A. RAJAGOPALAN ETC.versusTHE DISTRICT COLLECTOR, THIRUCHIRAPALLI DISTRICT & ORS. & ETC.

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


A                          A. RAJAGOPALAN ETC.
                                        v.
            THE DISTRICT COLLECTOR, THIRUCHIRAPALLI
                      DISTRICT & ORS. & ETC.
B                      (Civil Appeal Nos.251-256 of 2015)
                               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 the
C
      post of Deputy Tahsildar – Supreme Court in M. Rathinaswami and
      Others v. State of Tamil Nadu and Others (2009) 5 SCC 625 read
      down the r.5(g) to the extent that it gives preference to the Direct
      recruits Assistants over the Promotee Assistants who are graduates
      – In compliance of the judgment of the Supreme Court, the
D     Government issued directions to implement the said judgment –
      Accordingly, District Collectors of Tiruchirappalli, Sivagaujai etc.
      passed orders redrawing the seniority list by treating the Direct
      recruit Assistants on par with the Promotee graduate Assistants –
      Writ petitions were filed by Promotee non-graduate Assistants and
      Direct recruit Assistants – Single Judge of High Court dismissed
E
      the writ petitions – However, Division Bench of High Court set aside
      the judgment of the Single Judge and directed the State to draw the
      seniority list taking Direct recruit Assistants, Promotee graduate
      Assistants and Promotee non-graduate Assistants as one group for
      promotion as Deputy Tahsildar – On appeal, held: Division Bench
F     failed to notice that the amendment to r.5(g) of TNRSS Rules was
      upheld by the Supreme Court and has attained finality – The direction
      of the Division Bench to treat all three categories viz. Promotee
      non-graduate Assistants and Direct recruit Assistants as one group
      for the promotion to the post of Deputy Tahsildar amounted to
      reversing the judgment of Supreme Court – Direction of the High
G
      Court was wholly misconceived – By virtue of the judgment of
      Supreme Court, it is clear that Promotee graduate Assistants are
      placed on par with Direct recruit Assistants – So far as Promotee
      non-graduate Assistants are concerned, the amended rule holds
      the field, which gives preferential treatment to Direct recruit
H
                                      340
      A. RAJAGOPALAN v. THE DISTRICT COLLECTOR,                           341
              THIRUCHIRAPALLI DISTRICT

Assistants, over Promotee non-graduate Assistants – Thus, impugned        A
judgment 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 reading           B
down into the Rule that the promotee graduate Assistants are to be
treated on par with Direct recruit Assistants – Appellants and the
State contended that the implementation of the said judgment/order
with effect from 04.12.1978 would create unprecedented confusion
and upset the settled position of Direct recruit Assistants who were
promoted from 1995 till 2009 by virtue of the amended Rule conferring     C
preferential treatment on the Direct recruit Assistants – If such a
course of action is permitted, it would seriously prejudice the rights
of those of the Direct recruit Assistants who have been promoted
from 1995 – Held: Directions issued to the effect that promotions of
the Direct recruit Assistants effected between 07.02.1995 and             D
08.04.2009 and their seniority in their respective positions as on
date, not to be disturbed – Further, the benefit extended to the
graduate promotee Assistants by placing them on par with Direct
recruit Assistants is to be given effect to prospectively from the date
of judgment of Supreme Court dated 08.04.2009 rendered in the
case of M. Rathinaswami v. State of Tamil Nadu reported in (2009)         E
5 SCC 625 – After 08.04.2009, the promotion to the post of Deputy
Tahsildar from its feeder category, i.e., Direct recruit Assistants and
Promotee graduate Assistants, shall be strictly in accordance with
the said judgment i.e., treating Promotee graduate Assistants on
par with Direct recruit Assistants.                                       F
      Allowing the appeals, the Court
      HELD: 1. The question involved in these appeals is the
implementation of the amendment to Rule 5(g) of Tamil Nadu
Revenue Subordinate Service Rules (TNRSS) and Annexure-III,
item(ii) coupled with the judgment of the Supreme Court in M.             G
Rathinaswami v. State of T.N. in and by which the Supreme Court
upheld the amendment to the rule qua Promotee non-graduate
Assistants and read down the rule insofar as the Promotee
graduate Assistants. [Para 10] [351-C-D]
                                                                          H
342            SUPREME COURT REPORTS                     [2019] 5 S.C.R.


