Supreme Court of India
P. DHARNI & ORS.versusGOVT. OF TAMIL NADU & ORS.
- Citation
- 2013 INSC 403
- Decided
- 1 July 2013
- Disposal
- Appeal(s) allowed
- Bench
- P SATHASIVAM
Holding
Special Rules governing eligibility and method of appointment prevail over the General Rules, and the respondent was not eligible for out‑of‑turn promotion to Regional Transport Officer.
Summary
The case concerned a claim by a Motor Vehicles Inspector (Grade II) for out‑of‑turn/accelerated promotion to Regional Transport Officer under Rule 36(b)(ii) of the Tamil Nadu State and Subordinate Services Rules. The appellant senior officers argued that the Special Rules governing promotion and transfer in the Tamil Nadu Transport Service required a minimum of ten years’ service and a merit‑based selection, which the respondent had not satisfied. The Supreme Court held that the Special Rules, being superior to the General Rules, must be complied with and that Rule 36(b)(ii) could not be invoked where promotion is by transfer or where merit, not seniority alone, is the criterion. Consequently, the respondent’s accelerated promotion was invalid. The Court set aside the orders of the Administrative Tribunal and the High Court and allowed the appeal.
Issues considered
- The applicability of Rule 36(b)(ii) of the Tamil Nadu State and Subordinate Services Rules to out‑of‑turn promotion in this service.
- Whether the Special Rules framed under the Tamil Nadu Transport Subordinate Service and the Tamil Nadu Transport Service override the General Rules.
- Whether the respondent satisfied the eligibility conditions prescribed in the Special Rules for promotion to Motor Vehicles Inspector (Grade I) and Regional Transport Officer.
- Whether promotion by transfer to Regional Transport Officer can be treated as accelerated promotion under the General Rules.
Legislation cited
- Constitution of Indias. Article 309
- Tamil Nadu State and Subordinate Services Ruless. Rule 19, s. Rule 2, s. Rule 36(b)(ii), s. Rule 9
- Tamil Nadu Transport Services. Section 28
- Tamil Nadu Transport Subordinate Services. Section 42
Subjects
promotionout‑of‑turn promotionaccelerated promotionspecial rulesgeneral rulessenioritymeritselectiontransferservice lawTamil Nadu transport service
Judgment
[2013] 10 S.C.R. 982
A P. DHARNI & ORS.
v.
GOVT. OF TAMIL NADU & ORS.
(Civil Appeal No. 4832 of 2013)
JULY 1, 2013
B
[P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]
Service Law:
c Promotion - Out-of-turn/accelerated promotion - Claim for
- By Motor Vehicle Inspector (Grade II) - To the post of
Regional Transport Officer - Under r.36(b)(ii) of Tamil Nadu
State and Subordinate Services Rules - After rendering about
3 years of service - Permissibility - Held: Special rules framed
0 prescribing conditions of eligibility and manner and method
of appointment from the Post of Motor Vehicles Inspector
(Grade II) to the post of Motor Vehicles Inspector (Grade I) and
from the post of Motor Vehicles lnspector(Grade I) to the post
of Regional Transport Officer - The claimant, since not
E fulfilling the eligibility criteria for promotion stipulated in
Special Rules, would not be entitled to accelerated promotion
under r.36(b)(ii) of the General Rules - Moreover, r.36(b)(ii)
which contemplates accelerated promotion, only in cases
where seniority is the sole criti3rionfor promotion, would not
be applicable to the post of Regional Transport Officer,
F because the appointment on the post is not made by seniority
- Tamil Nadu State and Subordinate Services Rules -
r.36(b)(ii).
Respondent No.5, an employee on the post of Motor
G Vehicles Inspector (Grade II), after his 3 years of service
on the post, moved a representation seeking his out-of
turn/accelerated promotion to the post of Regional
Transport Officer on the basis of his outstanding
performance in the service. His name was recommended
H 982
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & 983
ORS.
for out-of•-turn/accelerated promotion by the authorities A
of the department citing r.36(b)(ii) of the Tamil Nadu State
and Subordinate Service Rules. The claim of the
respondent No.5 was rejected by State Government. The
same was challenged and the Administrative Tribunal
allowing the claim of respondent No.5, directed the State B
to issue an order promoting respondent No.5 as Regional
Transport Officer. The order was further upheld by High
Court and the appeal thereagainst before Supreme Court
was withdrawn by the State.
The appellants in the present appeal, who were the C
employees senior to respondent No.5 and whose rights
were liable to ·be prejudicially affected by the accelerated
promotion of respondent No.5, filed appeal to this Court,
challenging the order of accelerated promotion of
respondent No.5. D
Allowing the appeal, the Court
HELD: 1. A perusal of Rule 2 of Tamil Nadu State and
Subordinate Services Rules leaves no room for any E
doubt, that in case of repugnancy between the Special
Rules and the General Rules, the Special Rules will
prevail over the General Rules. Rule 36(b)(ii) of the Tamil
Nadu State and-Subordinate Services Rules, falls in Part
II - General Rules, is clearly a General Rule. The rules
F
prescribing the conditions of eligibility and the manner/
method of appointment by promotion from the post of
Motor Vehicles Inspector (Grade II) to the post of Motor
Vehicles Inspector (Grade I), framed under Section 42 of
the Tamil Nadu Transport Subordinate Service, are
Special Rules. The rules prescribing the conditions of G
eligibility and the manner/method of appointment by
transfer to the post of Regional Transport Officer, interalia
out of Motor Vehicles Inspectors (Grade I), framed under
Section 28 of the Tamil Nadu Transport Service, are
Special Rules. And, in case of a conflict between the H
984 SUPREME COURT REPORTS (2013] 10 S.C.R.
A Special Rules and the General Rules, the Special Rules
will have an overriding effect over the General Rules.
[Para 21] (1011-B-E]
2. The Special Rule prescribing the minimum period
of eligibility for appointment to the post of Regional
8
Transport Officer, cannot be overlooked while allowing
out-of-turn/accelerated appointment to respondent No. 5,
to the post of Regional Transport Officer. The claim made
by respondent No. 5, for out-of-turn promotion under
Rule 36(b)(ii) of the General Rules, would be valid only if
C respondent no.5, had satisfied the conditions of eligibility
stipulated in the Special Rules for appointment to the
post of Regional Transport Officer. In the present case,
respondent No. 5 made a representation claiming out-of-
turn/accelerated promotion, only when he had rendered
D just over three years of service as Motor Vehicles
Inspector (Grade II). At that stage, there was no question
of his being considered for appointment against the post
of Regional Transport Officer, as he had by then, not
rendered even a single days service as Motor Vehicles
E Inspector Grade-I (as against the prescribed five years'
service). Thus at that juncture, he was not even eligible
for promotion to the post of Motor Vehicles Inspector
(Grade-I), as a minimum of five years' service as Motor
Vehicles Inspector Grade-II is required before such
F promotion. Since a minimum of five years' service as
Motor Vehicles Inspector (Grade I) is required before an
individual can be appointed to the post of Regional
Transport Officer, it is essential that respondent No. 5
ought to have fulfilled the prescribed condition, before
G claiming appointment as Regional Transport Officer.
Since respondent No.5 could not have legitimately been
promoted to the post of Motor Vehicles Inspector (Grade-
l) itself, it is out of the question to accept or assume, that
he could have nonetheless been promoted to the post of
H Regional Transport Officer, which required a further five
P. OHARNI & ORS. v. GOVT. OF TAMIL NADU & 985
ORS.
years' service. The Special Rules laying down the A
conditions of eligibility and the manner/method of
promotion to the post of Regional Transport Officer,
would stand violated, if the claim of respondent No. 5, for
out-of-turn/accelerated promotion, was to be acceded to.
