http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: GOVERNMENT OF TAMIL NADU & ORS.

       Vs.

RESPONDENT: S. BALASUBRAMANIAN & ORS.

DATE OF JUDGMENT31/10/1995

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) JEEVAN REDDY, B.P. (J)

CITATION:  1995 SCC  (6) 642        JT 1995 (8)   110  1995 SCALE  (6)170

ACT:

HEADNOTE:

JUDGMENT:      [WITH Civil Appeal No. 1097/1995 & Civil Appeal No.          9696 of 1995 (arising out of S.L.P. (Civil) No.              10107/1995 )]                J U D G M E N T S.C. AGRAWAL, J. :      Leave granted in S.L.P. (Civil) No. 10107 of 1995.      These  appeals  raise  common  questions relating to  reservation  in  the  matter  of appointment on  the post  of Deputy Tahsildar in the  State of  Tamil Nadu. The appointment to the  post of Deputy Tahsildar in the Tamil Nadu Revenue  Subordinate Service is governed by the  Special  Rules  for  the  Tamil  Nadu Revenue  Subordinate   Service   (hereinafter referred to  as ‘the  Special Rules’). In the matter of  reservation, provision  is made in Rule 6  of the  Special Rules.  Prior to  its amendment in  1977, the said Rule provided as under :      "Rule 6. Reservation of appointments:      Subject to  the provisions of Rule 5(d),      rule of reservation of appointments      (General rule 22) shall apply to      appointments to the category of Deputy      Tahsildars in each district."      General Rule  22 of the Tamil Nadu State and Subordinate  Services Rules  (hereinafter referred to  as ‘the General Rules’) prior to its amendment in 1967 provided as under :      "Rule 22, Reservation of appointments;      Where the Special Rules lay down that      the principle of reservation of      appointments shall apply to any service,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

    lass or category, appointments thereto      shall be made on the following basis:-           (a)  The unit of appointments for      the purpose of this rule shall be      hundred of which sixteen shall be      reserved for the Scheduled Castes and      the Scheduled tribes and twenty-five      shall be reserved for the Backward      Classes and the remaining fifty-nine      shall be filled on the basis of merit.           (b)  The claims of members of the      Scheduled Castes and the Scheduled      Tribes and the Backward Classes shall      also be considered for the fifty-nine      appointments which shall be filled up on      the basis of merit; and where a      candidate belonging a Scheduled Caste,      Scheduled Tribe or a Backward class is      selected on the basis of merit, the      number of posts reserved for Scheduled      Castes and Scheduled Tribes or for      Backward classes, as the case may be,      shall not in any way be affected.                (c)....................."      By G.O.Ms.  No.1588 dated July 11, 1967, Rule 22 of the General Rules was substituted by the following provision :-      "Rule 22, Reservation of appointments;      Where the Special Rules lay down that      the principle of reservation of      appointments shall apply to any service,      class or category, selection for      appointment thereto shall, with effect      on and  from the Ist July, 1967, be made      on the following basis:-           (a)  The unit of selection for      appointment for the purpose of this rule      shall be  hundred of which sixteen shall      be reserved for the Scheduled Castes and      the Scheduled tribes and twenty-five      shall be reserved for the Backward      Classes and the remaining fifty-nine      shall be filled on the basis of merit.           (b)  The claims of members of the      Scheduled Castes and the Scheduled      Tribes and the Backward Classes shall      also be considered for the fifty-nine      appointments which shall be filled up on      the basis of merit; and where a      candidate belonging to a Scheduled      Caste, Scheduled Tribe or a Backward      class is selected on the basis of merit,      the number of posts reserved for      Scheduled Castes and Scheduled Tribes or      for Backward classes, as the case may      be, shall not in any way be affected.           (c)..................."      By G.O.Ms.  No. 695  dated June 6, 1971, the percentage of reservation for Scheduled Castes and Scheduled Tribes was raised to  eighteen percent and reservation for the Backward Classes was raised to thirty one percent. By G.O.Ms No. 1256 dated June  20,1977, Rule 6 of the Special Rules was amended and substituted by the following provision :-      "Rule 6, Reservation of appointments:      Subject to  the provisions of Rule 5(d),      rule of reservation of appointments

