REPORTABLE      

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)

J U D G M E N T

MARKANDEY KATJU, J.

1. Leave granted.

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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.

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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

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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

          G.O. dated 7.2.1995

           After amendment by             G.O. dated 7.2.1995               

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      Provided also that an Assistant appointed  by Direct  Recruitment  in the Office of the Board of Revenue shall be eligible for inclusion of his name in the approved list of Deputy Tehsildars  for  Madras  City  on competitive  basis,  after  completion of a total service of five years, if he has  passed  all  the  prescribed  tests and  undergone  training  as  Firka Revenue  Inspector  for  two  years successfully  and  is  otherwise qualified.    

    Provided also that an Assistant appointed  by Direct  Recruitment  in the Office of the erstwhile Board of Revenue, who has completed a total service of five years,  passed all  the tests  prescribed  and  undergone training  as Firka Revenue Inspector for a period of two years successfully shall be eligible for inclusion of his name in the approved list of Deputy Tehsildars for Madras City above his seniors  appointed  other  than  by 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 vacancies.

    A similar proviso has also been added  in  respect  of  an  Assistant appointed  by Direct  Recruitment  in the District Revenue Unit.  

11. It 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:

- In  Coimbatore  District,  the  following  Assistants belonging  to  the  list  of  promotee  Assistants  for  year 1991 are still working as Assistants for no fault of theirs.

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1) 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. Rathinaswami (13) D. Lieon Peter.

On  the  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.

- In 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.

He was 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.

- A comparison of promotee M. Kalimuthu with the direct recruits is given below:

1.   V. Baskaran - Directly   recruited   Assistant   in  the                               year 1997    

  2.   R. Mangala Rama Subramaniam - Directly   recruited                                                           Assistant   in  the year 1997

3. N. Noorjahan Begam - Directly   recruited Assistant in         

                                                   the year 1997

4. M. Parameswari - Directly   recruited   Assistant   in                                             the year 1997                                

5. M. Kalimuthu - Promotee Assistant in the year 1984.

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- Similar situation also prevails in the remaining Districts of Tamil Nadu.

12. 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 dated 10.9.2005 and hence this appeal by

special leave.

13. Learned  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.

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14. On 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.

15. In our opinion, it is not necessary to decide this controversy because

it will make no difference for deciding this case.

16. By the amendment dated 7.2.1995, the direct recruit Assistants who

complete 5 years service and fulfill  some other  criteria are placed in the

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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 Constitution.  

17. In 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.

18. As 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.  

19. Learned  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

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joining as Junior Assistants.  Hence she submitted that there was no rational

basis  for  denying equality  of  treatment  to  these graduates/post  graduates

vis-à-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.

20. Learned counsel for the appellant invited our attention to Rule 5(f) of

the Tamil Nadu Revenue Subordinate Service Rules which is as follows :

“While  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.”  

She submitted that the impugned amendment practically nullifies the above

rule, without expressly repealing it.    

21. The 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.

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22. In 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.  

23. It  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

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nature of duties or responsibilities of the higher post  would be violative of

Article 14 of the Constitution.    

24. In  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 14.   A  wooden  equality  as  between  all  classes  of employees  irrespective  of  all  distinctions  or qualifications,  or  job-requirements  is  neither constitutionally  compelled  nor  practically  meaningful. This 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 :

“….A wooden equality as between all  classes of employees  regardless  of  qualifications,  kind  of

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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 permissible….”     

25. In  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-à-vis direct recruits.   

26. As  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

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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.

However,  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-à-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.

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27. However, 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.  

28. It 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.  

29. Sometimes  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

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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 unconstitutional.

Similarly, 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 expression.

30. Several other decisions on the point have been given  in Justice G.P.

Singh’s Principles of Statutory Interpretation (7th Edn 1999 pp 414-417).

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31. For 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.

32. The appeals are disposed of.  No order as to costs.       

………………………..…..J. (R. V. Raveendran)

………………………..…J. (Markandey Katju)

New Delhi; April 8, 2009

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