A. RAJAGOPALAN ETC. versus THE DISTRICT COLLECTOR, THIRUCHIRAPALLI DISTRICT & ORS. & ETC. on 12 March 2019

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SUPREME COURT REPORTS[2019] 5 S.C.R. 340

[2019] 5 S.C.R. 340

[2019] 5 S.C.R.

A

A. RAJAGOPALAN ETC.

v.

THE DISTRICT COLLECTOR, THIRUCHIRAPALLIDISTRICT & ORS. & ETC.

(Civil Appeal Nos.251-256 of 2015)

B

MARCH 12, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Tamil Nadu Revenue Subordinate Service Rules (TNRSS) –r.5(g) in Annexure-III, item No.(ii) (amended) – Promotion to theCpost of Deputy Tahsildar – Supreme Court in M. Rathinaswami andOthers v. State of Tamil Nadu and Others (2009) 5 SCC 625 readdown the r.5(g) to the extent that it gives preference to the Directrecruits Assistants over the Promotee Assistants who are graduates– In compliance of the judgment of the Supreme Court, theDGovernment issued directions to implement the said judgment –Accordingly, District Collectors of Tiruchirappalli, Sivagaujai etc.passed orders redrawing the seniority list by treating the Directrecruit Assistants on par with the Promotee graduate Assistants –Writ petitions were filed by Promotee non-graduate Assistants andDirect recruit Assistants – Single Judge of High Court dismissedEthe writ petitions – However, Division Bench of High Court set asidethe judgment of the Single Judge and directed the State to draw theseniority list taking Direct recruit Assistants, Promotee graduateAssistants and Promotee non-graduate Assistants as one group forpromotion as Deputy Tahsildar – On appeal, held: Division BenchFfailed to notice that the amendment to r.5(g) of TNRSS Rules wasupheld by the Supreme Court and has attained finality – The directionof the Division Bench to treat all three categories viz. Promoteenon-graduate Assistants and Direct recruit Assistants as one groupfor the promotion to the post of Deputy Tahsildar amounted toreversing the judgment of Supreme Court – Direction of the HighGCourt was wholly misconceived – By virtue of the judgment ofSupreme Court, it is clear that Promotee graduate Assistants areplaced on par with Direct recruit Assistants – So far as Promoteenon-graduate Assistants are concerned, the amended rule holdsthe field, which gives preferential treatment to Direct recruit H

Assistants, over Promotee non-graduate Assistants – Thus, impugnedjudgment of the High Court set aside – Service Law – Promotion.

Tamil Nadu Revenue Subordinate Service Rules (TNRSS) –r.5(g) in Annexure-III, item No. (ii) (amended) – Amendment to r.5(g)of TNRSS Rules was upheld by the Supreme Court in M.Rathinaswami v. State of Tamil Nadu (2009) 5 SCC 625 by readingdown into the Rule that the promotee graduate Assistants are to betreated on par with Direct recruit Assistants – Appellants and theState contended that the implementation of the said judgment/orderwith effect from 04.12.1978 would create unprecedented confusionand upset the settled position of Direct recruit Assistants who werepromoted from 1995 till 2009 by virtue of the amended Rule conferringpreferential treatment on the Direct recruit Assistants – If such acourse of action is permitted, it would seriously prejudice the rightsof those of the Direct recruit Assistants who have been promotedfrom 1995 – Held: Directions issued to the effect that promotions ofthe Direct recruit Assistants effected between 07.02.1995 and08.04.2009 and their seniority in their respective positions as ondate, not to be disturbed – Further, the benefit extended to thegraduate promotee Assistants by placing them on par with Directrecruit Assistants is to be given effect to prospectively from the dateof judgment of Supreme Court dated 08.04.2009 rendered in thecase of M. Rathinaswami v. State of Tamil Nadu reported in (2009)5 SCC 625 – After 08.04.2009, the promotion to the post of DeputyTahsildar from its feeder category, i.e., Direct recruit Assistants andPromotee graduate Assistants, shall be strictly in accordance withthe said judgment i.e., treating Promotee graduate Assistants onpar with Direct recruit Assistants.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1. The question involved in these appeals is theimplementation of the amendment to Rule 5(g) of Tamil NaduRevenue Subordinate Service Rules (TNRSS) and Annexure-III,item(ii) coupled with the judgment of the Supreme Court in M.Rathinaswami v. State of T.N. in and by which the Supreme Courtupheld the amendment to the rule qua Promotee non-graduateAssistants and read down the rule insofar as the Promoteegraduate Assistants. [Para 10] [351-C-D]