A           2. The State of Tamil Nadu issued G.O. No.884 whereby
      directions were issued to amend Rule 5(g) and Annexure-III,
      item(ii) of TNRSS Rules retrospectively i.e. with effect from
      04.12.1978. Accordingly, G.O. No.133 dated 07.02.1995 was
      issued providing amendment to the statutory Rules. The validity
      of the amendment to Rule 5(g) and Annexure-III item (ii) to the
B
      TNRSS Rules in G.O. Nos. 884 and 133 dated 12.08.1992 and
      07.02.1995 has been upheld by the Supreme Court in
      Rathinaswami. While upholding the amendment to the Rule, the
      Supreme Court read down into the Rule to the extent that it gives
      preference to the Direct Recruit Assistants over the Promotee
C     Assistants who are graduates. The Supreme Court held that the
      amended rule giving preference to the Direct recruit Assistants
      would be applicable only to the Promotee non-graduate Assistants
      and Rule would be inapplicable to the Promotee Assistants who
      are graduates. [Para 11] [351-D-G]
D           3. The Division Bench of the High Court erred in directing
      the State to treat the Promotee non-graduate Assistants,
      Promotee graduate Assistants and Direct recruit Assistants as
      one category and draw revised seniority list for the purpose of
      promotion to the post of Deputy Tahsildar. The Division Bench
      failed to notice that the amendment to Rule 5(g) of TNRSS Rules
E     by G.O. No.133 dated 07.02.1995 has been upheld by the Supreme
      Court and has attained finality. The direction of the Division
      Bench to treat all three categories viz. Promotee non-graduate
      Assistants, Promotee graduate Assistants and Direct recruit
      Assistants as one group for the promotion to the post of Deputy
F     Tahsildar virtually amounts to reversing the judgment of the
      Supreme Court. The direction of the Division Bench in the
      impugned 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 order
G     of the Supreme Court in Rathinaswami dated 08.04.2009. As
      rightly pointed out by the appellants and the State, the
      implementation of the order with effect from 04.12.1978 would
      create unprecedented confusion and upset the settled position
      of Direct recruit Assistants who had been promoted from 1995
      till 2009 by virtue of the amended Rule conferring preferential
H
     A. RAJAGOPALAN v. THE DISTRICT COLLECTOR,                          343
             THIRUCHIRAPALLI DISTRICT

treatment on the Direct recruit Assistants. If such a course of         A
action is permitted, it would seriously prejudice the rights of those
of the Direct recruit Assistants who have been promoted from
1995. [Para 17] [354-D-G]
       5. In the result, the impugned judgment of the High Court
is set aside and these appeals are allowed with the following           B
observations and directions:-
  (i) Promotions of the Direct recruit Assistants effected between
      07.02.1995 and 08.04.2009 and their seniority in their
      respective positions as on date, shall not be disturbed;
  (ii) The benefit extended to the graduate promotee Assistants         C
       by placing them on par with Direct recruit Assistants is to
       be given effect to prospectively from the date of judgment
       of 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 Deputy           D
       Tahsildar from its feeder category, i.e., Direct recruit
       Assistants and Promotee graduate Assistants, shall be
       strictly in accordance with the judgment of this Court
       referred above, i.e., treating Promotee graduate Assistants
       on par with Direct recruit Assistants. Such promotion shall      E
       be 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, after
      08.04.2009 for promoting the Assistants to the post of
      Deputy Tahsildars in Tamil Nadu Revenue Subordinate               F
      Service contrary to the judgment of this Court dated
      08.04.2009, such panels and promotions have to be revised
      so as to bring in conformity with the judgment of this Court
      referred above;
  (v) By virtue of the judgment of this Court dated 08.04.2009,
                                                                        G
      referred above, Promotee graduate Assistants are placed
      on par with Direct recruit Assistants. So far as Promotee
      non-graduate Assistants are concerned, the amended rule
      holds the field, which gives preferential treatment to Direct
      recruit Assistants, over Promotee non-graduate Assistants;
                                                                        H
344            SUPREME COURT REPORTS                       [2019] 5 S.C.R.


