M. Rathinaswami Ors. Vs. State of Tamil Nadu Ors.  INSC 702 (8 April 2009)
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF
2009 (@ SLP) No.9628 of 2006) WITH CIVIL APPEAL NO. OF 2009 (@ SLP) No.8848 of
2008) M. Rathinaswami and others etc. .. Appellant (s) -versus- State of Tamil
Nadu and others etc. .. Respondent (s)
appeals by special leave have been filed against the impugned judgments dated
10.9.2005 and 27.02.2008 in Writ Petition No.27173 of 2003 and 5022 of 2008
respectively, of the High Court of Judicature at Madras.
common questions of law and fact are involved in both these appeals they are
being disposed off by a common judgment.
learned counsel for the parties and perused the record.
appellants are promotee Assistants governed by the Tamil Nadu Ministerial
Service Rules having been promoted from the post of Junior Assistants in the
Revenue Department in the State of Tamil Nadu. They were appointed as Junior
Assistants after having passed the competitive examination conducted by the
Tamil Nadu Public Service Commission (hereinafter referred to as `the
Commission'). Though the minimum educational qualification for Junior Assistant
was S.S.L.C., it is alleged that even at the time of their selection to the
post of Junior Assistants, most of the appellants were graduates or post
graduates, and many completed their graduation subsequently while in service.
appointment to the post of Assistant there can be promotions from amongst the
Junior Assistants, and there can also be direct recruitment through the
competitive examination held by the Commission. The minimum qualification for
directly recruited Assistant is graduation.
promotion for Assistants is to the post of Deputy Tehsildar, which is governed
by the Tamil Nadu Revenue Subordinate Service Rules.
being promoted as Deputy Tehsildars an Assistant is transferred from the
Ministerial Service to the Revenue Subordinate Service.
promotee Assistants, i.e. Assistants who were promoted from the post of Junior
Assistants and were not direct recruits, filed O.A. No.5710 of 1992 and
connected petitions before the Tamil Nadu Administrative Tribunal, Chennai
praying for quashing G.O.Ms. No.884, Revenue Department, Tamil Nadu Government
dated 12.8.1992 and the consequential G.O.Ms. No.133, Revenue Department dated
7.2.1995. In the G.O. of 1992 it was stated inter alia that qualified direct
recruit Assistants could be considered for inclusion in the list for promotion
as Deputy Tehsildar after completion of five years of service and placed in the
top of the list, below the carried over vacancies, and above the promotee 4
Assistants. By the G.O. of 1995 necessary amendment was made to the Tamil Nadu
Revenue Subordinate Service Rules.
impugned G.O. 133 Revenue dated 7.2.1995 was passed amending Annexure III item
(ii) of the Tamil Nadu Revenue Subordinate Service Rules and introducing two
provisos by which directly recruited Assistants were given preferential
treatment by making them eligible for promotion as Deputy Tehsildars on
completion of five years of service as Assistants by placing them above the senior
III item (ii) in Tamil Nadu Revenue Subordinate Service Rules, prior and after
amendment reads as under :
to amendment by After amendment by G.O. dated 7.2.1995 G.O. dated 7.2.1995 5
Provided also that an Assistant Provided also that an Assistant appointed by
Direct Recruitment in appointed by Direct Recruitment in the Office of the
Board of Revenue the Office of the erstwhile Board of shall be eligible for
inclusion of his Revenue, who has completed a total name in the approved list
of Deputy service of five years, passed all the Tehsildars for Madras City on
tests prescribed and undergone competitive basis, after completion training as
Firka Revenue Inspector of a total service of five years, if he for a period of
two years successfully has passed all the prescribed tests shall be eligible
for inclusion of his and undergone training as Firka name in the approved list
of Deputy Revenue Inspector for two years Tehsildars for Madras City above his
successfully and is otherwise seniors appointed other than by qualified. direct
recruitment or for re-fixation of his seniority over such seniors, if his name
has already been included in the list of Deputy Tehsildars. The consideration
of his claim shall be against the first vacancy that follows the carried over
similar proviso has also been added in respect of an Assistant appointed by
Direct Recruitment in the District Revenue Unit.
was submitted by Mrs. Nalini Chidambaram, learned counsel for the appellant,
that the impugned amendment adversely affected the vested right of the promotee
Assistants for promotion as Deputy Tehsildars. Some illustrations given by
learned counsel are as follows:
Coimbatore District, the following Assistants belonging to the list of promotee
Assistants for year 1991 are still working as Assistants for no fault of
R. Saraswathy (2) V. Parvatham (3) C. Manoharan (4) R. Subramaniam (5) T.
Sivajothi (6) V. Prema Sundari (7) S. Subramanian (8) V. Narasimhan (9) D.
