{"id":161714,"date":"2011-10-11T00:00:00","date_gmt":"2011-10-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/t-mathavan-vs-the-principal-secretary-and-on-11-october-2011"},"modified":"2014-11-15T04:23:20","modified_gmt":"2014-11-14T22:53:20","slug":"t-mathavan-vs-the-principal-secretary-and-on-11-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/t-mathavan-vs-the-principal-secretary-and-on-11-october-2011","title":{"rendered":"T.Mathavan vs The Principal Secretary And on 11 October, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
T.Mathavan vs The Principal Secretary And on 11 October, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 11\/10\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE K.CHANDRU\n\nW.P.(MD)No.3481 of 2010\nW.P.(MD)No.2785 of 2010\nW.P.(MD)No.1102 of 2010\nW.P.(MD)No.4085 of 2010\nW.P.(MD)No.14746 of 2010\nW.P.(MD)No.1579 of 2011\nW.P.(MD)No.1580 of 2011\nand\nW.P.(MD)No.1797 of 2010\nand\nM.P.(MD)Nos.1,2,3,4\/2010, 2\/2011, 2,3\/2010, 1,2\/2010, 1\/2010, 1,2\/2010, 1,1\/2011\nand 2\/2010\n\nW.P.(MD)No.3481\/2010:\n\nT.Mathavan\t\t\t\t... Petitioner\n\nvs.\n\n1.The Principal Secretary and\n   Commissioner of Revenue Administration,\n   Chepauk,\n   Chennai-5.\n\n2.The District Collector,\n   Karur District,\n   Karur.\n\n3.The District Revenue Officer,\n   Karur District, Karur.\n\n\n4.Mr.M.Pugazhendhi\n5.C.Ravichandran\n   [R-5 impleaded as per order of this Court\n    dated 28.04.2011 in M.P.(MD)No.1 of 2011]\n\t\t\t\t\t... Respondents\n\nW.P.(MD)No.2785\/2010:\n\nS.Sivakumar\t\t\t\t... Petitioner\n\nvs.\n\n1.The State of Tamil Nadu represented by\n   its Secretary to Government,\n   Revenue Department,\n   Secretariat,\n   Chennai-600 009.\n\n2.The Principal Secretary\/\n   Commissioner of Revenue Administration,\n   Chepauk,\n   Chennai-600 005.\n\n3.The District Collector,\n   Karur District,\n   Karur-639 007.\n\n\n4.C.Ravichandran\n   [R-4 impleaded as per order of this Court\n    dated 14.06.2011 in M.P.(MD)No.1 of 2011]\n\t\t\t\t\t... Respondents\n\n\nW.P.(MD)No.1102\/2010:\n\nR.Muniappan\t\t\t\t... Petitioner\n\nvs.\n\n1.The Principal Secretary and\n   Commissioner of Revenue Administration,\n   Chepauk,\n   Chennai-5.\n\n2.The District Collector,\n   Karur District,\n   Karur.\n\n3.The District Revenue Officer,\n   Karur District, Karur.\n\n4.C.Ravichandran\n   [R-4 impleaded as per order of this Court\n    dated 28.04.2011 in M.P.(MD)No.1 of 2011]\n\t\t\t\t\t... Respondents\n\n\nW.P.(MD)No.4085\/2010:\n\nP.Duraisamy\t\t\t\t... Petitioner\n\n vs.\n\n\n1.State of Tamil Nadu,\n   Rep. by its Secretary,\n   Revenue Department,\n   Fort St. George,\n   Chennai-600 009.\n\n2.The Principal Secretary\/\n   Commissioner of Revenue Administration,\n   Chepauk,\n   Chennai-600 005.\n\n3.The District Collector,\n   Karur District,\n   Karur-639 007.\n\n4.C.Ravichandran\n   [R-4 impleaded as per order of this Court\n    dated 28.04.2011 in M.P.(MD)No.1 of 2011]\n\t\t\t\t\t... Respondents\n\n\nW.P.(MD)No.14746\/2010:\n\nC.Ravichandran\t\t\t\t... Petitioner\n\nvs.\n\n1.The Registrar General,\n   High Court, Madras.\n\n2.The State of Tamil Nadu,\n   Rep. by its Principal Secretary\n   to Government, Home (Courts) Department,\n   Secretariat, Chennai-9.\n\n3.The Principal Secretary\/\n   Commissioner of Revenue Administration,\n   Chepauk,\n   Chennai-5.\n\n4.The District Collector,\n   Karur.\n\n5.R.Muniappan,\n   Superintendent,\n   Office of the Assistant Commissioner (Excise),\n   Collector's Office, Karur.\n\n\n\n6.T.Mathavan,\n   Superintendent,\n   Office of the District Supply & Consumer,\n   Protection Department,\n   Collector's Office, Karur.\t\t... Respondents\n\nW.P.(MD)No.1579\/2011:\n\nR.Muniappan,\nSuperintendent,\nOffice of the Assistant Commissioner (Excise),\nCollector's Office,\nKarur District-639 007.\t\t\t... Petitioner\n\nvs.\n\n1.The District Collector,\n   Karur District,\n   Karur-639 007\n\n2.C.Ravichandran\n   [R-2 impleaded as per order of this Court\n    dated 14.06.2011 in M.P.(MD)No.2 of 2011]\n\t\t\t\t\t... Respondents\n\nW.P.(MD)No.1580\/2011:\n\nMr.T.Mathavan,\nSuperintendent,\nOffice of the District Supply and\nConsumer Protection Department,\nCollector's Office,\nKarur-639 007.