A       (vi) Promotee non-graduate Assistants, who are impleaded as
            party respondents in these appeals, are not entitled to any
            directions in their favour, as much as, all these appeals are
            preferred by Direct recruit Assistants;
        (vii) While implementing the above directions, if the seniority
B           and promotion, of the persons who are already retired or
            dead, is affected in any manner, payments made on account
            of such seniority and promotion earlier granted to them
            during the interregnum period, i.e., from 08.04.2009 till
            this 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 for
            appropriate amendment to the Rules, in which event it is
            open to Government to consider such request on its own
            merits. [Para 19] [355-A-G; 356-A-B]
D           M. Rathinaswami and Others v. State of Tamil Nadu
            and 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 on            Para 2
             [1997] 2 SCR 1186           referred to          Para 4
           CIVIL APPELLATE JURISDICTION : Civil Appeal
      Nos.251-256 of 2015.
F           From the Judgment and Order dated 09.03.2012 of the Madurai
      Bench of Madras High Court in W.A. (MD) Nos. 1285 & 1287 of 2011
      and 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 2012
G     W.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
      A. RAJAGOPALAN v. THE DISTRICT COLLECTOR,                               345
              THIRUCHIRAPALLI DISTRICT

Contempt Petition (C) No. 173 of 2013 in Civil Appeal No. 2252 of             A
2009, Contempt Petition (C) No. 750 of 2017 in Civil Appeal No. 2251
of 2009
       Shekhar Naphade, P. S. Narashima, V. Krishnamurthy,
R. Viduthalai, Mrs. Nalini Chidambaram, V. Giri, Sr. Advs., G. Siva Bala
Murugan, Ms. Vandana, Ms. S. Lakshmi Iyer, Abhikalp Pratap Singh,             B
Ms. Sindoora, V. C. Shukla, Rahul Tanwani, Vivek Bharathi, Mrs. Vibha
Srivastava, 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,         C
Rohit Minocha, A. Leo George Rozario, S. Ramasubramanian, Rohit K.
Singh, V. Ramasubramanian, G. Sivabalamurugan, Advs. for the
appearing parties.
      The Judgment of the Court was delivered by
                                                                              D
       R. BANUMATHI, J. 1. These appeals arise out of the judgment
dated 09.03.2012 passed by the Madurai Bench of Madras High Court
in WA (MD) Nos.1285-1290 of 2011 in and by which the High Court has
set aside the order of the Single Judge and directed the respondents to
draw the seniority list taking Direct recruit Assistants, Promotee graduate
Assistants and Promotee non-graduate Assistants as one group for              E
promotion as Deputy Tahsildar. The order of dismissal of the review
petitions by the High Court is also impugned in these appeals.
       2. The issue involved in these appeals is the implementation of the
amended Rule 5(g) in Annexure-III, item No. (ii) of the Tamil Nadu
Revenue Subordinate Service Rules (TNRSS Rules) coupled with the              F
judgment of the Supreme Court in M. Rathinaswami and Others v.
State of Tamil Nadu and Others (2009) 5 SCC 625 by which the
Supreme Court read down the Rule insofar as the Promotee graduate
Assistants and upheld the validity of the Rule to the extent it gives
preference to the Direct recruit Assistants over the Promotee non-            G
graduate Assistants. The post of Assistant in Revenue Department is
filled up by two sources; one is by direct recruitment through Tamil
Nadu Public Service Commission and other is by promotion from the
category of Junior Assistants with the minimum qualification of SSLC.
The post of Assistant in Revenue Department in the State of Tamil Nadu
                                                                              H
346             SUPREME COURT REPORTS                           [2019] 5 S.C.R.


