@JUDGMENTTAG-ORDER
Sanjay Kishan Kaul, C.J.@mdashThe employees of the Madras High Court are governed by the Madras High Court Service Rules, 1955 (hereinafter referred to as ''the Rules''), which have been framed in exercise of the powers conferred by Articles 229(1) and (2) of the Constitution of India relating to their salaries, allowances, leave and pensions. These Rules came into force on 1.1.1955 and have been amended from time to time.
2. In this batch of writ petitions except one (W.P. No. 21542 of 2013), the employees seek to assail 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 degree and 25% for those with the practising degree. This amendment is apparently based on the numerical strength of the two categories of employees, where the number of people on the rolls of the High Court with the qualifying degree (B.L.) was much smaller as compared to those with the non-practising degree (B.A.L.). This deprived the benefit of promotion to persons who are holding the B.L. Degree, in view of the two quotas reserved.
3. The singular writ petition, W.P. No. 21542 of 2013, is predicated on the rationale that since there is provision made for direct recruitment to the post of Assistant Registrar from among the practising members of the Bar, the vacancies could not have been filled up without even that process being initiated simultaneously. Adverting to the definition of law degree as contained in Rule 1(g)(A) of the Service Rules, it is contended that the first and second proviso to Rule 6(2)(b) carves out an exception and defines law degree to mean a law degree recognised by an Indian University, but not recognized by the Bar Council of India. It is argued that the aforesaid proviso to the Rule totally alters the definition so as to nullify the definition itself. According to the learned counsel, a degree of Bachelor of Academic Law can never be considered to be a Degree of Bachelor of Law and thus, there is no question of it being recognized or not recognized by the Bar Council of India. It is urged that the degree of Bachelor of Academic Law not recognized by the Bar Council and obtained through correspondence course and the degree of Bachelor of Laws obtained through regular studies and recognized by the Bar Council of India cannot be treated equal and hence, the impugned Rule that treats both the degrees equal deserves to be declared a nullity.
4. The relevant rule which has been called into question for purposes of convenience is being reproduced as under:-
"6. Qualifications.--(a).........
.........
(b) No person shall be eligible for appointment to the service in categories 1 to 5 of Division I, unless he--
(1) is an Advocate or Attorney or is duly qualified for admission as an Advocate or Attorney of the High Court; or
(2) holds a Law Degree of any of the Universities in the Indian Union and a B.A. or B.Sc. or B.Com. or B.A. (Honours) or B.Sc. (Honours) or B.Com. (Honours) Degree 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 Side-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 anything contained in the aforesaid provision, the Chief Justice may vary the percentage of vacancy or cadre/sub-cadre posts to be filled up by promotion from one or other category of eligible employees holding such law degree.
The above amendments shall come into force with effect from 1st March, 2007."
The provisos aforesaid to Rule 6(b)(2) were inserted vide Notification issued in reference R.O.C. No. 463A/2007/RAC dated 26.2.2007, while the change of ratio was made in the proviso vide Notification issued under R.O.C. No. 5/2013/RAC dated 26.7.2013.
5. The affected petitioners who possessed B.L. Degrees have filed the writ petitions, arraying the persons promoted as respondents, who were possessing B.A.L. Degree, in view of the promotion Notification No. 165/2013 dated 21.8.2013.