\t\t\t\t... Petitioner\n\nvs.\n\n1.The District Collector,\n   Karur District,\n   Karur-639 007\n\n2.C.Ravichandran\n   [R-2 impleaded as per order of this Court\n    dated 14.06.2011 in M.P.(MD)No.2 of 2011]\n\t\t\t\t\t... Respondents\nW.P.(MD)No.1797\/2010:\n\n1.R.Muniappan\n2.G.Kamalesh\n3.S.Chellapandian\n4.A.Garpagam\n5.K.Lenin\t\t\t\t... Petitioners\n\nvs.\n\n1.The State of Tamil Nadu,\n   Rep. by its Secretary to Government,\n   Revenue Department,\n   Fort St. George,\n   Chennai-9.\n\n2.The Principal Secretary\/Commissioner\n   of Revenue Administration,\n   Chepauk, Chennai-5.\n\n3.The District Collector,\n   Karur, Karur District.\n\n4.The District Collector,\n   Madurai, Madurai District.\n\n5.The District Collector,\n   Dindigul, Dindigul District.\n\n6.The District Collector,\n   Tuticorin, Tuticorin District.\n\n7.C.Ravichandran\n   [R-7 impleaded as per order of this\n    Court dated 28.04.2011 made in\n    M.P.(MD)No.1 of 2011]\t\t... Respondents\n\nPRAYER in W.P.(MD)No.3481\/2010\n\nWrit Petition is filed under Article 226 of the\nConstitution of India praying for the issuance of a Writ of Certiorarified\nMandamus, to call for the records pertaining to the impugned notification in\nRc.A2\/4126\/2009, dated 17.11.2009 and the subsequent notification in\nRc.A2\/20195\/2009, dated 21.12.2009 on the file of the second respondent and\nquash the same as illegal and consequently, to retain the petitioner in the list\nof Deputy Tahsildars for the year 2007 in pursuance to the earlier notification\nin Pdl 279\/2007(A2) dated 12.01.2008 on the file of the second respondent.\n\nPRAYER in W.P.(MD)No.2785\/2010\n\nWrit Petition is filed under Article 226 of the\nConstitution of India praying for the issuance of a Writ of Certiorarified\nMandamus, to call for the records pertaining to the impugned proceedings in\nRc.A2\/20195\/09, dated 21.12.2009 on the file of the third respondent redrawn\npanel of list of Deputy Tahsildars of Karur District for the year 2007 and\nconsequential proceedings in Rc.A2\/20195\/09, dated 21.12.2009 on the file of the\nthird respondent redrawn panel of list of Deputy Tahsildars of Karur District\nfor the year 2008 and quash the same as illegal as far as the petitioner is\nconcerned and consequently, direct the third respondent to maintain the approved\nlist of Deputy Tahsildars for the years 2007 and 2008 as originally drawn up as\nper rules and Government Orders in force vide the third respondent's\nnotification Pdl\/A2\/279\/2007, dated 12.01.2008 and Pdl\/279\/2008(A2), dated\n26.11.2008 and send the petitioner to the police and Magisterial training\nimmediately, give further promotion.\n\nPRAYER in W.P.(MD)No.1102\/2010\n\nWrit Petition is filed under Article 226 of the\nConstitution of India praying for the issuance of a Writ of Certiorari, to call\nfor the records pertaining to the impugned proceedings in Rc.A2\/20915\/09, dated\n21.12.2009 on the file of the second respondent and quash the same as illegal as\nfar as the petitioner is concerned.\n\nPRAYER in W.P.(MD)No.4085\/2010\n\nWrit Petition is filed under Article 226 of the\nConstitution of India praying for the issuance of a Writ of Mandamus, directing\nthe third respondent to send me for police training before 30.04.2010 enabling\nthe petitioner to become eligible to be included in the panel for Tahsildars for\nthe year 2010.\n\nPRAYER in W.P.(MD)No.14746\/2010\n\nWrit Petition is filed under Article 226 of\nthe Constitution of India praying for the issuance of a Writ of Certiorarified\nMandamus, to call for the records relating to the notification in ROC\nNo.12601\/2010(B6) Notification 211\/2010, dated 23.11.2010 issued by the first\nrespondent and quash the same, insofar as the respondents 5 and 6 are concerned,\nand direct the official respondents 1 to 4 to confer magisterial power on the\npetitioner, so as to enable the petitioner to acquire the qualification for the\npost of Tahsildar.\n\nPRAYER in W.P.(MD)No.1579\/2011\n\nWrit Petition is filed under Article 226 of the\nConstitution of India praying for the issuance of a Writ of Mandamus, directing\nthe first respondent to send the petitioner for Magisterial Training in\npursuance to the Notification No.211\/2010 in ROC.No.12601\/2010-B6.