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A2. The State of Tamil Nadu issued G.O. No.884 wherebydirections were issued to amend Rule 5(g) and Annexure-III,item(ii) of TNRSS Rules retrospectively i.e. with effect from04.12.1978. Accordingly, G.O. No.133 dated 07.02.1995 wasissued providing amendment to the statutory Rules. The validityof the amendment to Rule 5(g) and Annexure-III item (ii) to theBTNRSS Rules in G.O. Nos. 884 and 133 dated 12.08.1992 and07.02.1995 has been upheld by the Supreme Court inRathinaswami. While upholding the amendment to the Rule, theSupreme Court read down into the Rule to the extent that it givespreference to the Direct Recruit Assistants over the PromoteeCAssistants who are graduates. The Supreme Court held that theamended rule giving preference to the Direct recruit Assistantswould be applicable only to the Promotee non-graduate Assistantsand Rule would be inapplicable to the Promotee Assistants whoare graduates. [Para 11] [351-D-G]

D3. The Division Bench of the High Court erred in directingthe State to treat the Promotee non-graduate Assistants,Promotee graduate Assistants and Direct recruit Assistants asone category and draw revised seniority list for the purpose ofpromotion to the post of Deputy Tahsildar. The Division Benchfailed to notice that the amendment to Rule 5(g) of TNRSS RulesEby G.O. No.133 dated 07.02.1995 has been upheld by the SupremeCourt and has attained finality. The direction of the DivisionBench to treat all three categories viz. Promotee non-graduateAssistants, Promotee graduate Assistants and Direct recruitAssistants as one group for the promotion to the post of DeputyFTahsildar virtually amounts to reversing the judgment of theSupreme Court. The direction of the Division Bench in theimpugned judgment is wholly misconceived. [Para 15] [353-C-E]

4. The classification of the “Promotee graduate Assistants”on par with Direct recruit Assistants is only by virtue of the orderGof the Supreme Court in Rathinaswami dated 08.04.2009. Asrightly pointed out by the appellants and the State, theimplementation of the order with effect from 04.12.1978 wouldcreate unprecedented confusion and upset the settled positionof Direct recruit Assistants who had been promoted from 1995till 2009 by virtue of the amended Rule conferring preferentialH

treatment on the Direct recruit Assistants. If such a course ofaction is permitted, it would seriously prejudice the rights of thoseof the Direct recruit Assistants who have been promoted from1995. [Para 17] [354-D-G]

5. In the result, the impugned judgment of the High Courtis set aside and these appeals are allowed with the followingobservations and directions:-

(i) Promotions of the Direct recruit Assistants effected between07.02.1995 and 08.04.2009 and their seniority in theirrespective positions as on date, shall not be disturbed;

(ii) The benefit extended to the graduate promotee Assistantsby placing them on par with Direct recruit Assistants is tobe given effect to prospectively from the date of judgmentof this Court dated 08.04.2009 rendered in the case of M.Rathinaswami v. State of T.N. reported in (2009) 5 SCC 625;

(iii) After 08.04.2009, the promotion to the post of DeputyTahsildar from its feeder category, i.e., Direct recruitAssistants and Promotee graduate Assistants, shall bestrictly in accordance with the judgment of this Courtreferred above, i.e., treating Promotee graduate Assistantson par with Direct recruit Assistants. Such promotion shallbe given effect to, without reference to any interim order(s)passed by the High Court;

(iv) If any panels are prepared, and promotions are given, after08.04.2009 for promoting the Assistants to the post ofDeputy Tahsildars in Tamil Nadu Revenue SubordinateService contrary to the judgment of this Court dated08.04.2009, such panels and promotions have to be revisedso as to bring in conformity with the judgment of this Courtreferred above;

(v) By virtue of the judgment of this Court dated 08.04.2009,referred above, Promotee graduate Assistants are placedon par with Direct recruit Assistants. So far as Promoteenon-graduate Assistants are concerned, the amended ruleholds the field, which gives preferential treatment to Directrecruit Assistants, over Promotee non-graduate Assistants; A

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A(vi) Promotee non-graduate Assistants, who are impleaded asparty respondents in these appeals, are not entitled to anydirections in their favour, as much as, all these appeals arepreferred by Direct recruit Assistants;

(vii) While implementing the above directions, if the seniorityBand promotion, of the persons who are already retired ordead, is affected in any manner, payments made on accountof such seniority and promotion earlier granted to themduring the interregnum period, i.e., from 08.04.2009 tillthis date shall not be recovered.

