought to be noticed in extenso for its true purport. The D
Government Order as below :

"From :
Shri R.K. Dar,
UP. Sachiv, E
Uttar Pradesh Shasan

To,

The Inspector General of Police,
Uttar Pradesh
Allahabad/Lucknow
F

Dated Lucknow: November 5, 1965
Home (Police-A)

Sub : Method of Selection of Sub-Inspectors for promotion to the
G
rank of Inspectors.

Sir,

With reference to Deputy Inspector General of Police,
Headquarters letter No. V-500-51, dated August 18, 1964, on the H
954 SUPREME COURT REPORTS [2002) 3 S.C.R.

A subject noted above, I am directed to say that after_ careful consideration ~-
of the recommendations contained in para 246 of the U.P. Police
Commissions Report, 1960, the Governor in supersession of the
povisions in the Police Regulations and in modification of the present
orders on the subject, has been pleased to order that the procedure for
selection of Sub Inspectors for their promotion to the cadre of Inspector
B shall henceforth be as follows :

(A) The existing quota system by which a certain number of Sub . '\.
Inspectors are at present selected from each Range should be
abolished. Sub Inspectors Civil Police who hav~ put in not less
than 10 years service as such (and are below 50 years of age) on
c the I st day of January of the year in which the selection is made
will now be eligible for promotion to the post of Inspector. The
range Deputy Inspector General of Police will send to the Police
Headquarters every year the following list.
(i) Lists of Sub Inspectors, Civil Police considered suitable for
D officiating promotion as Inspector in order of seniority in a
prescribed form, which may be laid down by the Police '}>-
Headquarters.
(ii) Lists of Sub Inspectors, Civil Police, who are not considered fit
for officiating promotion with brief reasons.
E
The Departmental Selection Committee will thereafter have a
final consolidated list prepared of Sub Inspectors Civil Police,
considered suitable for officiating promotion arranged in the order
of their seniority. From the final consolidated list, four times the
number of Inspectors required to be approved for officiating y..._
F promotion will be called for interview by the Departmental
Selection Committee as constituted by Government vide G.O.
No. 4381-A/VIIl-A-268/1961, dated August 2, 1962. The
assessment made by the Committee will be done by selection on
merit, and a list of approved candidates will be prepared on
which the names of selected candidates will arrange in order of
G
their seniority. Those who are borne on the approved list of an
earlier year will rank above those selected and brought on an
approved list of a later year.
7- .....
(B) On the occurrence of substantive vacancies appoi·ntment to them
shall be made from amongst the candidates on the approved list
H
CHANDRA PRAKASH TIWARI ,.. SHAKUNTALA SHUKLA [UMESH C. BANERJEE, J.] 955

prepared under para 'A' on the basis of suitability. The claims A
of the candidates passed over will be considered in the subsequent
selection. The selection will be made by the Departmental
Selection Committee and there will be no further interview of
the candidates for filling in the substantive vacancies.
(CJ Candidates selected for substantive appointment will be placed B
on two years probation in accordance with the provisions of para
403(3) of the Police Regulations. The period of service rendered
by them as Inspector of Police in a temporary or officiating
capacity will be counted towards the period of probation.
2. The above orders shall come into force with immediate effect. C

Yours faithfully,

Sd/- R.K. Dar,
Up Sachiv." D
It is needless, however, to record that selection of Inspectors in Uttar
Pradesh stands effected on the basis of merit arranged in order of seniority
and the Government Order dated 5.11.1965 being the backgrounder thereto.

Adverting at this juncture to U.P. Government Service (Criterion for
Recruitment by Promotion) Rules, 1994 made by the Governor of the State E
in exercise of powers conferred by the proviso to Article 309 of the
Constitution and published in the U.P. Gazette (Extraordinary) Part IV Section
(Ka) dated 10th October, 1994 vide Notification No. 13/34/19-Ka-l/1994
dated October I 0, 1994, it may be noticed that the same visualised the criterion
of the seniority 'subject t~ the rejection of unfit' for promotion to the posts F
in all services to be filled by promotion excepting the post of the Head of
Department, a post one rank below the post of Head of Department and a
post in any service carrying the pay scale, the maximum of which is Rs.
6,700 or above. Rule 4 of the Rules has some significance and the same reads
as under:
G
"4. Criterion for recruitment by promotion - Recruitment by Promotion
to the post of Head of Department, to a post just one rank below the
Head of Department and to a post in any service carrying the pay
scale, the maximum of which is Rs. 6700 or above, shall be made on
the basis of merit, and to rest of the posts in all services to be filled
by promotion including a post where promotion is made from a non- H
956 SUPREME COURT REPORTS (2002] 3 S.C.R.

A gazetted post to a gazetted post or from one service to another service,
shall be made on the basis of seniority subject to the rejection of the
unfit."

Dr. Rajiv Dhawan with his usual erudition and eloquece in support of
the appeals rested his submissions principally on two counts - the first being
B field being already occupied by a statutory rule or order and subsequent rule
though framed under Article 309 cannot but give into the special and specific
rule or order - it is under the first count, however, another incidental issue
was also high-lighted by Dr. Dhawan, to writ: applicability of the doctrine of
estoppel by conduct. Referring to the first count as above Dr. Dhawan drawing
C inspiration from the factual status submitted that in the light of the clarifications
of 1996 (pre-litigation) and 1998 (post-litigation) by the U.P. State
administration and by reason of the order of 1965 being framed under Section
2 of the Police Act, the applicability of the Rules framed under Article 309
in 1994 is a total non-issue. Before however adverting to the same, it would
be apposite to refer to Section 2 of the Police Act, 1861 which postulates for
D establishment and constitution of Police Force. Section 2 of the Act of 1861
(Police Act) reads as below :-

"(2). Constitution of the force - The entire police establishment
under a State Government shall, for purposes of this Act, be deemed
to be one police force, and shall be formally enrolled;· and shall,
E
consist of such number of officers and men, and shall be constituted
in such manner, as shall from time to time be ordered by the State
Government.