A     is governed by the Tamil Nadu Ministerial Service Rules. The said Rules
      are framed in exercise of powers conferred by proviso to Article 309 of
      the Constitution of India. As per the original TNRSS Rules, the inter-se
      seniority of the Direct recruit Assistants in the Districts shall be fixed in
      the following cyclical order irrespective of the date of their joining of the
      duty:-
B
                                         Annexure IX
                              (Referred to in Rule 3g(b)(ii)
            First two vacancies         :    Persons appointed
                                             by promotion
C
            Third vacancy                  :    Persons appointed
                                                by direct recruitment

            Fourth and fifth vacancies :        Persons appointed
                                                by promotion
D
            Sixth vacancy                  :    Persons appointed
                                                by direct recruitment


E            3. The Direct recruit Assistants in Revenue Department submitted
      representation that they be given preferential treatment in the matter of
      promotion to the cadre of Deputy Tahsildar without basing their seniority
      in the Assistant list. In G.O. No.884 dated 12.08.1992, Revenue
      Department directed the Special Commissioner and Commissioner of
      Revenue Administration to send necessary draft amendment to the
F     Special Rules to the TNRSS Rules so as to consider the cases of Direct
      recruit Assistants in the District Revenue Administration on completion
      of five years training for inclusion in the Deputy Tahsildar list.
      Accordingly, the Principal Commissioner and Commissioner of Revenue
      Administration had sent proposals for amendment to Rule 5(g) and
G     Annexure-III to Special Rules for the TNRSS. The State Government
      approved 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 dated
      07.02.1995. The said amendment reads as under:-


H
 A. RAJAGOPALAN v. THE DISTRICT COLLECTOR,                               347
THIRUCHIRAPALLI DISTRICT [R. BANUMATHI, J.]

                        “NOTIFICATION                                    A
     In exercise of the powers conferred by the proviso to Article
309 of the Constitution of India, the Governor of Tamil Nadu hereby
makes the following amendments to the Special Rules for the
Tamil Nadu Revenue Subordinate Service Section 28 in Volume
III of the Tamil Nadu Services Manual, 1970.                             B
2. The amendments hereby made shall be deemed to have come
into force on the 4th December, 1978.
                         AMENDMENTS
……..                                                                     C
2. In Annexure III, in item (ii), for the last proviso, the following
provision(s) shall be substituted namely:-
   “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       D
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 Tahsildars for Madras City, above
his seniors appointed other than by direct recruitment or for re-
fixation of his seniority over such seniority, if his name has already
                                                                         E
been included in the list of Deputy Tahsildars. The consideration
of his claim shall be against the first vacancy that follows the
carried over vacancies.
3. After the proviso so substituted, the following proviso shall be
added:-
                                                                         F
    “Provided also that an Assistant appointed by direct recruitment
in the District Revenue Unit, who has completed a total period of
five years, passed all the tests prescribed and undergone training
as Firka Renevue Inspector for a period of two years successfully,
shall be eligible for inclusion of his name in the approved list of
Deputy Tahsildars in the District above his seniors appointed other      G
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 Tahsildars. The consideration of his claim shall be against
the first vacancy that follows the carried over vacancies”.
                                                                         H
348             SUPREME COURT REPORTS                          [2019] 5 S.C.R.


A            4. The Promotee Assistants challenged the said amendment by
      filing O.A. No.2113 of 1995 before the Tamil Nadu Administrative
      Tribunal, 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 its
      order dated 26.02.1997. Challenging the order of the Tribunal, the
      Government of Tamil Nadu filed SLP(C) Nos.1821-1823 of 1999
B
      (C.A.Nos.2727-2729 of 2000) in which the Supreme Court granted
      interim stay on 16.04.1999. The same was subsequently modified by
      the order dated 10.04.2000 in which the Supreme Court specifically
      directed that the stay of reversion shall continue and G.O. Nos.884 and
      133 will be implemented prospectively i.e. with effect from 07.02.1995
C     and not retrospectively with a mention that the promotions made will be
      subject to the final result of the appeal. Since the SLPs were filed after
      the 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 disposed
      of the appeals filed by the State of Tamil Nadu by giving liberty to the
      State of Tamil Nadu to approach the High Court. Pursuant to the order
D
      of 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 of
      the Tribunal dated 26.02.1997. By the common judgment dated
      10.09.2005, the High Court set aside the order of the Tribunal dated
      26.02.1997 and upheld the G.O. Nos.884 and 133 dated 12.08.1992 and
E     07.02.1995.
              5. Aggrieved by the order of the High Court, Promotee Assistants
      filed 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 and
      G.O.No.133 dated 07.02.1995 and partly allowed the appeals vide
F     judgment dated 08.04.2009 in M. Rathinaswami v. State of T.N. (2009)
      5 SCC 625. The Supreme Court upheld the validity of the amendment
      to Rule 5(g) and Annexure-III item(ii) of TNRSS Rules to the extent
      that it gives preference to the Direct recruit Assistants over the Promotee
      non-graduate Assistants observing that the very basis for the distinction
      sought to be drawn is that direct recruits are graduates and hence,
G     intellectually superior to non-graduates. However, the Supreme Court
      read down the rule to save it from becoming violative of Articles 14 and
      16 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