[Para 25}[1014-G-H; 1015-B-G; 1016-B; 1017-B-D] B
3. ·Thus, a minimum of ten years service after
appointment as Motor Vehicles Inspector (Grade-II) is
required undet the Special Rules, before an individual can
be appointed as Regional Transport Officer (five years' C
service for promotion as Motor Vehicles Inspector
(Grade-I), snd another five years' service as Motor
Vehicles lns'Pector (Grade-I) before appointment as
Regional Transport Officer). Therefore, that the order
passed by the Administrative Tribunal, as also, by the
High Cou'r! by relying on Rule 36(b)(ii) of the General D
Rules, was in clear derogation of the Special Ru1es. [Para·
25] [1016-E-F; 1017-D]
4. Clause (ii) of Rule 36(b) of the General Rules, could
have been invoked only in matters where promotions are E
to be made solely on the basis of seniority. Rule 2(b) of
the Special Rules laying down the manner/method for
promotion to the post of Motor Vehicles Inspector (Grade
I) clearly mandates, that promotion to the said post,
would be made on grounds of merit and ability, seniority F
being considered only where merit and ability are
approximately equal. It is, therefore apparent, that the
post of Motor Vehicles Inspector (Grade I) is a selection
post. That being the undisputed position, it would not
have been possible for the authorities to invoke Rule G
36(b)(ii) of the General Rules, even for promoting
respondent No. 5, to the post of Motor Vehicles Inspector
(Grade I). [Para 27] [1018-F-H; 1'b19-A]
5. Insofar as the post of Regional Transport Officer
is concerned, the Special Rules framed under Section?~ H
986 SUPREME COURT REPORTS [2013) 10 S.C.R.
A of the Tamil Nadu Transport Service, laying down the
conditions of eligibility and the manner/method of
appointment to the post of Regional Transport Officer, do
not postulate appointment to the post of Regional
Transport Officer by way of promotion. Rule 2 of the
B Special Rules clearly envisage, that appointment against
the post of Regional Transport Officer, would be made
only by way of transfer, interalia from amongst Motor
Vehicles Inspectors (Grade I). Rule 36(b)(ii) of the General
Rules does not postulate out-of-turn/accelerated
c appointment by way of transfer. Even though the Special
Rules do not lay down the method or manner of making
appointments by way of transfer, Rule 36A (introduced
with effect from 30.1.1996) contained in Part II - 'General
Rules', of the Tamil Nadu State and Subordinate Services,
postulates, that appointment by transfer shall be made on
0
grounds of merit and ability, seniority being considered
only where merit and ability are approximately equal. In
the aforesaid view of the matter, it is imperative to
conclude, that even for appointments by way of transfer,
the appointing authority must sieve the eligible
E candidates by adopting a process of selection. Since the
post of Regional Transport Officer, is to be filled up by
way of transfer, i.e., by way of selection amongst eligible
candidates, Rule 36(b)(ii) of the General Rules would be
inapplicable. Thus the General Rules contemplate out-of-
F turn/accelerated promotion, only in cases where seniority
is the sole criterion for promotion, whereas, the post of
Regional Transport Officer is not to be filled up on the
basis of seniority. [Paras 26 and 27] [1017-F-H; 1018-A;
1019-8-E]
G
6. For onward promotions (from the post of Motor
Vehicles Inspector (Grade II)), the criterion to be adopted
was that of selection. Seniority was only to be taken into
consideration where merit and ability of two eligible
H candidates was found to be approximately equal. Thus
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & 987
ORS.
every claim for onward promotion from the post of Motor A
Vehicles Inspector (Grade II) was liable to be considered
on the basis of merit. Therefore, an individual with
superior merit would steal a march over those less
meritorious. Thus viewed, if respondent No.5, was
actually possessed of outstanding and exceptional merit, B
as is sought to be suggested, he would have stolen a
march over his seniors even under the existing Special
Rules. Thus viewed, even by the manner/method of
onward progression postulated in the Special Rules, a
person with conspicuous merit and ability (as postulated c
under Rule 36(b)(ii) of the General Rules), would overtake
others without having to invoke Rule 36(b)(ii) of the
General Rules. Respondent No.5, after he had acquired
eligibility for promotion to the post of Motor Vehicles
· Inspector (Grade I), he was promoted as such only on D
10.5.2000. The merit.and ability possessed by respondent
no. 5, is not shown to have resulted in his having
superseded other members of the cadre senior to them.
[Para 28] [1019-G-H; 1020-A-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. E
4832 of 2013.
From the Judgment and Order dated 29.11.2011 in CP
No. 1688 of 2011 of the High Court of Madras.
F
R. Venkataramani, Guru Krishnakumar, AAG, Lata
Krishnamurti, Dr. B. Kalaivannan, Neeraj Shekhar, Ashutosh
Thakur, P.R. Mala, Pranav Diesh, Karan Kalia, Ashish Dixit, R.
Nedumaran, Neelam Singh, Supriya Garg, Shodhan Babu, B.
Balaji, R. Rakesh Sharma, Veera Mani, Prasana Venkat for the
appearing parties. G·
The Judgment of the Court was delivered by
. JAGDISH SINGH KHEHAR, J. 1. Leave granted ..
2. The controversy raised in the instant appeal revolves H
988 SUPREME COURT REPORTS [2013] 10 S.C.R.
A around the genuineness of the claim of respondent no. 5, K.V.
Karthalingan, for promotion from the post of Motor Vehicles
Inspector (Grade II) to the post of Regional Transport Officer.
In order to understand the veracity of the aforesaid claim it
would be relevant to mention, that the post of Motor Vehicles
s Inspector (Grade II) is the lower most entry level post. The post
of Motor Vehicles Inspector (Grade II), is filled up only by way
of direct recruitment. Onward promotion therefrom is to the post
of Motor Vehicles Inspector (Grade I). It is not a matter of
dispute, that Special Rules framed under Section 42 of the Tamil
c Nadu Transport Subordinate Service exclusively prescribe the
conditions of eligibility and the manner/method of promotion
from the post of Motor Vehicles Inspector (Grade II) to the post
of Motor Vehicles Inspector (Grade I). The aforesaid rules came
into force with effect from 19.8.1981. The said rules have been
made available to us from the Tamil Nadu Service Manual,
0
Volume Ill. For purposes of the present controversy, a relevant
extract of rules 2, 5 and 9 of the said Special Rules is being
reproduced hereunder:-
"2. Appointment - (a) Appointment to the category
E mentioned in column (1) of the table below shall be
made by the methods specified in the
corresponding entries in column (2) thereof:-
TABLE
Category Method of Recruitment
(1) (2)
1. Motor Vehicle Promotion from Motor
Inspector Grade-I Vehicles Inspector, Grade - II
2. Motor Vehicles Direct Recruitments:
G
Inspectors Grade - II
(b) Promotion to· category - 1 shall be made on
grounds of merit and ability, seniority being
considered only where merit and ability are
H approximately equal.
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & 989
ORS. [JAGDISH SINGH KHEHAR, J.]
xxxxxx xxx A
5. Qualifications - (a) Age-(i) No per shall be eligible
for appointment to category-2 by direct recruitment,
unless he possesses the qualifications specified
below, namely :- B
(1) Must have completed 21 years of age;
· (2) Must not have completed 32 years of age :
Provided that a person belonging to the Scheduled Caste/ c
Scheduled Tribes shall be eligible for appointment by direct
recruitment to category-2 if he has not completed 37 years
of age.
Provided further that the minimum age limit of 21 years
prescribed ab.ova shall apply also to the candidate D
belonging to Scheduled Caste/Scheduled Tribes and
Backward Classes.
(ii) The age limit prescribed in this rule shall be reckoned
so far as direct recruits are concerned with reference to E
the first day of July of the year in which the selection for
appointment is made.
(b) Other Qualifications.-No person shall be eligible for
appointment to the category specified in column (1)
by the method specified in column (2) of the table F
below unless he possess the qualifications
specified in the corresponding entries in the column
(3) thereof :-
TABLE G
SI.No. Category Method Qualification
(1) ' (2) (3) (4)
1. Motor Promotion i) Must have
Vehicles served as Motor H
990 SUPREME COURT REPORTS [2013] 10 S.C.R.
A Inspectors, Vehicles Inspector,
Grade-I Grade-II fol a
period of not less
than 5 years and
must be an
B approved
probationer in that
category.
2. Motor Direct
Vehicles Recruitment xxx xxx xxx
c Inspectors
)()()( )()()( )()()(
9. Preparation of Annual List of approved candidates
- For the pwpose of preparation of the annual list
0 of approved candidates for appointment by
promotion, the crucial date on which the candidates
shall be qualified shall be the 15th March of every
year."
A perusal of the rules extracted hereinabove reveals, that the
E ·post of Motor Vehicles Inspector is to be filled up exclusively
by promotion (Rule 2(a)). The above rules postulate, that merit
and ability would be the criterion for such promotion (Rule 2(b)).
It is also clarified that sefliority would be taken into
consideration, only when merit and ability of the competing
F candidates is found to be almost the same. The above Special
Rules lay down, that Motor Vehicles Inspectors (Grade II} would
be considered for promotion to the post of Motor Vehicles
Inspector (Grade I} only after rendering five years' service (Rule
S(b}}. Eligibility, on the basis of the qualifications prescribed
G for promotion to the posts of Motor Vehicles Inspectors (Grade
I} is to be determined annually. For the said exercise the cut
off date is 15th of March of every year (Rule 9).
3. It is also relevant to mention, that Special Rules have
H been framed under Section 28 of the Tamil Nadu Transport
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & 991
ORS. [JAGDISH SINGH KHEHAR, J.]