Subject to the provisions of this Act the pay and all other conditions
F of service of members of the subordinate ranks of any a police force
shall be such as may be determined by the State Government."

Incidentally, the Police Act, 1861 being an Act for regulation of police
has the following as its pream.ble : "Whereas it is expedient to re-organise the
police and to make it a more efficient instrument for the prevention and
G detection of crime". The Police Act of 1861, however, remaine~ and
maintained its effectiveness though a pre-constitutional Act by virtue of the
provisions contained in Article 372(1) of the Constitution notwithstanding
the repeal of the Indian Independence Act, 1947 and the Government of
India Act, 1935. It is in this context Article 372 may be of some significance
H as such relevant extracts thereof are set out hereinbelow :
CHANDRA PRAKASH TIWARI v. SHAKUNTALA SHUKLA IUMESH C. BANERJEE, J 1 957

"372. Continuance in force of existing laws and their adaptation - (I} A
Notwithstanding the repeal by this constitution of the enactments
referred to in Article 395 but subject to the other provisions of this
Constitution, all the law in force in the territory of India immediately
before the commencement of this Constitution shall continue in force
therein until altered or repealed or amended by a competent legislature B
or other competent authority.

"
At this stage, it would be convenient also to note transitional provisions
as engrafted in Article 3 I 3 of the Constitution. The said Article reads as
~~: c
"313. Traditional provisions - Until other provisions is made in this
behalf under this Constitution, all the laws in force immediately before
the commencement of this Constitution and applicable to any public
service or any post which continues to exist after the commencement
of this Constitution, as an all-India Service or as service or post under D
the Union or a State shall continue in force so far as consistent with
the provisions of this Constitution."

In this context, Section 46 and in particular sub-sections ·(2) and (3)
may also be noticed here being germane to the issue presently :
E
"(2) ............. the State Government may, from time to time, by
notification in the Official Gazette, make rules consistent with the
Act -

(a)
F
(b)

(c) generally for giving effect to the provisions of this Act.
...
(3) All rules made under this Act may from time to time, be amended
added to or cancelled by the State Government."
G
There are thus an administrative order said to have been issued under
the Police Act of 1861 and which stands clarified by issuing amendment
notes thereto and a subsequent General Rule framed under Article 309. We
shall presently deal with Article 309 but before so doing one redeeming
feature which comes up for consideration pertains to the issue as to whether
the rules framed under Article 309 impliedly repeal the earlier administrative H
958 SUPREME COURT REPORTS [2002] 3 S.C.R.

A order framed under a statute - needless to repeat that clarification of the
administrative order was effected as late as in the year 1998, depicting thereby,
of course, adaptation of the same by the State Government - it is on this
factual backdrop that the issue arises as to whether it would be justifiable
conclusion that since the rules stand framed under Article 309 in the year
1994 governing the service conditions in general, there has been a repeal by
B implication of certain administrative order framed under a special legislature?
It is on this context Broom's legal Maxim in reference to two Latin Maxims
stated as below : ,,_
"It is then, an elementary rule that an earlier Act must give place to
a later of the two cannot be reconciled lex posterior derogat priori -
c non et nonum ut priores leges ad posteriores trahantur (Emphasis
supplied) - and one Act may repeal another by express words or by
implication ; for it is enough if there be words which by necessary
implication repeal it. But a repeal by implication is never to be
favoured, and must not be imputed to the legislature without necessity,
D or strong reason, to be shown by the party imputing it. It is only
" effected where the provisions of the later enactment are so inconsistent
with, or repugnant to, those of the earlier that the two cannot stand
together; unless the two Acts ·are so plainly repugnant to each other
than effect cannot be given to both at the same time a repeal cannot
be implied; and special Acts are not repealed by general Acts unless
E there be some express reference to the previous legislation, or a
necessary inconsistency in the two Acts standing together, which
prevents the maxim generalia specialibus non derogant (Emphasis
supplied) from being applied. For where there are general words in
a later Act capable of reasonable application without being extended
F to subjects specially dealt with by earlier legislation, then, in .the
absence of an indication of a particular intention to that effect, the
presumption is that the general words were not intended to repeal the
earlier and special legislation, or to take away a particular privilege
of a particular class of persons."

G Let us, at this juncture, have a look at Article 309 of the Constitution
which provides as.under.

"309. Recruitment and conditions of service of persons serving the
Union of a State - Subject to the provisions of this Constitution, Acts
of the Appropriate Legislature may regulate the recruitment, and
H conditions of service of persons appointed, to, public services and
...
CHANDRA PRAKASH TIWARI v. Sl-IAKUNTALA SHUKLA fUMESl-1 C HANERJEE, .I.] 959

__ A posts in connection· with the affairs of the Union or of any State : A
Provided that it shall be competent for the President or such
person as he may direct in the case of services and posts in connection
with the affairs of the Union, and for the Governor of a State or such
person as he 1nay direct in the case of services and posts in connection
\Vith the affairs of the State, to 1nake rules regulating the recruit111ent, B
" and the conditions of the service of persons appointed, to such services

_, and posts until provision in that behalf is 1nade by or under an Act
of the appropriate Legislature under this article and any rules so
made shall have effect subject to the provisions of any such Act."

