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Ram Gopal Shah vs The State Of Madhya Pradesh on 18 July, 2018

The High Court Of Madhya Pradesh

W.P.No. 13411 / 2018
[RAM GOPAL SHAH ANOTHER Vs. THE STATE OF MADHYA PRADESH ORS]

Jabalpur, Dated : 18.07.2018.

Mr. V.P. Shah, Advocate for the petitioners.
Mr. Amit Seth, Government Advocate for the respondents/State.

The petitioners are Patwaris and are seeking appointment to the post of Naib

Tehsildar, for which advertisement was issued on 4.6.2018. Such post has to be

filled up by Limited Departmental Competitive Examination.

Petitioner No.1 was born on 2.7.1974 and he got married on 22.5.1990,

when he was 15 years 10 months and 21 days old. Petitioner No.2 was born on

20.6.1977 and he got married on 6.6.1996, when he was 18 years 11 months and

18 days old. The condition of eligibility in the advertisement is that a candidate

should not have solemnized marriage before the minimum age of marriage in terms

of Rule 5 of the Madhya Pradesh Civil Services (General Conditions of Service)

Rules, 1961 (for short the ‘Rules’).

The argument of learned counsel for the petitioners is that condition of

minimum age of marriage is not fixed in the said Rules. Rule 6(5) of the Rules

contemplate that ‘No candidate shall be eligible for appointment to a service or

post who has married before the minimum age fixed for marriage’. Such Rule was

inserted on 10th of March, 2000, but omitted vide Notification dated 24.5.2013.

Therefore, the argument of the learned counsel for the petitioners is that petitioners

cannot be declared ineligible in terms of Rule 6(5) of the Rules, as such condition

stands omitted.

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On the other hand Mr. Amit Seth refers to Madhya Pradesh Junior

Administrative Service (Recruitment and Service Conditions of Service) Rules,

2011 [for short ‘Recruitment Rules’]. Such Recruitment Rules contemplates the

following conditions:-

“9. Disqualifications-

(1) Any attempt on the part of a candidate to obtain support for his
candidature by any means may be held by the appointing authority
to disqualify him for appearing in the examination/selection.
(2) In accordance with the provisions of rule 5 of the Madhya Pradesh
Civil Services (General Conditions of Services) Rules, 1961, no
candidate shall be eligible for appointment in any service or post
who has married before the minimum age fixed for the marriage.
(3) A candidate shall not be eligible for another service or post who
has more than two living children, one of them is born on or after
26th January, 2001:

Provided that no candidate shall be disqualified for appointment to
a service or post, who has already had one living child and in the
next delivery takes place on or after the 26th January, 2001, in
which two or more than two children are born. ….”

It is contended that though the condition of disqualification for a candidate

who has married before the minimum age fixed for marriage has been omitted in

the Rules, but such condition stands incorporated in the Recruitment Rules,

therefore, it is legislation by incorporation and, therefore, the omission of such

Rule from the Rules will not affect the condition of disqualification on account of

marriage before the minimum age of marriage fixed under law.

It may be stated that both the petitioners are Hindus and are governed by

Hindu Marriage Act, 1955 (for short the ‘Act’). Section 5 of the Act contemplates

that a marriage can be solemnized between two Hindus if the condition of age is

satisfied that the bride-groom has completed the age of 21 years and the bride has
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completed the age of 18 years. Since both the petitioners have not completed the

minimum age as fixed in Section 5 of the Act, therefore, the marriage solemnized

by them was not a valid marriage in terms of Section 5 of the Act.

The question as to when, the provision can be said to be incorporated in

statutory provisions has been examined by Division Bench of this Court in Writ

Petition No. 9716/2016 [District Cooperative Central Bank Employees and

Officers Federation, Chhindwara Vs. State of MP and others] decided on

23.2.2018. It has been held that in the case of legislation by incorporation, the

subsequent repeal will not affect the efficacy of the provision incorporated in the

Statute, whereas subsequent repeal in the case of legislation by reference will stand

omitted. After considering the cases of the Hon’ble Supreme Court reported as

Girnar Traders (3) vs. State of Maharashtra and others, (2011) 3 SCC 1; C.N.

Paramasivam and another vs. Sunrise Plaza Through Partner and Others,

(2013) 9 SCC 460; and, State of Maharashtra vs. Sant Joginder Singh Kishan

Singh, 1995 Supp (2) SCC 475, it has been so held:-

“17. In another judgment reported as (2013) 9 SCC 460 (C.N. Paramasivam and
another vs. Sunrise Plaza Through Partner and others), the Court has held as under:-

“17. Legislation by incorporation is a device to which legislatures often take
resort for the sake of convenience. The phenomenon is widely prevalent and has
been the subject-matter of judicial pronouncements by courts in this country as
much as courts abroad. Justice G.P. Singh in his celebrated work on Principles of
Statutory Interpretation has explained the concept in the following words:

“Incorporation of an earlier Act into a later Act is a legislative device
adopted for the sake of convenience in order to avoid verbatim
reproduction of the provisions of the earlier Act into the later. When an
earlier Act or certain of its provisions are incorporated by reference into a
later Act, the provisions so incorporated become part and parcel of the
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later Act as if they had been ‘bodily transposed into it’. The effect of
incorporation is admirably stated by Lord Esher, M.R.:

‘… If a subsequent Act brings into itself by reference some of the
clauses of a former Act, the legal effect of that, as has often been
held, is to write those sections into the new Act just as if they had
been actually written in it with the pen, or printed in it….’ Wood’s
Estate, In re., ex. p. Works and Buildings Commissioners, (1886)
31 Ch D 607 (CA) at p. 615′.