Service for regulating the conditions of eligibility and the A
manner/method of appointment, inter alia to the post of
Regional Transport Officer. Under the above rules, the post of
Regional Transport Officer can be filled up only by way of
transfer. The above Special Rules came into force with effect
from 15.9.1974. The same have been made available to us, B
from the Tamil Nadu Service Manual, Volume II. Releyant
extracts of Rules 2, 3 and 6 of the above Special Rules, which
have a bearing on the present controversy, and are being
reproduced hereL1nder:-
"2. Appointment.-(a) Appointment to these categories
c
shall be as follows :
Category Method of Appointment
(1) (2) D
Category-1 : Deputy Transport 1) By promotion
Commissioner from category-2; or
2) For special reasons
by recruitment by transfer E '
from any other service on
tenure basis. ·
Category-2: (1) Regional 1) By recruitment
Transport Officer by transfer from
F
and Additional among~
Transport Officer
(2) Assistant (i) Motor Vehicles
Secretary State Inspectors, Grade-I
Transport Authority in the Tamil G
Nadu Transport·.
·Subordinate Service; or
(ii) Superintendents,
H
992 SUPREME COURT REPORTS [2013) 10 S.C.R.
A Selection Grade and
Personal Assistant to
Regional Transport Officers,
in the Tamil Nadu Ministerial
Service;
B
(or)
(2) For special reasons by
recruitment by transfer from any other
service on tenure basis;
c
(3) Appointment of an Officer on
tenure basis from any State
Transport
Undertakings.
D
(b) Promotion to Category-I shall be made on grounds
of merit and ability, seniority being considered only
where merit and ability of competing candidates
are approximately equal.
E
(c) The posts in category 2 other than those filled up
by recruitment by transfer from any other service on
a tenure basis shall be filled up by rotation, the first,
second, fourth and fifth vacancies being filled up by
F recruitment by transfer from among Motor Vehicles
Inspectors, Grade I, and the third vacancy being
filled up by recruitment by transfer from
Superintendents in the Selection Grade and
Personal Assistants to Regional Transport Officers
G
in the Ministerial Service :
Provided that this rotation shall be followed in respect of
appointments made on and from the 26th June 1978 :
H
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & 993
ORS. [JAGDISH SINGH KHEHAR, J.]
Provided further that the temporary appointments to A
Category-2 made on and from the 15th September 1974
to the 25th June 1978 shall be regulated in the proportion
of 1 : 1 between Motor Vehicles Inspectors, Grading - I,
and Superintendents, Selection Grade, including Personal
Assistants to Regional Transport Officers in the Ministerial s
Service.
3. Qualification:- No persons holding the post
specified in Column (2) of the Table below, shall be
eligible for appointment to the category specified C
in column (1) unless he posses the qualifications
specified in column (3) thereof :
TABLE
CATEGORY POST QUALIFICATION D
(1) (2) (3)
Category - 1 1. Regional )()()( )()()( )()()(
Deputy Transport Officer
Transport and Additional E
Commissioner Regional
Transport Officer
2. Assistant
Secretary, State
Transport Authority
F
Category-2
(1) Regional Motor Vehicles Must have
Transport Inspector, Grade-I served for a
Officer and total period of G
Additional not less than
Regional five years as
Transport Motor Vehicles
Officer. Inspector, Grade-I
out of which H
994 SUPREME COURT REPORTS [2013] 10 S.C.R.
A not less than two
years must be in a
field office
(2) Assistant Superintendents, Must have served
Secretary Selection Grade for a total period
B State Transport and Personal of not less than
Authority Assistants to the five years as
Regional Transport Superintendent or
Officers a Personal
Assistant to the
c Regional
Transport Officer
of which not less
than two years
shall be as a
Personal
D
Assistant to
Regional
Transport Officer.
Provided that this rule shall not be applicable to
E appointments prior to the date of 1st July 1978.
6 Preparation of Annual List of Approved Candidates
- A list of approved candidates for appointmeQt by
promotion to Category 1 and recruitment by
transfer to category 2 shall be prepared every year:·
F The crucial date for inclusion in the panel of all
eligible officers for such appointment shall be the
1st .July of the year in which the selection for
appointment is made."
G A perusal of the rules extracted above reveal, that appointment
to the post of Regional Transport Officer is to be made only by
way of transfer, interalia, from all"\ongst Motor Vehicles
Inspectors (Grade I) (Rule 2(a)). Appoin\ment by way of transfer
to the post of Regional Transport Officer from other services,
H (including the post of Motor Vehicles Inspectors (Grade-I) is to
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & 995
ORS. [JAGDISH SINGH KHEHAR, J.]
be only on tenure basis (Rule 2(c)). It is significant to notice, A
that to be ·eligible for appointment to the post of Regional
Transport Officer (from amongst Motor Vehicle Inspectors
(Grade I}), the incumbent in question must have served for a
total period of not less than five years as Motor Vehicles
Inspector (Grade I), out of which not less than two years must B
be in a field office (Rule 3). Eligibility, on the basis of the
qualifications prescribed for transfer to the post of Regional
Transport Officer, is to be determined annually. For the said
.exercise, the cut off date stipulated under the Special Rules is
1st July of every year (Rule 6). c
4. The career of respondent no. 5, K.V. Karthalingan, in
the Tran.sport Department of the State Government commenced
on his appointment by direct recruitment as Motor Vehicles
Inspector (Grade II), on 9.2.1995. While serving as Motor
Vehicles Inspector (Grade II), he claimed that he had detected D
on a single date 14 cases of passenger vans being used as
public careers. He asserted, that he had seized the concerned
vehicles, whose owners were evading payment' of tax (to th!3
Transport Department). He also asserted, that he had detected
. irregularities being committed by certain dealers, for evading E
revenue (payable to the Transport Department). He also
claimed to have detected various instances where dealers
were found meddling with chassis numbers of vehicles. By a
process of tempering, chassis numbers were being altered, by
the dealers. According to respondent no. 5, his actions had F
resulted. in bringing to book, numerous persons evading
payment of tax to the Transport Department. According to
respondent no. 5, K.V. Karthalingan, the above actions were
taken by him despite grave personal risks. In this behalf, it was
his assertion, that he had received a number of threatening G
letters, for having revealed the aforesaid irregularities. In the
above letters he was threatened, that he would be eliminated.
Despite rece)Pt of such letters, respondent no. 5 claims to have
continued to discharge his duties with dedication and devotion.
H
996 SUPREME COURT REPORTS [2013) 10 S.C.R.
A 5. In appreciation of the above alleged exemplary devotion
of duty displayed by respondent no. 5, the Managing Director
of the Tamil Nadu State Transport Corporation, Kumbakonam
Division-1, as well as, the Managing Director of Cholan
Roadways Corporation, recommended the name of respondent
B no. 5, K.V. Karthalingan, for accelerated/out of turn promotion
as Reg ion a I Transport Officer. On 26. 9.1997, having
considered the recommendations made by the Managing
Directors (referred to above), the Regional Transport Officer by
citing Rule 36(b)(ii) of the Tamil Nadu State and Subordinate
c Services Rules, also recommended the claim of respondent no.
5 for out of turn/accelerated promotion. The Deputy Transport
Commissioner, Trichy, on 10.7.1998, having considered the
above recommendations, endorsed the claim of respondent no.
5, K.V. Karthalingan, for accelerated/out of turn promotion, to
D the Commissioner of Transport, Chennai. In order to appreciate
the recommendation made on 26.9.1997 by the Regional
Transport Officer, it is essential to extract hereunder Rules 36
and 36A of the Tamil Nadu State and Subordinate Services
Rules, which came into force with effect from 1.1.1955. It was
E pointed out, that the above rules were framed in exercise of
powers conferred by the proviso under Article 309 of the
Constitution of India. The said rules are reproduced below :-
"36. (a) Promotion - No member of a service or class
of a service shall be eligible for promotion from the
F category in which he was appointed to the service
unless he has satisfactorily completed his probation
in that category:
Provided that a member of a service or class of a
service who, having satisfactorily completed his probation
G
in the category in which he was appointed to the service,
has been promoted to the next higher category shall,
notwithstanding that he has not been declared to have
satisfactorily completed his probation in such higher
category be eligible for promotion from such higher
H
P. DHARN·I & .ORS. v. GOVT. OF TAMIL NADU & ORS. 997
[JAGDISH SINGH KHEHAR, J.]
category: A
Provided further that if scales of pay of posts in the
feeder categories are different, the persons holding post
carrying a higher scale of pay in the feeder category shall
be considered first and that, if no qualified and suitable B
persons holding post in that feeder category are available,
the persons holding post carrying the next higher scale of
pay in descending order in other feeder categories shall
be considered.
(b) (i) Promotions to selection category or grade.- C
Promotions in a service or class to a selection
category or to a selectipn grade shall be made on
grounds of merit and ability, seniority, being
considered only where merit and ability are
approximately equal. The inter-se-seniority among D
the persons found suitable for such promotion shall
be with reference to the inter-se-seniority of such
persons in the lower post.
(ii) Promotion according to seniority-All other E
promotions shall, be made in accordance with
seniority unless-
(1) the promotion of a Member has been
withheld as a penalty, or
F
(2) a Member is given special promotion for
conspicuous merit and ability.