It is in this context as well the decision of this Court in A.B. Krishna c
(A.B. Krishna and Ors. v. State of Karnataka and Ors., [1998] 3 SCC 495
wherein this Court upon reference to Maxwells Interpretation of Statutes
(I Ith Edn. p. 168) as also oft cited decision pertaining to the maxim in Vera
Cruz (Seward v. Vera Cruz: (1884) I AC 59) States as below :

"9. It is no doubt true that the rule-making authority under Article
D
309 of the Constitution and Section 39 of the Act is the same, namely,
"' the Government (to be precise, the Governor, under Article 309 and
the Government under Section 39), but the two jurisdictions are
different. As has been seen above, power under Article 309 cannot be
exercised by the Governor, if the legislature has already made a law E
and the field is occupied. In that situation, rules can be made under
the law so made by the legislature and not under Article 309. It has
also to be noticed that rules made in exercise of the rule-making
power given under an Act constitute delegated or subordinate
legislation, but the rules under Article 309 cannot be treated to fall
',(
in that category and, therefore, on the principle "occupied field", the
F
rules under Article 309 cannot supersede the rules made by the
legislature.

I 0. So far as the question of implied suppression of the rules made
under Section 39 of the Act by the General Recruitment Rules as G
amended in 1977, is concerned, it may be pointed out that the basic
principle, as set out in Maxwell's Interpretation of Statutes (11th
Edn. p. 168) is that :
--" .....
"A general later law does not abrogate an earlier special one by mere
i1nplication. Generalia specialibus non derogant, or, in other words, H
960 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 'where there are general words in a later Act capable of reasonable
and seosible application without extending them to subjects specially
dealt with by e?rlier legislation, you are 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
B cases in view, and not particular cases which have been already L

otherwise provided by the Special Act."

11. This principle was reiterated in Vera Cruz case (Seward v'. Vera '(__.
Cruz, ( 1884) I 0 AC 59 as under :

c "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 that... ... earlier and special legislation
is not to be held indirectly repealed, altered or derogated from merely
by force, of such general words, without any indication of a particular
intention to do so."
D
12. Vera Cruz case (supra) was followed in Eileen Louise Nicolle v.
John Winter Nicolle ( 1992) I AC 284 as under:

"It is no doubt a sound principle of all jurisprudence that a prior
particular law is not easily to be held to be abrogated by a posterior
E law, expressed in general terms and by the apparent generality of its
lanljuage applicable to and covering a number of cases of which the
parficular law is but one."

13. To the above effect, is also the decision of this Court in Maharaja
Pratap Singh Bahadur v. Thakur Manmohan Dey, AIR ( 1966) SC
F (1931), in which it was indicated that an earlier special law cannot be
held to have been abrogated by mere implication. That being so, the
argument regarding implied supersession has to be rejected for both
the reasons set out above."

The issue at this stage thus arises as to the true effect of the Government
G Order of 1965-is it a mere circular without any effect and succumb to rules
under Article 309?: A further question may also arise in this context, namely,
whether a post-independence Government Order having statutory back-up
under Police Act which stands amended or modified upto the year 1998
stands to lose its efficacy by reason of rule under Article 309 of 1994?
H Whereas the Government Order though under a statute and especially
CllJ\NDRA PRAKl\Sll TJWARI v. SHAKUNTALA 'SHUKLA [UMESH C. 131\NERJEE, J.] 96]

e111powered to fran1e Rules and ad1ninistrative orders. \vas issued under the A
executive power of the State, the rules have been framed by the selfsam~
Government by reason of the power conferred under Article 309-agency is
the same: author is the same-why was it necessary if the same is to give
way to the rules of 1994 to have a clarification issued in 1998. It is on this
score that Dr. Dhawan have been very vocal and criticised the judgment as B
an «inexplic(lble contradiction". Truly a strong criticis111, but \.Ve, however 1
find so1ne justification therein.

Contra is the sub1nission of Mr. Misra appearing for the respondents
herein. It has been contended that the Government Order dated 5th November,
1965 being in the nature of executive instructions stood obliterated after C
10.10.1994 (date of notification of the Rules framed under Article 309) since
the executive order is subordinate to that of the Legislature and as such the
Government Order dated I 0.10.1994 would prevail for governing the terms
and conditions of services of subordinate ranks of the police force. Mr. Misra
contended that admittedly the members of the subordinate ranks of the police
force come under the purview of the rule making power of the Governor D
under Article 309 and their service conditions other than those specified in
Section 7 of the Act can be regulated by the Rules made under. the proviso
to Article 309. It is with strong emphasis that Mr. Misra contended that order
of 5th November, 1965 falls sho1t of becoming statutory order as it is not a

- Rule made under Section 46(2) of the Police Act, 1861 and Section 2
recognises only the executive power of the State. Non-publication in the
E

Official Gazette has been stated to be a redeeming feature since the same
stands out to be a primary requirement of Section 46(2) of the Police Act.

[t is in this context, strong reliance has been placed on the decision of
Dayanandalal (K. Dayananda/a/ and Ors. v. State of Kera/a and Ors .. [ 1996]
9 SCC 728, wherein this Court in paragraphs 8,9 and 10 stated as below:
F

"8. Shri P.S. Poti, the learned Senior Counsel appearing in support of
the appeals, has, in the first place, urged that the State and Subordinate
Services Rules are not applicable to the members of the police force
in Kerala. The learned counsel has pointed out that initially in the G
Kerala Civil Services (Classification, Control and Appeal) Rules, 1957
(hereinafter referred to as "the 1957 Rules"), Kerala Police Service
was included in Schedule I and Kerala Police Subordinate Service
was included in Schedule II, and the said Rules were applicable to the
Kerala Police Service and the Kerala Police Subordinate Service.
Subsequently, by notification dated 26.5.1958, the 1957 Rules were H
962 SUPREME COURT REPORTS [2002] 3 S.C.R.

