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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1919 OF 2008
B. Rugmini Amma & Anr. ... Appellant(s)
Versus
B.S. Nirmala Kumari & Ors. ... Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
An appellate order dated 01.02.2006 of the Kerala High
Court affirming the order dated 09.02.2005 of the learned
Single Judge passed in a writ petition has been put to challenge
in this appeal.
The aforesaid two orders having somewhat
circumscribed the perceived avenues for promotion of
Graduate Typists/Confidential Assistants to the post of Section
Officer in the Administrative Secretariat, two affected Graduate
Typists, who have since been promoted to even higher post in
the Secretariat, have instituted the present appeal.
2. To unravel the controversy between the parties, a brief
narration of the essential facts would be required. Initially, a
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Government Order (for short “G.O.”) dated 10.1.1977 governed
the method of promotions to the post of Section Officer in the
Administrative Secretariat and also laid down the essential
qualifications of the incumbents in the feeder category to be
eligible for consideration for such promotion.
The aforesaid
G.O. dated 10.1.1977 was superseded by another order dated
5.6.1989 under which G.O. three categories of incumbents in
the ratio of 15:1:1 (in a cluster of 17 posts) were made eligible
for promotion to the post of Section Officer.
Senior Grade
Assistants,
Typists and Confidential Assistants (in that order)
formed the feeder categories eligible for consideration for
promotion.
Insofar as Typists and Confidential Assistants are
concerned, the requirement spelt out by the G.O. dated
5.6.1989 is that they should have passed the Secondary School
Leaving Certificate (S.S.L.C.) examination besides passing a
suitability test conducted by the Kerala Public Service
Commission.
Such an incumbent should also have satisfactorily
completed training as Assistant for a minimum period of one
year.
It would be necessary to specifically notice that by the
G.O. dated 5.6.1989, Graduate Typists and Confidential
Assistants were continued to be exempted from passing the
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suitability test for promotion to the post of Section Officer in
terms of an earlier G.O. dated 17.6.1988.
The aforesaid G.O.
dated 17.6.1988 exempted the Graduate Typists and
Confidential Assistants in the Administrative Secretariat from
passing the qualifying examination subject to the conditions
mentioned in the several clauses thereto.
Clause (d) being the
relevant clause may be usefully noticed at this stage.
“The graduate typists/confidential assistants
will not be appointed as Section Officer in
preference to the typists/confidential
assistants who have already passed the
suitability test and who are awaiting
appointment as Section Officer. However,
qualified and eligible graduate
typists/confidential assistants will be
appointed as Section Officers if eligible
suitability test passed trained
typists/confidential assistants are not
available in their turn for appointment as
Section Officer.”
3. Clause (d) contained in the G.O. dated 17.6.1988 came to
be subjected to different interpretations and understandings
unravelling several ambiguities.
The core of the controversy
was with regard to the purport and effect of the exemption,
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namely, whether it gave a preferential right to Graduate
Typists/Confidential Assistants for consideration for promotion
and, if so, was the said right available in perpetuity after the
date of coming into force of the G.O. w.e.f. 17.6.1988.
The
aforesaid controversy between the Graduate and Non-graduate
aspirants for the promotional post was attempted to be
resolved by several court orders until the Government thought
it appropriate to clarify the matter by issuing a subsequent G.O.
almost a decade later, i.e., on 19.3.1998.
The aforesaid G.O.
dated 19.3.1998 which is on record goes on to recite that, “The
Typists/Confidential Assistants who had passed the Suitability
Test and completed the training for one year as Assistant and
became qualified for appointment as Section Officer in the
Administrative Secretariat as on 17.06.1988 alone would be
eligible for preference over the Graduate Typists/Confidential
Assistants”.