Dhanapal (10) K. Thangavelu (11) S. Rathina (12) S.
(13) D. Lieon Peter.
other hand, a directly recruited Assistant, by name Sivasubramaniam, whose name
was included in the list of Assistants for the year 2004 of Coimbatore District,
has been included in the list of Deputy Tehsildars of the District for the year
2008 and he is working as Deputy Tehsildar.
Madurai District, one of the petitioners M. Kalimuthu belonging to the list of
promotee Assistants for the year 1984, was included in the list of Deputy
Tehsildars for the year 2004 at Sl.No.5.
waiting for the panel of Deputy Tehsildars over twenty years, but four directly
recruited Assistants in the list of Assistants for the year 1997, have been
included in the list of Deputy Tehsildars for the year 2004 itself.
comparison of promotee M. Kalimuthu with the direct recruits is given below:
Baskaran - Directly recruited Assistant in the year 1997
Mangala Rama Subramaniam - Directly recruited Assistant in the year 1997
Noorjahan Begam - Directly recruited Assistant in the year 1997
Parameswari - Directly recruited Assistant in the year 1997 5. M. Kalimuthu -
Promotee Assistant in the year 1984.
Similar situation also prevails in the remaining Districts of Tamil Nadu.
Tamil Nadu Administrative Tribunal quashed the impugned Rule by its order dated
26.2.1997, but that judgment was reversed by the High Court by the impugned
judgment dated 10.9.2005 and hence this appeal by special leave.
counsel for the appellant submitted that once the directly recruited Assistants
and the promotee Assistants are integrated into one cadre of Assistants further
classification for the purpose of further promotion as Deputy Tehsildar is not
permissible. She further submitted that among the promotee Assistants there are
many who have the qualification of graduation and even post graduation and they
have received the same kind of training in the cadre of Assistants for a longer
duration than the directly recruited Assistants. Hence, she submitted that all
graduate Assistants should be treated equally irrespective of whether they are
promotees or direct recruits for considering them for promotion as Deputy
Tehsildar. We are inclined to agree with this submission.
the other hand, learned counsel for the respondent submitted that the
preferential treatment to the directly recruited Assistants was justified
because the erstwhile Probationary Revenue Inspectors who have now been
replaced by directly recruited Assistants (Upper Division Clerks) enjoyed such
preferential treatment. This contention has been disputed by the learned
counsel for the appellant, who submitted that it is not correct to state that
Probationary Revenue Inspectors enjoyed preferential treatment since the
relevant Rule 8A which dealt with the Probationary Revenue Inspectors in the
erstwhile Annexure VIII to the Tamil Nadu Ministerial Services only stated that
the seniority of the persons recruited as Probationary Revenue Inspectors in
any year shall be fixed first in the list of Assistants appointed in the
Revenue Department during the year. Hence she contended that the Probationary
Revenue Inspectors were given seniority over other Assistants of the same year
alone i.e. in the list of Assistants alone and not in the list of Deputy Tehsildars.
our opinion, it is not necessary to decide this controversy because it will
make no difference for deciding this case.
the amendment dated 7.2.1995, the direct recruit Assistants who complete 5
years service and fulfill some other criteria are placed in the 9 approved
list for promotion as Deputy Tehsildar above his seniors who are promotee
Assistants. It is contended that this is violative of Articles 14 and 16 of the
the counter affidavit filed on behalf of the respondents, it has been stated
that the rationale for giving preference to the directly recruited Assistants
was that their minimum educational qualification was graduation while that of
the promotees was Senior School Learning Certificate (S.S.L.C.) when they
joined as Junior Assistants. Hence it was alleged that that the average
directly recruited Assistants with a degree are superior intellectually to the
average Junior Assistants with S.S.L.C. It was also contended that direct
recruits are given a special training for five years.
regards the training, we are satisfied that the promotees also have undergone
the same experience as those of direct recruits, and in fact the former have
usually longer experience than the direct recruits. Hence this cannot be a
valid basis for discrimination against the promotees.
counsel for the appellant submitted that many of the promotees in fact were
graduates or post graduates even when they joined as Junior Assistants, and
some became graduates or post graduates after 10 joining as Junior Assistants.