A amended and Kerala Police Service was deleted from Schedule I and
~--
the Kerala Police Subordinate Service was deleted from Schedule II.
The submission was that since the members of the Kerala Police
Subordinate Service were no longer governed by the 1957 Rules, the
members of the said service were also not governed by the State and
Subordinate Services Rules which were made on 17.12.1958, after
B the aforementioned notification dated 26.5.1958. We do not find any
merit in this contention. Merely because the Kerala Police Subordinate
Service had been excluded froin the ambit of the 1957 Rules by
notification dated 26.5.1958, it cannot be said that the State and
Subordinate Services Rules, which are independent rules made vide
C notification dated 17.12.1958, are not applicable to the members of
the Kerala Police Subordinate Service. The question of applicability
of the State and Subordinate Services Rules to the Kerala Police
Subordinate Service has to be determined on the basis of the provisions
contained in the State and Subordinate Services Rules, and not on the
basis of the 1957 Rules. We find that the provision with regard to the
D applicability of the State and Subordinate Services Rules is contained
in Rule 1 of the General Rules contained in Part II of the State and
Subordinate Services Rules which reads as under:

"I. Scope of the General Rules-These rules in this part shall
E apply to all State and subordinate services and the holders of all
posts, whether temporary of permanent in any such service, appointed
thereto before, or after the date on which these rule come into force
-
as provided in sub-rule (b) of Rule I in Part I except to the extent
otherwise expressly provided (a) by or under any law for the time
being in force, or (b) in respect of any member of such service by a
F contract or agreement subsisting between such member and the State
Government."

9. The language of the said Rule is wide and comprehensive enough
to include all State and Subordinate Ser.vices and all posts whether
temporary of permanent except to the extent otherwise expressly
G provided by or under any law for the time being in force or in respect
of any member of such service by contract or agreement subsisting
between such member and the State Government. Shri Poti has not
been able to show any law or statutory rule whereby the members of
the Kerala Police Subordinate Service have been excluded from the
H ambit of the State and Subordinate Service Rules. We are, therefore,
CHANDRA PRAKASH T!WARI" SHAKUNTALA SHUKLA [IIMESH C. BANERJEE, J] 963

of the view that members of the Kerala Police subordinate Service A
- _,I. are governed by the State and Subordinate Services Rules.

JO. Shri Poli has next submitted that even if the State and Subordinate
Services Rules we'e held to be applicable to the members of the
Kerala Police Subordinate Service, the said Rules have no application
in the matter of promotion of Constables as Head Constables in view B
of rules issued under order dated 17.5.1963. The submission is that
the said Rules are rules made under Section 69 of the Act. This
contention of Shri Poti cannot be accepted for the reason that Section
69 of the Act requires that the rules should be notified in the Gazette
and it has not been shown that the order dated 17 .5.1963 was published C
in the Gazette. Shri Poti has invited our attention to certain circulars
making amendments in the rules issued under order dated 17.5.1963
which were published in the Kerala Police Gazette". The submission
is that the publication of these circulars in the Kerala Police Gazette
indicates that the rules issued under order dated 17.5.1963 were in
the nature of statutory rules made under Section 69 of the Act. We D
are unable to accept this contention. The Kerala Police Gazette is a
publication of the Office of Inspector General of Police issued for
departmental use only. It contains various circulars and standing orders
issued by the State Government as well as the circulars issued by the

-
Inspector General of Police and other useful information or the
members of the police force. The said Kerala Police Gazette cannot E
be equated with the State Gazette published under the authority of the
State Government. The requirement in Section 69 of the Act regarding
the rules being notified in the Gazette postulates publication of the
rules in the Kerala State Gazette, and publication in the Kerala Police
Gazette (which too is not established) would not be a substitute for F
the requirement of Section 69 regarding publication in the State
Gazette. In our opinion, therefore, the rules issued under order dated
17.5.1963 cannot be held to be rules made under Section 69 of the
Act and the order dated 17.5.1963 must be treated as an executive
order only. Since the provisions contained in Rule IO(ii) of the Rules
contained in the said order are in conflict with the provisions mentioned G
in Rules 28 (b) (IO) and 28(bb) of the State and Subordinate Services
Rules, the said provisions in Rule JO(ii) could not be applied and
promotion of Constables as head Constables could be made only in
accordance with Rules 28(b) (JO) and 28(bb) of the State and
Subordinate Services Rules. We therefore, do not find any infirmity H
~-
964 SUPREME COURT REPORTS [2002) 3 S.C.R.

A in the impugned judgments of the High Court and the appeals are
liable to be dismissed". -~-
Some reliance has also been placed on the decision of this Court Shish
Ram and Ors. v. State of H.P. and Ors., (i 996] I 0 SCC 166, wherein th is
Court in paragraph 5 observed as under:
B
"5. Having given our anxious consideration to the respective t...
contentions, we think that the case of the appellants is founded on a
sounder footing than that of the respondents. It is true that the
respondents were drawing higher pay scale than that of the appellants
at the initial stage. But, let, when the statutory rules came to be made,
c there was jump in the scale of pay of the appellants from Rs. 160-400
to 225-500 while the case of pay of the respondents remained stagnant
at Rs. 160-400 (sic 450). Even in the subsequent revision in the
ministerial cadre, the appellants' scale of pay was higher than that of
the respondents. They were treated as two separate entities as indicated
D earlier. When the statutory rules came to be made increasing their
scale of pay and making them eligible for promotion directly to the
post of gazetted cadre Class II from Assistants. Head Accountants,
Stenographers etc. to a pay scale of Rs. 500-900, it would be obvious
that the executive instructions issued earlier had to yield place to the
statutory rules made under provisio to Article 309. It is equally true
E that in the subsequent rules made on 13 .6.1978 under proviso· to
Article 309 of the Constitution fusing Accountants and Head Clerks
as eligible for promotion to the post of superintendent, it would be
obvious that in view of the fact that higher scale of pay was given to
the Assistants, Head Clerks in the scale of pay of Rs. 620-1200 while
that of the respondents remained to be Rs. 570-1080, by necessary
F
implication they cannot be treated to be of the same class for the
purpose of enabling them to seek promotion to the post of Gazetted
Class II. Moreover, the statutory rues do not include Accountants as
a feeder post for promotion as Gazetted Class II. Considered from
these perspectives, we are of the view that the Tribunal was in clear
G error in directing the Government to consider Respondents 3 and 4
as senior to the appellants and in giving promotion over the appellants."