\n\nPRAYER in W.P.(MD)No.1580\/2011\n\nWrit Petition is filed under Article 226 of the\nConstitution of India praying for the issuance of a Writ of Mandamus, directing\nthe first respondent to send the petitioner for Magisterial Training in\npursuance to the Notification No.211\/2010 in ROC.No.12601\/2010-B6.\n\nPRAYER in W.P.(MD)No.1797\/2010\n\nWrit Petition is filed under Article 226 of the\nConstitution of India praying for the issuance of a Writ of Declaration,\ndeclaring that the Special Rules for the Tamil Nadu Revenue Subordination\nService in Section 28 in Volume III of the Tamil Nadu Service Manual 1970 in\nannexure III in Item (II) as illegal to the extent to which define that a\n\"provided also that an Assistant appointed by direct recruitment in the office\nof the erstwhile Board of Revenue, who has completed a total service of five\nyears, passed all the tests prescribed and undergone training as Firka Revenue\nInspector for a period of two years successfully shall be eligible for inclusion\nof his name in the approved list of Deputy Tahsildars for Madras city, above his\nseniors appointed other than by direct recruitment or for re-fixation of his\nseniority over such seniority, if his name has already been included in one list\nof Deputy Tahsildrs. The consideration of his claim shall be against the first\nvacancy that follows the carried over vacancies.  After the proviso so\nsubstituted, the following proviso shall be added:- provided also that an\nAssistant appointed by direct recruitment in the District Revenue Unit, who has\ncompleted a total period of five years, passed all the tests prescribed and\nundergone training as Firka Revenue Inspector for a period of two years\nsuccessfully, shall be eligible for inclusion of his name in the approved list\nof Deputy Tahsildars in the District above his seniors appointed other than by\ndirect recruitment or for re-fixation of his seniority over such seniors, if his\nname has already been included in the list of Deputy Tahsildars.  The\nConstitution of his claim shall be against the first vacancy that follows the\ncarried over vacancies\" or in the alternative directing the respondents to apply\nthe same criteria of providing the eligible service of four years as Assistants\nto enable them appointment by transfer as the Deputy Thasildar as provided for\nthe Promotee Assistants form the Cadre of Junior Assistant.\n\n\t\tW.P.(MD)No.3481\/2010::\n!For Petitioner\t  \t... Mr.T.Lajapathi Roy\n^For Respondents 1to3 \t... Mr.M.Govindan\n\t\t\t    Special Government Pleader\nFor Respondent No.4\t... No Appearance\nFor Respondent No.5\t... Mr.V.Panneerselvam\n\t\t\t    For M\/s.C.s.Associates\n\t\tW.P.(MD)Nos.2785,1102 &4085\/2010::\nFor Petitioners\t  \t... Mr.T.Lajapathi Roy\nFor Respondents 1to3 \t... Mr.M.Govindan\n\t\t\t    Special Government Pleader\nFor Respondent No.4\t... Mr.V.Panneerselvam\n\t\t\t    For M\/s.C.s.Associates\n\n\t\tW.P.(MD)No.14746\/2010::\nFor Petitioner\t  \t... Mr.V.Panneerselvam\n\t\t\t    For M\/s.C.s.Associates\nFor Respondent No.1 \t... Mr.D.Venkatesh\nFor Respondents 2to4\t... Mr.M.Govindan\n\t\t\t    Special Government Pleader\nFor Respondents 5&6\t... Mr.T.Lajapathi Roy\n\n\t\tW.P.(MD)Nos.1579 & 1580\/2011::\n\nFor Petitioners\t  \t... Mr.T.Lajapathi Roy\nFor Respondent No.1 \t... Mr.M.Govindan\n\t\t\t    Special Government Pleader\nFor Respondent No.2\t... Mr.V.Panneerselvam\n\t\t\t    For M\/s.C.s.Associates\n\t\tW.P.(MD)No.1797\/2010::\n\nFor Petitioners\t  \t... Mr.T.Lajapathi Roy\nFor Respondents 1to6 \t... Mr.M.Govindan\n\t\t\t    Special Government Pleader\nFor Respondent No.7\t... Mr.V.Panneerselvam\n\t\t\t    For M\/s.C.s.Associates\n\n\t\t\t\t               ******\n<\/pre>\n
:COMMON ORDER
\n*******<\/p>\n
\t\tIn these batch of Writ Petitions, the petitioners are directly
\nrecruited Assistants holding posts in the Revenue Department. In W.P.(MD)No.1797
\nof 2010, the petitioners have come forward with a prayer seeking for a
\ndeclaration declaring that the Special Rules for the Tamil Nadu Revenue
\nSubordination Service in respect of Annexure III in item II as illegal and seek
