PETITIONER:
GOVERNMENT OF TAMIL NADU & ORS.
Vs.
RESPONDENT:
S. BALASUBRAMANIAN & ORS.
DATE OF JUDGMENT31/10/1995
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
JEEVAN REDDY, B.P. (J)
CITATION:
1995 SCC (6) 642 JT 1995 (8) 110
1995 SCALE (6)170
ACT:
HEADNOTE:
JUDGMENT:
[WITH Civil Appeal No. 1097/1995 & Civil
Appeal No. 9696 of 1995 (arising out
of S.L.P. (Civil) No. 10107/1995
)]
J U D G M E N T
S.C. AGRAWAL, J. :
Leave granted in S.L.P. (Civil) No.
10107 of 1995.
These appeals raise common questions
relating to reservation in the matter of
appointment on the post of Deputy Tahsildar
in the State of Tamil Nadu. The appointment
to the post of Deputy Tahsildar in the Tamil
Nadu Revenue Subordinate Service is governed
by the Special Rules for the Tamil Nadu
Revenue Subordinate Service (hereinafter
referred to as `the Special Rules’). In the
matter of reservation, provision is made in
Rule 6 of the Special Rules. Prior to its
amendment in 1977, the said Rule provided as
under :
“Rule 6. Reservation of appointments:
Subject to the provisions of Rule 5(d),
rule of reservation of appointments
(General rule 22) shall apply to
appointments to the category of Deputy
Tahsildars in each district.”
General Rule 22 of the Tamil Nadu State
and Subordinate Services Rules (hereinafter
referred to as `the General Rules’) prior to
its amendment in 1967 provided as under :
“Rule 22, Reservation of appointments;
Where the Special Rules lay down that
the principle of reservation of
appointments shall apply to any service,
lass or category, appointments thereto
shall be made on the following basis:-
(a) The unit of appointments for
the purpose of this rule shall be
hundred of which sixteen shall be
reserved for the Scheduled Castes and
the Scheduled tribes and twenty-five
shall be reserved for the Backward
Classes and the remaining fifty-nine
shall be filled on the basis of merit.
(b) The claims of members of the
Scheduled Castes and the Scheduled
Tribes and the Backward Classes shall
also be considered for the fifty-nine
appointments which shall be filled up on
the basis of merit; and where a
candidate belonging a Scheduled Caste,
Scheduled Tribe or a Backward class is
selected on the basis of merit, the
number of posts reserved for Scheduled
Castes and Scheduled Tribes or for
Backward classes, as the case may be,
shall not in any way be affected.
(c)…………………”
By G.O.Ms. No.1588 dated July 11, 1967, Rule 22 of the
General Rules was substituted by the following provision :-
“Rule 22, Reservation of appointments;
Where the Special Rules lay down that
the principle of reservation of
appointments shall apply to any service,
class or category, selection for
appointment thereto shall, with effect
on and from the Ist July, 1967, be made
on the following basis:-
(a) The unit of selection for
appointment for the purpose of this rule
shall be hundred of which sixteen shall
be reserved for the Scheduled Castes and
the Scheduled tribes and twenty-five
shall be reserved for the Backward
Classes and the remaining fifty-nine
shall be filled on the basis of merit.
(b) The claims of members of the
Scheduled Castes and the Scheduled
Tribes and the Backward Classes shall
also be considered for the fifty-nine
appointments which shall be filled up on
the basis of merit; and where a
candidate belonging to a Scheduled
Caste, Scheduled Tribe or a Backward
class is selected on the basis of merit,
the number of posts reserved for
Scheduled Castes and Scheduled Tribes or
for Backward classes, as the case may
be, shall not in any way be affected.
(c)……………….”
By G.O.Ms. No. 695 dated June 6, 1971, the percentage
of reservation for Scheduled Castes and Scheduled Tribes was
raised to eighteen percent and reservation for the Backward
Classes was raised to thirty one percent. By G.O.Ms No. 1256
dated June 20,1977, Rule 6 of the Special Rules was amended
and substituted by the following provision :-
“Rule 6, Reservation of appointments:
Subject to the provisions of Rule 5(d),
rule of reservation of appointments
(General rule 22) shall apply to
appointments to the category of Deputy
Tahsildars in each district at the time
of selection for inclusion in the list.”