The Decision in Shish Ram (supra) in our view, however, not lend any
support to the contentions, more, so by reason of the fact that the statutory
rules which stand engrafted later" came to be made increasing their scale of
H pay and making them eligible for promotion directly to the post of Gazetted
CHANDRA PRAKASll TIWARI \'. SHAKUNTAl.1\ SHUKLA [UMESH C. BANERJEE. J.] 965

cadre Class II from Assistants. Head Accountants. Stenographers etc. to a A
pay scale of Rs. 500-900." It is on this factual background the Court gave its
opinion that earlier executive instructions containing a different pay scale
had to yield place to the statutory rules made under the proviso to Article
309. Confem1ent of higher pay thus was the consideration for arriving at the
conclusion in supersession of the executive instructions.
B
J
As regards the decision in Dayanandalal (supra), this Court dismissed
the appeals on the ground that the provisions contained in Rule I 0(2) of the
Rules contained in the order are in conflict with the provisions n1entioned in
Rule 28(b) (10) and 28(bb) of the State and subordinate Service Rules and
it is by reason of such conflict that this court came to the conclusion that the C
Kerala Civil Services (Classification, Control and Appeal) Rules, 1957 ought
to prevail over Kerala Police subordinate Services Rules 1957.

It is at this juncture, some provisions of the Police Act ought also to
be noticed for ascertainment of its proper scope and effect. Section 2 of the
Act reads as below:- D
"2. Co11stit11tion of the Force- The entire police establishment under
- A
a State Government shall, for the purposes of this Act, be deemed to
be one police force, and shall be formally enrolled; and shall, consist

- of such number of officers and men, and shall be constituted in such
manner, as shall from time to time be. ordered by the State Government.

Subject to the provisions of this Act the pay and all other conditions
of service of members of the subordinate rank of an police force shall
E

be such as may be determined by the State Government."

;( On a scrutiny oP the language, it appears that the proviso is of widest
F
possible amplitude, Section 7 of the Police Act is of some consequence and

. relevance and it thus noted hereinbelow:

"7. Appointment, dismissal etc., of inferior officer-Subject to the
provisions of Article 311 of the Constitution and to such rules as the G
State Government may from time to time make under this Act, the
Inspectors-General, Deputy Inspectors-General, Assistant Inspectors-
General and District Superintendents of Police 1nay at any tilne dis1niss,
suspend or reduce any police officer of the subordinate ranks whom
they shall think remiss or negligent in the discharge of his duty or
unfi! for the same; H

' '
966 SUPREME COURT REPORTS [2002) 3 S.C.R.

A or may award any one or more of the following punishments to
any police officer of the subordinate ranks who shall discharge his
duty in a careless or negligent manner, or who by any act of his own
shall render himself unfit for the discharge thereof, namely:-

(a) fine to any amount not exceeding one month's pay;
B
(b) confinement to quarters for term not exceeding fifteen days, with L

or without punishment-drill, guard, fatigue or other duty;

(c) deprivation of good conduct pay; ,_

c (d) removal from any office of distinction or special emolument." -
The opening words "subject to the provisions of Article 311 of the
Constitution and to such rules as the State Government may from time to
time make under this Act" is not only relevant but is of utmost importance.
It is true that the Section is restrictive in nature but under the same heading
D itself gives guidance that the same includes appointments as well and the
Rules spoken of is to be under the Police Act only. Section 12 of the Act
needs also mention at this juncture which reads as below:-

"12. Power of Inspector-Genera/ to make rules:- The Inspector-General
;.._ -
of Police may, from time to time subject to the approval of the State
Government frame such orders and rules as he shall deem expedient
E
relative to the organisation, classification and distribution of the police-
force, the place at which the members of the force shall reside, and
the particular services to be performed by them; their inspection the
description of arms, accountrements and the other necessaries to be
furnished to them; the collecting and communicating by them of
F intelligence and information and all such other ~rders and rules relative ~-

to the police-force as the Inspector-General shall, from time to time,
' --
deem expedient for preventing abuse or neglect of duty, and for
rendering such force efficient in the discharge of its duties." ....
The aforesaid provision of Section 12 thus authorises the Inspector
G .General of Police to make Rules obviously under the Act and in the nature·
of administrative instructions. As a matter of fact a perusal of the provisions
of the Act, in particular that of Section 46, makes it abundantly clear that the
Statute (the Police Act) ought to be treated as a complete Code by itself-
There is thus a special statute concerning the Police Force and within its fold
H include the appointment, dismissal, placement and all other steps required to
}-

,
CHANDRA PRAKASH TIWARI' SHAKUNTALA SHUKLA [UMESH C. BANERJEE, J.] 967

re-organise the Police and 1nake it more efficient instrument for the prevention A
and detection of crime. Administrative instruction have admittedly been•in
use since the beginning of the formation of separate cadre of Police in Uttar
Pradesh. Let us, however, at this juncture refer to certain office orders so as
to reflect the intention of the Government in the matter of imple1nentation of
the Government Order dated 5.11.1965.
B
It is in this context reference may be made to Memorandum dated 21st
September, 1996 issued from the Special Secretary, Home, U.P. Administration
and addressed to the Deputy Inspector General of Police (Personnel), U.P.
Police Headquarters, Allahabad, wherein it has been specifically recorded as
under:
c
"In this connection I am directed to state that since the Police
Department has been formed and established under Section 2 of the
Police Act, 1861 and the Police Act is effective at present under
Articles 313/372(1) of the constitution, hence the Seniority Rules
1991 framed under the provision to Article 309 of the Constitution D
shall not apply to the Police personneL"

Incidentally, be it noted that the aforesaid came as a reply as regards
the inquiry for applicability of the Service Rules of 1994 to the Police
personnel.
E
Subsequently, on 13th April, 1998, the Secretary, Home (Police) Section,
UP Admn. in consultation with the Personnel Department intimated all
concerned the following:-

"2. In the matter in questio_n this situation has become clear in
consultation with the personnel department and after full consideration F
that since the rules of service of personnel in the police department
have been framed under the Police Act, hence the rules framed by the
personnel department under Article 309 of the Constitution are not
applicable to them."