\nfor a direction to modify the rule. They have also given two options to the
\nState Government to modify the rule, in essence, the petitioners, who are
\nholding the post of Assistants and who also completed the training as a Firka
\nRevenue Inspector for two years, are eligible for being promoted to the post of
\nDeputy Tahsildars, but wanted the eligibility service of five years as
\nAssistants to be reduced to four years to enable them to get appointed by
\ntransfer to the new service into the post of Deputy Tahsildar.  They also wanted
\nthe first available vacancy to be given to them.\n<\/p>\n
\t\t2. In W.P.(MD)No.4085\/2010, the petitioner has sought for a
\nMandamus, directing the third respondent to send him for police training before
\n30.04.2010 so as to enable him to become eligible to be included in the panel
\nfor Tahsildars for the year 2010.\n<\/p>\n
\t\t3. In W.P.(MD)Nos.1579 and 1580 of 2011, the petitioners have sought
\nfor a Mandamus, directing the first respondent to send them for Magisterial
\nTraining.\n<\/p>\n
\t\t4. In the other Writ Petitions, the directly recruited Assistants
\nseek to challenge the panel prepared by the District Collector, pursuant to the
\njudgment of the Supreme Court in Civil Appeal No.2251 of 2009 and other cases,
\ndated 08.04.2009. The said judgment has been reported in 2009(5) SCC 625 with
\nthe caption “M.Rathinaswami v. State of T.N.”\n<\/p>\n
\t\t5. The grievance projected in those Writ Petitions was that the
\nDistrict Collector has no right to undo the earlier panel, in which the names of
\nthe petitioners have been included and the judgment of the Supreme Court cannot
\nbe made use of for undoing the earlier panel prepared, in essence, the
\npetitioners wanted to contend that M.Rathinaswami’s case (cited supra) should
\nhave a prospective effect and should not affect the earlier panel prepared by
\nthe Revenue Department in the respective District.\n<\/p>\n
\t\t6. The second contention was that before altering the panel and
\nbringing persons from down below the list to the top of the list, no notice was
\ngiven. The petitioners have made certain persons as contesting respondents and
\nalso one C.Ravichandran, who was working as a Zonal Deputy Tahsildar, Taluk
\nOffice, Karur, got himself impleaded in all these Writ Petitions.\n<\/p>\n
\t\t7. When the matter came up before this Court, it was strongly
\ncontended by the official respondents as well as the impleaded respondent that
\nthe Writ Petitions are misconceived and the petitioners are not entitled to
\ncontend contrary to the ratio laid down by the Supreme court in respect of the
\nvery same rule and in essence, they cannot get any order contrary to the
\ndirections issued by the Supreme Court. A reference was also made to the orders
\npassed in respect of similar Writ Petitions filed by similarly placed persons in
\nother revenue districts.\n<\/p>\n
\t\t8. Taking the first contention viz., that whether the petitioners
\nhave any vested right to be kept in the panel and whether the District Collector
\nwas right in recasting the panel, the question has to be answered in the light
\nof the directions issued by the Supreme Court. It must be noted that the Supreme
\nCourt dealt with an appeal against the judgment of the Division Bench in
\nW.P.No.27173 of 2003, dated 10.09.2005, in which, the Division Bench held that
\nthe existing rule giving preference to the directly recruited Assistants and
\ngetting them on the top of the seniority list over the rank promotees was valid.
\nThe aggrieved promotees went to the Supreme Court. The Supreme Court held that
\nthe Government can make a discrimination, even though if the persons holding the
\npost either by direct recruitment or by promotion or in the same cadre, but are
\nhaving different educational qualifications. But, at the same time, the Supreme
\nCourt was informed that many of the rank promotees have got graduation and some
\nof them are also post graduates. Therefore, the Supreme Court held that in such
\ncases if the criteria for promotion was based upon graduation, then even the
\ngraduate rank promotees also should be considered for further promotion.