(c) Appointment of a member to higher category not
to be considered if he had been on leave for three
or four years or more continuously.-Notwithstanding G
anything contained in sub-rules (a) and (b), a
member of a service who had been on leave for a
period of three years continuously for any reason
except higher studies or for a period of four years
continuously for higher studies, shall not be H
998 SUPREME COURT REPORTS [2013) 10 S.C.R.
A considered for appointment as a higher category
either by promotion or by recruitment by transfer
unless he has completed service for a period of one
year from the date on which he joins duty on return
from leave.
B
36A. Appointment by Recruitment by Transfer.-
Appointments by recruitment by transfer to a class or
category in a State Service from among the holders of
posts in a Subordinate Service, shall be made on grounds
of merit and ability, seniority being considered only where
c merit and ability are approximately equal."
6. Whilst it is the claim of respondent no. 5, that he had a
genuine. claim for out of turn/accelerated promotion under Rule
36(b)(ii), it is the vehement contention of the learned counsel
D for the appellants before us, that the aforesaid rule could neither
be invoked for promotion to the post of Motor Vehicles
Inspector (Grade I) nor for appointment by way of transfer to
the post of Regional Transport Officer.
E 7. Before examining the merits of the controversy, it will
be essential for us to narrate the sequence of events leading
to the direction by the High Court of Judicature at Madras
(hereinafter referred to as the 'High Court'), for promoting
respondent no.5, K.V. Karthalingan, to the post of Regional
Transport Officer. Insofar as the instant aspect of the matter is
F concerned, it would be relevant to mention, that respondent no.
5 addressed a representation dated 30.6.1998 seeking out of
turn/accelerated promotion. For his instant prayer, he sought
consideration of his sincere, efficient and unblemished record
of service, detailed above. On receipt of the aforesaid
G representation, relying on the recommendation made by the
Managing Director of the Tamil Nadu State Transport
Corporation, Kumbakonam Division-1 and Managing Director
of Cholan Roadways Corporation, on 26.9.1997 the Regional
Transport Officer, also recommended the claim of respondent
H no. 5. Thereupon, the Deputy Transport Commissioner, Trichy,
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & 999
ORS. [JAGDISH SINGH KHEHAR, J.]
on 10.7.1998, further recommended respondent no. 5, K.V. A
Karthalingan, for accelerated promotion, to the Commissioner
of Transport, Chennai.
8. De_spite the above recommendations, no action was
taken by the authorities. It is, therefore, that respondent no. 5, 8
K.V. Karthalingan, approached the Tamil Nadu Administrative
Tribunal,· at Chennai (hereinafter referred to as, the
Administrative Tribunal), by filing Original Application no. 5918
of 1998. The aforesaid Original Application was disposed of
by an order dated 6.11.1998, without issuing notice to the C
respondents. A perusal of the order dated 6.11.1998 reveals,
that the Transport Secretary of the State Government, was
directed to pass orders on the recommendations made by the
Deputy Transport Commissioner, Trichy dated 10.7.1998.
9. Consequent upon the issuance of the above directions, D
the State Government passed an order dated 8.12.1998. By
the instant order, the claim of the respondent no. 5 K.V.
Karthalingan, for out of turn/accelerated promotion came to be
rejected. While rejecting the prayer of respondent no. 5, the
State Government recorded, interalia, the following reasons:- E
"2. The government have examined the representation of
Mr. V. Kathalingam, taking into consideration of the
direction the Hon'ble (Tribunal). (The) Tamil Nadu Transport
Subordinate Service do not provide for out of turn or
F
accelerated promotion. Besides, there is no merit in the
claim of the petitioner. Instances of extraordinary services
quoted by him are common in Transport Department as
well as in Civil Service.
3. Accordingly, the Government rejects the request of Mr. G
Kathalingam, Motor Vehicles Inspector, Grade-II for
accelerated Promotion."
A perusal of the order passed by the State Government
reveals, that the rules regulating the conditions of service of H
1000 SUPREME COURT REPORTS [2013] 10 S.C.R.
A respondent no. 5 do not provide for an avenue for out of turn/
accelerated promotion. The State Government also arrived at
the conclusion, that the instances of extraordinary service relied
upon by respondent no. 5 (to claim out of turn/accelerated
promotion), could not be treated as exceptional or
B unprecedented, because such instances were common in the
Transport Department.
10. Dissatisfied with the order of the State Government
dated 8.12.1998, respondent no. 5 preferred Original
Application no. 429 of 2002 before the Administrative Tribunal.
C The aforesaid Original Application was allowed by the
Administrative Tribunal vide an order dated 10.7.2002. In the
instant matter, the Administrative Tribunal had issued notice to
the respondents (i.e, different functionaries of the State
Government). The respondents were duly served. But the matter
D was disposed of without waiting for a reply from them. While
allowing the aforesaid application, even though the State
Government while rejecting the claim of respondent no. 5 vide
order dated 8.12.1998 had recorded that the instances
indicated by him for out of turn/accelerated promotion, could
E not be treated as exceptional or extraordinary, the
Administrative Tribunal held that the same constituted
conspicuous merit and ability, and were sufficient to earn
respondent no.5, K.V. Karthalingan, out of turn/accelerated
promotion as_ Regional Transport Officer. In its aforesaid
F determination, the Administrative Tribunal recorded the
following observations:-
"5. The rejection order is found in G.O.Ms. No.2535 Home
(Transport II) Department, dated 8.12.1998. There is no
dispute about the extraordinary performance of the
G
petitioner. In one of the leading English Journals circulated
in Tamil Nadu, the publication is to the following effect :
"Parambalur October 31 Instance of dealers in two-
wheelers illegally altering the chassis and
H registration numbers of vehicles to distribute
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & 1001
ORS. [JAGDISH SINGH KHEHAR, J.]
vehicles with numbers as desired by the clients A
have come to light during inspections here.
On July 18, a two-wheeler with the chassis number
A 606 F 376242 was brought to the office of motor
vehicle Inspector here. During the Inspection the B
digit '6' in the chassis number was found
repunched. Following this the inspector verified the
papers relating to the vehicle issued by a local
dealer. It came to light that as per the invoice issued
by the manufacturers of June 8, 1996, the chassis C
number was A 606 F 3708242 and the vehicle has
been registered from June 10. The Inspector found
that the digit '6' had been repunched in lieu of 'O'.
Consequently, the Inspector has reportedly written
to the manufacturers and the Regional Transport D
Officer recommending cancellation of the grade
licence issued to the dealer.
Instance of meddling with th_e chasis number were
also found in the vehicle brought for registration on
E
earlier occasions. The digiJs 'O' '3' and '1' were
found tampered to read as '6', '8' and '7'.
The Inspector has sent letters to the individual
owners calling for explanation. The replied were
similar. We parted with a bribe of Rs.2300 to avoid F
registration numbers totaling fo '8' but the Vehicles
allotted to us carried numbers totaling to '8' only.
We returned the vehicles and after a few days got
vehicles with fresh registration numbers.
G
It is said though it is three months since the
irregularity was detected, no action has been taken
so far. On the contrary the Inspector who detected
the irregularity has reportedly received threat letters
from a number of sources."
H
1002 SUPREME COURT REPORTS [2013] 10 S.C.R.
A 6. There is already a direction from this Tribunal in O.A.
No.5918 of 1998 to consider the case of the petitioner and
pass orders. Accordingly the government has passed
orders rejected the claim of the petitioner stating that
special rules for Tamil Nadu Transport Subordinate Service
B do not provide for out of turn for accelerated promotion.
7. Mr. P. Jayaraman, Senior Counsel relied upon General
Rule 36(b)(2). It reads as follows :-
"Promotion according to seniority:-
c
All the other promotion shall be made in accordance
with seniority unless :
(i) The promotion of a member shall be withheld as
a penalty or
D
(ii) A member is given special promotion for
conspicuous merit and ability.
By this Sub-rule (ii), there is an implication for grant of
E special promotion for conspicuous merit and ability. In this
case, it is not disputed that the petitioners has rendered
meritorious service. Therefore, rejecting the claim of the
petitioner on the ground that there are no rules is not
proper. Hence the rejection order is set aside. The
petitioner shall be given promotion as Regional Transport
F
Officer. The orders shall be passed within a period of six
months from today."
A perusal of the determination rendered by the Administrative
Tribunal reveals, that a clear and categorical finding was
G recorded by it, that there was no dispute about the extraordinary
performance of respondent no. 5, K.V. Karthalingan. Reliance
was also placed on Rule 36(b)(ii) of the Tamil Nadu State and
Subordinate Service Rules to conclude, that the claim of
respondent no. 5 for out of turn/accelerated promotion could
H have validly been considered under Rule 36(b)(ii) of the
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & 1003
ORS. [JAGDISH SINGH KHEHAR, J.]
General Rules. Having recorded the aforesaid factual finding, A
as also having concluded that there was a statutory provision
whereunder the claim of respondent no. 5 for out of turn/
accelerated promotion could be granted, the Administrative
Tribunal directed the respondents, to issue an order promoting
the respondent no. 5 as Regional Transport Officer, within a B
period of six months (from the date of the order dated
10.7.2002).