C(viii) So far as Promotee non-graduate Assistants are concerned,it is open for them to pursue with the Government forappropriate amendment to the Rules, in which event it isopen to Government to consider such request on its ownmerits. [Para 19] [355-A-G; 356-A-B]

DM. Rathinaswami and Others v. State of Tamil Naduand Others (2009) 5 SCC 625 - relied on.

L. Chandra Kumar v. Union of India and Others(1997) 3 SCC 261 : [1997] 2 SCR 1186 – referred to.

Case Law Reference

E (2009) 5 SCC 625 relied onPara 2 [1997] 2 SCR 1186 referred toPara 4

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.251-256 of 2015.

F

From the Judgment and Order dated 09.03.2012 of the MaduraiBench of Madras High Court in W.A. (MD) Nos. 1285 & 1287 of 2011and order dated 20.09.2012 in Review Petition No. 36 of 2012 in W.A.(MD) No. 1285 of 2011, Review Petition No. 38 of 2012 in W.A. (MD)No. 1287 of 2011 and Review Application (MD) SR. No. 30453 of 2012GW.A. (MD) No. 1285 of 2011

With

Civil Appeal Nos. 257-258, 259-260, 261-262, 1624-1625 of 2015,Contempt Petition (C) No. 51 of 2013 in Civil Appeal No. 2252 of 2009, H

Contempt Petition (C) No. 173 of 2013 in Civil Appeal No. 2252 of2009, Contempt Petition (C) No. 750 of 2017 in Civil Appeal No. 2251of 2009

Shekhar Naphade, P. S. Narashima, V. Krishnamurthy,R. Viduthalai, Mrs. Nalini Chidambaram, V. Giri, Sr. Advs., G. Siva BalaMurugan, Ms. Vandana, Ms. S. Lakshmi Iyer, Abhikalp Pratap Singh,Ms. Sindoora, V. C. Shukla, Rahul Tanwani, Vivek Bharathi, Mrs. VibhaSrivastava, L. K. Pandey, G. Umapathy, Rakesh K. Sharma, Aditya Singh,Ms. Vashnavi, V. Balachandran, Siddharth Naidu, K. V. Jagdishvaran,Ms. Rangoli Seth, Ms. Alemjungla, Ms. G. Indira, Ms.Anushree Menon,Vikas Mehta, Mithun Shashank, Ms. Purbitaa Mitra, R. Naveenraj,K. V. Vijayakumar, V. Balaji, MSM Asaithambi, C. Kannan, Atul Sharma,Rohit Minocha, A. Leo George Rozario, S. Ramasubramanian, Rohit K.Singh, V. Ramasubramanian, G. Sivabalamurugan, Advs. for theappearing parties.

The Judgment of the Court was delivered by

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. These appeals arise out of the judgmentdated 09.03.2012 passed by the Madurai Bench of Madras High Courtin WA (MD) Nos.1285-1290 of 2011 in and by which the High Court hasset aside the order of the Single Judge and directed the respondents todraw the seniority list taking Direct recruit Assistants, Promotee graduateAssistants and Promotee non-graduate Assistants as one group forpromotion as Deputy Tahsildar. The order of dismissal of the reviewpetitions by the High Court is also impugned in these appeals.