\nOtherwise, it will result in discrimination and the rule will be violative of
\nArticles 14 and 16 of the Constitution of India. Therefore, the Supreme Court
\nread down the rule to accommodate the rank promotees also to be considered for
\nthe purpose of further promotion as Deputy Tahsildars by transfer from
\nMinisterial service to the Revenue Subordinate service.\n<\/p>\n
\t\t9. In M.Rathinaswami’s case cited supra, at paragraph No.26 to 32,
\nthe Supreme Court observed as follows:\n<\/p>\n
\t“26. Whether graduate degree is a sufficient basis for classification for
\npromotion vis–vis non-graduates, and whether such classification has rational
\nrelation to the nature of duties of a Deputy Tahsildar, is, in our opinion for
\nthe State Government to decide, and not the Court. Hence, we uphold the validity
\nof the impugned Rule to the extent that it gives preference to the directly
\nrecruited Assistants over the promoted Assistants who are non-graduates.\n<\/p>\n
\t27. However, we cannot find any rational basis for giving preference to
\nthe direct recruits over those promotee Assistants who are graduates, since the
\nvery basis for the distinction sought to be drawn by the respondents is that the
\ndirect recruits are graduates and hence intellectually superior to non-
\ngraduates. Hence we have to read down the impugned rule in order to save it from
\nbecoming violative of Articles 14 and 16 of the Constitution.\n<\/p>\n
\t28. It is well settled that to save a statutory provision from the vice of
\nunconstitutionality sometimes a restricted or extended interpretation of the
\nstatute has to be given. This is because it is a well-settled principle of
\ninterpretation that the Court should make every effort to save a statute from
\nbecoming unconstitutional. If on giving one interpretation the statute becomes
\nunconstitutional and on another interpretation it will be constitutional, then
\nthe Court should prefer the latter on the ground that the legislature is
\npresumed not to have intended to have exceeded its jurisdiction.\n<\/p>\n
\t29. Sometimes to uphold the constitutional validity the statutory
\nprovision has to be read down. Thus, in Umayal Achi v. Lakshmi Achi5, the
\nFederal Court was considering the validity of the Hindu Women’s Right to
\nProperty Act, 1937. In order to uphold the constitutional validity of the Act,
\nthe Federal Court held the Act intra vires by construing the word “property” as
\nmeaning “property other than agricultural land”. This restricted interpretation
\nof the word “property” had to be given otherwise the Act would have become
\nunconstitutional.\n<\/p>\n
\t30. Similarly, in Kedar Nath Singh v. State of Bihar6 this Court had to
\nconstrue Section 124-A of the Penal Code which relates to the offence of
\nsedition which makes a person punishable who “by words, either spoken or
\nwritten, or by signs, or by visible representation, or otherwise, brings or
\nattempts to bring into hatred or contempt, or excites or attempts to excite
\ndisaffection towards, the Government established by law”. This Court gave a
\nrestricted interpretation to the aforesaid words so that they apply only to acts
\ninvolving intention or tendency to create disorder or disturbance of law and
\norder or incitement to violence. This was done to avoid the provisions becoming
\nviolative of Article 19(1)(a) of the Constitution which provides for freedom of
\nspeech and expression.\n<\/p>\n
\t31. Several other decisions on the point have been given in Justice G.P.