11. Now that respondent no. 5 had succeeded before the
Administrative Tribunal, the State Government filed Writ Petition C
(Civil) no. 21562 of 2003 before the High Court, to assail the
order passed by the Administrative Tribunal dated 10.7.2002
(whereby respondent no. 5 was directed to be promoted to the
post of Regional Transport Officer). The instant challenge raised
by the State Government did not achieve the desired purpose,
inasmuch as, the aforesaid writ petition came to be dismissed D
by an order dated 13.10.2004. In paragraph 2 of the order
passed by a Division Bench of the High Court, on a
consideration of the instances relied upon by respondent no.
5, as also, the recommendations made by the Managing
Directors of Tamil Nadu Transport Corporation, Kumbakonam E
Division-1 and Cholan Roadways Corporation, and th~
recommendation made by the Deputy Transport Commissioner,
Trichy, dated 10.7.1998, it came to be concluded, that
respondent no. 5, K.V. Karthalingan, was entitled to out of turn/
accelerated promotion. The High Court also took into F
consideration Rule 36(b)(ii) of the Tamil Nadu State and
Subordinate Service Rules, and on the basis thereof held, that
lhe statutory rules regulating the conditions of service of
respondent no. 5, provided for out of turn/accelerated
promotion, based on meritorious/outstanding service. Having G
so concluded, the High Court also expressed the view, that there
was nothing in the Special Rules (the rules framed under
Section 42 of the Tamil Nadu Transport Subordinate Service,
and/or Section 28 of the Tamil Nadu Transport Service), that
was repugnant to the General Rules (the Tamil Nadu State and H
1004 SUPREME COURT REPORTS [2013] 10 S.C.R.
A Subordinate Service Rules) providing for accelerated
promotion. Accordingly, the High Court upheld the order passed
by the Administrative Tribunal. The High Court while disposing
of Writ Petition (Civil) no. 21562 of 2003, directed the State
Government (i.e. the petitioners before the High Court) to
B implement the order passed by the Administrative Tribunal,
within four months from the date of receipt of a copy of the High
Court order.
12. Aggrieved with the decision rendered by the High Court
in Writ Petition no. 21562 of 2003 (decided on 13.10.2004),
C the State Government filed Petition for Special Leave to Appeal
(Civil) bearing no. 11538 of 2005. Besides the above petition
filed by the State Government before this Court, one P. Mani
also approached this Court by filing Petition for Special Leave
to Appeal (Civil) bearing no. 11542 of 2005, for assailing the
D order of the High Court dated 13.10.2004. Both the above
mentioned petitions were withdrawn by the State Government,
as also, by the said P. Mani, on 7.7.2006. As a result of the
withdrawal of the aforesaid petitions, the order passed by the
High Court on 13.10.2004 directing the State Government to
E promote respondent no. 5 to the post of Regional Transport
Officer, attained finality.
13. Despite the above legal position, namely, that the order
of the High Court dated 13.10.2004 had attained finality, the
F State Government did not implement the order passed on
10.7.2002 (in O.A. no. 429 of 2002) by the Administrative
Tribunal, or the order passed by the High Court dated
13.10.2004 (in Writ Petition No.21562 of 2003). It is in the
aforesaid background, that respondent no. 5, K.V. Karthalingan,
filed Contempt Petition no. 5188 of 2006 before the High Court.
The High Court having taken notice of the entire factual position
upto the date of withdrawal of the petitions for special leave to
appeal preferred before this Court, recorded the following
observations:-
H
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & 1005
ORS. [JAGDISH SINGH KHEHAR, J.]
"6. After dismissal of the SLPs as withdrawn, the Special A
Commissioner and Transport Commissioner has sent a
proposal to the Government on 19.7.2006, recommending
the name of the petitioner for the post of Joint Transport
Commissioner also after implementing the orders of the
Tribunal and this Court, since the petitioner would reach B
that position if the orders are implemented properly. But,
pending remarks from the Transport Commissioner, the
Government issued G.0.2(D) No.111, Home (Trpt-11)
Department dated 21.2.2007, temporarily promoting the
petitioner as Regional Transport Officer and posted him c
at the office of the Regional Transport Officer, Chennai
(West). According to the petitioner, the Special
Com,missioner and Transport Commissioner, by his
considered remarks dated 10.05.2007, sent a proposal
that his name has to be included in the list of panel of D
Regional Transport Officers for the year 1996, next to Mr.
A.A. Khader Moideen, who was lastly promoted on
2.4.1996, vide G.0.Rt. No.831, Home (Tr-II) Department.
According to the petitioner, while the above process was
on, on some complaints by a dealer, whose irregularities E
were found out by him, certain charges were framed
against the petitioner by the authorities anc:Lon enquiry,
final orders were passed in favour of the petitioner. The
petitioner would further contend that the properties
purchase through the business income of his wife and her
brothers were shown as his disproportionate assets, F
charges were framed against him, but on enquiry, they
dropped on 15.12.2008, in consultation with TNPSC, and
the former Principal Secretary and Transport
Commissioner. In his letter dated 29.4.2010 addressed to
the Director of vigilance and Anti-corruption denied G
permission to prosecute the petitioner. But, however, on
the very same allegations, the succeeding Transport
Commissioner, took a contrary view and accorded
sanction for prosecution on 24.11.2010. But, again on
4.2.2011, the very same Transport Commissioner sent H
1006 SUPREME COURT REPORTS [2013] 10 S.C.R.
A remarks, by referring the pleading that a person once
convicted or acquitted shall not be tried for the same
offence again, and sent his remarks to the Government
stating that the Government is the competent authority to
withdraw the case referred to Tribunal for Disciplinary
B Proceedings, Trichy at any stage, as per Rule 8(b) of the
TNSC (D&A) Rules. A reminder was also sent by the said
authority on 20.6.2011 and the petitioner has also sent a
representation dated 14.7.2011, but no orders have been
passed till date by the Government.
c 7. A perusal of the entire materials placed on record,
prima facie, would establish the fact that in order to
deprive the petitioner from getting his accelerated
promotion as ordered by the Tribunal and by this Court,
the respondents have adopted various dilatory tactics and
D are trying to water down the order of the Tribunal and this
Court. When this Court has ordered to grant the petitioner
accelerated promotion as Regional Transport Officer, the
respondents have issued orders temporarily promoting
him to that cadre. Today, during the course of arguments,
E it has been submitted on behalf of the respondents that
there is a criminal case pending against the petitioner for
possessing assets disproportionate to his known sources
of income."
F 14. The appellants before us filed Petition for Special
Leave to Appeal (Civil) no. 3464 of 2012 on having realised,
that the claim raised by respondent no. 5, for promotion to the
post of Regional Transport_ O_ffi_cer, had now fructified into a
reality. The reason for approaching this -Court directly was, that
G it would be an exercise in futility for the appellants to approach
the High Court, as a Division Bench of the High Court had
already adjudicated the controversy, and while doing so,
examined the factual, as well as, the legal propositions involved.
And furthermore, a challenge.raised to the order passed by the
Division Bench of the High Court, before this Court had been
H
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & ORS.1007
[JAGDISH SINGH KHEHAR, J.]
withdrawn. It was also their contention, that the petitioners (now A
the appellants before this Court) were never arrayed as party
respondents in the litigation preferred by respondent no. 5, K.V.
Karthalingan, even though their rights were liable to be
prejudicially affected by the promotion of respondent no. 5, K.V.
Karthalingan, to a higher post in the service. Since respondent 8
no. 5 was junior to all of them, it was their submission, that they
ought to have been arrayed as party respondents. Insofar as
the instant aspect of the matter is concerned, it was pointed
out, that whilst respondent no. 5, K.V. Karthalingan, was
appointed against the post of Motor Vehicles Inspector (Grade c
II) on 9.2.1995, appellant no.1 P. Dharni was appointed as such
on 18.1.1988, i.e., more than seven years before the
appointment of respondent no.5. It was further pointed out, that
even though respondent no. 5 was promoted as Motor Vehicle
Inspector (Grade I) on 10.5.2000, appellant no. 1 P. Dharni was 0
promoted as such, on 5.9.1994 i.e., almost six years before the
promotion of respondent no. 5 K.V. Karthalingan as Motor
Vehicles Inspector (Grade I). It was sought to be pointed out,
that in the seniority list of the cadre of Motor Vehicles Inspector
(Grade I), whilst the name of P. Dharni (appellant no. 1 herein)
E
figured at serial no. 81, that of respondent no. 5, K.V.
Karthalingan was placed at serial no. 141. In the above view
of the matter it was submitted, that despite respondent no. 5
being 60 steps below the appellant P. Dharni, he was being
promoted unjustifiably above him, and many othersimilarly
situated persons, senior to respondent no. 5, K.V. Karthalingan. F
It was submitted, that even the other appellants were likewise
superiorly placed vis-a-vis respondent no. 5, K.V. Kartl'laliRgan.