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

    (General rule 22) shall apply to      appointments to the category of Deputy      Tahsildars in  each district at the time      of selection for inclusion in the list."      The amended  Rule 6 was not published in the Tamil Nadu Government Gazette.  The validity  of the  said amended rule was challenged  before the  Madras  High  Court  in  a  writ petition (writ  petition No. 3691/1983) which was allowed by a learned  single Judge  of the High Court by judgment dated December 2,  1983 and  the said  G.O.Ms. dated June 20, 1977 was quashed  on the  ground that the same was snot published in the  Tamil Nadu  Government Gazette.  The State  of Tamil Nadu filed an appeal (Writ Appeal No. 1028/1984) against the said judgment  of the learned single Judge. At the same time G.O.Ms. No.  1256 dated  June 20,  1977 was published in the Tamil Nadu  Government Gazette  dated January  30, 1984. The validity of  the  said  publication  in  the  Gazette  dated January 30,  1984 was  challenged before  the High  Court in writ petition  No. 3353/84.  While Writ Appeal No. 1028/1984 and writ  petition No.  3353/1984 and  other connected  writ petitions were pending before the high Court, the Government of Tamil  Nadu issued  a fresh  order, G.O.Ms. No. 660 dated April 19,  1988, which  was  published  in  the  Tamil  nadu Government Gazette  April 20,  1988. By the said G.O.Ms. No. 660 dated  April 19,  1988, Rule  6 of the Special Rules, as substituted by  G.O.Ms. No.  1256 dated  June 20,  1977, was reintroduced in  the same  terms with  retrospective  effect from June  20, 1977. In view of the notification dated April 19, 1988,  writ appeal  No. 1028/84  and writ  petition  No. 3353/84 and other connected writ petitions were dismissed by the Division  Bench of  the High Court on September 20, 1988 stating that  they have  become infructuous  and  that  writ petition No.  6691/83 which  had been allowed by the learned single  Judge  on  the  ground  of  non-publication  of  the modification had  also become  infructuous. It was, however, observed  that  the  petitioners  who  had  filed  the  writ petitions were  at liberty to question G.O.Ms. No. 660 dated April 19,  1988. Thereupon,  the respondents  filed  D.A.No. 1131/1990  and   other  petitions   before  the  Tamil  Nadu Administrative tribunal  (hereinafter referred  to  as  ‘the Tribunal’) wherein  they challenged  the validity of G.O.Ms. No. 660 dated April 19, 1988.      The respondents  were originally  appointed  as  Junior Assistants in  the Revenue  Department  in  the  Tamil  Nadu Ministerial  Service.  They  were  recruited  against  posts falling in  the open  competition (O/C) category. Thereafter they were promoted as Assistants in the said Service. Rule 3 of the  Special Rules  makes provision  for  recruitment  by transfer on  the  post  of  Deputy  Tahsildar  from  amongst members  of   the  Madras   Secretariat  Service  or  Madras Ministerial Service  employed in the offices of the Board of Revenue and  the Director  of Settlements,  etc. Till  1977, there was  reservation to  the extent  of 16%  for Scheduled Castes and Scheduled Tribes and 25% for Backward Classes. In 1977, the  percentage for  such reservation  was modified to 18% and 31% respectively and in 1980 it was further enhanced to 18%  and 50% respectively. The respondents, who belong to non-reserved category,  assailed  before  the  Tribunal  the applicability of the Special Rules regarding reservation for appointment on  the post  of Deputy  Tahsildar on the ground that the  said post  of Deputy Tahsildar is a promotion post and the rule regarding reservation applied only at the stage of initial  appointment and  not at  the stage of promotion. They also  submitted that the amendment introduced in Rule 6 of the Special Rules by G.O.Ms. No. 660 dated April 19, 1988