2. The issue involved in these appeals is the implementation of theamended Rule 5(g) in Annexure-III, item No. (ii) of the Tamil NaduRevenue Subordinate Service Rules (TNRSS Rules) coupled with thejudgment of the Supreme Court in M. Rathinaswami and Others v.State of Tamil Nadu and Others (2009) 5 SCC 625 by which theSupreme Court read down the Rule insofar as the Promotee graduateAssistants and upheld the validity of the Rule to the extent it givespreference to the Direct recruit Assistants over the Promotee non-graduate Assistants. The post of Assistant in Revenue Department isfilled up by two sources; one is by direct recruitment through TamilNadu Public Service Commission and other is by promotion from thecategory of Junior Assistants with the minimum qualification of SSLC.The post of Assistant in Revenue Department in the State of Tamil Nadu A

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Ais governed by the Tamil Nadu Ministerial Service Rules. The said Rulesare framed in exercise of powers conferred by proviso to Article 309 ofthe Constitution of India. As per the original TNRSS Rules, the inter-seseniority of the Direct recruit Assistants in the Districts shall be fixed inthe following cyclical order irrespective of the date of their joining of theduty:-B

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E3. The Direct recruit Assistants in Revenue Department submittedrepresentation that they be given preferential treatment in the matter ofpromotion to the cadre of Deputy Tahsildar without basing their seniorityin the Assistant list. In G.O. No.884 dated 12.08.1992, RevenueDepartment directed the Special Commissioner and Commissioner ofRevenue Administration to send necessary draft amendment to theFSpecial Rules to the TNRSS Rules so as to consider the cases of Directrecruit Assistants in the District Revenue Administration on completionof five years training for inclusion in the Deputy Tahsildar list.Accordingly, the Principal Commissioner and Commissioner of RevenueAdministration had sent proposals for amendment to Rule 5(g) andGAnnexure-III to Special Rules for the TNRSS. The State Governmentapproved the draft amendment to Rule 5(g) and Annexure-III Item (ii)to the Special Rules for the TNRSS Rules in G.O. No.133 dated07.02.1995. The said amendment reads as under:- “NOTIFICATION

In exercise of the powers conferred by the proviso to Article309 of the Constitution of India, the Governor of Tamil Nadu herebymakes the following amendments to the Special Rules for theTamil Nadu Revenue Subordinate Service Section 28 in VolumeIII of the Tamil Nadu Services Manual, 1970.

2. The amendments hereby made shall be deemed to have comeinto force on the 4[th] December, 1978.

AMENDMENTS

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2. In Annexure III, in item (ii), for the last proviso, the followingprovision(s) shall be substituted namely:- “provided also that an Assistant appointed by direct recruitmentin the office of the erstwhile Board of Revenue, who has completeda total service of five years, passed all the tests prescribed andundergone training as Firka Revenue Inspector for a period oftwo years successfully shall be eligible for inclusion of his namein the approved list of Deputy Tahsildars for Madras City, abovehis seniors appointed other than by direct recruitment or for re-fixation of his seniority over such seniority, if his name has alreadybeen included in the list of Deputy Tahsildars. The considerationof his claim shall be against the first vacancy that follows thecarried over vacancies.

3. After the proviso so substituted, the following proviso shall beadded:- “Provided also that an Assistant appointed by direct recruitmentin the District Revenue Unit, who has completed a total period offive years, passed all the tests prescribed and undergone trainingas Firka Renevue Inspector for a period of two years successfully,shall be eligible for inclusion of his name in the approved list ofDeputy Tahsildars in the District above his seniors appointed otherthan by direct recruitment or for re-fixation of his seniority oversuch seniors, if his name has already been included in the list ofDeputy Tahsildars. The consideration of his claim shall be againstthe first vacancy that follows the carried over vacancies”.

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A4. The Promotee Assistants challenged the said amendment byfiling O.A. No.2113 of 1995 before the Tamil Nadu AdministrativeTribunal, Chennai. The Tribunal set aside the amendment and the G.O.No.884 dated 12.08.1992 and G.O. No.133 dated 07.02.1995 vide itsorder dated 26.02.1997. Challenging the order of the Tribunal, theGovernment of Tamil Nadu filed SLP(C) Nos.1821-1823 of 1999B(C.A.Nos.2727-2729 of 2000) in which the Supreme Court grantedinterim stay on 16.04.1999. The same was subsequently modified bythe order dated 10.04.2000 in which the Supreme Court specificallydirected that the stay of reversion shall continue and G.O. Nos.884 and133 will be implemented prospectively i.e. with effect from 07.02.1995Cand not retrospectively with a mention that the promotions made will besubject to the final result of the appeal. Since the SLPs were filed afterthe decision in L. Chandra Kumar v. Union of India and Others (1997)3 SCC 261, the Supreme Court by its order dated 13.08.2003 disposedof the appeals filed by the State of Tamil Nadu by giving liberty to theState of Tamil Nadu to approach the High Court. Pursuant to the orderDof the Supreme Court, the State filed Writ Petition in W.P. Nos.27173-27174 of 2003 before the High Court of Madras challenging the order ofthe Tribunal dated 26.02.1997. By the common judgment dated10.09.2005, the High Court set aside the order of the Tribunal dated26.02.1997 and upheld the G.O. Nos.884 and 133 dated 12.08.1992 andE07.02.1995.