H
      A. RAJAGOPALAN v. THE DISTRICT COLLECTOR,                              349
     THIRUCHIRAPALLI DISTRICT [R. BANUMATHI, J.]

recruits and held that the rule is inapplicable to the promotees who are     A
graduates. In paras No. (19), (22) and (32), the Supreme Court held as
under:-
      “19. 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 on a par with the direct recruits because he has      B
      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/postgraduates. 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 Tahsildar.        C

      22. 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   D
      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.              E
      32. For the reasons 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 Tahsildar shall only
      apply to those promotees who are non-graduates, but it is              F
      inapplicable to those promotees who are graduates.”
       6. In compliance of the judgment of the Supreme Court, the
Government issued directions to the Principal Secretary and
Commissioner of Revenue Administration, Chennai in Letter (MS)
No.305 dated 07.08.2009 to implement the order of the Supreme Court          G
in letter and spirit and the District Collectors were instructed to take
necessary follow up action to implement the order. Accordingly, the
District Collectors of Tiruchirappalli, Sivagangai, Tirunelveli, Madurai,
Coimbatore and Vellore have passed orders redrawing the seniority list

                                                                             H
350             SUPREME COURT REPORTS                           [2019] 5 S.C.R.


A     by treating the Direct recruit Assistants on par with the Promotee
      graduate Assistants and redrawn the panel of Deputy Tahsildars and
      this has effected the seniority of number of Direct recruit Assistants.
              7. Being aggrieved by the orders of the District Collectors, a batch
      of writ petitions were filed by the Promotee non-graduate Assistants,
B     praying to stay the orders of redrawal of the seniority list. The Direct
      recruit Assistants also filed a batch of writ petitions against the revised
      list of Deputy Tahsildars by District Collectors of Tiruchirappalli,
      Sivaganga and Tirunelveli inter-alia challenging their reversion inter
      alia contending that the revised lists also contained the names of Promotee
      Assistants who are non-graduates. The Single Judge of the High Court
C     initially vide order dated 19.04.2010 directed the authorities to maintain
      status quo in the writ petitions filed by Direct recruit Assistants. However,
      the Single Judge vide order dated 12.10.2011 dismissed the writ petitions
      holding that the judgment of the Supreme Court dated 08.04.2009 is
      declaratory and binding on all concerned. The learned Single Judge held
D     that no direction to implement the order of the Supreme Court is necessary
      as the direction of the Supreme Court is bound to be obeyed by all
      authorities 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 Madras
E     High Court. The Madurai Bench vide common judgment dated
      09.03.2012 set aside the judgment of the Single Judge and directed the
      State of Tamil Nadu to draw the seniority list taking Direct recruit
      Assistants, graduate promotees as well as non-graduate promotees
      forming as one group and directed the State to draw the panel as on
      04.12.1978 and reconsider the promotion subject to the candidates
F     satisfying the criteria required under the rules within a period of two
      months. While passing the impugned judgment, the Division Bench took
      into consideration the Letter (MS) No.392 dated 30.12.2011 in and by
      which the government accepted the proposal of the Principal Secretary,
      Revenue to dispense with the degree or graduation as minimum
G     educational qualification for the post of Deputy Tahsildar and directed to
      take non-graduate promotees along with graduate promotees and direct
      recruits as one group, based on the seniority as on 04.12.1978 for the
      post of Deputy Tahsildar. The Division Bench also directed the State not
      to disturb the cases of those candidates who were already promoted but
      not in service either on account of retirement on superannuation or by
H
      A. RAJAGOPALAN v. THE DISTRICT COLLECTOR,                                 351
     THIRUCHIRAPALLI DISTRICT [R. BANUMATHI, J.]