15. Based on the above pleas, this Court entertained the
petition for special leave to appeal preferred by the appellants G
on 21.12.2011. While issuing notice in the matter, this Court
also directed the parties to maintain status quo. After being
served, all the respondents have filed counter affidavits. The
appellants have also filed a rejoinder affidavit, to the counter
affidavit filed by respondent no.5, K.V. Karthalingan. Pleadings H
1008 SUPREME COURT REPORTS (2013] 10 S.C.R.
A are, therefore, complete.
16. Having heard learned counsel for the rival parties we
realised, that Original Application no.5918 of 1998 filed by
respondent no.5 was disposed of (on 6.11.1998), without
issuing notice to the State or the affected parties. Insofar as
8
Original Application no.429 of 2002 is concerned, the same
was disposed of (on 10.7.2002) without seeking a reply from
the State, even though it had been duly served. In fact, in neither
of the said Original Application, persons senior to respondent
no.5 K.V. Karthalingan were impleaded as respondents,
C despite his claim for promotion before them. After the dismissal
of Writ Petition no. 21562 of 2003 by the High Court, the
Petitions for Special Leave to Appeal filed by the State
Government, as also by a private individual, were withdrawn.
There was therefore no adjudication on merits, by this Court.
D These factors persuade us to feel, that the questions raised had
far reaching consequences, and therefore, needed to be
examined on merits. Remanding the matter back to the
Administrative Tribunal or the High Court, for re-determination
of the issue, by affording an opportunity of hearing to the
E appellants before us, as also to those senior to respondent no.
5, K. Karthalingan, was one available option. Having heard
learned counsel for the rival parties at great length, even on
merits, we felt that it would be best for us to adjudicate upon
the matter ourselves. It was possible for us to do so, because
F the rival parties had an opportunity for the first time before us,
to raise their claims and counterclaims, through detailed
pleadings and submissions.
17. During the course of hearing, submissions advanced
G at the behest of the appellants were based on the peculiar facts
of the case, as also, purely on the basis of the rules regulating
the conditions of service of the appellants, as well as,
respondent no. 5, K.V. Karthalingan. Even though the
chronological order in which the submissions were advanced
during the course of hearing were different, we have chosen to
H
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & ORS.1009
[JAGDISH SINGH KHEHAR, J.]
deal with the same in a different sequence so as to bring out A
the true effect of the statutory rules, on the basis whereof rival
claims were projected.
18. We shall first deal with the legal aspects in the matter.
Principally the contention advanced at the h~nds of the 8
appellants before us was, that Rule 36(b)(ii) of the Tamil Nadu
State and Subordinate Services Rules relied upon by
respondent no. 5, K.V. Karthalingan, as also the authorities
which had recommended his claim for out of turn/accelerated
promotion, is a part of the General Rules, as it figures in Part C
II of the Tamil Nadu State and Subordinate Services Rules. It
was submitted, that the Special Rules override the General
Rules. Based on the Special Rules framed under Section 42
of the Tamil Nadu Transport Subordinate Service, and under
Section 28 of the Tamil Nadu Transport Service, it was sought
to be contended, that Rule 36(b)(ii) of the General Rules relied D
upon by respondent no. 5, K.V. Karthalingan, could not have
been taken into consideration, for granting him out of turn/
accelerated promotion, as the same is in conflict with the
Special Rules.
E
19. To substantiate the contention noticed in the foregoing
paragraph, learned counsel for the appellants invited our
attention to the Tamil Nadu State and Subordinate Services
Rules. The aforesaid rules are divided into two parts. Part I
bears the heading - "Preliminary", whereas Part II bears the F
heading "General Rules". Rule 36(b)(ii) relied upon by
respondent no. 5, K.V. Karthalingan, falls in Part II - "General
Rules". For all intents and purposes Rule 36(b)(ii) should
therefore be perceived as a General Rule. In fact, for the instant
inference, there was no dispute amongst the rival parties. G
Having substantiated that Rule 36(b)(ii) is a General Rule,
learned counsel for the appellants, invited our attention to Rules
9 and 19 of Part I - "Preliminary", of the Tamil Nadu State and
Subordinate Services Rules. The same are being extracted
hereunder:-
H
1010 SUPREME COURT REPORTS [2013] 10 S.C.R.
A "9. "General Rules" shall mean the rules in Part II of
these rules;
)()()( )()()( )()()(
19. "Special Rules" shall mean the rules in Part Ill
B applicable to each service or class of service;"
Rules 9 and 19 extracted above, define "General Rules" and
"Special Rules" respectively. It was reiterated, that it was further
clear from the above definition of "General Rules" recorded in
c Rule 9 extracted above, that Rule 36(b)(ii) is a General Rule,
because it is a rule in Part II of the Tamil Nadu State and
Subordinate Services Rules.
20. Thereupon, it was submitted, that the rules referred to
in the earlier part of this order, framed under Section 42 of the
D Tamil Nadu Transport Subordinate Service, and under Section
28 of the Tamil Nadu Transport Service, would fall in the
category of Special Rules. For the said inference, reliance was
placed on Rule 19 contained in Part I - Preliminary, of the Tamil
Nadu State and Subordinate Services Rules. The above
E inference was drawn on the assertion that the said rules were
framed specially to cater to posts in different cadres of the
Transport Department. Again, for the instant inference, there
was no dispute amongst the rival parties. We find merit in this
contention as well, for the reasons expressed by the learned
F counsel for, the appellants. Therefore, for all intents and
purposes, the rules framed under the above provisions must
be deemed to be Special Rule.
21. For demonstrating the superiority of one set of rules,
G over the other, learned counsel for the appellants brought to our
attention, Rule 2 from Part II - "General Rules", of the Tamil
Nadu State and Subordinate Services Rules, which reads as
under:-
"2. Relation to the special rules - If any provision in
H the general rules contained in this part is repugnant
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & ORS.1011
[JAGDISH SINGH KHEHAR, J.]
to a provision in the special rules applicable to any A
particular service, contained in Part Ill, the latter
shall, in respect of that service, prevail over the
provision in the General Rules in this part."
A perusal of Rule 2 extracted above, leaves no room for any 8
doubt, that in case of repugnancy between the Special Rules
and the General Rules, the Special Rules will prevail over the
General Rules. We acknowledge and affirm the aforesaid
inference. We may now summarise our conclusions. Firstly, that
Rule 36(b)(ii) of the Tamil Nadu State and Subordinate C
Services Rules, falls in Part II - General Rules, is clearly a
General Rule. Secondly, the rules prescribing the conditions of
eligibility and the manner/method of appointment by promotion
from the post of Motor Vehicles Inspector (Grade II) to the post
of Motor Vehicles Inspector (Grade I), framed under Section 42
of the Tamil Nadu Transport Subordinate Service, are Special D
Rules. Thirdly, the rules prescribing the conditions of eligibility
and the manner/method of appointment by transfer to the post
of Regional Transport Officer, interalia out of Motor Vehicles
Inspectors (Grade I), framed under Section 28 of the Tamil Nadu
Transport Service, are Special Rules. And fourthly, in case of E
a conflict between the Special Rules and the General Rules,
the Special Rules will have an overriding effect over the General
Rules.
22. The first contention advanced at the hands of the F
learned counsel for the appellants in order to demonstrate that
Rule 36(b)(ii) of the Tamil Nadu State and Subordinate
Services Rules, contained in Part II.- "General Rules", is in
conflict with the·Special Rules, was sought to be substantiated
by placing reliance on the Special Rules framed under Section G
42 of the Tamil Nadu Transport Subordinate Service, which
exclusively prescribe the conditions of eligibility and the manner/
method of appointment by promotion from the post of Motor
Vehicles Inspector (Grade II) to the post of Motor Vehicles
Inspector (Grade I). Referring to Rule 2 of the Special Rules it H
1012 SUPREME COURT REPORTS [2013] 10 S.C.R.
A was asserted, that the only avenue of promotion from the post
of Motor Vehicles Inspector (Grade II) is to the post of Motor
Vehicles Inspector (Grade I), and as such, on the subject of out
of turn/accelerated promotion, the claim of respondent no. 5,
K.V. Karthalingan, could only have been considered for
13 promotion to the post of Motor Vehicles Inspector (Grade I).
Relying on Rule 5(b) of the above Special Rules it was
submitted, that for promotion to the post of Motor Vehic.les
Inspector (Grade I) the concerned incumbent must have served
as Motor Vehicles Inspector (Grade II) for a period of not less
c than five years. Referring to Rule 9 of the said Special Rules it
was asserted, that a Motor Vehicles Inspector (Grade II) would
acquire eligibility after fulfilling the aforesaid eligibility criteria
with reference to 15th of March of the year in which he
completes the prescribed conditions of eligibility. Taking into
0 consideration the fact, that respondent no. 5, K.V. Karthalingan,
was appointed as Motor Vehicles Inspector (Grade 11) in 1995,
it was submitted, that he would acquire eligibility for promotion
to the post of Motor Vehicles Inspector (Grade I) only on 15th
of March, 2000. It was accordingly contended, that when
respondent no. 5, K.V. Karthalingan, made his representation
E dated 30.6.1998, seeking out of turn/accelerated promotion, he
was not even eligible for promotion to the post of Motor
Vehicles Inspector (Grade I). In the above view of the matter, it
was the contention of the learned counsel for the appellants,
that granting promotion to respondent no. 5, K.V. Karthalingan,
F prior to his having acquired the eligibility even for appointment
to the post of Motor Vehicles Inspector (Grade I), would violate
Rules 5 and 9 of the Special Rules.