6. The historical perspective in which the amendments were carried out have been sketched out in the counter affidavit filed on behalf of the Registrar General, High Court, Madras. It appears that in the year 2006, some staff members working in various cadres jointly submitted a representation stating that as per the Madras High Court Service Rules, Law Degree is necessary for consideration for appointment to the post of Assistant Registrar. However, the Bar Council of India had impressed upon various Universities not to conduct part-time evening classes for B.L. Course. Consequently, Dr. Ambedkar Law College, Madras also suspended the part-time evening classes for B.L. Degree Course, thus depriving those persons the opportunity of acquiring the B.L. Degree. The result was that they could not be considered for promotion nor could they get the benefit of two increments awarded for persons possessing Law Degree. The Directorate of Distance Education, Anna University, however, was conducting a Bachelor of Academic Laws (B.A.L.) Degree Course of three years, which is stated to include in its syllabus practically all the subjects taught in the B.L. Degree Course except Civil Procedure Code and Criminal Procedure Code. However, the persons having the B.A.L. Degrees had passed the Departmental Tests in the Code of Civil Procedure and Criminal Procedure Code conducted by the Tamil Nadu Public Service Commission (TNPSC). Rule 6(b) as it existed did not insist on acquiring a professional degree for the purpose of promotion to the post of Assistant Registrar, though B.A.L. Degree did 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 to a Committee of the High Court on the Administrative Side for filling up the vacancies, not inconsistent with the Service Rules and holding selection in accordance with the same. The Committee, on consideration of various aspects, opined that the grievance of staff members belonging to the feeder category of B.A.L. Degree appeared to be bona fide and recommended certain amendments. This report was considered by the Administrative Committee in its meeting held on 8.8.2006, which directed draft amendments to be proposed and submitted for approval, and these amendments came to be approved in the meeting of the Administrative Committee held on 10.1.2007. The Committee resolved to adopt a 3: 1 ratio among B.L. and B.A.L. Degree holders for filing up the vacancies and consequently, the Notification in R.O.C. No. 137-A/2006/RAC dated 14.2.2007 for amendment of Rule 6(b)(2) of the said Rules was issued, which is extracted hereunder:-
"AMENDMENT
In the Special Rules of the Madras High Court Services, after the first paragraph under clause (2) of sub-rule (b) of Rule 6, the following proviso shall be added-
''Provided the members of the service holding Bachelor of Academic Law Degree shall also be considered for appointment by promotion for categories 3 to 5 of Division-I excluding the posts of Deputy Registrars (Original Side, Appellate Side and Judicial) in Category 3 and the posts of Assistant Registrars (Original Side I & II) in Category 5, but the B.A.L. Degree holders shall be considered for promotion to Category 5 of Division-I excluding the posts of Assistant Registrars (Original Side I & II) in the ratio of 3: 1, i.e., for every ''Four'' vacancies to be filled up by promotion, ''Three'' B.L. Degree holders and ''One'' B.A.L. Degree holder shall be promoted, but the ratio shall not exceed the sanctioned strength in Category 5 of Division-I.
The above amendments shall take effect from the date of this notification."
This amendment, however, was recalled vide Notification dated 23.2.2007 and a fresh Notification was issued vide R.O.C. No. 463-A/2007/Rule Amendment Cell dated 26.2.2007 as under:-
"...
AMENDMENT-II
In the Special Rules, in Rule 6, the following shall be added after the first and before second paragraph of clause (2) of sub-rule(b), namely:-
''Provided that members of the service 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 filled up by promotion from one or other category of eligible employees holding such law degree.''
The above amendments shall come into force with effect from 1st March, 2007."
10. The effect of the aforesaid was that persons holding B.A.L. Degrees became eligible for promotion to the post of Assistant Registrar and accordingly, promotions were also effected from time to time.
11. It appears to us that the parties were more or less reconciled to the said situation till a second spate of representations emanated as one by the B.L. Degree holders against the earlier amendment, while the other one by the B.A.L. Degree holders seeking relaxation of the ratio. These two representations were examined by the Promotions Committee of the High Court in its meeting held on 8.1.2013, especially as there were then existing vacancies to be filled up. The Promotion Committee constituted a Sub-Committee to consider and submit a report vis-a-vis-
(i) To examine the workability of Rule 6(b)(2) in the light of the report of the Hon''ble Mr. Justice F.M. Ibrahim Kalifulla, the letter addressed by the Hon''ble Mr. Justice S.J. Mukhopadhaya and the present context that there is no scope for acquiring B.L./L.L.B. degree for the in-service candidates since no evening college offering the said course;
(ii) Whether Rule 6(b)(2) of the Madras High Court Service Rules is to be amended?