The amended Rule 6 was not published in the Tamil Nadu
Government Gazette. The validity of the said amended rule
was challenged before the Madras High Court in a writ
petition (writ petition No. 3691/1983) which was allowed by
a learned single Judge of the High Court by judgment dated
December 2, 1983 and the said G.O.Ms. dated June 20, 1977
was quashed on the ground that the same was snot published
in the Tamil Nadu Government Gazette. The State of Tamil
Nadu filed an appeal (Writ Appeal No. 1028/1984) against the
said judgment of the learned single Judge. At the same time
G.O.Ms. No. 1256 dated June 20, 1977 was published in the
Tamil Nadu Government Gazette dated January 30, 1984. The
validity of the said publication in the Gazette dated
January 30, 1984 was challenged before the High Court in
writ petition No. 3353/84. While Writ Appeal No. 1028/1984
and writ petition No. 3353/1984 and other connected writ
petitions were pending before the high Court, the Government
of Tamil Nadu issued a fresh order, G.O.Ms. No. 660 dated
April 19, 1988, which was published in the Tamil nadu
Government Gazette April 20, 1988. By the said G.O.Ms. No.
660 dated April 19, 1988, Rule 6 of the Special Rules, as
substituted by G.O.Ms. No. 1256 dated June 20, 1977, was
reintroduced in the same terms with retrospective effect
from June 20, 1977. In view of the notification dated April
19, 1988, writ appeal No. 1028/84 and writ petition No.
3353/84 and other connected writ petitions were dismissed by
the Division Bench of the High Court on September 20, 1988
stating that they have become infructuous and that writ
petition No. 6691/83 which had been allowed by the learned
single Judge on the ground of non-publication of the
modification had also become infructuous. It was, however,
observed that the petitioners who had filed the writ
petitions were at liberty to question G.O.Ms. No. 660 dated
April 19, 1988. Thereupon, the respondents filed D.A.No.
1131/1990 and other petitions before the Tamil Nadu
Administrative tribunal (hereinafter referred to as `the
Tribunal’) wherein they challenged the validity of G.O.Ms.
No. 660 dated April 19, 1988.
The respondents were originally appointed as Junior
Assistants in the Revenue Department in the Tamil Nadu
Ministerial Service. They were recruited against posts
falling in the open competition (O/C) category. Thereafter
they were promoted as Assistants in the said Service. Rule 3
of the Special Rules makes provision for recruitment by
transfer on the post of Deputy Tahsildar from amongst
members of the Madras Secretariat Service or Madras
Ministerial Service employed in the offices of the Board of
Revenue and the Director of Settlements, etc. Till 1977,
there was reservation to the extent of 16% for Scheduled
Castes and Scheduled Tribes and 25% for Backward Classes. In
1977, the percentage for such reservation was modified to
18% and 31% respectively and in 1980 it was further enhanced
to 18% and 50% respectively. The respondents, who belong to
non-reserved category, assailed before the Tribunal the
applicability of the Special Rules regarding reservation for
appointment on the post of Deputy Tahsildar on the ground
that the said post of Deputy Tahsildar is a promotion post
and the rule regarding reservation applied only at the stage
of initial appointment and not at the stage of promotion.
They also submitted that the amendment introduced in Rule 6
of the Special Rules by G.O.Ms. No. 660 dated April 19, 1988
with retrospective effect from June 20, 1977 was invalid
inasmuch as retrospective operation of the said amendment
would affect the promotion of the respondents.
By the impugned judgment dated July 6, 1993, the
Tribunal has held that the appointment by transfer from the
ministerial staff in the Revenue Department on the post of
Deputy Tahsildar has to be construed as promotion and not
direct recruitment and that, in view of the decision of this
Court in Indira Sawhney & Ors. v. Union of India & Ors.,
1992 Supp. (3) SCC 217, reservation was not permissible in
the matter of promotion. The Tribunal has further held that
G.O.Ms. No. 660 dated April 19, 1988 does not suffer from
any infirmity on account of lack of authority inasmuch as
the orders of the Governor had been obtained for the issue
of the amendment. The Tribunal has, however, held that the
notification which was issued in 1977 was admittedly issued
without proper authority and any action under the said
notification issued in 1977 which was published in 1984 was
lacking in authority and the said action is sought to be
validated by retrospective amendment of Special Rule 6 in
1988. According to the Tribunal as a result of the said
retrospective amendment there was denial of promotional
prospects to the respondents and that an amendment of the
rules could not be given retrospective effect so as to deny
the right of promotion under the Rules in respect of
vacancies which had arisen before the date on which the
amendment was introduced. The Tribunal, therefore, directed
that vacancies that had arisen till the date of issue of the
amendment in 1988 should be filled up in accordance with the
rules as they were before the amendment and persons already
promoted will have their seniority refixed and persons who
are eligible to be promoted, but not promoted, should be
promoted with consequential benefits in the vacancies
arising hereafter with seniority from the date on which the
person placed next to them in the list on this basis was
promoted.