Hence she submitted that there was no rational basis for denying equality of
treatment to these graduates/post graduates vis-`-vis the direct recruits. We
agree with this contention. If a promotee Assistant is also a graduate then
there is no valid basis for discrimination against him, and he must be treated
at par with the directly recruited Assistant.
counsel for the appellant invited our attention to Rule 5(f) of the Tamil Nadu
Revenue Subordinate Service Rules which is as follows :
preparing the list, the selecting authority shall arrange the names of the
persons selected by it for appointment as Tehsildar or Deputy Tehsildar as the
case may be, in the order of the preference decided by it, which shall be based
on merit, ability and seniority."
submitted that the impugned amendment practically nullifies the above rule,
without expressly repealing it.
High Court in the impugned judgment has observed (vide para 22) that a graduate
cannot be said to be equal to a non graduate, and on that reasoning the High
Court has upheld the validity of impugned rule.
our opinion, by the very same logic given by the respondent and the High Court,
a promotee Assistant who is also a graduate has to be placed at par with the
direct recruits because he has also got a degree. In our opinion, we have to
hence read down the impugned amendment and interpret it as inapplicable to
those promotee Assistants who are also graduates/post graduates. In other
words, the impugned amendment will only enable the direct recruits to be placed
above those promotee Assistants who are non graduates for the purpose of
promotion as Deputy Tehsildar.
is true that in State of Jammu & Kashmir vs. Triloki Nath Khosa & Ors.
AIR 1974 SC 1 a Constitution Bench of this Court observed that though the
persons appointed directly and by promotion were integrated into a common class
of Assistant Engineers, they could, for the purpose of promotion to the cadre
of Executive Engineers, be classified on the basis of educational
qualifications. However, in Mohammad Shujat Ali & others vs. Union of India
& others, AIR 1974 SC 1631, another Constitution Bench of this Court
qualified the rule laid down in Triloki Nath Khosa's case (supra) and observed
that for promotion to a higher post, discrimination based on educational
qualifications not obligated by the 12 nature of duties or responsibilities of
the higher post would be violative of Article 14 of the Constitution.
Roop Chand Adlakha & others vs. Delhi Development Authority & others,
AIR 1989 SC 307, this Court while taking note of T.N. Khosa's case (supra) and
Mohd. Shujat Ali's case (supra) observed in para 7 as under:
7. ......If the differences in the qualification has a reasonable relation to
the nature of duties and responsibilities, that go with and are attendant upon
the promotional-post, the more advantageous treatment of those who possess
higher technical qualifications can be legitimized on the doctrine of
classification. There may, conceivably, be cases where the differences in the
educational qualifications may not be sufficient to give any preferential
treatment to one class of candidates as against another. Whether the
classification is reasonable or not must, therefore, necessarily depend upon
facts of each case and the circumstances obtaining at the relevant time. When
the state makes a classification between two sources, unless the vice of the
classification is writ large on the face of it, the person assailing the
classification must show that it is unreasonable and violative of Article
wooden equality as between all classes of employees irrespective of all
distinctions or qualifications, or job-requirements is neither constitutionally
compelled nor practically meaningful.