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

with retrospective  effect from  June 20,  1977 was  invalid inasmuch as  retrospective operation  of the  said amendment would affect the promotion of the respondents.      By the  impugned  judgment  dated  July  6,  1993,  the Tribunal has  held that the appointment by transfer from the ministerial staff  in the  Revenue Department on the post of Deputy Tahsildar  has to  be construed  as promotion and not direct recruitment and that, in view of the decision of this Court in  Indira Sawhney  & Ors.  v. Union  of India & Ors., 1992 Supp.  (3) SCC  217, reservation was not permissible in the matter  of promotion. The Tribunal has further held that G.O.Ms. No.  660 dated  April 19,  1988 does not suffer from any infirmity  on account  of lack  of authority inasmuch as the orders  of the  Governor had been obtained for the issue of the  amendment. The  Tribunal has, however, held that the notification which  was issued in 1977 was admittedly issued without proper  authority and  any  action  under  the  said notification issued  in 1977 which was published in 1984 was lacking in  authority and  the said  action is  sought to be validated by  retrospective amendment  of Special  Rule 6 in 1988. According  to the  Tribunal as  a result  of the  said retrospective amendment  there  was  denial  of  promotional prospects to  the respondents  and that  an amendment of the rules could  not be given retrospective effect so as to deny the right  of  promotion  under  the  Rules  in  respect  of vacancies which  had arisen  before the  date on  which  the amendment was  introduced. The Tribunal, therefore, directed that vacancies that had arisen till the date of issue of the amendment in 1988 should be filled up in accordance with the rules as  they were before the amendment and persons already promoted will  have their  seniority refixed and persons who are eligible  to be  promoted, but  not promoted,  should be promoted  with   consequential  benefits  in  the  vacancies arising hereafter  with seniority from the date on which the person placed  next to  them in  the list  on this basis was promoted.      As regards  the applicability of the provision relating to reservation  in the  matter of appointment on the post of Deputy Tahsildar  by transfer,  the  submission  of  learned Additional Solicitor  General is  that the  appointment from the Tamil  Nadu  Ministerial  Service  to  Tamil  Nadu  Sub- ordinate service  by way  of transfer  is in the nature of a fresh appointment  and it  cannot be  regarded as  promotion and, therefore,  the decision  in Indira  Sawhney &  Ors. v. Union of  India  &  Ors.  (supra)  in  that  regard  has  no application. The  learned Additional  Solicitor General  has also submitted  that even  as per  the  decision  in  Indira Sawhney  case   (supra)   the   existing   Rules   regarding reservation have  been allowed  to remain in operation for a period of  five years  and, therefore,  reservation  as  per existing Rules cannot be questioned.      Since in  Indira Sawhney  case (supra)  this Court  has held that  the existing  rules providing  for reservation in the matter  of promotion  can be  continued for  a period of five years, the appointments that have been made on the post of Deputy Tahsildar by applying the principle of reservation cannot be  questioned on  the basis  of the law laid down in Indira  Sawhney   case  (supra)   that  the   principle   of reservation cannot  be applied at the stage of promotion. It is, therefore, not necessary to go into the question whether appointment to the post of Deputy Tahsildar by transfer from Tamil  Nadu  Ministerial  Sub-ordinate  Service  amounts  to promotion.      The question  which survives  is regarding the validity of  the  retrospective  operation  given  to  the  amendment

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

introduced in Rule 6 of the Special Rules by G.O.Ms. No. 660 dated April  19,  1988.  The  learned  Additional  Solicitor General has urged that the amendment introduced in Rule 6 of the Special  Rules  only  clarifies  the  existing  position regarding applicability  of Rule 22 of the General Rules and has pointed  out that  by virtue  of rule  6 of  the Special Rules, as  it stood prior to the amendment, the general rule regarding reservation  (General Rule 22) was made applicable to appointment  to the category of Deputy Tahsildars in each district. In our opinion, this submission merits acceptance. By Rule  6 of  the Special  Rules, as  it stood  before  the impugned amendment  the provisions of Rule 22 of the General Rules  containing   the  Rule   of   reservation   regarding appointment were  made applicable  to  appointments  to  the category of Deputy Tahsildar in each district. The manner of applicability of  the said  provisions was to be governed by the provisions  of Rule  22 of the General Rules. Rule 22 of the General  Rules, prior  to is  amendment  in  1967,  made provision for reservation at the stage of appointment By the amendment which  was introduced  in Rule  22 of  the General Rules by  G.O.Ms. No.  1588 dated  July 11, 1967 reservation has to be applied at the stage of selection for appointment. This is  the procedure which has been followed in the matter of appointment  to the  post of  Deputy Tahsildar  under the Special Rules  as per  Rule 6  of the  Special Rules  as  it existed prior  to  the  impugned  amendment.  The  amendment Introduced in Rule 6 of the Special Rules by G.O.Ms. No. 660 dated April  19, 1988  only clarifies this position and says that the  rule of  reservation of appointments (General Rule 22) shall apply to the category of Deputy Tahsildars in each district at the time of selection for inclusion in the list. We are  unable to  agree with  the view of the Tribunal that Rule 6,  as amended, alters the position as it existed prior to the  said amendment in the matter of applicability of the Rules  regarding  reservation  and  that  the  retrospective effect that  has  been  given  to  the  said  amendment,  by validating  action  taking  during  earlier  period  without authority, results in denial of promotion prospects.      We may,  in this  context, point  out that,  in law,  a distinction is drawn between a mere reference or citation of a statute  into another  and incorporation  of a  particular provision  of   a  statute.  While  in  the  former  case  a modification, repeal  or re-enactment of the statute that is referred will  also have  effect for the statute in which it is referred,  but in  the latter  case  any  change  in  the incorporated statute  by way  of amendment  or repeal has no repercussion on  the incorporating  statute.  [  See  :  The Collector of  Customs v.  Nathella Sampathu  Chetty &  Anr., 1967 (3)  SCR 786  at p.  831;  G.P.  Singh,  Principles  of Statutory  Interpretation,   4th  Edn.,  pp.  178-179].  The provisions of  Rule 6  of the  Special Rules,  as they stood prior  to  the  impugned  amendment,  applied  the  rule  of reservation in  the matter  of appointments  as contained in Rule 22  of the  General Rules to appointment to the post of Deputy Tahsildar  in each  district. The  said Rule  6  only referred to  the provisions  contained in  Rule  22  of  the General Rules and it cannot be construed as incorporating by reference Rule 22 of the General Rules into the said Special Rule. This  means that  a subsequent amendment in rule 22 of the General  Rules would  be applicable  in  the  matter  of appointment to  the category  of Deputy  Tahsildar under the Special Rules  and the  amendments that  were introduced  in Rule 22  of the  General Rules  in 1967  and thereafter were applicable in  the matter  of such  appointments. It was not necessary to  make an  amendment in  Rule 6  of the  Special

