Compilation Vol 3 Corrected (1-943).pmd - Goa Public Service ...

(4) Whether the Note found in the Schedule to the 2007 Rules prescribing minimum marks in
Kannada and English papers for qualifying to appear for the Personality Test is ultra vires
or contrary to Rules 7 and 8 of the 2007 Rules ?
(5) Whether the Government Order dated 13.2.2001 bringing the General Merit (Rural
Category) under creamy layer concept and prescribing Form-I is illegal ?
(6) Whether the Applicants are not estopped from challenging the Notifications having applied
in pursuance of the Notifications and the 2007 Rules and having participated in the selection
process ?
18. As already stated, the decision in Applications classified as Parts IV and V will depend upon
the decision on questions (1) to (6) raised above in Applications in Parts I, II and III.
CONSIDERATION OF QUESTIONS:
Karnataka PSC
19. Before considering the questions, it is worthwhile to refer to what the former Chief Justice of
India Mr. Justice E.S.Venkataramaiah (as he then was) speaking for the Bench said as long back as
1988 in the case reported in AIR 1988 SC 1060 - HAMEEDIA HARDWARE STORES v.
B.MOHAL LAL SOWCAR regarding construction of a provision:
“It is no doubt true that the Court while construing a provision should not easily read into
it words which have not been expressly enacted but having regard to the context in which
a provision appears and the object of the statute in which the said provision is enacted the
Court should construe it in a harmonious way to make it meaningful. In SEAFORD
COURT ESTATES LTD. v. ASHER (1949) 2 All.ER 155 at p.164, Lord Denning. L.J.
said thus:
‘When a defect appears, a Judge cannot simply fold his hands and blame the draftsman.
He must set to work on the constructive task of finding the intention of Parliament … and
then he must supplement the written word so as to give ‘force and life’ to the intention of
the Legislature…. A Judge should ask himself the question how, if the makers of the Act
had themselves come across this ruck in the texture of it, they should have straightened it
out? He must then do as they would have done. A Judge must not alter the material on
which the Act is woven but he can and should iron out the creases.’
19.1QUESTION NO.1 : Whether the 2007 Rules are bad for the reason that they do not prescribe
the minimum service or experience for in-service candidates ?. It is a well settled law that prescription
of qualification is within the exclusive domain of the Executive. The Supreme Court has consistently
taken this view. Even as recently as 29.7.2008, this is what has been held by the Supreme Court in the
case of UNION OF INDIA v. PUSHPA RANI, reported in 2008 AIR SCW 6564:
559