\nSingh’s Principles of Statutory Interpretation (7th Edn., 1999, pp. 414-17).\n<\/p>\n
\t32. For the reasons given above these appeals are partly allowed and the
\nimpugned judgment is partly set aside, and it is held that the impugned rule so
\nfar as it places directly recruited Assistants above the promotees for promotion
\nas Deputy Tahsildar shall only apply to those promotees who are non-graduates,
\nbut it is inapplicable to those promotees who are graduates.”\n<\/p>\n
\t\t10. Once the Supreme Court reads down the law, then it is binding on
\nall the Subordinates under Article 141 of the Constitution of India. Therefore,
\nthe District Collector is bound to enforce the order, in terms of Article 142 of
\nthe Constitution of India and there is no other option. It is not as if the
\nSupreme Court made any further direction that the panels, which are already
\nprepared on the basis of the impugned rule, will be held intact and that only
\nfor future, the constitutionally read down rule will be applicable. No doubt,
\nthe Supreme Court has power to make any judgment applicable prospectively, in
\nthe light of the peculiar power vested under Article 142. But in the absence of
\nthe Supreme Court itself stating so, this Court cannot read between the lines
\nand find favourable points in favour of the petitioners.\n<\/p>\n
\t\t11. In this regard, it is relevant to refer to a Larger Bench
\njudgment of the Supreme Court, in which, the doctrine of prospective overruling
\nwas analysed. In Golak Nath v. State of Punjab, (1967)2 SCR 762 = AIR 1967 SC
\n1643, in paragraph Nos.51 an 52, it was observed as follows:\n<\/p>\n
\t“51.Our Constitution does not expressly or by necessary implication speak
\nagainst the doctrine of prospective overruling. Indeed, Articles 32, 141 and 142
\nare couched in such wide and elastic terms as to enable this Court to formulate
\nlegal doctrines to meet the ends of justice. The only limitation thereon is
\nreason, restraint and injustice. Under Article 32, for the enforcement of the
\nfundamental rights the Supreme Court has the power to issue suitable directions
\nor orders or writs. Article 141 says that the law declared by the Supreme Court
\nshall be binding on all courts; and Article 142 enables it in the exercise of
\nits jurisdiction to pass such decree or make such order as is necessary for
\ndoing complete justice in any cause or matter pending before it. These articles
\nare designedly made comprehensive to enable the Supreme Court to declare law and
\nto give such directions or pass such orders as are necessary to do complete
\njustice. The expression “declared” is wider than the words “found or made.” To
\ndeclare is to announce opinion. Indeed, the latter involves the process, while
\nthe former expresses result. Interpretation, ascertainment and evolution are
\nparts of the process, while that interpreted, ascertained or evolved is declared
\nas law. The law declared by the Supreme Court is the law of the land. If so, we
\ndo not see any acceptable reason why it, in declaring the law in supersession of
\nthe law declared by it earlier, could not restrict the operation of the law as
\ndeclared to future and save the transactions, whether statutory or otherwise
\nthat were effected on the basis of the earlier law. To deny this power to the
\nSupreme Court on the basis of some outmoded theory that the Court only finds law
\nbut does not make it is to make ineffective the powerful instrument of justice
\nplaced in the hands of the highest judiciary of this country.\n<\/p>\n
52.As this Court for the first time has been called upon to apply the doctrine
\nevolved in a different country under different circumstances, we would like to
\nmove warily in the beginning. We would lay down the following propositions: (1)
\nThe doctrine of prospective overruling can be invoked only in matters arising
\nunder our Constitution; (2) it can be applied only by the highest Court of the
\ncountry i.e. the Supreme Court as it has the constitutional jurisdiction to
\ndeclare law binding on all the courts in India; (3) the scope of the retroactive
\noperation of the law declared by the Supreme Court superseding its “earlier
\ndecisions is left to its discretion to be moulded in accordance with the justice
\nof the cause or matter before it.”\n<\/p>\n
\t\t12. A close reading of the judgment of the Supreme Court will make
\nit clear that but for the Supreme Court reading down the rule, the rule itself
\nwould have become unconstitutional and violative of Articles 14 and 16 of the
\nConstitution of India. Therefore, the directly recruited Assistants, who have
\nlost the main battle before the Supreme Court, cannot institute the proceedings
\nbefore this Court to re-write the decision of the Supreme Court in these
\nproceedings. Hence, the contention made by the respondents that the Writ
\nPetitions are clear abuse of process of Court is well founded.\n<\/p>\n
\t\t13. Further, the fact that the petitioners names were found in the
\nearlier panel, which panel itself was prepared on the basis of the rule, which
\nwas read down by the Supreme Court, does not exist any more and any preservation
\nof such panel will be indirect conflict with the reasoning given by the Supreme
\nCourt. Therefore, the District Collector in recasting the panel and giving
