AI Drafter 
TaxTMI 
TaxTMI 
2014 (12) TMI 1409
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....ssail the amendments to the Rules made qua 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....
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....egree of a University in the Indian Union and has also passed the examination in Law 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 anythin....
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.... not enable the holder to get enrolled as an Advocate as per the Bar Council Rules. An equation was thus sought of the 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 ....
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....ervice holding a Law degree granted by a recognised Indian University but not recognized by the 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 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 fille....
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....ncreased to BAL degree-holders, most of them may not be in a position to get promotion to Assistant Registrar post, as they will have to retire in the lower cadre itself. It is also to be noted here that as B.A.L. degree-holders are found 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, conside....
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.... : 19. In the process of insertion of the proviso to clause (2) of sub-rule (b) of Rule 6 vide Notification dated 14.2.2007, it was possibly realised that the matter needed further elucidation by insertion of a definition of a law degree in Rule 1 and thus, clause (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, b....
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....er to the observations and cases referred to on this principle in Commissioner of Income Tax vs. Sagar Mal Shamboo Nath, (2006) 203 C.T.R. (All) 167 :- "33. In M. & S.M. Railway Co. Ltd. vs. Bezwada Municipality, A.I.R. 1944 P.C. 71, Lord Macmillan observed thus : 'The proper function of a proviso is to except 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 ....
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....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 vs. Raje Ram Sheoran, 1992 Supp (1) S.C.C. 304, Tribhovandas Haribhai Tamboli vs. Gujarat Revenue Tribunal, (1991) 3 S.C.C. 442 and Kerala State Housing Board vs. Ramapriya Hotels (P) Ltd., (1994) 5 S.C.C. 672.' 40. This view was reiterated by the Supreme 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 al....
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....er of Survey 1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs. Subhash Chandra Yograj Sinha, (1962) 2 S.C.R. 159 and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta, (1965) 3 S.C.R. 354; when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper 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 ....
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....977 when an amendment to the rules had been incorporated by a Government Order dated 23.1.1977. The original rules providing for consideration of Lower Division Clerks for appointment as Sub-Registrars Grade-II were done away with and promotion or transfer to that category was to be made from amongst Upper Division Clerks employed in the Registration and Stamps Department. It was thus held that a panel should have been prepared 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....
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....r. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the rule was amended, which rendered the Petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies 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 promot....
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....as not invited to the judgment of the Supreme Court in Deepak Agarwal's case (supra), more specifically to the paragraphs referred to aforesaid, which would hold fort. 34. The law laid down by the Supreme Court in Deepak Agarwal's case (supra) has been followed by a Full Bench of the Himachal Pradesh High Court, in State of Himachal Pradesh vs. Harbans Lal, 2014 Lab. I.C. 308 (FB) and in Berojgar Shastri Sangh Welfare Society vs. State of H.P., A.I.R. 2014 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 servic....
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.... be rejected as repugnant, and the earlier clause prevails....But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole" (per Lord Wrenbury in Forbes vs. Git, (1922) 1 A.C. 256. A statutory proviso "is something engrafted on a preceding enactment" (R. vs. Taunton St. James, (1829) 9 B.&C. 836). The ordinary and proper function of a proviso 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 ....
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....observed thus: 'We must now come to the proviso, for there is, I think, no doubt that in the construction of the section the whole of it must be read and a consistent meaning if possible given to every part of it. The words are "provided that such licence shall be granted only for premises situate in the ward or district electoral division in which such increase in population has taken place". There seems to be no doubt that the words "such increase in population" refer to the increase of not less than 25 per cent of the population mentioned in the opening words of the section.' 36. While interpreting a 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 t....
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....a Das Saraf, (1976) 1 S.C.C. 128, the Supreme Court held thus :- "16. ...If, on a fair construction, the principal provision is clear, a proviso cannot expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges. 18. ...A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. 'Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced 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 exc....
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....s the obligation created by the earlier clause, then the latter clause is to be rejected as repugnant and the earlier clause must prevail, but if the latter clause does not destroy and only nullifies the earlier, then it should be read together. 39. Mr. N.G.R. Prasad, learned counsel appearing for another set of petitioners submitted that what was sought to be done by the amendment of the year 2013 was to make the proviso the rule and the rule the proviso. This was stated to be impermissible. We may also refer to the observations of the Supreme Court in Sundaram Pillai vs. V.R. Pattabiraman (supra) cited with approval in C.I.T. vs. Sagar Mal Shamboo Nath (supra) that a proviso being an exception to the main enactment, cannot be used to nullify or set at 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,....
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....ing 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. 46. 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. 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 au....
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....ma's case (supra) would thus apply on all fours. 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. 50. We are thus of the view that 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. Conclusion 51. In view of what we have held aforesaid, the amendment made vide High Court's Notification No.5/2013/RAC dated 30.7.2013 is hereby quashed. As a result of this, the ratio 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....