There is yet another communication on 26th April, 1999 from the Home G
Police Section of U.P. Administration to the Deputy Inspector General of
Police, UP Police Headquarters, Allahabad stating therein that there is a
provision in Section 2 of the Police Act, 1861 that subject to the provisions
of the Act, the State Government shall stipulate the pay and all the conditions
of service of members of the subordinate rank of any Police Force and if the H
968 SUPREME COURT REPORTS [2002] 3 S.C.R.

A same is read with Section 46(2), the State Government stands vested with the
power to frame Rules and it has been the definite instructions/guidelines that
the State Government can thus prescribe the conditions of service of its
servants either by executive orders or by the rules. The communication dated
26th April, 1999 further contained as below:

B "In this case the procedure for promotion had been prescribed by the
Government order dated 5.11.1965, in which amendments were also
made by G.Os. The power to pass this Government Order has been
provided for in Section 2. For the exercise of this authority it has not
been mentioned at any place in Section 2 for getting the Governmental
c orders published in the gazette.

When the State Government frames any rule under Section 46(2)
then the publication thereof in the gazette is expected.

When the publication of the Governmental order issued under Section
2 in the gazette has not been expected of then any justification does
D not exist for getting it published in the gazette with retrospective
effect."

The aforesaid thus depicts the understanding of the Home Department
under the Ministry of Home Affairs (a Wing of the Government) and on the
wake of the understanding as above and acting thereon would mean and
E imply that while the State Legislature passed the Act of 1994 but by reason
of the provisions of a special statute, namely, the Police Act, read with the
authorisation contained therein to frame Rules by way of executive orders,
the Government of Uttar Pradesh obviously did not in fact intend to apply the
general law to all and sundry.
F
Significantly, on a brief reference to factual matrix interviews were
held under 1965 Order which had participants participating without demur or
protest and the judgment impugned itself records that as regards the interviews
there has been no ma/a fides neither any bias nor any favouritism. Even the-
50% marks earmarked for interview stands accepted by the impugned
G judgment. The principal ground of challenge thus against the judgment
impugned is that the Regulation of 1994 was applied by the High Court and
the other ancillary reason being that clubbing was not permissible. It is at this
juncture the conduct in the matter of participation in the selection process
without demur ought to be noticed, as strongly propagated by Dr. Dhawan,
H which in turn brings into a discussion of estoppel by conduct.
CHANDRA PRAKASH TIWARI ,. SHAKUNTALA SHUKLA [UMESH C. BANERJEE, J.] 969

This Court in Tata Iron and Steel Co. Lid. v. Union of India and Ors., A
[200 I] 2 SCC 41 dealt with the issue of estoppel by conduct rather exhaustively
and one of us (Banerjee, J) ·in paragraphs 20 and 21 stated the law pertaining
thereto as below:-

"20. Estoppel by conduct in modern times stands elucidated with the
decisions of the English Cornt in Pickard v. Sears (I 837:6Ad. & B
E1.469) and its gradual elaboration until placement of its true principles
'>y the Privy Council in the case of Sarai Chunder Dey v. Gopal
Chunder laha, {1891-92) 19 l.A.203) whereas earlier Lord Esher in
the case of Seton, laing Co. v. Lafone, (1887: 19QBD 68 evolved
three basic elements of the doctrine of Estoppel to wit:
c
"Firstly, where a man makes a fraudulent misrepresentation and
another man acts upon it to its true detriment: Secondly, another may
be where a man makes a false statement negligently though without
fraud and another person acts upon it: And thirdly, there may be
circumstances under which, where a misrepresentation is made without D
fraud and without negligence, there may be an estoppel."

Lord Shand, however, was pleased to add one further element to
the effect that there may be statements made, which have induced
other party to do that from which oiherwise he would have abstained
and which cannot properly be characterised as misrepresentation. In E
this context, reference may be made to the decisions of the High
Court of Australia in the case of Craine v. Colonial Mutual Fire
Insurance Co. lid. ( 1920: 28 C.L.R. 305) Dixon, J. in his judgmenl
in Grund!. v. Great Boulder Gold Mines Pvt. Ltd., {1939: 59 C.L.R.
64 l) stated that:
F
"In measuring the detriment, or de1nonstrating its existence, one
does not compare the position of the representee, before and after
acting upon the representation, upon the assumption that the
representation is to be regarded as true, the question of estoppel does
not arise. ft is only when the representor wished to disavow the G
assumption contained in his representation that an estoppel arises,

-
and the question of detriment is considered, accordingly, in the light
of the position which the representee would be in if the representor
were allowed to disavow the truth of the representation."
.. {In this context see Spencer Bower and Turner: Estoppel by H
--l
970 SUPREME COURT REPORTS [2002] 3 S.C.R.