As regards the applicability of the provision relating
to reservation in the matter of appointment on the post of
Deputy Tahsildar by transfer, the submission of learned
Additional Solicitor General is that the appointment from
the Tamil Nadu Ministerial Service to Tamil Nadu Sub-
ordinate service by way of transfer is in the nature of a
fresh appointment and it cannot be regarded as promotion
and, therefore, the decision in Indira Sawhney & Ors. v.
Union of India & Ors. (supra) in that regard has no
application. The learned Additional Solicitor General has
also submitted that even as per the decision in Indira
Sawhney case (supra) the existing Rules regarding
reservation have been allowed to remain in operation for a
period of five years and, therefore, reservation as per
existing Rules cannot be questioned.
Since in Indira Sawhney case (supra) this Court has
held that the existing rules providing for reservation in
the matter of promotion can be continued for a period of
five years, the appointments that have been made on the post
of Deputy Tahsildar by applying the principle of reservation
cannot be questioned on the basis of the law laid down in
Indira Sawhney case (supra) that the principle of
reservation cannot be applied at the stage of promotion. It
is, therefore, not necessary to go into the question whether
appointment to the post of Deputy Tahsildar by transfer from
Tamil Nadu Ministerial Sub-ordinate Service amounts to
promotion.
The question which survives is regarding the validity
of the retrospective operation given to the amendment
introduced in Rule 6 of the Special Rules by G.O.Ms. No. 660
dated April 19, 1988. The learned Additional Solicitor
General has urged that the amendment introduced in Rule 6 of
the Special Rules only clarifies the existing position
regarding applicability of Rule 22 of the General Rules and
has pointed out that by virtue of rule 6 of the Special
Rules, as it stood prior to the amendment, the general rule
regarding reservation (General Rule 22) was made applicable
to appointment to the category of Deputy Tahsildars in each
district. In our opinion, this submission merits acceptance.
By Rule 6 of the Special Rules, as it stood before the
impugned amendment the provisions of Rule 22 of the General
Rules containing the Rule of reservation regarding
appointment were made applicable to appointments to the
category of Deputy Tahsildar in each district. The manner of
applicability of the said provisions was to be governed by
the provisions of Rule 22 of the General Rules. Rule 22 of
the General Rules, prior to is amendment in 1967, made
provision for reservation at the stage of appointment By the
amendment which was introduced in Rule 22 of the General
Rules by G.O.Ms. No. 1588 dated July 11, 1967 reservation
has to be applied at the stage of selection for appointment.
This is the procedure which has been followed in the matter
of appointment to the post of Deputy Tahsildar under the
Special Rules as per Rule 6 of the Special Rules as it
existed prior to the impugned amendment. The amendment
Introduced in Rule 6 of the Special Rules by G.O.Ms. No. 660
dated April 19, 1988 only clarifies this position and says
that the rule of reservation of appointments (General Rule
22) shall apply to the category of Deputy Tahsildars in each
district at the time of selection for inclusion in the list.
We are unable to agree with the view of the Tribunal that
Rule 6, as amended, alters the position as it existed prior
to the said amendment in the matter of applicability of the
Rules regarding reservation and that the retrospective
effect that has been given to the said amendment, by
validating action taking during earlier period without
authority, results in denial of promotion prospects.
