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TMI Blog2014 (12) TMI 1409X X X X Extracts X X X X X X X X Extracts X X X X ..... promotions to the post of Assistant Registrar and thereafter. The effect of the two amendments which are in question is that, while earlier for the purpose of promotion to the post of Assistant Registrar and upwards, the requirement was to hold a Law Degree of any University, the insertion of a proviso in the year 2007 sought to qualify persons having a non-practising degree, i.e., which is not recognised by the Bar Council of India, upto the post of the Joint Registrar, thought not to the post of Registrar (Assistant Registrar to Deputy Registrar to Joint Registrar). The second proviso sought to restrict such persons with non-practising degree only to 25% of the promotions to be made. It appears that this did not really trouble the employees as none chose to challenge this amendment of the year 2007. However, what aggravated the situation and triggered off a spate of writ petitions was the subsequent amendment made in July-2013, whereby the ratio between employees with regular law degrees recognised by the Bar Council as against those holding non-practising degrees was sought to be reversed, making it 75% for employees with non-practising degree and 25% for those with the practisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw of Practice and Procedure, Civil and Criminal or the Pleadership Examination in the first grade. Provided that members of the service holding a law degree granted by a recognized Indian University but not recognized by Bar Council of India for admission as Advocate or Attorney of an Indian Court, may also be considered for appointment by promotion for the categories 3 to 5 of Division-I excluding the post of Deputy Registrar (Original Side, Appellate Side and Judicial) in category 3 and the post of Assistant Registrar (Original Sde-I and II) in category 5, if cadre posts shall not increase more than seventy five percentage of the cadre/sub cadre posts. Provided further that such members of the service holding a law degree granted by a recognized Indian University but not recognized by Bar Council of India for admission as an Advocate or Attorney of an Indian Court shall not be considered for appointment by promotion against more than seventy five percentage of the vacancy of the aforesaid cadre/sub cadre posts as may fall vacant in a calendar year. Notwithstanding anything contained in the aforesaid provision, the Chief Justice may vary the percentage of vacancy or cadre/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he B.A.L. with the B.L. Degree for promotional opportunities. 7. In order to buttress their submission, the example cited was that of the Andhra Pradesh Service Rules, where a holder of Bachelor of General Laws (B.G.L.) Degree is considered for promotion to the post of Assistant Registrar, though it did not permit practice of law as an Advocate. The B.G.L. Degree Course was of two years, as opposed to the three year B.A.L. Degree Course. 8. There was naturally a counter joint representation by persons holding the B.L. Degree submitting that the two degrees could not be equated, especially as the Annamalai University was offering only a correspondence course degree. The B.A.L. Degree holders thus could not conduct Court proceedings as Officers, i.e., Master, Deputy Registrars and Assistant Registrars in chambers, and that the legitimate expectation of the B.L. Degree holders who had acquired the Degree a decade ago with the hopes of getting promotion as Assistant Registrars was likely to be endangered or restricted. 9. The aforesaid matter came to be referred to a Committee of the High Court on the Administrative Side for filling up the vacancies, not inconsistent with the Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be considered for appointment by promotion for the Categories 3 to 5 of Division-I, excluding the posts of Deputy Registrar (Original Side, Appellate Side and Judicial) in Category 3 and the post of Assistant Registrar (Original Side I & II) in Category 5, if otherwise eligible and subject to seniority, but their strength in the cadre / sub cadre posts shall not increase more than twenty five percentage of the cadre / sub cadre posts. Provided further that such members of the service holding a law degree granted by a recognized Indian University but not recognized by Bar Council of India for admission as an Advocate or Attorney of an Indian Court shall not be considered for appointment by promotion against more than twenty five percentage of the vacancy of the aforesaid cadre / sub cadre posts as may fall vacant in a calendar year. Notwithstanding anything contained in the aforesaid provision, the Chief Justice may vary the percentage of vacancy or cadre / sub cadre posts to be filled up by promotion from one or other category of eligible employees holding such law degree.' The above amendments shall come into force with effect from 1st March, 2007." 10. The effect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und as qualified for promotion by amending the rule with effect from 1.3.2007, number of persons serving in various cadres applied for permission to the Registry and after getting permission from the Registry, they underwent B.A.L. degree through correspondence course. Therefore, increase of ratio to BAL degree-holders from the present 25% may be considered by the Hon'ble Chief Justice, by amending the rule suitably." 13. The Promotion Committee accepted this report and an amendment was issued to Rule 6(b)(2) of the said Rules vide High Court Notification No.5/2013/RAC dated 30.7.2013 in the following terms : "In the provisos to Rule 6(b)(2) of Madras High Court Service Rules, the words 'twenty five percentage' wherever occur, shall be substituted with the words 'seventy five percentage'." 