(iii) Whether the disparity between the two sets of Law Degree holders (B.L. and B.A.L.) is to be removed?
12. The Sub-Committee, after considering various aspects, i.e., discontinuance of evening courses in B.L. Degree from the year 2000; number of persons serving in the High Court in different cadres who underwent B.A.L. Degree through correspondence after getting permission from the High Court; views of some Hon''ble Judges expressed earlier on the subject; promotional opportunities of B.A.L. Degree holders and number of eligible persons in the feeder categories possessing B.L. and B.A.L. Degrees for consideration for promotions and other related aspects, submitted a report on 19.7.2013 with the following recommendations:-
"Considering the number of persons available in both categories, it may be appropriate to increase the ratio of B.A.L. Degree holders for promotion as there are more seniors than those possessing BL/LLB Degree, and if the ratio is not increased 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, considering the seniority of persons in the respective feeder cadre, resolved to promote 12 persons who were possessing B.A.L. Degrees as Assistant Registrars, apart from eligible persons having B.L. Degrees and consequently, impugned Notification No. 165/2013 dated 21.8.2013 came to be issued.
15. In the conspectus of the aforesaid factual matrix, we set out hereinbelow the challenges laid to the Rule and our findings on the same:-
I. Vacancies could not have been filled up unless the post was advertised even for Advocates:
16. Learned counsel appearing for the petitioner in W.P. No. 21542 of 2013 sought to canvass that the exercise undertaken of effecting promotions is itself bad in law as it seeks to negate a part of the Rules which provides for direct recruitment of advocates to the post of Assistant Registrar. Rule 6(b) lays down the requirement for appointment to the service in Categories 1 to 5 of Division-I. Sub-clause (1) permits an Advocate or Attorney or a person duly qualified for admission as an Advocate or Attorney of the High Court to be so recruited. To our mind, this is an enabling provision which does not mandate that there necessarily be a recruitment carried out from the Advocates, though this is one of the channels of recruitment. No specific percentage has been provided therefor.
17. In view of the aforesaid position, learned counsel for the petitioner could hardly satisfy our query as to how the promotions already made could be negated or struck down on the ground that no direct recruitment through advertisement had been carried out. However, faced with this position, learned counsel for the petitioner sought to canvass that this rule existing, at least in future while carrying out the recruitment process, this avenue of promotion should be considered.
18. We are in agreement with the learned counsel for the petitioner that since there is a channel of direct recruitment available from Advocates to the post of Assistant Registrar, though no percentage is provided, in future promotions/recruitments, the Promotion Committee would consider the feasibility of giving effect to this part of the Rule. Nothing more can be said on this count.
II. The proviso to Rule 6(b)(2) equating B.L. and B.A.L. Degrees is in contradiction to the definition of a Law Degree as defined under Rule 1(g) of the said Rules and has thus to be struck down:
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, but for consideration of promotion under clause (2) of sub-rule (b) of Rule 6, it is the proviso which enables the holders of B.A.L. Degree to be considered for promotion. In our view, this does not mean that it contradicts the definition of a law degree as given under Rule 1(g).
21. There is no doubt that B.A.L. Degree is not equivalent to a Law Degree recognized by the Bar Council of India for enrolment. That is the very raison d''etre for insertion of the proviso, to facilitate promotion of persons with B.A.L. Degree.
22. As to how this proviso has to be construed is further elucidated in Maxwell''s Interpretation of Statutes, 10th Edition @ pg. 162, while dealing with the cardinal rule of construction of the provisions of a section with proviso, as under:-
"The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest.
The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail."