\neffect to the order of the Supreme Court is legal and proper and the same does
\nnot call for any interference.\n<\/p>\n
\t\t14. The other argument that their names have been removed without
\nnotices also cannot stand for the reason that the Supreme Court has laid down
\nthe law, which is a public declaration of the legal position and once the law
\nlaid down by the Supreme Court under Article 141 becomes final, the necessary
\ncorollary is that all authorities must execute the order under Article 142 and
\nin such cases, there is no further hearing in the matter, in essence, a person,
\nwho got his name included in the panel on the basis of an invalid rule, does not
\nhave any vested right to keep his name in the panel.\n<\/p>\n
\t\t15. In fact, in a similar context, the Supreme Court, vide its
\njudgment in A.K.Bhatnagar v. Union of India<\/a> reported in 1991(1) SCC 544,
\ncautioned the State and Central Governments to strictly adhere to the rules in
\nrespect of matters covered by the rules and acting in a manner contrary to the
\nrules creates problem and dislocation and, therefore, the serious view of the
\nlapses committed by the Government was taken in paragraph No.13 of the said
\njudgment, in which, the  Supreme Court had observed as follows:\n<\/p>\n
\t\t“13. On more than one occasion this Court has indicated to the Union
\nand the State Governments that once they frame rules, their action in respect of
\nmatters covered by rules should be regulated by the rules. The rules framed in
\nexercise of powers conferred under the proviso to Article 309 of the
\nConstitution are solemn rules having binding effect. Acting in a manner contrary
\nto the rules does create problem and dislocation. Very often government
\nthemselves get trapped on account of their own mistakes or actions in excess of
\nwhat is provided in the rules. We take serious view of these lapses and hope and
\ntrust that the government both at the Centre and in the States would take note
\nof this position and refrain from acting in a manner not contemplated by their
\nown rules.”\n<\/p>\n
Therefore, if the impugned orders came to be passed, in the light of the Supreme
\nCourt’s order, no one can be heard to contend that the order must be struck down
\non the grounds, which are untenable both in law and facts.\n<\/p>\n
\t\t16. The question as to whether a person who gets his name included
\nin a panel has a vested right came to be considered by the Supreme Court in
\nAryavrat Gramin Bank v. Vijay Shankar Shukla<\/a> reported in 2007(12) SCC 413. In
\nthat case, the Supreme Court held that merely because a person’s name is
\nincluded in the panel or select list does not confer any legal right for being
\nappointed. In paragraph No.21, it was observed as follows:
\n\t“21. It is now a trite law that only because a person has been selected
\nand his name finds place in the select list, the same by itself does not confer
\nany legal right on him to be appointed. It is also trite that ordinarily a
\nsuperior court in exercise of its power of judicial review would not interfere
\nwith the right to make appointment by an employer unless its action or inaction
\nis found to be wholly arbitrary so as to offend Article 14 of the Constitution
\nof India.”\n<\/p>\n
Hence, the contention raised in the other Writ Petitions is also liable to be
\nrejected.\n<\/p>\n
\t\t17. Coming to the question of challenge to the vires of the Rules
\nmade in W.P.(MD)No.1797 of 2010, no Mandamus will lie in amending the Special
\nrules framed under Article 309 of the Constitution of India. It must be noted
\nthat the Special Rules framed under Article 309 are legislative in character
\neither for framing a new rule or for amending the existing rule, no direction
\ncan be issued. The Supreme Court and the Administrative Tribunals have been
\nwarned from issuing such directions or any advisory sermons to the executive, in
\nthe judgment in Mallikarjuna Rao v. State of A.P. reported in AIR 1990 SC 1251
\nand in paragraph Nos.10 and 12, it was observed as follows:\n<\/p>\n
\t\t“10. The observations of the High Court which have been made as the
\nbasis for its judgment by the Tribunal were only of advisory nature. The High
\nCourt was aware of its limitations under Article 226 of the Constitution of
\nIndia and as such the learned Judge deliberately used the word “advisable” while
\nmaking the observations. It is neither legal nor proper for the High Courts or
\nthe Administrative Tribunals to issue directions or advisory sermons to the
\nexecutive in respect of the sphere which is exclusively within the domain of the
\nexecutive under the Constitution. Imagine the executive advising the judiciary
\nin respect of its power of judicial review under the Constitution. We are bound
\nto react scowlingly to any such advice.\n<\/p>\n
\t\t11………….\n<\/p>\n
\t\t12. The Special Rules have been framed under Article 309 of the
\nConstitution of India. The power under Article 309 of the Constitution of India
\nto frame rules is the legislative power. This power under the Constitution has
\nto be exercised by the President or the Governor of a State as the case may be.
\nThe High Courts or the Administrative Tribunals cannot issue a mandate to the
\nState Government to legislate under Article 309 of the Constitution of India.