5. Aggrieved by the order of the High Court, Promotee Assistantsfiled appeal before the Supreme Court in CA Nos.2251-2252 of 2009.The Supreme Court upheld the G.O. No.884 dated 12.08.1992 andG.O.No.133 dated 07.02.1995 and partly allowed the appeals videFjudgment dated 08.04.2009 in M. Rathinaswami v. State of T.N. (2009)5 SCC 625. The Supreme Court upheld the validity of the amendmentto Rule 5(g) and Annexure-III item(ii) of TNRSS Rules to the extentthat it gives preference to the Direct recruit Assistants over the Promoteenon-graduate Assistants observing that the very basis for the distinctionsought to be drawn is that direct recruits are graduates and hence,Gintellectually superior to non-graduates. However, the Supreme Courtread down the rule to save it from becoming violative of Articles 14 and16 of the Constitution and held that once a promotee becomes a graduate,there cannot be any rational basis for making a distinction vis-à-vis direct recruits and held that the rule is inapplicable to the promotees who aregraduates. In paras No. (19), (22) and (32), the Supreme Court held asunder:- “19. In our opinion, by the very same logic given by the respondentand the High Court, a promotee Assistant who is also a graduatehas to be placed on a par with the direct recruits because he hasalso got a degree. In our opinion, we have to hence read down theimpugned amendment and interpret it as inapplicable to thosepromotee Assistants who are also graduates/postgraduates. Inother words, the impugned amendment will only enable the directrecruits to be placed above those promotee Assistants who arenon-graduates for the purpose of promotion as Deputy Tahsildar.

22. In the present case, both the directly recruited Assistants andpromoted Assistants have been integrated into one cadre ofAssistants. No doubt, even after this integration for furtherclassification for promotion higher educational qualifications canpossibly be a rational basis, but in our opinion there can certainlybe no further classification between direct recruits and thosepromotee Assistants who have acquired the graduation qualificationwhether before joining as Junior Assistant or thereafter. Once apromotee becomes a graduate we cannot see any rational basisfor discrimination against him vis-à-vis direct recruits.

32. For the reasons given above these appeals are partly allowedand the impugned judgment is partly set aside, and it is held thatthe impugned rule so far as it places directly recruited Assistantsabove the promotees for promotion as Deputy Tahsildar shall only-apply to those promotees who are nongraduates, but it is”inapplicable to those promotees who are graduates.

6. In compliance of the judgment of the Supreme Court, theGovernment issued directions to the Principal Secretary andCommissioner of Revenue Administration, Chennai in Letter (MS)No.305 dated 07.08.2009 to implement the order of the Supreme Courtin letter and spirit and the District Collectors were instructed to takenecessary follow up action to implement the order. Accordingly, theDistrict Collectors of Tiruchirappalli, Sivagangai, Tirunelveli, Madurai,Coimbatore and Vellore have passed orders redrawing the seniority list A

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Aby treating the Direct recruit Assistants on par with the Promoteegraduate Assistants and redrawn the panel of Deputy Tahsildars andthis has effected the seniority of number of Direct recruit Assistants.

7. Being aggrieved by the orders of the District Collectors, a batchof writ petitions were filed by the Promotee non-graduate Assistants,Bpraying to stay the orders of redrawal of the seniority list. The Directrecruit Assistants also filed a batch of writ petitions against the revisedlist of Deputy Tahsildars by District Collectors of Tiruchirappalli,Sivaganga and Tirunelveli inter-alia challenging their reversion interalia contending that the revised lists also contained the names of PromoteeAssistants who are non-graduates. The Single Judge of the High CourtCinitially vide order dated 19.04.2010 directed the authorities to maintainstatus quo in the writ petitions filed by Direct recruit Assistants. However,the Single Judge vide order dated 12.10.2011 dismissed the writ petitionsholding that the judgment of the Supreme Court dated 08.04.2009 isdeclaratory and binding on all concerned. The learned Single Judge heldDthat no direction to implement the order of the Supreme Court is necessaryas the direction of the Supreme Court is bound to be obeyed by allauthorities concerned including the District Collectors.