It is in the aforesaid context thus it was observed in
23. If the aforesaid principle is applied in the facts of the present case, it is obvious that the rule making authority, while recognizing the conventional definition of a law degree, sought to carve out an exception for purposes of promotion by giving the benefit to persons who possessed a non-practising degree of B.A.L.
24. The aforesaid principle is in sync with the principle of harmonious construction of different provisions of a statute. The proper functioning of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case, though a proviso cannot be torn apart from the main enactment. We may usefully refer to the observations and cases referred to on this principle in
"33. In
''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
''...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
37. In
''The well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment.''
38. The Supreme Court in
39. In
''The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins vs. Treasurer of Surrey, (1880) 5 Q.B.D. 170 (referred to in
40. This view was reiterated by the Supreme Court in the case of
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 also usefully refer to the following observations of the Supreme Court in two other judgments, viz. (a)
"(a) The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins vs. Treasurer of Surrey (18805 QBD 170: 42 LT 128) (referred to in
"(b) The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey 1880(5) QBD 170, (referred to in
26. We are thus unambiguously of the opinion that there is really no contradiction in the definition of law degree, and what is sought to be done by the proviso is to carve out an exception to the main rule.
27. We may also look at this matter from another perspective. Stagnation in service brings about frustration in employees. This can hardly favour administrative exigency. It is to obviate such stagnation and also keeping in mind the fact that the Evening B.L. Degree Course was discontinued from the year 2000, leading to a situation where there would be no opportunity for in-service candidates to upgrade their academic achievements, making them eligible for promotion, that the proviso has been included. It is not as if the B.A.L. Degree is being equated to the B.L. Degree, but a quota was sought to be carved out by fixing the upper limit of 25% for persons granted a law degree by a recognised Indian University, but not recognised by the Bar Council of India for admission as an Advocate or an Attorney.
28. We thus conclude that the challenge laid to clause (2) of Rule 6(b) of the said Rules must be repelled and the Rule is upheld.
III. The Amendment, if upheld, should apply prospectively to the future vacancies and not to the vacancies existing on the date of the amendment:
29. The case of the petitioners before us was that, assuming the rule to be valid, it should only apply to the vacancies arising in future and whatever vacancies existed prior to the date of amendment ought to have been filled in as per the ratio of 25%: 75% amongst the B.A.L. and B.L. Degree holders and not the converse. To support their contention, learned counsel for the petitioners referred to the observations of the Supreme Court in
30. Learned counsel for the petitioners also relied upon the Division Bench judgment of this Court in
31. We, however, pointed out to the learned counsel for the petitioners the subsequent judgment of the Supreme Court in
32. We are of the view that the principles set out in this judgment would apply to the present case, as unlike the Y.V. Rangaiah''s case (supra), there is once again no statutory duty cast upon the respondent herein to either prepare a year-wise panel of eligible candidates or of the selected candidates for promotion. The right to be considered for promotion implies the right under the rules in force on the date when consideration takes place. Thus, the observations in Deepak Agarwal''s case (supra) relevant are as under:-
"24. We are of the considered opinion that the judgment in Y.V. Rangaiah''s case (supra) would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. 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 promotion. In our opinion, the Appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhawan that the vacancies, which had arisen before 17th May, 1999 had to be filled under the unamended rules.
26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the ''rule in force'' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah''s case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it can not be accepted that any accrued or vested right of the Appellants have been taken away by the amendment."
The aforesaid principles applying a fortiori we are of the view that the respondent was within its rights to fill up the vacancies as per the amended rules.
33. It is pertinent to note that the observations of the Division Bench in A. Ravi''s case (supra) were made in the context of a similar issue having already been decided by the Hon''ble Supreme Court, whereby the ratio was fixed in the combined cadre of Junior Engineers as well as
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
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
"12. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins vs. Treasurer of Survey 1880(5) Q.B.D. 170 referred to in
''This word (proviso) hath divers operations. Sometime it worked a qualification or limitation; sometime a condition; and sometime a covenant (Coke upon Littleton 18th Edition, 146)
If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to 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 (See Jennings vs. Kelly 1940 A.C. 206)."
