The benefit of reservation provided to ex-servicemen in the advertisement of 2015 could not have been withdrawn in 2019. The Rules of 1963 would prevail over the Rules of 1988.

JUDGMENT

Rekha Borana,J. - The present special appeal has been filed against the impugned judgment dated 18.08.2021 whereby the writ petition of the petitioners/appellants was dismissed.

2. Before adverting into the adjudication of the matter, above question, entailing of the brief facts would be relevant :

3. An advertisement for 178 posts of 'Driver-cum-Fire Machine Operator' was issued by the Rajasthan Municipalities (Administrative & Technical) and (Subordinate & Technical) and (Subordinate & Ministerial) Service Selection Board (hereinafter referred to as 'the Service Board') on 30.12.2015, out of which 22 posts were reserved for ex-servicemen. Because of certain litigation pertaining to the recruitment in question, a fresh advertisement was issued on 03.06.2019 and in the said advertisement, no post for ex-servicemen was reserved. The said reservation was denied on the ground that notification dated 10.10.2008 had been issued by the State whereby the expression "Driver" in item no.33 of the Schedule-I of the Rules of 1988, by virtue of which, earlier reservation was provided on the post of "Driver", was deleted. Instruction no.6 of the fresh advertisement (impugned notification) dated 03.06.2019 was under challenge before learned Single Judge in the writ petition.

4. The writ petition of the petitioners has been dismissed by learned Single Judge on two grounds firstly that the Rajasthan Civil Service (Absorption of Ex-Servicemen) Rules, 1988 (hereinafter referred to as 'the Rules of 1988') being the special legislation would prevail over the Rajasthan Municipal (Subordinate and Ministerial Staff) Service Rules, 1963 (hereinafter referred to as 'the Rules of 1963') which is a general legislation. Therefore, the deletion of the expression "Driver" in item No.33 of Schedule-I of the Rules of 1988 would have precedence and thus, the petitioners would not be entitled for reservation being ex-servicemen and secondly that Rule 2 of the Rules of 1988 being a provision with a non obstante clause, would definitely prevail over any other law in existence at the relevant point of time and therefore, the amendment in the said Rule vide the notification would definitely prevail over the general Rules of 1963. Moreover, learned Single Judge relied upon the principle of interpretation "leges posteriores priores contrarias abrogant" meaning thereby that the Rules of 1988 which were introduced later in point of time would prevail over the Rules of 1963 by virtue of the said principle. Aggrieved against the judgment dated 18.08.2021 passed by the learned Single Judge, the present special appeal has been filed.

5. Learned Senior counsel for the appellants submitted that the Rules of 1963 is a State legislation framed by the legislature under its rule making authority whereas the Rules of 1988 have been framed by His Excellency the Governor in terms of Article 309 of the Constitution of India. Therefore, in terms of the settled proposition of law, the rules framed under Article 309 cannot supersede rules made by the legislature on the principle of 'Occupied field'. In support of his contention, learned Senior counsel relied upon the judgment of Hon'ble Apex Court passed in A.B. Krishna and Others v. State of Karnataka and Others; (1998) 3 SCC 495 and Full Bench judgment of the Allahabad High Court in Vijay Singh and Others v. State of Uttar Pradesh and Others; 2005 (2) AWC 1191. Second argument raised by learned Senior counsel for the appellants is that when a provision of law relating to a particular subject exists and a subsequent law is enacted containing a provision regarding the same subject, there can be no presumption that the latter law repeals the earlier law. If the subsequent law does not specifically repeal the earlier law, there can be no presumption of an intention of repealing earlier law. In support of his contention, learned counsel relied upon a judgment of Hon'ble Apex Court passed in Maya Mathew v. State of Kerala and Others,