A Representation 3rd Edn.) Lord Denning also in the case of Central
Newbwy Car Auctions ltd. v. Unity Finance Ltd., (1956) 3 All ER
905) appears to have subscribed to the view of Lord Dixon, J.
pertaining to the test of detriment' to the effect as to whether it appears
unjust or unequitable that the representator should now be allowed to
resile from his representation, having regard to what the representee
B has done or refrained from doing in reliance on the representation, in
short, the party asserting the estoppel, must have been induced to act
to his detriment. So long as the assumption is adhered to, the party
who altered the situation upon the faith of it cannot complain. His ·
complaint is that when afterward the other party makes a different
c state of affairs, the basis of an assertion of right against him then, if
it is allowed, his own original change of position will operate as a
detriment. [vide Grundts: High Court of Australia (1939 (59)CLR
641)]

21. Phipson on Evidence (Fourteenth Edn.) has the following to
D state as regards estoppels by conduct.

"Estoppels by conduct, or, as they are still sometimes called,
estoppels by matter in pais, were anciently act of notoriety not less
solemn and formal than the execution of a deed, such as livery of
seisin, entry, acceptance of an estate and the like; and whether a party
E had or had not concurred in an act of this sort was deemed a matter
which there could be no difficulty in ascertaining, and then the legal
consequences followed. [Lyon v. Reed, (1844) !3M & W.285, 309]
The doctrine has however, in modern times, been extended so as to
embrance practically any act or statement by a party which it would
be unconscionable to permit him to deny. The rule has been
F
authoritatively stated as follows: "Where one by his words or conduct
willfully causes another to believe the existence of a certain state of
things and induces him to act on that belief so as to alter his own
previous position, the former is concluded from averring against the
later a different state of things as existing at the same time." [Pickard
G v. Sears (1837) 6Ad. & E 1. 469, 474] And whatever a man's real
intention may be, he is deemed to act willfully "if he so conducts
himself that a reasonable man would take the representation to be
true and believe that it was meant that he should act upon it. (Freeman
v. Cooke: 1848 (2) Exch. 654, 663).

H Where the conduct is negligent or consists wholly of omission,
)-

CllANDRA PRAKASH TIWARI v_ Sl-IAKUNTALA SHUKLA [UMESl-1 C BANERJEE, lJ 971

there must be a duty to the person misled. Mercantile Bank v. Central A
Bank ( 1938) AC 287, 304 and National Westminster Bank v. Barclays
Bank international, (1975 Q.B. 654) This principle sits oddly with
the rest of the law of estoppel, but it appears to have been reaffirmed,
at least by implication, by the House of Lords comparatively recently.
Moorgate Mercantile Co. ltd. v. Twitching.>, (1977) AC 890 (H.L.)] B
The explanation is no doubt that this aspect of estoppcl is properly to
be considered a part of the law relating to negligent representations,
rather than estoppel properly so-called. If two people with the same
source of infonnation assert the sa1ne truth or agree to assert the same
falsehood at the sa1ne ti1ne, neither can be estopped as against the
other fro111 asserting differently at another ti1ne. [Square v. Square C
( 1935) P.120]"

In conclusion, this Court recorded that the issue of estoppel by conduct
can only be said to be available in the event of there being a precise and
unambiguous representation and it is on that score a further question arises
as to whether there was any unequivocal assurance prompting the assured to D
alter his position or status - the situation, however, presently does not warrant
such a conclusion and we are thus not in a position to lend concurrence to
the contention of Dr. Dhawan pertaining the doctrine of Estoppel by conduct.
It is to be noticed at this juncture that while the doctrine of estoppel by
conduct may not have any application but that does not bar a contention as E
regards the right to challenge an appoint1nent upon due participation at the
interviev~1 /selection. It is a re1nedy which stands barred and it is in this
perspective in Orn Parkash Shukla (Om Prakash Shukla v. Akhilesh Kumar
Shukla and Ors., (1986] Supp. SCC 285) a Three Judge Bench of this Court
laid down in no uncertain terms that when a candidate appears at the
;f examination without protest and subsequently found to be not successful in F
the exa1nination, question of entertaining a Petition challenging the said
exa1nination would not arise.

Subsequently, the decision in Orn Prakash stands followed by a later
decision of this Court in Madan la/ and Ors. v. State of J &Kand Ors..
[1995] 3 sec 486, wherein this Court stated as below: G
"9 Before dealing \vith this contention, we 1nust keep in view the
salient fact that the petitioners as well as the contesting successful
candidates being respondents concerned herein, were all found ellg\b\e
in the light of n1arks obtained in the written test, to be eligible to be
called for oral interview. Up to this stage there is no dispute between H
972 SUPREME COURT REPORTS [2002] 3 S.C.R.

A the parties. The petitioners also appeared at the oral interview
conducted by the Members concerned of the Commission who
interviewed the petitioners as well as the contesting respondents
concerned. Thus the petitioners took a chance to get themselves
selected at the said oral interview. Only because they did not find
themselves seiected to have emerged successful as a result of their
B combined performance both at written test and oral interview, they
have filed this petition. It is now well settled that if a candidate takes
a calculated chance and appears at the interview. then, only because
the result of the. interview is not palatable to him, he cannot turn
round and subsequently <:;ontend that the process of interview was
c unfair or the Selection Committee was not properly constituted. In
the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, [ 1986]
Supp SCC 285 it has been clearly laid down by a Bench of three.
learned Judges of this Court that when the petitioner appeared at the
examination without protest and when he found that he would not
succeed in examination he filed a petition challenging the said
D examination, the High Court should not have granted any relief to
such petitioner.

I 0. Therefore, the result of the interview test on merits cannot be
successfully challenged by a candidate who takes a chance to get
selected at the said interview and who ultimately finds himself to be
E unsuccessful. It is., also to be kept in view that in this petition we
cannot sit as a court of appeal and try to reassess the relative merits
of the candidates concerned who had been assessed at the oral
interview nor can the petitioners successfully urge before us that they
were given less marks though their performance was better. It is for
F the Interview Committee which amongst others consisted of a sitting
High Court Judge to judge the relative merits of the candidates who
were orally interviewed, in the light of the guidelines laid down by
the relevant rules governing such interviews. Therefore, the assessment
on merits as made by such an expert committee cannot be brought in
chaflenge only on the ground that the assessment was not proper or
G justified as that would be the function of an appellate body and we
are certainly not acting as a court of appeal over the assessment made
by such ~n expert committee."

