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2009(4) Supreme 209
SUPREME COURT OF INDIA
(From Madras High Court)
R.V. Raveendran and Markandey Katju, JJ.
M. Rathinaswami and others etc. — Appellant (s)
versus
State of Tamil Nadu and others etc. — Respondent (s)
Civil Appeal No. of 2009
(@ SLP) No.9628 of 2006)
With
Civil Appeal. of 2009
(@ SLP) No.8848 of 2008)
Decided on : 08-04-2009
(b) Constitution of India,1950 – Article 14 – Promotees have usually longer experience than the direct recruits – Hence length of experience cannot be a valid basis for discrimination against the promotees. (Para 18)
(c) Service Law – Promotion – Persons appointed directly and by promotion could be classified on the basis of qualification for the purposes of further promotion. (Para 23)
AIR 1974 SC 1 – Relied upon.
(d) Tamil Nadu Revenue Subordinate Service Rules – Annexure III item (ii) – Once a promotee becomes a graduate there remains no rational basis for discrimination against him vis-à-vis direct recruits. (Para 25)
AIR 1974 SC 1631; AIR 1989 SC 307 – Relied upon.
(e) Interpretation of statutes – 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 – Validity of the impugned rule upheld. (Para 26)
AIR 1945 FC 28; AIR 1962 SC 955 – Relied upon.
(f) Tamil Nadu Revenue Subordinate Service Rules – Annexure III item (ii) – The 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. (Para 31)
Facts of the case :
1. The 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
2. For 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.
3. The promotion for Assistants is to the post of Deputy Tehsildar, which is governed by the Tamil Nadu Revenue Subordinate Service Rules.
4. The promotee Assistants, i.e. Assistants who were promoted from the post of Junior Assistants and were not direct recruits, filed O.A. 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.
5. 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 promotee Assistants.
6. The 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.
Finding of the Court :
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.
Result : Appeal disposed of.
JUDGMENT
Markandey Katju, J.—
1. Leave granted.
2. These 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.
3. Since common questions of law and fact are involved in both these appeals they are being disposed off by a common judgment.
4. Heard learned counsel for the parties and perused the record.
5. The 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.
6. For 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.
7. The promotion for Assistants is to the post of Deputy Tehsildar, which is governed by the Tamil Nadu Revenue Subordinate Service Rules. On being promoted as Deputy Tehsildars an Assistant is transferred from the Ministerial Service to the Revenue Subordinate Service.
8. The 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 Assistants. By the G.O. of 1995 necessary amendment was made to the Tamil Nadu Revenue Subordinate Service Rules.
9. The 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 promotee Assistants.
10. Annexure III item (ii) in Tamil Nadu Revenue Subordinate Service Rules, prior and after amendment reads as under :
Prior to amendment by After amendment by G.O. dated 7.2.1995 G.O. dated 7.2.1995
Provided also that an Assistant appointed Provided also that an Assistant appointed by Direct Recruitment in the office of the by Direct Recruitment in the Office of the of the Board of Revenue shall be eligible erstwhile Board of Revenue, who has for inclusion of his name in the approved completed a total service of five years, list of Deputy Tehsildars for Madras City passed all the tests prescribed and undergone on competitive basis, after completion training as Firka Revenue Inspector for a of a total service of five years, if he has for a period of two years successfully passed all the prescribed tests and under- shall be eligible for inclusion of his name gone training as Firka Revenue Inspector name in the approved list of Deputy for two years successfully and is otherwise Tehsildars for Madras City above his seniors qualifi
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