8. Challenging the judgment of the Single Judge dated 12.10.2011,a batch of writ appeals were filed before the Madurai Bench of MadrasEHigh Court. The Madurai Bench vide common judgment dated09.03.2012 set aside the judgment of the Single Judge and directed theState of Tamil Nadu to draw the seniority list taking Direct recruitAssistants, graduate promotees as well as non-graduate promoteesforming as one group and directed the State to draw the panel as on04.12.1978 and reconsider the promotion subject to the candidatesFsatisfying the criteria required under the rules within a period of twomonths. While passing the impugned judgment, the Division Bench tookinto consideration the Letter (MS) No.392 dated 30.12.2011 in and bywhich the government accepted the proposal of the Principal Secretary,Revenue to dispense with the degree or graduation as minimumGeducational qualification for the post of Deputy Tahsildar and directed totake non-graduate promotees along with graduate promotees and directrecruits as one group, based on the seniority as on 04.12.1978 for thepost of Deputy Tahsildar. The Division Bench also directed the State notto disturb the cases of those candidates who were already promoted butnot in service either on account of retirement on superannuation or byH

reason of death. The review petitions filed by the appellants herein weredismissed by the Madurai bench of Madras High Court. Being aggrieved,the appellants and others have filed these appeals.

9. We have heard Mr. Shekhar Naphade and Mr. P.S. Narsimha,learned senior counsel appearing for the appellants. We have heard Mr.V. Giri, learned senior counsel appearing for the State of Tamil Nadu.We have heard Mrs. Nalini Chidambaram and Mr. V. Krishnamurthy,learned senior counsel appearing for Promotee graduate Assistants. Wehave heard Mr. R. Viduthalai, learned senior counsel appearing forPromotee non-graduate Assistants. We have perused the impugnedjudgment and materials on record.

10. The question involved in these appeals is the implementationof the amendment to Rule 5(g) of TNRSS Rules and Annexure-III,item(ii) coupled with the judgment of the Supreme Court in Rathinaswamiin and by which the Supreme Court upheld the amendment to the rulequa Promotee non-graduate Assistants and read down the rule insofaras the Promotee graduate Assistants.

11. The State of Tamil Nadu issued G.O. No.884 wherebydirections were issued to amend Rule 5(g) and Annexure-III, item(ii) ofTNRSS Rules retrospectively i.e. with effect from 04.12.1978.Accordingly, G.O. No.133 dated 07.02.1995 was issued providingamendment to the statutory Rules. The validity of the amendment toRule 5(g) and Annexure-III item (ii) to the TNRSS Rules in G.O. Nos.884 and 133 dated 12.08.1992 and 07.02.1995 has been upheld by theSupreme Court in Rathinaswami. While upholding the amendment tothe Rule, the Supreme Court read down into the Rule to the extent thatit gives preference to the Direct Recruit Assistants over the PromoteeAssistants who are graduates. The Supreme Court held that the amendedrule giving preference to the Direct recruit Assistants would be applicableonly to the Promotee non-graduate Assistants and Rule would beinapplicable to the Promotee Assistants who are graduates.

12. In the judgment of the Supreme Court in Rathinaswami, thereis no specific clarification as to the mode of implementation of the judgmentdated 08.04.2009 and as to how the Promotee graduate Assistants andDirect recruit Assistants are to be integrated for considering them forpromotion as Deputy Tahsildars; whether prospectively or retrospectivelywith effect from 04.12.1978.

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A13. The State of Tamil Nadu by its Letter (MS) No.305 dated07.08.2009 directed the District Collectors to implement the order of theSupreme Court in letter and spirit. In the absence of any clarification inthe judgment of the Supreme Court, the District Collectors passed varioustypes of orders reversing promotions effected between 1995 to 2009and placing Promotee graduate Assistants in the earlier panel by revisingBthe seniority thereby upsetting the promotions not only in the rank ofDeputy Tahsildars but also further promotions were effected. It is statedthat some of the District Collectors implemented the order of the SupremeCourt dated 08.04.2009 with retrospective effect i.e. 04.12.1978. Afteramendment of Tamil Nadu Revenue Subordinate Service Rules videCG.O. No.133 dated 07.02.1995, promotions were effected in all thecategories. Promotions were effected not only to the category of DeputyTahsildar but further promotions are made to the post of Tahsildars,Deputy Collectors, District Revenue Officers etc. Be it noted that inthe judgment of this Court dated 08.04.2009, no specific directions wereissued for revision of seniority list or to upset the promotions which wereDalready given.