23. Having given our thoughtful consideration to the
G contention advanced at the hands of the learned counsel for the
appellants, we are constrained to uphold the first contention
raised at the hands of the learned counsel for the appellants. It
is not as if we are oblivious of the fact that the question to be
considered is whether respondent no. 5, K.V. Karthalingan, has
H rightfully been granted out of turn/accelerated promotion to the
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & ORS.1013
[JAGDISH SINGH KHEHAR, J.]
post of Regional Transport Officer, whereas, the instant first A
contention advanced at the hands of the learned counsel for the
appellants is with reference to promotion to the post of Motor
Vehicles Inspector (Grade I). The reasons for accepting the
instant contention will flow from the conclusions drawn by us with
reference to the next two legal submissions advanced at the B
hands of the appellants. All the same, we are satisfied, that even
if the claim of respondent no. 5, K.V. Karthalingan, was
considered for out of turn/accelerated promotion to the post of
Motor Vehicles Inspector (Grade I), such a claim could not have
been accepted without his having acquired· eligibility under c
Rules 6 and 9 of the Special Rules. Allowing him out of turn
promotion even to the post of Motor Vehicles Inspector (Grade
I) by relying no Rule 36(b)(ii), would have violated the mandate
of the Special Rules. Rule 2 contained in Part II - "General
Rules" of the Tamil Nadu State and Subordinate Service Rules,
0
itself specifically mandates, that in case of a conflict between
the Special Rules and the General Rules, the Special Rules will
prevail. Rules 6 and 9 being Special Rules must therefore, be
satisfied, before an individual can make a claim for out of turn/
accelerated promotion under Rule 36(b)(ii), which is a General
Rule. For the reasons record.ed hereinabove, we have no E
hesitation in holding, that even if promotion had been granted
to respondent no. 5, K.V. Karthalingan against the post of Motor
Vehicles Inspector (Grade I), on out of turn/accelerated basis
by relying on Rule 36(b)(ii) of the General Rules, the same would
have been unacceptable in law, and as such, would have been F
liable to be set aside.
24. The second contention advanced at the hands of the
learned counsel for the appellants was, that for the same
reasons and on same logic as has been indicated above, for G
demonstrating that promotion of respondent no. 5, K.V.
Karthalingan, to the post of Motor Vehicles Inspector (Grade I)
could not have been treated as valid under Rule 36(b)(ii), so
also, the promotion of respondent no. 5, K.V. Karthalingan, to
the post of Regional Transport Officer cannot be accepted as H
1014 SUPREME COURT REPORTS [2013] 10 S.C.R.
A valid. Insofar as the post of Regional Transport Officer is
concerned, learned counsel for the appellant placed reliance
on Rules 3 and 6 of the Special Rules framed under Section
28 of the Tamil Nadu Transport Service. To be eligible for
appointment as Regional Transport Officer, a Motor Vehicles
B Inspector must have served for a total period of not less than
five years as Motor Vehicles Inspector (Grade I), out of which
not less than two years must be in a field office. It is also clear,
that the aforesaid eligibility would be determined with reference
to the 1st of July every year. Even if it is assumed, that
C respondent no. 5, K.V. Karthalingan, came to be promoted as
Motor Vehicles Inspector (Grade I) immediately on completion
of five years' service as Motor Vehicles Inspector (Grade II), he
would still need another five years' service before he could be
appointed as Regional Transport Officer. Out of the said
service, two years ought to have been in a field office. In the
D above view of the matter it was submitted, that a minimum of
10 years of service must mandatorily be rendered by a Motor
Vehicles Inspector (Grade II), before he can contemplate
appointment to the post of Regional Transport Officer. In view
of the fact that respondent no. 5, K.V. Karthalingan was
E appointed as Motor Vehicles Inspector (Grade II) on 9.2.1995,
he would acquire eligibility for the same only on 1. 7.2005. It was
submitted, that if respondent no. 5, K.V. Karthalingan, was
promoted as Regional Transport Officer, before fulfilling the
aforesaid ten years of service, his promotion would be in
F violation of Rules 3 and 6 of the Special Rules referred to
above.
25. We have given our thoughtful consideration to the
second legal proposition canvassed at the hands of the learned
G counsel for the appellants. We find merit therein as well. The
question to be considered is, whether the Special Rule
prescribing the minimum period of eligibility for appointment to
the post of Regional Transport Officer, can be overlooked while
allowing out of turn/accelerated appointment to respondent no.
H 5, to the post of Regional Transport Officer. We are satisfied
-
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & ORS.1015
[JAGDISH SINGH KHEHAR. J.l
in answering the aforesaid query in the negative. We are of the A
view, that if promotion is granted to respondent no. 5, K.V.
Karthalingan, under Rule 36(b)(ii) of the General Rules, prior
to his having rendered five years' service as Motor Vehicles
Inspector (Grade I), out of which two years must be in a field
office, the same would violate the Spetial Rules. Since the B
Special Rules override the General Rules, the claim made by
respondent no. 5, for out of turn promotion under Rule 36(b)(ii)
of the General Rules, would be valid only if respondent no.5,
had satisfied the conditions of eligibility stipulated in the Special
Rules for appointment to the post of Regional Transport Officer. c
Insofar as the present controversy is concerned, even though
respondent no. 5, K.V. Karthalingan, was appointed as Motor
Vehicles Inspector (Grade II) on 9.2.1995, he made a
representation on 30.6.1998 claiming out of turn/accelerated
promotion. By that time, he had rendered just over three years 0
of service as Motor Vehicles Inspector (Grade II). At that stage,
there was no question of his being considered for appointment
against the post of Regional Transport Officer, as he had by
then, not rendered even a single days service as Motor Vehicles
Inspector Grade-I (as against the prescribed five years'
E
service). The instant issue can be examined from another angle
as well. It would be legitimate to accept, that in the hierarchy of
posts in the Transport Department, the post of Motor Vehicles
(Grade I) must be treated as a post higher in stature, as
compared to the post of Motor Vehicles (Grade II). At the
juncture, when respondent no.5 had made his representation F
claiming out of turn/accelerated promotion he was not even
eligible for promotion to the post of Motor Vehicles Inspector
(Grade-I), as a minimum of five years' service as Motor Vehicles
Inspector Grade-II is required before such promotion. Since a
minimum of five years' service as Motor Vehicles Inspector G
{Grade I) is required before an individual can be appointed to
the post of Regional Transport Officer, it is essential to further
conclude, that respondent no. 5 ought to have fulfilled the
prescribed condition, before claiming appointment as Regional
Transport Officer. Having already concluded, that respondent H
1016 SUPREME COURT REPORTS [2013] 10 S.C.R.
A no.5 could not have legitimately been promoted to the post of
Motor Vehicles Inspector (Grade-I), it is out of the question to
accept or assume, that he could have nonetheless been-
promoted to the post of Regional Transport Officer, which
required a further five years' service. Besides the above, we
B are of the view, that the Special Rules laying down the
conditions of eligibility and the manner/method of promotion to
the post of Regional Transport Officer, would stand violated if
the claim of respondent no. 5, K.V. Karthalingan, for out of turn/
accelerated promotion, was to be acceded to on the basis of
c his representation dated 30.6.1998. It needs to be kept in mind
that respondent no. 5 had first approached the Administrative
Tribunal for claiming out of turn/accelerated promotion in 1998
(having filed Origfnal Application no. 5918 of 1998). He again
approached the Administrative Tribunal in 2002 (having filed
Original Application no. 429 of 2002) when his claim for out of
0
turn/accelerated promotion was rejected by the State
Government. In the instant latter case, his claim for out of turn/
accelerated promotion to the post of Regional Transport Officer
was accepted by the Administrative Tribunal (on· 10.7.2002).
At the cost of repetition, it may be noted, that a minimum of
E ten years service after appointment as Motor Vehicles Inspector
(Grade-II) is required under the Special Rules, before an
individual can be appointed as Regional Transport Officer (five
years' service for promotion as Motor Vehicles Inspector
(Grade-I), and another five years' service as Motor Vehicles
F Inspector (Grade-I) before appointment as Regional Transport
Officer). Respondent No.5, K.V. Karthalingan, did not fulfill the
prescribed minimum service for promotion, when the courts
below directed his promotion to the post of Regional Transport
Officer. It would not be out of place to mention, that he had
G neither fulfilled the conditions of eligibility of appointment to the
post of Regional Transport Officer at the time of filing of the
Origina! Applications, nor when his claim was allowed. We are,
therefore of the view, that the order passed by the
Administrative Tribunal, as also, by the High Court by relying
H
P. ,DHARNI & ORS. v. GOVT. OF TAMIL NADU & ORS. 1017
[JAGDISH SINGH KHEHAR, J.]
on Rule 36(b)(ii) of the General Rules, was in clear derogation A
of the Special Rules referred to above. We may now
summarize the conclusions drawn in the instant paragraph.