reason of death. The review petitions filed by the appellants herein were       A
dismissed 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.          B
We have heard Mrs. Nalini Chidambaram and Mr. V. Krishnamurthy,
learned senior counsel appearing for Promotee graduate Assistants. We
have heard Mr. R. Viduthalai, learned senior counsel appearing for
Promotee non-graduate Assistants. We have perused the impugned
judgment and materials on record.
                                                                                C
       10. The question involved in these appeals is the implementation
of the amendment to Rule 5(g) of TNRSS Rules and Annexure-III,
item(ii) coupled with the judgment of the Supreme Court in Rathinaswami
in and by which the Supreme Court upheld the amendment to the rule
qua Promotee non-graduate Assistants and read down the rule insofar
as the Promotee graduate Assistants.                                            D

       11. The State of Tamil Nadu issued G.O. No.884 whereby
directions were issued to amend Rule 5(g) and Annexure-III, item(ii) of
TNRSS Rules retrospectively i.e. with effect from 04.12.1978.
Accordingly, G.O. No.133 dated 07.02.1995 was issued providing
amendment to the statutory Rules. The validity of the amendment to              E
Rule 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 the
Supreme Court in Rathinaswami. While upholding the amendment to
the Rule, the Supreme Court read down into the Rule to the extent that
it gives preference to the Direct Recruit Assistants over the Promotee          F
Assistants who are graduates. The Supreme Court held that the amended
rule giving preference to the Direct recruit Assistants would be applicable
only to the Promotee non-graduate Assistants and Rule would be
inapplicable to the Promotee Assistants who are graduates.
        12. In the judgment of the Supreme Court in Rathinaswami, there         G
is no specific clarification as to the mode of implementation of the judgment
dated 08.04.2009 and as to how the Promotee graduate Assistants and
Direct recruit Assistants are to be integrated for considering them for
promotion as Deputy Tahsildars; whether prospectively or retrospectively
with effect from 04.12.1978.
                                                                                H
352             SUPREME COURT REPORTS                            [2019] 5 S.C.R.


A            13. The State of Tamil Nadu by its Letter (MS) No.305 dated
      07.08.2009 directed the District Collectors to implement the order of the
      Supreme Court in letter and spirit. In the absence of any clarification in
      the judgment of the Supreme Court, the District Collectors passed various
      types of orders reversing promotions effected between 1995 to 2009
      and placing Promotee graduate Assistants in the earlier panel by revising
B
      the seniority thereby upsetting the promotions not only in the rank of
      Deputy Tahsildars but also further promotions were effected. It is stated
      that some of the District Collectors implemented the order of the Supreme
      Court dated 08.04.2009 with retrospective effect i.e. 04.12.1978. After
      amendment of Tamil Nadu Revenue Subordinate Service Rules vide
C     G.O. No.133 dated 07.02.1995, promotions were effected in all the
      categories. Promotions were effected not only to the category of Deputy
      Tahsildar but further promotions are made to the post of Tahsildars,
      Deputy Collectors, District Revenue Officers etc. Be it noted that in
      the judgment of this Court dated 08.04.2009, no specific directions were
      issued for revision of seniority list or to upset the promotions which were
D
      already given.
              14. Letter No.392 dated 30.12.2011:- The Supreme Court in
      paras (25) and (26) in Rathinaswami held that “whether graduate degree
      is a sufficient basis for classification vis-à-vis non-graduates and whether
      such classification has rationale relation to the nature of duties of a Deputy
E     Tahsildar” is for the State of Tamil Nadu to decide and “only executive
      authorities have expertise in administrative matters and it is ordinarily
      not proper for the Supreme Court to sit in appeal over the decisions
      unless it is something totally arbitrary or shocking.” Based on the
      observations of the Supreme Court, Principal Secretary to the State
F     Government vide its Letter (MS) No.392 dated 30.12.2011 recommended
      for 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 or
      degree as minimum educational qualification for the post of Deputy
      Tahsildar. The State of Tamil Nadu vide its letter dated 30.12.2011
      accepted the recommendation of the Principal Secretary/Commissioner
G     of Revenue Administration and directed not to prescribe degree or
      graduation as minimum qualification for the post of Deputy Tahsildar.
      Acceptance of the recommendation of dispensing with the graduation
      as the essential qualification is still under consideration of the State
      Government. In that letter, Government merely accepted the
H
      A. RAJAGOPALAN v. THE DISTRICT COLLECTOR,                               353
     THIRUCHIRAPALLI DISTRICT [R. BANUMATHI, J.]