Even though only particular sections of an earlier Act are incorporated
into later, in construing the incorporated sections it may be at times
necessary and permissible to refer to other parts of the earlier statute
which are not incorporated. As was stated by Lord Blackburn:

‘When a single section of an Act of Parliament is introduced into
another Act, I think it must be read in the sense which it bore in the
original Act from which it was taken, and that consequently it is
perfectly legitimate to refer to all the rest of that Act in order to
ascertain what the section meant, though those other sections are
not incorporated in the new Act. Portsmouth Corpn. v. Smith,
(1885) 10 AC 364 (HL) at p. 371.”

18. In Ram Kirpal Bhagat v. State of Bihar (1969) 3 SCC 471 this Court
examined the effect of bringing into an Act the provisions of an earlier Act and
held that the legislation by incorporation of the provisions of an earlier Act into a
subsequent Act is that the provisions so incorporated are treated to have been
incorporated in the subsequent legislation for the first time. This Court observed:

(SCC p. 478, para 18):

“18. … The effect of bringing into an Act the provisions of an earlier Act
is to introduce the incorporated sections of the earlier Act into the
subsequent Act as if those provisions have been enacted in it for the first
time. The nature of such a piece of legislation was explained by Lord
Esher, M.R. in Wood’s Estate, In re that: (Ch D p. 615)
‘if some clauses of a former Act were brought into the subsequent
Act the legal effect was to write those sections into the new Act
just as if they had been written in it with the pen’.”

19. To the same effect is the decision of this Court in Mahindra and Mahindra
Ltd. v. Union of India, (1979) 2 SCC 529 wherein this Court held that once the
incorporation is made, the provisions incorporated become an integral part of the
statute in which it is transposed and thereafter there is no need to refer to the
statute from which the incorporation is made and any subsequent amendment
5

made in it has no effect on the incorporating statute. The following passage is in
this regard apposite: (SCC p. 548, para 8)
“8. … The effect of incorporation is as if the provision incorporated were
written out in the incorporating statute and were a part of it. Legislation by
incorporation is a common legislative device employed by the legislature,
where the legislature for convenience of drafting incorporates provisions
from an existing statute by reference to that statute instead of setting out
for itself at length the provisions which it desires to adopt. Once the
incorporation is made, the provision incorporated becomes an integral part
of the statute in which it is transposed and thereafter there is no need to
refer to the statute from which the incorporation is made and any
subsequent amendment made in it has no effect on the incorporating
statute.”

20. We may also refer to the decisions of this Court in Onkarlal Nandlal v.
State of Rajasthan (1985) 4 SCC 404, Mary Roy v. State of Kerala (1986) 2 SCC
209, Nagpur Improvement Trust v. Vasantrao (2002) 7 SCC 657 and Surana
Steels (P) Ltd. v. CIT (1999) 4 SCC 306 which have reiterated the above
proposition of law.”

18. We do not find any merit in the argument raised by learned counsel for the
petitioner that when there is general reference in the Act in question to some
earlier Act and that there is no specific mention of the provisions of the former
Act, then it is to be considered as legislation by reference. Firstly, there is specific
reference to the provisions of reservation only under the 1994 to Rules in
question. Secondly the Rule of Reservation is applicable only for the purpose of
direct recruitment. The principle is that when an earlier Act or certain of its
provisions are incorporated by reference into a later Act, the provisions so
incorporated become part and parcel of the later Act as if they had been bodily
transposed into it.

19. Keeping in view the principle of law enunciated in the above said
judgments, we find that the amendment in the Rules ordered by the Registrar in
exercise of powers under Section 55 of the Act is a case of legislation by
incorporation. The entire provisions of the Act have not been referred to in the
Rule. The 1994 Act provides for fixation of percentage for reservation of post, the
selection/screening or promotion committee, the grant of concession in respect of
fees for any competitive examination or interview and relaxation in age, caste
6

certificate etc. However, it is only Rule of reservation contained in Section 4 of
the 1994 Act which is incorporated in view of the language of the Rule which
talks about reservation as per the 1994 Act, therefore, it is the percentage of the
reservation for the purpose of direct recruitment alone which has been
incorporated in Rule 6.2.4.”

In view of the aforesaid enunciation of law, we find that Rule 6(5) of the

Rules is legislation by incorporation and thus subsequent omission of such

provision from the Rules will not render the condition of eligibility as redundant.

Still further, Rule 9(2) of the Recruitment Rules is to the effect that no

candidate shall be eligible for appointment who has married before the minimum

age fixed for marriage. In view of the above, we do not find any merit in the

present petition.

Accordingly, the writ petition stands dismissed.

(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
Digitally signed
by ANIL KUMAR
SHIVARAMAN
Date: 2018.07.20
10:57:25 +05’30’
Aks/-

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