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2014 (12) TMI 1409 - MADRAS HIGH COURTDirect recruitment to the post of Assistant Registrar from among the practising members of the Bar - affected petitioners who possessed B.L. Degrees have filed the writ petitions, arraying the persons promoted as respondents, who were possessing B.A.L. Degree, in view of the promotion Notification No.165/2013 dated 21.8.2013. HELD THAT:- Insofar as the plea based on a large number of employees acquiring B.A.L. Degree is concerned, we feel that it is of no consequence as they were acquired by the persons to get into the channel of promotion and they were fully aware of the fact that the existing rules then provided for only 25% of the cadre strength for them in terms of the proviso which was an exception to the rule. Their expectation thus cannot be higher than that. The first set of amendments itself made it clear what was the intent while enacting the amendment to the Rules. Sub-rule (g) was added in Rule 1 to clearly define a law degree to be one recognised by a University in India and recognised by the Bar Council of India for admission as an advocate or an attorney of an Indian Court. Only the B.L. Degree satisfies this test. Thus, Rule 6(b)(2) in the context of this definition leaves no manner of doubt that it is the B.L. Degree alone which was a pre-requisite, and B.A.L. Degree would not qualify the person for such an appointment, but for the insertion of the proviso. The proviso is thus clearly an exception to the rule, as held by us aforesaid and must be construed accordingly. The fact that the proviso is followed by a “notwithstanding” clauseauthorizing the Chief Justice to vary the percentage of vacancy or cadre/subcadre posts to be filled up by promotion from one or other category of eligible employees cannot imply that the Chief Justice is authorised to negate the rule itself as read with the definition clause. The exigencies of situation would thus permit some variation, not possible for us to quantify, but suffice to say, as not permitting the destruction of the main clause. The present case is not one of change of intendment of an enactment by insertion of certain mandatory conditions to be fulfilled in order to make the enactment workable, since the definition clause was never changed, which defines a law degree for purposes of the rules, but on the other hand was inserted by the first set of amendments. Thus, the general principle that a proviso carves out an exception to the main provision would continue to apply and must be limited to the subject matter of the enacting clause. This is not an exceptional case of the proviso being a substantive provision itself, principle in any case made applicable to taxation matters. It cannot obliterate the earlier substantive provision, which is the result which would follow if the ratio is changed to 25% for B.L. and 75% for B.A.L., creating a proviso which is overwhelmingly in favour of the exception, rather than the main rule. There is thus substance in what was canvassed on behalf of the petitioners that the amendment of the year 2013 seeks to make the proviso the rule and the rule the proviso. The amendment dated 30.7.2013 seeking to reverse the ratio between B.L. and B.A.L. Degree holders for as 25% and 75% respectively cannot be sustained and is hereby quashed.
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