4. The private respondents in the appeal, who are Nongraduates, moved the High Court of Kerala under Article 226
challenging what they contended to be their belated promotion
to the post of Section Officer and the accelerated promotions
given to the present appellants (impleaded as respondents inPage 5
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the writ petition) notwithstanding the fact that the respondentwrit petitioners were available for consideration for promotion,
having passed the suitability test and also having undergone
the requisite period of training of one year. The learned Single
Judge upheld the contentions made by the Non-graduates in
the writ petitions filed and took the view that the G.O. dated
17.3.1998, if read to contain a preference in favour of the
Graduates would amount to virtually setting at naught the
effect of the initial orders which merely provided an exemption
to the graduate typists/confidential assistants. The writ
petition, therefore, was allowed with consequential directions to
the State to give due benefits to the petitioners (respondents
herein) and scale down the undue benefits that had already
been conferred on the Graduates. Aggrieved, the Graduate
Section Officers moved the High Court in its Letters Patent
jurisdiction. The Division Bench by its order dated 01.02.2006
having affirmed the view taken by the learned Single Judge, the
Graduate Section Officers have filed this appeal.
5. Efflux of time has resulted in a virtual erosion of the
substantive rights of the parties before us, as admittedly most
of them, if not all, have in the meantime retired and such of
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them who may still be in service could possibly be on the verge
of completion of their tenure. Nevertheless as the legal
issue(s) survive, an analysis thereof and a resolution must be
made.
6. Under the initial G.O. dated 10.01.1977 Typists and
Confidential Assistants were required to pass a qualifying
examination to be conducted by the Public Service Commission
and thereafter to complete one year of training as Assistant in
order to be eligible for promotion to the post of Section Officer.
The second requirement i.e. completion of a period of one year
of training is not in issue in the present proceedings.
In order
to provide some kind of incentive to the Graduates who were
working as Typists/Confidential Assistants (a somewhat unusual
feature at that point of time), an exemption was granted to
these Graduates from the requirement of passing the
qualifying/ suitability test by the G.O. dated 17.6.1988.
However, the aforesaid G.O. in clause (d) had made it clear that
Graduates/Confidential Assistants will not be appointed in
preference to the Non-graduates who have already passed the
suitability test and were awaiting promotion as Section Officer.
The aforesaid clause (d) also made it clear that Graduate
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Typists/Confidential Assistants will be considered for promotion
only if eligible Non-graduates were not available. Properly
read, the G.O. dated 17.6.1988 merely exempted Graduate
Typists/ Confidential Assistants from the requirement of passing
the qualifying examination. The said G.O. did not give any
priority/preference in the matter of promotion to the Graduates
over the qualified Undergraduates/Non-graduates.
The
clarificatory G.O. dated 19.3.1998, though seeking to clarify
and throw light on the confusion caused by reading the date of
the G.O. i.e. 17.6.1988 as a cut off date for working out a
preference in favour of the Graduates, had gone beyond the
terms of the main G.O. dated 17.6.1988 by stating that it is
only those Typists and Confidential Assistants who had passed
the qualifying examination before 17.6.1988 who will be
entitled to have priority over Graduate Typists/Confidential
Assistants.
How the clarification sought to be made by the G.O.
dated 19.3.1998 could have the effect of giving priority to
either of the 2 groups of incumbents when no such priority or
preference was contemplated by the initial G.O. dated
17.6.1988 defies logic.
The above stated effect of the
clarification, if accepted, would occasion a corollary that after
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17.6.1988, Graduate Typists/Confidential Assistants will always
have priority over Non-graduates though such Non-graduates
may have passed the qualifying examination and are otherwise
eligible for promotion.
If the above meaning is to be attributed
to the clarificatory G.O. the same would surpass the main G.O.
dated 17.6.1988.
effect of the clarificatory G.O. cannot, by
any means, supersede or override the terms of the main order.
This is an elementary principle of interpretation.
This is
precisely how the High Court has understood the issue before it
and has held that the original G.O. dated 17.6.1988 merely
exempts Graduate Typists/ Confidential Assistants from passing
the suitability test and no further.
If that is the true purport
and effect of the G.O. dated 17.6.1988, on which we have no
doubt, naturally, the clarificatory G.O. has to be restricted in its
meaning as has been done by the High Court and cannot be
allowed to work to the undue advantage of the Graduates and
to the detriment of the non-Graduates.
7. For the aforesaid reasons, we do not find any merit in this
appeal. We accordingly dismiss the same and affirm the
judgment and order dated 01.02.2006 of the Division Bench of
the High Court.Page 9
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...…………………………J.
[H.L. GOKHALE]
.........……………………J.
[RANJAN GOGOI]
New Delhi,
May 6, 2013.