recommendations of the Principal Secretary and Commissioner of                A
Revenue who has opined that it may not be appropriate to prescribe
graduate qualification as essential qualification for the post of Deputy
Tahsildar. It is to be pointed out that at this stage, appointment to the
post of Deputy Tahsildar is governed by rules framed under proviso to
Article 309. In the absence of any amendment to such rules, the decision
                                                                              B
of the Government, as accepted in the letter dated 30.12.2011 issued in
Letter (MS) No.392, has no consequence so far as non-graduate
Promotees are concerned.
       15. The Division Bench did not keep in view that the letter No.392
dated 30.12.2011 is still only a proposal and the rules are yet to be
amended. The Division Bench fell in error by relying upon the said            C
letter dated 30.12.2011 and erred in directing the State to treat the
Promotee non-graduate Assistants, Promotee graduate Assistants and
Direct recruit Assistants as one category and draw revised seniority list
for the purpose of promotion to the post of Deputy Tahsildar. The Division
Bench failed to notice that the amendment to Rule 5(g) of TNRSS Rules         D
by G.O. No.133 dated 07.02.1995 has been upheld by the Supreme Court
and has attained finality. The direction of the Division Bench to treat all
three categories viz. Promotee non-graduate Assistants, Promotee
graduate Assistants and Direct recruit Assistants as one group for the
promotion to the post of Deputy Tahsildar virtually amounts to reversing
the judgment of the Supreme Court. In our considered view, the direction      E
of the Division Bench in the impugned judgment is wholly misconceived.
        16. In these appeals, the State of Tamil Nadu has filed two
counters. In the counter filed in November, 2013, in para No. (5), the
State Government has taken a stand that “the direction of the Division
Bench in the impugned judgment categories non-graduate promotee along         F
with graduate promotee and Direct Recruits” as “one group” is aggreable
to the State Government and only on that basis, the State Government
issued letter No.392 dated 30.12.2011. The stand of the State Government
in para No. (5) of its counter filed in November, 2013 is unacceptable as
it is in clear deviation from the judgment of the Supreme Court in            G
Rathinaswami. Of course, subsequently in the common rejoinder filed
by the State of Tamil Nadu, the State has taken the stand that the
averments raised by the State Government in para No. (5) of the affidavit
are not acceptable and not a correct stand. In the rejoinder, it is further
averred that based on the amended rule since promotions have been
                                                                              H
354            SUPREME COURT REPORTS                          [2019] 5 S.C.R.


