2014 (12) TMI 1409 - HC - Indian Laws

Direct 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.

Summary

Issues Involved:
1. Validity of amendments to the Madras High Court Service Rules concerning promotions to the post of Assistant Registrar.
2. Equating B.L. and B.A.L. degrees for promotional purposes.
3. Application of the amendments to existing vacancies.
4. Propriety of the 2013 amendment reversing the ratio of promotions between B.L. and B.A.L. degree holders.

Detailed Analysis:

I. Validity of Amendments to the Madras High Court Service Rules:

The amendments in question altered the qualifications for promotion to the post of Assistant Registrar and higher positions. Initially, a law degree from any university was required. The 2007 amendment allowed non-practicing degrees (not recognized by the Bar Council of India) for promotion up to Joint Registrar but limited such promotions to 25%. The 2013 amendment reversed this ratio, favoring non-practicing degrees at 75%. This change was based on the numerical strength of employees holding these degrees, disadvantaging those with B.L. degrees.

II. Equating B.L. and B.A.L. Degrees for Promotional Purposes:

The petitioners argued that the B.A.L. degree, not recognized by the Bar Council for enrollment as an advocate, should not be equated with the B.L. degree. The court noted that the definition of a law degree under Rule 1(g)(A) required recognition by the Bar Council. The proviso in Rule 6(2)(b) allowed B.A.L. degree holders to be considered for promotion, creating an exception rather than contradicting the main rule. The court upheld the 2007 amendment, recognizing the need to prevent stagnation and facilitate promotions for B.A.L. degree holders.

III. Application of Amendments to Existing Vacancies:

The petitioners contended that the 2013 amendment should apply only to future vacancies, citing Y.V. Rangaiah vs. J. Sreenivasa Rao. However, the court referred to Deepak Agarwal vs. State of Uttar Pradesh, which held that promotions should be governed by the rules in force at the time of consideration, not when the vacancies arose. The court concluded that the respondent was within its rights to fill vacancies as per the amended rules, applying the 2013 amendment to existing vacancies.

IV. Propriety of the 2013 Amendment Reversing the Ratio:

The court found that the 2013 amendment, which reversed the promotion ratio to 75% for B.A.L. and 25% for B.L. degree holders, effectively nullified the main rule. The main rule required a practicing B.L. degree for promotion, with the proviso allowing an exception for B.A.L. degree holders. The court held that the amendment made the exception the rule and the rule the exception, which was impermissible. The amendment was quashed, restoring the original ratio of 75% for B.L. and 25% for B.A.L. degree holders.

Conclusion:

The court quashed the 2013 amendment, restoring the original promotion ratio. Promotions already made under the 2013 amendment would not be affected. The court noted that serving officers could not pursue a full-time B.L. degree while employed, highlighting the need for future consideration of rule amendments to address this issue. The writ petitions were allowed, with parties bearing their own costs.