We may, in this context, point out that, in law, a
distinction is drawn between a mere reference or citation of
a statute into another and incorporation of a particular
provision of a statute. While in the former case a
modification, repeal or re-enactment of the statute that is
referred will also have effect for the statute in which it
is referred, but in the latter case any change in the
incorporated statute by way of amendment or repeal has no
repercussion on the incorporating statute. [ See : The
Collector of Customs v. Nathella Sampathu Chetty & Anr.,
1967 (3) SCR 786 at p. 831; G.P. Singh, Principles of
Statutory Interpretation, 4th Edn., pp. 178-179]. The
provisions of Rule 6 of the Special Rules, as they stood
prior to the impugned amendment, applied the rule of
reservation in the matter of appointments as contained in
Rule 22 of the General Rules to appointment to the post of
Deputy Tahsildar in each district. The said Rule 6 only
referred to the provisions contained in Rule 22 of the
General Rules and it cannot be construed as incorporating by
reference Rule 22 of the General Rules into the said Special
Rule. This means that a subsequent amendment in rule 22 of
the General Rules would be applicable in the matter of
appointment to the category of Deputy Tahsildar under the
Special Rules and the amendments that were introduced in
Rule 22 of the General Rules in 1967 and thereafter were
applicable in the matter of such appointments. It was not
necessary to make an amendment in Rule 6 of the Special
Rules to incorporate the amendment that was introduced in
rule 22 of the General Rules in 1967. Moreover, the
principle that where a subsequent enactment incorporates the
provisions of a previous enactment, then the borrowed
provisions become an integral and independent part of the
subsequent enactment and are totally unaffected by any
repeal or amendment in the previous enactment is subject to
certain exceptions. One such exception excluding the
applicability of this principle is where the subsequent Act
and the previous Act are supplemental to each other, [ See :
State of Madhya Pradesh v. M.V. Narasimhan, (1976) 1 SCR 6,
at p. 14]
The instant case would fall under this exception
because Rule 6 of the Special Rules and Rule 22 of the
General Rules are supplemental to each other. In our
opinion, therefore, the Tribunal was not right in holding
that the amendment introduced in Rule 6 by G.O.Ms. No. 660
dated April 19, 1988, insofar as it gives retrospective
effect to the said amendment, is invalid. The judgment of
the Tribunal dated July 16, 1993 cannot, therefore, be
upheld and C.A.Nos. 1093 to 1096 of 1995 filed against the
said judgment have, therefore, to be allowed. In the other
appeals (C.A.Nos. 1097 of 1995 and Civil Appeal arising out
of SLP (C) No. 10107 of 1995) the Tribunal has allowed the
applications on the basis of its judgment dated July 6, 1993
and for the same reasons the said appeals have also to be
allowed.
Before we conclude, we would like to mention that all
these matters have been heard by the Vice Chairman of the
Tribunal sitting singly. The Vice-Chairman of the Tribunal
was an Administrative Member. In Amulya Chandra Kalika v.
Union of India & Ors., 1991 (1) SCC 181, a two-Judge bench
of this Court, having regard to Section 5(2) of the
Administrative Tribunals Act, 1985, has held that an
Administrative Member alone cannot decide a case and the
Bench must also have a Judicial Member. A three-Judge Bench
of this Court in Dr. Mahabal Ram v. Indian Council of
Agricultural Research & Ors., 1994 (2) SCC 401, keeping in
view the provisions of Sections 5(2) and 5(6) of the
Administrative Tribunals Act, 1985, has held that the
expression `single Member’ in Section 5(6) means Judicial as
well as Administrative Member. The Court has directed that
the Chairman should keep in view the nature of the
litigation and where questions of law and/or interpretation
of constitutional provisions are involved they should not be
assigned to a Single Member. The Court has, however, pointed
out that the vires of Section 5(6) was not under challenge
before the court. In Union of India & Ors. v. Tushar Ranjan
Mohanty & Ors., 1994 (5) SCC 450, the Court has taken note
of both these decisions and has referred the matter to be
heard by a Bench of three Judges since the validity of sub-
section (6) of Section 5 was challenged in the said case. It
is not clear as to what directions had been given by the
Chairman of the Tribunal in the matter of listing the cases
before a Single member. Since the question as to the
validity of a statutory rule made under Article 309 of the
Constitution was raised in the present case we are of the
view that it should have been heard by a Bench having two
Members.
In the result, the appeals are allowed, the judgment of
the Tribunal dated 6, 1993 in O.A.Nos. 1131/90, 2633/90,
2634/90 and 3674/91, the judgment dated October 6, 1993 in
O.A.No. 5909/93 and judgment dated March 16, 1994 in O.A.No.
1148/93, are set aside and the original applications
submitted by the respondents are dismissed. The parties are
left to bear their own costs.