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

Rules to  incorporate the  amendment that  was introduced in rule  22  of  the  General  Rules  in  1967.  Moreover,  the principle that where a subsequent enactment incorporates the provisions  of  a  previous  enactment,  then  the  borrowed provisions become  an integral  and independent  part of the subsequent enactment  and  are  totally  unaffected  by  any repeal or  amendment in the previous enactment is subject to certain  exceptions.   One  such   exception  excluding  the applicability of  this principle is where the subsequent Act and the previous Act are supplemental to each other, [ See : State of  Madhya Pradesh v. M.V. Narasimhan, (1976) 1 SCR 6, at p. 14]      The  instant  case  would  fall  under  this  exception because Rule  6 of  the Special  Rules and  Rule 22  of  the General  Rules  are  supplemental  to  each  other.  In  our opinion, therefore,  the Tribunal  was not  right in holding that the  amendment introduced  in Rule 6 by G.O.Ms. No. 660 dated April  19, 1988,  insofar as  it  gives  retrospective effect to  the said  amendment, is  invalid. The judgment of the Tribunal  dated July  16,  1993  cannot,  therefore,  be upheld and  C.A.Nos. 1093  to 1096 of 1995 filed against the said judgment  have, therefore,  to be allowed. In the other appeals (C.A.Nos.  1097 of 1995 and Civil Appeal arising out of SLP  (C) No.  10107 of 1995) the Tribunal has allowed the applications on the basis of its judgment dated July 6, 1993 and for  the same  reasons the  said appeals have also to be allowed.      Before we  conclude, we  would like to mention that all these matters  have been  heard by  the Vice Chairman of the Tribunal sitting  singly. The  Vice-Chairman of the Tribunal was an  Administrative Member.  In Amulya  Chandra Kalika v. Union of  India &  Ors., 1991 (1) SCC 181, a two-Judge bench of  this  Court,  having  regard  to  Section  5(2)  of  the Administrative  Tribunals   Act,  1985,  has  held  that  an Administrative Member  alone cannot  decide a  case and  the Bench must  also have a Judicial Member. A three-Judge Bench of this  Court in  Dr. Mahabal  Ram  v.  Indian  Council  of Agricultural Research  & Ors.,  1994 (2) SCC 401, keeping in view the  provisions  of  Sections  5(2)  and  5(6)  of  the Administrative  Tribunals  Act,  1985,  has  held  that  the expression ‘single Member’ in Section 5(6) means Judicial as well as  Administrative Member.  The Court has directed that the  Chairman   should  keep  in  view  the  nature  of  the litigation and  where questions of law and/or interpretation of constitutional provisions are involved they should not be assigned to a Single Member. The Court has, however, pointed out that  the vires  of Section 5(6) was not under challenge before the  court. In Union of India & Ors. v. Tushar Ranjan Mohanty &  Ors., 1994  (5) SCC 450, the Court has taken note of both  these decisions  and has  referred the matter to be heard by  a Bench of three Judges since the validity of sub- section (6) of Section 5 was challenged in the said case. It is not  clear as  to what  directions had  been given by the Chairman of  the Tribunal in the matter of listing the cases before a  Single  member.  Since  the  question  as  to  the validity of  a statutory  rule made under Article 309 of the Constitution was  raised in  the present  case we are of the view that  it should  have been  heard by a Bench having two Members.      In the result, the appeals are allowed, the judgment of the Tribunal  dated 6,  1993 in  O.A.Nos. 1131/90,  2633/90, 2634/90 and  3674/91, the  judgment dated October 6, 1993 in O.A.No. 5909/93 and judgment dated March 16, 1994 in O.A.No. 1148/93,  are   set  aside  and  the  original  applications submitted by  the respondents are dismissed. The parties are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

left to bear their own costs.