14. Letter No.392 dated 30.12.2011:- The Supreme Court inparas (25) and (26) in Rathinaswami held that “whether graduate degreeis a sufficient basis for classification vis-à-vis non-graduates and whethersuch classification has rationale relation to the nature of duties of a DeputyETahsildar” is for the State of Tamil Nadu to decide and “only executiveauthorities have expertise in administrative matters and it is ordinarilynot proper for the Supreme Court to sit in appeal over the decisionsunless it is something totally arbitrary or shocking.” Based on theobservations of the Supreme Court, Principal Secretary to the StateFGovernment vide its Letter (MS) No.392 dated 30.12.2011 recommendedfor amendment to Rule 5(g) of the TNRSS Rules Annexure-III, item (ii)to the effect that it may not be appropriate to prescribe graduation ordegree as minimum educational qualification for the post of DeputyTahsildar. The State of Tamil Nadu vide its letter dated 30.12.2011accepted the recommendation of the Principal Secretary/CommissionerGof Revenue Administration and directed not to prescribe degree orgraduation as minimum qualification for the post of Deputy Tahsildar.Acceptance of the recommendation of dispensing with the graduationas the essential qualification is still under consideration of the StateGovernment. In that letter, Government merely accepted theH

recommendations of the Principal Secretary and Commissioner ofRevenue who has opined that it may not be appropriate to prescribegraduate qualification as essential qualification for the post of DeputyTahsildar. It is to be pointed out that at this stage, appointment to thepost of Deputy Tahsildar is governed by rules framed under proviso toArticle 309. In the absence of any amendment to such rules, the decisionof the Government, as accepted in the letter dated 30.12.2011 issued inLetter (MS) No.392, has no consequence so far as non-graduatePromotees are concerned.

15. The Division Bench did not keep in view that the letter No.392dated 30.12.2011 is still only a proposal and the rules are yet to beamended. The Division Bench fell in error by relying upon the saidletter dated 30.12.2011 and erred in directing the State to treat thePromotee non-graduate Assistants, Promotee graduate Assistants andDirect recruit Assistants as one category and draw revised seniority listfor the purpose of promotion to the post of Deputy Tahsildar. The DivisionBench failed to notice that the amendment to Rule 5(g) of TNRSS Rulesby G.O. No.133 dated 07.02.1995 has been upheld by the Supreme Courtand has attained finality. The direction of the Division Bench to treat allthree categories viz. Promotee non-graduate Assistants, Promoteegraduate Assistants and Direct recruit Assistants as one group for thepromotion to the post of Deputy Tahsildar virtually amounts to reversingthe judgment of the Supreme Court. In our considered view, the directionof the Division Bench in the impugned judgment is wholly misconceived.

16. In these appeals, the State of Tamil Nadu has filed twocounters. In the counter filed in November, 2013, in para No. (5), theState Government has taken a stand that “the direction of the DivisionBench in the impugned judgment categories non-graduate promotee alongwith graduate promotee and Direct Recruits” as “one group” is aggreableto the State Government and only on that basis, the State Governmentissued letter No.392 dated 30.12.2011. The stand of the State Governmentin para No. (5) of its counter filed in November, 2013 is unacceptable asit is in clear deviation from the judgment of the Supreme Court inRathinaswami. Of course, subsequently in the common rejoinder filedby the State of Tamil Nadu, the State has taken the stand that theaverments raised by the State Government in para No. (5) of the affidavitare not acceptable and not a correct stand. In the rejoinder, it is furtheraverred that based on the amended rule since promotions have been AB