14. The aforesaid amendment came into effect on 26.7.2013 and thereafter, the Promotion Committee, in its meeting held on 18.8.2013, considering the seniority of persons in the respective feeder cadre, resolved to promote 12 persons who were possessing B.A.L. Degrees as Assistant Registrars, apart from eligible persons having B.L. Degrees and consequently, impugned Notification No.165/2013 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g) was added vide the Notification dated 26.2.2007 after withdrawing the earlier amendment. Clause (g) reads as under :- " AMENDMENT-I In the Special Rules of the Madras High Court Services, in Rule 1, the following shall be added after sub-rule (g) and before sub-rule (h), namely :- '(g) A - Law Degree means a Law Degree granted by a recognised University in India and recognised by the Bar Council of India for admission as an Advocate or an Attorney of an Indian Court'." 20. A reading of the aforesaid definition shows that a Law Degree has been defined to mean one which is granted by a recognised University in India and which is recognised by the Bar Council of India for admission as an Advocate or an Attorney of an Indian Court. The proviso by its very concept carves out an exception to a rule. Thus, the definition of a law degree as aforesaid would certainly hold good throughout the Rules, but for consideration of promotion under clause (2) of sub-rule (b) of Rule 6, it is the proviso which enables the holders of B.A.L. Degree to be considered for promotion. In our view, this does not mean that it contradicts the definition of a law degree as given under Rule 1(g). 21. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case.' ... 35. In Kedarnath Jute Manufacturing Co Ltd. vs. Commercial Tax Officer, (1965) 3 S.C.R. 626, held as follows : '...It is well settled that, ''the effect, of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein...'. 36. In Ishverlal Thakorelal Almaula vs. Motibhai Nagjibhai (1966) 1 S.C.R. 367, it was held that the main object of a proviso is merely to qualify the main enactment. 37. In S. Sundaram Pillai etc. vs. V.R. Pattabiraman, A.I.R. 1985 S.C. 582, (supra) the Supreme Court held as follows : 'The well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in the case of Union of India v. Sanjay Kumar Jain, (2004) III L.L.J. 753 (SC). 41. The aforesaid decisions clearly lay down that a proviso is added to an enactment to create an exception to what is contained in the main section and so unless the main section included dissolution of the firm, the proviso would not have been introduced. Thus even though the main enactment is absolutely clear in itself, yet the proviso to Section 187(2) of the 1961 Act reinforces the conclusion reached by us. In view of the aforesaid discussion, the inescapable conclusion is that Section 187(2) of the 1961 Act clearly defines as a "change in the constitution of the firm" and there is nothing in the Section 187 of the 1961 Act to exclude the cases where the firm is dissolved." 25. We may also usefully refer to the following observations of the Supreme Court in two other judgments, viz. (a) Maulavi Hussein Haji Abraham Umarji vs. State of Gujarat, 2004 (6) S.C.C. 672 and (b) Union of India v. Sanjay Kumar Jain, (2004) III L.L.J. 753 (SC) :- "(a) The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper function of a proviso is to except and to deal with a case which would otherwise tall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso." Said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. 1897 AC 647 (HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors, (1991) II L.L.J. 50 (SC), Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors., (1991) 2 S.C.R.802 and Kerala State Housing Board & Ors. v. (1994) 5 S.C.C. 672". 26. We are thus unambigu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade-II should have made out of that panel. In that event, the petitioners before the Court would have been ranked higher than the private respondents and would not have been deprived of their right of being considered for promotion. The vacancies occurred prior to the amended rules and thus were to be governed by the old rules and not the amended rules, though future vacancies would be in accordance with the new rules. 30. Learned counsel for the petitioners also relied upon the Division Bench judgment of this Court in A. Ravi vs. Secretary to Government, Municipal Administration and Water Supply Department, (2013) 5 M.L.J. 777 concluding that the Diploma holders who would otherwise be eligible to be considered for vacancies available prior to the impugned rule have to be considered under the old rule to the promotional post of Assistant Executive Engineer. 31. We, however, pointed out to the learned counsel for the petitioners the subsequent judgment of the Supreme Court in Deepak Agarwal vs. State of Uttar Pradesh, (2011) 6 S.C.C. 725, which had taken note of the judgment in Y.V.Rangiah's case (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which had arisen prior to the amendment. The vacancies which occurred prior to the amendment rules would be governed by the old rules and not the amended rules. 25. In the present case, there is no statutory duty cast upon the Respondents to either prepare a year-wise panel of the eligible candidates or the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable rules. The requirement to identify the vacancies in a year or to take a decision how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to candidates duly selected for promotion. In our opinion, the Appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhawan that the vacancies, which had arisen before 17th May, 1999 had to be filled under the unamended rules. 26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the 'rule in force' on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 H.P. 1 (FB). IV. The 2013 Amendment to the proviso reversing the ratio, in effect, nullifies the main provision : 35. We may say that in view of the legal principles enunciated aforesaid, ultimately the petitioners were left with this as the main line of attack, i.e., the principles of applicability of a proviso must be kept in mind, and they cannot nullify the main provision itself. 36. Mr. AR.L. Sundaresan, learned senior counsel appearing for some of the petitioners sought to canvass before us, relying on the observations of the Supreme Court in Romesh Kumar Sharma vs. Union of India, (2006) 6 S.C.C. 510 that a proviso being an exception to the rule, it cannot destroy the main provision itself. In respect of service jurisprudence, while dealing with the Army Rules, 1954 and the proviso to Rule 17, the principles of interpretation of statutes have been discussed in the aforesaid judgment in paragraph 12 as under:- "12. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins vs. Treasurer of Survey 1880 (5) Q.B.D. 170 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso coming after a general enactment is to limit that general enactment in certain instances" (per Lord Esher in Re Barker 25 Q.B.D. 285). A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso (SeeJennings vs. Kelly 1940 A.C. 206)." 37. In this context, we may also usefully refer to a few more judgments. In Sundaram Pillai vs. Pattabiraman, (1985) 1 S.C.C. 591, it was held thus :- "27. ...The well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment. ... 30. Sarathi in 'Interpretation of Statutes at pages 294-295 has collected the following principles in regard to a proviso: (a) When one finds a proviso to a section the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately. ... 38. Apart from the authorities referred to above, this Court has in a long course of decisions explained and adumbrated the various shades, aspects and elements of a proviso. In State of Rajasthan v. Leela Jain (1965) 1 SCR 267, the following observations were made : 'So far as a general principle of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to limit the main part of the section and carve out something which but for the proviso would have been within the operative part.' 43. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes: 1) qualifying or excepting certain provisions from the main enactment; 2) it may entirely change the very concept of the intendment of theenactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable; 3) it may be so embedded in the Act itself as to become an integ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivorced from their context' 1912 A.C. 544. ... A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction". The following observations from Board of Revenue, Madras vs. R.S. Jhaver, A.I.R. 1958 S.C. 59 are relevant :- "8. ...Generally speaking, it is true that the proviso is an exception to the main part of the section; but it is recognised that in exceptional cases a proviso may be a substantive provision itself. We may in this connection refer to Bhondda Urban District Council v. Taff Vale Railway Co.L.R. [1909] A.C. 253, where Section 51 of the Act there under consideration was framed as a proviso to preceding sections. The Lord Chancellor however pointed out that "though Section 51 was framed as a proviso upon preceding sections, but it is true that the latter half of it, though in form a proviso, is in substance a fresh enactment, adding to and not merely qualifying that which goes before. 9. Again in Commissioner of Income-tax v. Nandlal Bhandari & Sons, (1963) 47 I.T.R. 803 (MP), it was observed that ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naught the real object of the main enactment. 40. There is no doubt in our mind that a reading of Rule 1(g) and clause (2) of sub-rule (b) of Rule 6 stipulate the requirement of a practising degree of B.L. as the requirement for being considered for promotion to the post of Assistant Registrar. This is the main rule. The exception is sought to be created by the proviso to give promotional avenues for the B.A.L. Degree holders, both in Administrative exigency and to prevent stagnation. The question thus arises is, whether the reversal of the ratio to 75% for the employees falling within the exception having B.A.L. Degree, while keeping 25% reserved for the B.L. Degree holders nullifies the main rule itself? 41. The only plea in defence given by the learned counsel for the High Court is that the exigencies of service read with the sheer number of B.A.L. Degree holders were responsible for amendment of the Service Rules. He said that he could not say anything more than that. 42. Insofar as the factual matrix is concerned, as set out in the counter affidavit, it had been stated that the feeder categories for promotion to the post of Assistant Registrar are : (a) Sub-Assistant Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as held by us aforesaid and must be construed accordingly. 47. 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. 48. If we look to the various pronouncements and treatise on how a proviso has to be interpreted, a proviso has been held not capable of being torn apart from the main enactment, nor capable of being used to nullify or set at naught the real objective of the main enactment (Sundaram Pillai's case supra). In the facts of the present case, the real object of the principal provision read with the definition clause is that the persons with B.L. Degree are eligible. The proviso only gives an opening to persons with B.A.L. Degree for purposes of administrative exigency, coupled with opening an avenue for promotion. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tio for appointment to the post of Assistant Registrar of 75% for B.L. Degree holders and 25% for B.A.L. Degree holders is restored. 52. The matter does not end at this, because certain promotions have already been made and persons have occupied posts. This was done as per administrative exigency, possibly under an impression that the "notwithstanding" clause could permit a change in this ratio in the provision, though we have held to the contrary. We are thus of the view that ends of justice would be met by implementing the quashing of the provision from the date of the judgment and not affecting the promotions already effected. We clarify that the interpretation of the rules is as they stand at present. 53. The second aspect which we would like to also state, emerging fromscrutiny of some records, is that after the Evening Law College was stopped in pursuance of the decision of the Bar Council of India, no serving officer is really able to pursue the B.L. Degree. Thus, over a period of time, once the promotions are affected, only B.A.L. Degree holders may be left, at which stage of time the aspect of amendment of all the relevant rules can be examined. 54. A serving officer ca ..... 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