There is thus no doubt that while question of any estoppel by conduct
would not arise in the contextual facts but the law seem to be well settled that
H
CHANDRA PRAKASH TIWARI 1·. SHAKUNTALJ\ SllUKLA [UMESH C. RANERJEE. J.J 973

in the event a candidate appears at the interview and participates therein, only A
because the result of the interview is not 'palatable' to him, he cannot turn
round and subsequently contend that the process of interview was unfair or
there was some lacuna in the process.

In that view of the matter, while we are not in a position to record .our
concurrence with the applicability of the doctrine of estoppel by conduct but B
by reason of the decisions as cited from the Bar, we do feel it required to lend
our concurrence to the sub1nissions of Dr. Dhawan, on that score as noticed
above.

On a conspectus of the whole issue, it is thus difficult to comprehend
that the General Rule framed under Article 309 should or would also govern C
the existing special rules concerning the police rules. Admittedly, the guidelines
as contained in the Government Order dated 5.11.1965 have been under and
in terms of the provisions of the Police Act. There is special conferment of
power for framing of Rules dealt with more fully hereinbefore, which would
prevail over any other Rule. Since no other rule stands formulated and the D
Government Order of 1965 being taken as the existing rule pertaining to the
A- subject matter presently under consideration with recent guide-lines as noted
above, its applicability cannot be doubted. Unless the General Rule specifically
repeal the effectiveness of the special rules, question of the latter rule becoming
ineffective or inoperative would not arise. In order to be effective, an express
mention is required rather an imaginary repeal. It is now a well settled principle E
of law for which no relation is further required that law Courts rather loath
repeal by implication. The General Rule framed under Article 309 has been
for all State Government officials on and since 1994. List II (State List) of
the 7th Schedule specia11y refers to the powers of the State Legislature to
_-( frame Rules specially for the Police. In this context Item 2 thereof would be p
significant which reads as follows:

"List II-State List"

"2 Police (including railway and village police) subject to the
provisions of entry 2A of List I." G
Police force ad1nittedly has a special significance in the administration
of the State and the intent of the fra1ners of our Constitution to en1power the
")' -i' State Govern111ent to make rules therefor has its due significance rather than
being governed under a general ominbus rule framed under the provisions
under A1ticle 309. When there is a specific provision un Jess there is a specific H
974 SUPREME COURT REPORTS [2002) 3 S.C.R.

A repeal of the existing law, question of an implied repeal would not arise. In
any event, the General Rules are only prospective in nature and as such could .J..... -..
not have affected the selection process which commenced in the year 1993
and it is on this score the parties advanced quite a lengthy submissions but
~

in our view question of further consideration thereof would not arise by
reason of the commencement of the selection process in 1993.
. B
Incidentally, the Legislative intent has to be as~ssed in its proper
perspective and from the word used therein. In this context the inter-ministerial
correspondence as noticed above and the understanding apropos the ~-
Government Order stands clear enough to indicate that while General Rules
c framed in the year 1994 are for general government servants, the Police force
are to be guided by the provisions of the Police Act and no exception can be
taken thereto.

Two other short issues remain for consideration; one pertaining to the
clubbing and the other is in regard to non-publication in the Official Gazette.
D Gazette publication is required in terms of Section 46(2) and as such until the
Rule specifically required_'to be framed under Section 46(2), the mandatory
nature of the same cannot be stated to be a requirement. In any event, it is ...
hypertechnical in nature since the parties who were well aware of the 965
Order, participated at the interview and knew the contents. As such no further ._
detail need be had on this score and we record our concurrence with the
E submissions advanced by Dr. Dhawan.

As regards the issue of selections and clubbing, while in the normal
circumstances the same ought to be adhered to but in the event of there being c-

no such assessment or selection, it would not render the subsequent selection
void. In Yipinchandra Hiralal Shah Union of India and Ors. v. Vipinchandra
F 'l~
Hiraial Shah, [ 1996] 6 SCC 721, this Court upon reliance on to the decision
in Syed Khalid Rizvi v. Union of India, [I 993] Supp. 3 SCC 575 in paragraph
11 stated as below:

"11. It must, therefore, be held that in view of the provisions contained
G in Regulation 5, unless there is a good reason for not doing so, the
Selection Committee is required to meet every year for the purpose
of making the selection from amongst the State Civil Service Officers
who fulfil the conditions regarding eligibility on the first day of January
of the year in which the Committee meets and fall within the zone of
consideration as prescribed in clause (2) of Regulation 5. The failure
-; ....
H on the part of the Selection Committee to meet during a particular
CHANDRA PRAKASH Tl\VARI ,,_ SHAKUNTALA SHUKLA (UMESH C. BANERJEE, l\ 975

-- .JJ... year would not dispense with the requiren1ent of preparing the Select A
List for that year. If for any reason the Selection Committee is not
able to meet during a particular year, the Committee when it meets
next, should, while making the selection, prepare a separate list for
each year keeping in view the ntunber of vacancies in that year after
considering the State Civil Service Officers who were eligible and B
fell within the zone of consideration for selection in that year."

It cannot thus be treated to be void but any irregularity which is of
curab-le nature and can be cured. Dr. Dhawan 1nade so1ne com1nents as regards
the situation in Uttar Pradesh in support of not having annual selections and
thus clubbing. We are not, however, inclined to dilate thereon neither any C
credence can be put thereto by reason of our views expressed above. Clubbing
in a later year may not be treated as fatal but as noticed earlier, curable, more
so having regard to the fact that initiation of a selection process throughout
the State would further take a considerable period of time and the Court's
attitude presently being pragmatic and justice oriented should do away with
techincalities ought not to out-weigh the course of justice. D
In that view of the matter, the order impugned cannot be sustained. The
judgment of the learned Single Judge as also that of the Division Bench stand
set aside._ The appeals thus stand allowed. No costs.

N.J. Appeals allowed. E