37. In this context, we may also usefully refer to a few more judgments. In
"27....The well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment.
30. Sarathi in ''Interpretation of Statutes at pages 294-295 has collected the following principles in regard to a proviso:
(a) 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.
(b) A proviso must be construed with reference to the preceding parts of the clause to which it is appended.
(c) Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the later intention of the makers.
(d) Where the section is doubtful, a proviso may be used as a guide to its interpretation; but when it is clear, a proviso cannot imply the existence of words of which there is no trace in the section.
(e) The proviso is subordinate to the main section.
(f) A proviso does not enlarge an enactment except for compelling reasons.
(g) Sometimes an unnecessary proviso is inserted by way of abundant caution.
(h) A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail.
(i) When a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one.
(j) A proviso may sometimes contain a substantive provision.
...
35. A very apt description and extent of a proviso was given by Lord Oreburn in Rhodda Urban District Council v. Taff Vale Railway Co. (1909) AC 253, where it was pointed out that insertion of a proviso by the draftsman is not always strictly adhered to its legitimate use and at times a section worded as a proviso may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before. To the same effect is a later decision of the same Court in Jennings and Anr. v. Kelly (1940) AC 206, where it was 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
''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 to limit the main part of the section and carve out something which but for the proviso would have been within the operative part.''
43. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes:
1) qualifying or excepting certain provisions from the main enactment;
2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and
4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.
44. These seem to be by and large the main purport and parameters of a proviso."
In
"14. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms.
15. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect."
In
"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 exception to the main part of the section; but it is recognised that in exceptional cases a proviso may be a substantive provision itself. We may in this connection refer to Bhondda Urban District Council v. Taff Vale Railway Co. L.R. [1909] A.C. 253, where Section 51 of the Act there under consideration was framed as a proviso to preceding sections. The Lord Chancellor however pointed out that "though Section 51 was framed as a proviso upon preceding sections, but it is true that the latter half of it, though in form a proviso, is in substance a fresh enactment, adding to and not merely qualifying that which goes before.
9. Again in
10. Finally in
38. A perusal of the aforesaid thus shows that the normal functioning of a proviso is to except something out of the enactment or to qualify something which, but for the proviso, would be within the purview of the enactment. This is what persuaded us to uphold the amendment to the Rules made in the year 2007. While referring to a deed, it has been stated aforesaid that if the earlier clause is followed by a latter clause which destroys 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, both in Administrative exigency and to prevent stagnation. The question thus arises is, whether the reversal of the ratio to 75% for the employees falling within the exception having B.A.L. Degree, while keeping 25% reserved for the B.L. Degree holders nullifies the main rule itself?
41. The only plea in defence given by the learned counsel for the High Court is that the exigencies of service read with the sheer number of B.A.L. Degree holders were responsible for amendment of the Service Rules. He said that he could not say anything more than that.
42. Insofar as the factual matrix is concerned, as set out in the counter affidavit, it had been stated that the feeder categories for promotion to the post of Assistant Registrar are:
(a) Sub-Assistant Registrar
(b) CO/SO/Appeal Examiner
(c) P.A. to the Hon''ble Judges
(d) Interpreters
43. As on 30.4.2013, prior to the amendment of the ratio, the number of persons eligible to be considered for promotion was as under:
The unamended proviso giving the reverse ratio had a "Notwithstanding" (non-obstante) clause, giving the right to the Chief Justice to fill up vacancies from one or the other category of eligible category of employees, holding such law degrees and it is in exercise of that authority that the amendments in the year 2007 were carried out. What appears to have weighed is that, if the percentage of B.A.L. Degree holders is not enhanced, the number of persons holding B.A.L. Degrees may retire in the lower cadre itself. This was more so after the amendment to the rules with effect from 1.3.2007, making B.A.L. qualification as eligible qualification for promotion, a number of in-service candidates serving in various cadres applied for permission from the Registry and after getting permission, underwent the B.A.L. Degree Course.