Court in General Manager, South Central Railway vs. A.V.R. Siddhanti, (1974) 3
SC 207 at p. 214 : (AIR 1974 SC 1755 at p. 1760 observed :
wooden equality as between all classes of employees regardless of
qualifications, kind of 13 jobs, nature of responsibility and performance of
the employees is not intended, nor is it practicable if the administration is
to run. Indeed, the maintenance of such a `classless' and undiscerning
`equality' where, in reality, glaring inequalities and intelligible differentia
exist, will deprive the guarantee of its practical content. Broad
classification based on reason, executive pragmatism and experience having a
direct relation with the achievement of efficiency in administration, is
the present case, both the directly recruited Assistants and promoted
Assistants have been integrated into one cadre of Assistants. No doubt, even
after this integration for further classification for promotion higher
educational qualifications can possibly be a rational basis, but in our opinion
there can certainly be no further classification between direct recruits and
those promotee Assistants who have acquired the graduation qualification
whether before joining as Junior Assistant or thereafter. Once a promotee
becomes a graduate we cannot see any rational basis for discrimination against
him vis-`-vis direct recruits.
regards the non graduate promotee Assistants, we are of the opinion that
ordinarily it is for the State Government to decide whether their qualification
has a reasonable relation to the nature of duties and responsibilities that go
with and are attendant on the promotional post of 14 Deputy Tehsildar. It is
true that as observed in Roop Chand Adlakha's case (supra) there may,
conceivably, be cases where the differences in the educational qualifications
may not be sufficient to give any preferential treatment to one class of
candidates as against another, and whether the classification is reasonable or
not must, therefore, necessarily depend upon the facts of each case and the
circumstances obtaining at the relevant time.
the question whether the difference in the educational qualifications is
sufficient to give preferential treatment to one class of candidates against
another, should in our opinion be ordinarily left to the executive authorities
to decide. The executive authorities have expertise in administrative matters,
and it is ordinarily not proper for this Court to sit in appeal over their
decisions unless it is something totally arbitrary or shocking. Whether
graduate degree is a sufficient basis for classification for promotion
vis-`-vis non-graduates, and whether such classification has rational relation
to the nature of duties of a Deputy Tehsildar, is, in our opinion for the State
Government to decide, and not the Court. Hence, we uphold the validity of
impugned rule to the extent that it gives preference to the directly recruited
Assistants over the promoted Assistants who are non graduates.
we cannot find any rational basis for giving preference to the direct recruits
over those promotee Assistants who are graduates, since the very basis for the
distinction sought to be drawn by the respondents is that the direct recruits
are graduates and hence intellectually superior to non graduates. Hence we have
to read down the impugned rule in order to save it from becoming violative of
Articles 14 and 16 of the Constitution.
is well settled that to save a statutory provision from the vice of
unconstitutionality sometimes a restricted or extended interpretation of the
statute has to be given. This is because it is a well-settled principle of
interpretation that the Court should make every effort to save a statute from
becoming unconstitutional. If on giving one interpretation the statute becomes
unconstitutional and on another interpretation it will be constitutional, then
the Court should prefer the latter on the ground that the Legislature is
presumed not to have intended to have exceeded its jurisdiction.
to uphold the constitutional validity the statutory provision has to be read
down. Thus, In re, Hindu Women's Right to Property Act, AIR 1945 FC 28, the
Federal Court was considering the 16 validity of the Hindu Women's Right to
Property Act, 1937. In order to uphold the constitutional validity of the Act,
the Federal Court held the Act intra vires by construing the word `Property' as
meaning `property other than agricultural land'. This restricted interpretation
of the word `Property' had to be given otherwise the Act would have become
in Kedernath vs. State of Bihar AIR 1962 SC 955, this Court had to construe
Section 124-A of the Indian Penal Code which relates to the offence of sedition
which makes a person punishable who `by words, either spoken or written or by
sign or visible representations, or otherwise, brings or attempts to bring into
hatred or contempt, or excites or attempts to excite disaffection towards the
Government established by law'. This Court gave a restricted interpretation to
the aforesaid words so that they apply only to acts involving intention or
tendency to create disorder or disturbance of law and order or incitement to
violence. This was done to avoid the provisions becoming violative of Articles
19(1)(a) of the Constitution which provides for freedom of speech and
other decisions on the point have been given in Justice G.P. Singh's Principles
of Statutory Interpretation (7th Edn 1999 pp 414-417).
the reason given above these appeals are partly allowed and the impugned
judgment is partly set aside, and it is held that the impugned rule so far as
it places directly recruited Assistants above the promotees for promotion as
Deputy Tehsildar shall only apply to those promotees who are non graduates, but
it is inapplicable to those promotees who are graduates.
appeals are disposed of. No order as to costs.
(R. V. Raveendran)