\nThe courts cannot usurp the functions assigned to the executive under the
\nConstitution and cannot even indirectly require the executive to exercise its
\nrule making power in any manner. The courts cannot assume to itself a
\nsupervisory role over the rule making power of the executive under Article 309
\nof the Constitution of India.”\n<\/p>\n
\t\t18. It must also be noted that that the very rule, which the
\npetitioners want to seek for amendment itself, was under consideration before
\nthe Supreme Court in M.Rathinaswami’s case (cited supra) and at that time, the
\ndirect recruit did not make any complaint or sought for any alteration of the
\nlength of service for being considered for posting them as Deputy Tahsildars by
\ntransfer from Ministerial service to the Revenue Subordinate service. In the
\npresent case, it is for the State Government to consider the relevant experience
\nthat is required for being transferred to the higher posts in a different
\nservice. In such circumstances, any attempt to seek for a direction to the State
\nGovernment is clearly impermissible, in the light of the judgment in
\nMallikarjuna Rao’s case (cited supra).\n<\/p>\n
\t\t19. When there are two sources, which are combined into a single
\ncadre of Assistants, the petitioners still trained to retain their identity as
\ndirect recruits and sought for filling up the post on the first vacancy,  as in
\neffect seeking for a quota as well as rotational right for getting into the
\npost. The Supreme Court, while excluding the claims of non-graduate promotee
\nAssistants, has held that the graduate promotees are on par with the direct
\nrecruits and, therefore, the petitioners cannot seek for any appointment on the
\nfirst vacancy on a priority basis, following the carried over vacancies.\n<\/p>\n
\t\t20. Hence, there is no case made out to entertain anyone of the Writ
\nPetitions and hence, W.P.(MD)Nos.3481, 2785, 1102, 4085\/ 2010, 1579, 1580\/2011
\nand 1797 of 2010 stand dismissed.\n<\/p>\n
\t\t21. The impleaded respondent C.Ravichandran, has filed a Writ
\nPetition in W.P.(MD)No.14746 of 2010 seeking to set aside the order dated
\n23.11.2010 issued by the Registrar General of this Court. After setting aside
\nthe same, he seeks for a direction to the official respondents to confer
\nmagisterial power on the petitioner so as to enable him to acquire the
\nqualification for the post of Deputy Tahsildar. The impugned communication
\nreferred to in the Writ Petition is a notification issued by this Court
\nconferring magisterial power on certain Deputy Tahsildars functioning at Karur.
\nIt is not clear as to why the petitioner wants to set aside the said order,
\ninsofar as it directs the fifth and sixth respondents who are reputed to go for
\nmagisterial training, which is the essential requirement for appointed to the
\npost of Deputy Tahsildar. Insofar as the order impugned in this Writ Petition is
\nconcerned, the said order came to be passed only on the basis of the requisition
\nmade by the Revenue Department and the Courts do not play any further role in
\nfinding out the relative merits of candidates whose names were found in the
\nimpugned order. Whether the fifth and sixth respondents are eligible to go for
\ntraining and after the completion of such training, whether they have got a
\nvested right to get transferred to the post of Deputy Tahsildar is essentially a
\nmatter which has to be decided by the respective District Collectors.\n<\/p>\n
\t\t22. On considering the entire matter and in the light of the order
\npassed in the earlier Writ Petitions, there is no need to entertain the Writ
\nPetition and grant the prayer sought for by the petitioner. It is suffice that
\nthe petitioner’s grievance has been heard and redressed in the other Writ
\nPetitions. It is for the District Collector to decide the panel and also the
\nconsequential training to be undergone by such persons whose names are included
\nin the panel. Merely because certain persons have undergone magisterial training
\nwill not confer them any vested right to get themselves transferred to the post
\nof Deputy Tahsildars, unless and until they are otherwise qualified to hold the
\npost.\n<\/p>\n
\t\t23. Hence, with the above observation, W.P.(MD)No.14746 of 2010 is
\ndismissed. Consequently, the connected miscellaneous petitions are closed. No
\ncosts.\n<\/p>\n
SML<\/p>\n
To<\/p>\n
1.The Principal Secretary and
\n   Commissioner of Revenue Administration,
\n   Chepauk,
\n   Chennai-5.\n<\/p>\n
2.The District Collector,
\n   Karur District,
\n   Karur.\n<\/p>\n
3.The District Revenue Officer,
\n   Karur District, Karur.\n<\/p>\n
4.The Secretary to Government,
\n   Revenue Department,
\n   Secretariat,
\n   Chennai-600 009.\n<\/p>\n
5.The Registrar General,
\n   High Court, Madras.\n<\/p>\n
6.The Principal Secretary
\n   to Government, Home (Courts) Department,
\n   Secretariat, Chennai-9.\n<\/p>\n
7.The District Collector,
\n   Madurai, Madurai District.\n<\/p>\n
8.The District Collector,
\n   Dindigul, Dindigul District.\n<\/p>\n
9.The District Collector,
\n   Tuticorin, Tuticorin District.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court T.Mathavan vs The Principal Secretary And on 11 October, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11\/10\/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.3481 of 2010 W.P.(MD)No.2785 of 2010 W.P.(MD)No.1102 of 2010 W.P.(MD)No.4085 of 2010 W.P.(MD)No.14746 of 2010 W.P.(MD)No.1579 of 2011 W.P.(MD)No.1580 of 2011 and W.P.(MD)No.1797 of 2010 and M.P.(MD)Nos.1,2,3,4\/2010, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-161714","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nT.Mathavan vs The Principal Secretary And on 11 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/t-mathavan-vs-the-principal-secretary-and-on-11-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"T.Mathavan vs The Principal Secretary And on 11 October, 2011 - 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