A     effected, government has decided not to disturb the 313 Direct recruit
      Assistants who had already been included in the panel of Deputy
      Tahsildars from the year 1995 and further promotions have been effected
      as Tahsildars etc. The State Government has also taken a clear stand
      that the implementation of the order of the High Court dated 09.03.2012
      with effect from 04.12.1978 would result in reversion of 313 Direct
B
      recruit Assistants who had already been promoted by virtue of preferential
      treatment. The stand of the State Government not to disturb 313 Direct
      recruit Assistants reads as under:-
            “….the Government considering the earlier G.Os 884 and 133
            having been implemented from 1995 and that too with the
C           intervention of orders of the Supreme Court and the High Court
            have decided not to disturb the 313 DRAs who had already been
            included in the panel of Deputy Tahsildars from the year 1995
            and to implement orders of the Supreme Court from the date of
            orders i.e. 08.04.2009……”
D             17. As discussed earlier, as per G.O. Nos. 884 and 133 dated
      12.08.1992 and 07.02.1995 respectively and the amendment to Rule 5(g)
      of TNRSS Rules had been upheld by the Supreme Court, of course, by
      reading down into the Rule that the Promotee graduate Assistants are to
      be treated on par with Direct recruit Assistants. The classification of the
E     “Promotee graduate Assistants” on par with Direct recruit Assistants is
      only by virtue of the order of the Supreme Court dated 08.04.2009. As
      rightly pointed out by Mr. Shekhar Naphade, learned senior counsel
      appearing for the appellants and Mr. V. Giri, learned senior counsel
      appearing for the State, the implementation of the order with effect from
      04.12.1978 would create unprecedented confusion and upset the settled
F     position of Direct recruit Assistants who had been promoted from 1995
      till 2009 by virtue of the amended Rule conferring preferential treatment
      on the Direct recruit Assistants. If such a course of action is permitted,
      it would seriously prejudice the rights of those of the Direct recruit
      Assistants who have been promoted from 1995.
G            18. By wrongly relying on the letter dated 30.12.2011 of the
      Government, in the impugned judgment, the High Court has held that
      graduate and non-graduate Promotee Assistants would be considered
      as one single category along with Assistants and the impugned judgment
      of the High Court cannot be sustained and is liable to be set aside.
H
      A. RAJAGOPALAN v. THE DISTRICT COLLECTOR,                               355
     THIRUCHIRAPALLI DISTRICT [R. BANUMATHI, J.]

       19. In the result, the impugned judgement of the High Court is set     A
aside and these appeals are allowed with the following observations and
directions:-
   (i) Promotions of the Direct recruit Assistants effected between
       07.02.1995 and 08.04.2009 and their seniority in their respective
       positions as on date, shall not be disturbed;                          B
   (ii) The benefit extended to the graduate promotee Assistants by
       placing them on par with Direct recruit Assistants is to be given
       effect to prospectively from the date of judgment of this Court
       dated 08.04.2009 rendered in the case of M. Rathinaswami v.
       State of T.N. reported in (2009) 5 SCC 625;                            C
   (iii) After 08.04.2009, the promotion to the post of Deputy Tahsildar
       from its feeder category, i.e., Direct recruit Assistants and
       Promotee graduate Assistants, shall be strictly in accordance with
       the judgment of this Court referred above, i.e., treating Promotee
       graduate Assistants on par with Direct recruit Assistants. Such        D
       promotion shall be 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, after
      08.04.2009 for promoting the Assistants to the post of Deputy
      Tahsildars in Tamil Nadu Revenue Subordinate Service contrary           E
      to the judgment of this Court dated 08.04.2009, such panels and
      promotions have to be revised so as to bring in conformity with
      the judgment of this Court referred above;
   (v) By virtue of the judgment of this Court dated 08.04.2009, referred
      above, Promotee graduate Assistants are placed on par with Direct       F
      recruit Assistants. So far as Promotee non-graduate Assistants
      are concerned, the amended rule holds the field, which gives
      preferential treatment to Direct recruit Assistants, over Promotee
      non-graduate Assistants;
   (vi) Promotee non-graduate Assistants, who are impleaded as party
                                                                              G
       respondents in these appeals, are not entitled to any directions in
       their favour, as much as, all these appeals are preferred by Direct
       recruit Assistants;
  (vii) While implementing the above directions, if the seniority and
      promotion, of the persons who are already retired or dead, is
                                                                              H
356                SUPREME COURT REPORTS                      [2019] 5 S.C.R.


A           affected in any manner, payments made on account of such
            seniority and promotion earlier granted to them during the
            interregnum period, i.e., from 08.04.2009 till this date shall not be
            recovered.
        (viii) So far as Promotee non-graduate Assistants are concerned, it is
B           open for them to pursue with the Government for appropriate
            amendment to the Rules, in which event we keep it open to
            Government to consider such request on its own merits.


      Ankit Gyan                                                  Appeals allowed.
C




D




E




F




G




H