44. We have given our thought to this crucial issue.
45. Insofar as the plea based on a large number of employees acquiring B.A.L. Degree is concerned, we feel that it is of no consequence as they were acquired by the persons to get into the channel of promotion and they were fully aware of the fact that the existing 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" clause authorizing the Chief Justice to vary the percentage of vacancy or cadre/sub-cadre posts to be filled up by promotion from one or other category of eligible employees cannot imply that the Chief Justice is authorised to negate the rule itself as read with the definition clause. The exigencies of situation would thus permit some variation, not possible for us to quantify, but suffice to say, as not permitting the destruction of the main clause.
48. If we look to the various pronouncements and treatise on how a proviso has to be interpreted, a proviso has been held not capable of being torn apart from the main enactment, nor capable of being used to nullify or set at naught the real objective of the main enactment (Sundaram Pillai''s case supra). In the facts of the present case, the real object of the principal provision read with the definition clause is that the persons with B.L. Degree are eligible. The proviso only gives an opening to persons with B.A.L. Degree for purposes of administrative exigency, coupled with opening an avenue for promotion. It cannot thus be torn apart from the main enactment and thus must be construed with reference to the preceding parts of the clause to which it is appended (Sarathi in ''Interpretation of Statutes'').
49. We are conscious of the line of judgments that at times the section worded as proviso may wholly or partly be in substance a fresh enactment (Rhodda Urban District Council''s case supra). But then, the general principle remains that a proviso is to limit the main part of the Section (State of Rajasthan vs. Leela Jain''s case supra). The present case is not one of change of intendment of an enactment by insertion of certain mandatory conditions to be fulfilled in order to make the enactment workable (State of Rajasthan vs. Leela Jain''s case supra), since the definition clause was never changed, which defines a law degree for purposes of the rules, but on the other hand was inserted by the first set of amendments. Thus, the general principle that a proviso carves out an exception to the main provision would continue to apply and must be limited to the subject matter of the enacting clause. This is not an exceptional case of the proviso being a substantive provision itself, principle in any case made applicable to taxation matters (Board of Revenue vs. R.S. Jhaver and C.I.T. vs. Nandlal Bhandari''s cases supra). If this proviso would not have existed, the B.A.L. Degree holders would have been prohibited in toto from promotions, and the judgment referred to by the learned counsel for the petitioners in Romesh Kumar Sharma''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 that the "notwithstanding" clause could permit a change in this ratio in the provision, though we have held to the contrary. We are thus of the view that ends of justice would be met by implementing the quashing of the provision from the date of the judgment and not affecting the promotions already effected. We clarify that the interpretation of the rules is as they stand at present.
53. The second aspect which we would like to also state, emerging from scrutiny of some records, is that after the Evening Law College was stopped in pursuance of the decision of the Bar Council of India, no serving officer is really able to pursue the B.L. Degree. Thus, over a period of time, once the promotions are affected, only B.A.L. Degree holders may be left, at which stage of time the aspect of amendment of all the relevant rules can be examined.
54. A serving officer cannot thus carry on his job and yet have degree obtained of a Full Time Degree Course. The two would be contradictory and would create a doubt on the degree itself. That aspect, however, is not under challenge before us and thus, we say no further, but to observe that while considering for any future promotions to the post of Assistant Registrar or thereafter, the B.L./L.L.B. Degree holders who may have obtained the same while being full time employees in the High Court would not be entitled to be categorised as such and at best, can be treated only on equal terms with the B.A.L. Degree holders. The B.L. Degree holders who are entitled under the relevant feeder categories subject to seniority are only the ones who obtained the degree prior to the joining in service or when the Evening Course was permitted.
55. The writ petitions are allowed on the aforesaid terms, leaving the parties to bear their own costs.