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Aeffected, government has decided not to disturb the 313 Direct recruitAssistants who had already been included in the panel of DeputyTahsildars from the year 1995 and further promotions have been effectedas Tahsildars etc. The State Government has also taken a clear standthat the implementation of the order of the High Court dated 09.03.2012with effect from 04.12.1978 would result in reversion of 313 DirectBrecruit Assistants who had already been promoted by virtue of preferentialtreatment. The stand of the State Government not to disturb 313 Directrecruit Assistants reads as under:- “….the Government considering the earlier G.Os 884 and 133having been implemented from 1995 and that too with theCintervention of orders of the Supreme Court and the High Courthave decided not to disturb the 313 DRAs who had already beenincluded in the panel of Deputy Tahsildars from the year 1995and to implement orders of the Supreme Court from the date oforders i.e. 08.04.2009……”D

17. As discussed earlier, as per G.O. Nos. 884 and 133 dated12.08.1992 and 07.02.1995 respectively and the amendment to Rule 5(g)of TNRSS Rules had been upheld by the Supreme Court, of course, byreading down into the Rule that the Promotee graduate Assistants are tobe treated on par with Direct recruit Assistants. The classification of theE“Promotee graduate Assistants” on par with Direct recruit Assistants isonly by virtue of the order of the Supreme Court dated 08.04.2009. Asrightly pointed out by Mr. Shekhar Naphade, learned senior counselappearing for the appellants and Mr. V. Giri, learned senior counselappearing for the State, the implementation of the order with effect from04.12.1978 would create unprecedented confusion and upset the settledFposition of Direct recruit Assistants who had been promoted from 1995till 2009 by virtue of the amended Rule conferring preferential treatmenton the Direct recruit Assistants. If such a course of action is permitted,it would seriously prejudice the rights of those of the Direct recruitAssistants who have been promoted from 1995.G

18. By wrongly relying on the letter dated 30.12.2011 of theGovernment, in the impugned judgment, the High Court has held thatgraduate and non-graduate Promotee Assistants would be consideredas one single category along with Assistants and the impugned judgmentof the High Court cannot be sustained and is liable to be set aside.

H

19. In the result, the impugned judgement of the High Court is setaside and these appeals are allowed with the following observations anddirections:-

(i) Promotions of the Direct recruit Assistants effected between07.02.1995 and 08.04.2009 and their seniority in their respectivepositions as on date, shall not be disturbed;

(ii) The benefit extended to the graduate promotee Assistants byplacing them on par with Direct recruit Assistants is to be giveneffect to prospectively from the date of judgment of this Courtdated 08.04.2009 rendered in the case of M. Rathinaswami v.State of T.N. reported in (2009) 5 SCC 625;

(iii) After 08.04.2009, the promotion to the post of Deputy Tahsildarfrom its feeder category, i.e., Direct recruit Assistants andPromotee graduate Assistants, shall be strictly in accordance withthe judgment of this Court referred above, i.e., treating Promoteegraduate Assistants on par with Direct recruit Assistants. Suchpromotion shall be given effect to, without reference to any interimorder(s) passed by the High Court;

(iv) If any panels are prepared, and promotions are given, after08.04.2009 for promoting the Assistants to the post of DeputyTahsildars in Tamil Nadu Revenue Subordinate Service contraryto the judgment of this Court dated 08.04.2009, such panels andpromotions have to be revised so as to bring in conformity withthe judgment of this Court referred above;

(v) By virtue of the judgment of this Court dated 08.04.2009, referredabove, Promotee graduate Assistants are placed on par with Directrecruit Assistants. So far as Promotee non-graduate Assistantsare concerned, the amended rule holds the field, which givespreferential treatment to Direct recruit Assistants, over Promoteenon-graduate Assistants;

(vi) Promotee non-graduate Assistants, who are impleaded as partyrespondents in these appeals, are not entitled to any directions intheir favour, as much as, all these appeals are preferred by Directrecruit Assistants;

(vii) While implementing the above directions, if the seniority andpromotion, of the persons who are already retired or dead, is A

B

C

D

E

F

G

H

356SUPREME COURT REPORTS

Aaffected in any manner, payments made on account of suchseniority and promotion earlier granted to them during theinterregnum period, i.e., from 08.04.2009 till this date shall not berecovered.

(viii) So far as Promotee non-graduate Assistants are concerned, it isBopen for them to pursue with the Government for appropriateamendment to the Rules, in which event we keep it open toGovernment to consider such request on its own merits.

C

Ankit Gyan

Appeals allowed.

D

E

F

G

H