Firstly, respondent no. 5, K.V. Karthalingan, could not have been
appointed as Regional Transport Officer because he did not
satisfy the conditions of eligibility expressed therefor in the B
Special Rules. Secondly, because respondent no. 5, K.V.
Karthalingan, was not even eligible to be appointed to the lower
post of Motor Vehicles Inspector (Grade I), it was out of the
question to accept that he was nonetheless eligible to be
appointed to the post of Regional Transport Officer, which C
required a further five years' experience. And thirdly, it needed
a minimum of ten years' service to become eligible for being
appointed as Regional Transport Officer. Since respondent no.
5, K.V. Karthalingan, had not even rendered such minimum
service, his appointment to the post of Regional Transport
Officer cannot be considered as valid. For all the above 0
reasons, we are satisfied, that the order passed by the
Administrative Tribunal, as also, the High Court directing the
promotion of respondent no. 5, K.V. Karthalingan, to the post
of Regional Transport Officer is liable to be set aside.
E
26. The validity of the claim of appointment of respondent
no. 5, K.V. Karthalingan, against the post of Regional Transport
Officer can be examined from another perspective. Rule
36(b}(ii) contained in Part II - "General Rules", of the Tamil
Nadu State and Subordinate Services Rules, cle~rly envisage, F
that an employee can be given special promotion for
conspicuous merit and ability. But then, the Special Rules
framed under Section 28 of the Tamil Nadu Transport Service,
laying down the conditions of eligibility and the manner/method
of appointment to the post of Regional Transport Officer, do not G
postulate appointment to the post of Regional Transport Officer
by way of promotion. Rule 2 of the Special Rules clear\y
envisage, that appointment against the post of Regional
Transport Officer, would be made only by way of transfer,
interalia from amongst Motor Vehicles Inspectors (Grade I).
H
1018 SUPREME COURT REPORTS [2013] 10 S.C.R.
A Rule 36(b)(ii) of the General Rules does not postulate out of
turn/accelerated appointment by way of transfer. In the above
view of the matter we are satisfied, that Rule 36(b)(ii) of the
General Rules, would clearly be inapplicable for considering the
claim of respondent no. 5, K.V. Karthalingan, for appointment
£ to the post of Regional Transport Officer. For the instant reason
as well, the direction issued by the Administrative Tribunal, as
also, the High Court requiring the State Government to appoint
respondent no. 5, K.V. Karthalingan by way of promotion to the
post of Regional Transport Officer, is not acceptable in law.
C 27. There is another legal parameter on the basis of which
the validity of the claim of respondent no. 5, K.V. Karthalingan,
for out of turn/accelerated promotion under Rule 36(b)(ii) of the
General Rules, cannot be accepted. Insofar as the instant
parameter is concerned, it requires a close examination of Rule
D 36(b) of the General Rules. Rule 36(b) of the General Rules has
two clauses, clause (i) thereof deals with promotions by way
of selection, whereas clause (ii) thereof deals with promotions
on the basis of seniority alone. Respondent no. 5, K.V.
Karthalingan, as also, the various recommending authorities
E have referred to clause (ii) of Rule 36(b) of the General Rules,
while recommending the claim of respondent no. 5, K.V.
Karthalingan, for out of turn/accelerated promotion. We are of
the considered view, that the aforesaid clause (ii) of Rule 36(b)
of the General Rules, could have been invoked only in matters
F where promotions are to be made solely on the basis of
seniority. Rule 2(b) of the Special Rules laying down the
manner/method for promotion to the post of Motor Vehicles
Inspector (Grade I) clearly mandates, that promotion to the said
post, would be made on grounds of merit and ability, seniority
G being considered only where merit and ability are
approximately equal. It is, therefore apparent, that the post of
Motor Vehicles Inspector (Grade I) .is a seiection post. That
being the undisputed position, it would not have been possible
for the authorities to invoke Rule 36(b)(ii) of the General Rules,
H even for promoting respondent no. 5, K.V. Karthalingan to the
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & 1019
ORS. [JAGDISH SINGH KHEHAR, J.]
post of Motor Vehicles Inspector (Grade I). Insofar as the post A
of Regional Transport Officer is concerned, we have already
expressed above that the same could be filled up only by way
of transfer from amongst Motor Vehicles Inspectors (Grade I),
and not by promotion. Even though the Special Rules do not
lay down the method or manner of making appointments by way B
of transfer, Rule 36A (introduced with effect from 30.1.1996)
contained in Part II - 'General Rules', of the Tamil Nadu State
and Subordinate Services (extracted in paragraph 5 above),
postulates, that appointment by transfer shall be made on
grounds of merit and ability, seniority being considered only c
where merit and ability are approximately equal. In the aforesaid
view of the matter, it is imperative to conclude, that even for
appointments by way of transfer, the appointing authority must
sieve the eligible candidates by adopting a process of
selection. Since the post of Regional Transport Officer, is to be 0
filled up by way of transfer, i.e., by way of selection amqngst
eligible candidates, Rule 36(b)(ii) of the General Rules would
be inapplicable. Stated in other words, the General Rules
contemplate out of turn/accelerated promotion, only in cases
where seniority is the sole criterion for promotion, whereas, the
E
post of Regional Transport Officer is not to be filled up on the
basis of seniority. For the instant reason also, it is not possible
for us to accept, that Rule 36(b)(ii) of the General Rules could
have been invoked for granting out of turn/accelerated
promotion to respondent no. 5, K.V. Karthalingan, against the
post of Regional Transport Officer. F
28. From the conclusions recorded by us, while
considering the issue of out of turn/accelerated promotion, with
· reference to respondent no. 5, K.V. Karthalingan, we have
repeatedly arrived at a firm determination, that for onward G
promotions (from the post of Motor Vehicles Inspector (Grade
II) held by respondent no. 5, K.V. Karthalingan), the criterion to
be adopted was that of selection. Seniority was only to be taken
into consideration where merit and ability of two eligible
candidates was found to be approximately equal. This would H
1020 SUPREME COURT REPORTS [2013] 10 S.C.R.
A lead us to yet another relevant inference on the issue in hand.
In the above view of the matter, every claim for onward
promotion from the post of Motor Vehicles Inspector (Grade II)
was liable to be considered on the basis of merit. Therefore,
an individual with superior merit would steal a march over those
B less meritorious. Thus viewed, if respondent no.5, K.V.
Karthalingan, was actually possessed of outstanding and
exceptional merit, as is sought to be suggested, he would have
stolen a march over his seniors even under the existing Special
Rules. Thus viewed, even by the manner/method of onward
c progression postulated in the Special Rules, a person with
conspicuous merit and ability (as postulated under Rule 36(b)(ii)
of the General Rules), would overtake others without having to
invoke Rule 36(b)(ii) of the General Rules. This does not seem
to have happened in case of respondent no. 5, K.V.
0 Karthalingan. On his consideration, after he had acquired
eligibility for promotion to the post of Motor Vehicles Inspector
(Grade I), he was promoted as such only on 10.5.2000. The
merit and ability possessed by respondent no. 5, K.V.
Karthalingan, is not shown to have resulted in his having
superseded other members of the cadre senior to them. For
E the instant reason also, reliance placed by respondent no. 5,
K.V. Karthalingan, for out of turn/accelerated promotion under
Rule 36(b)(ii) of the General Rules deserves outright rejection.
29. We shall now deal with the factual aspect of the matter.
F It is clear from the factual narration recorded above, that the
claim of respondent no. 5, K.V. Karthalingan, for out of turn/
accelerated promotion was based on his alleged conspicuous
merit and ability. The aforestated exemplary and outstanding
merit was based on actions allegedly taken by respondent no.
G 5, K.V. Karthalingan, while working as Motor Vehicles Inspector
(Grade II). The very facts relied upon by respondent no. 5, K.V.
Karthalingan, constituted the basis of the recommendations of
various authorities supervising his work and conduct. Having
examined the recommendations made in favour of respondent
H no. 5, K.V. Karthalingan (by the various authorities adverted to
P. DHARNI & ORS. v. GOVT. OF TAMIL NADU & ORS. 1021
[JAGDISH SINGH KHEHAR, J.]
above), the State Government vide its order dated 8.12.1998 A
concluded, that the factual basis relied upon by respondent no.
5, K.V. Karthalingan, would not entitle him to out of turn/
accelerated promotion, as the instances of extraordinary
service relied upon by him, were common in the Transport
Department. Despite the aforesaid assertion of the State B
Government in its order dated 8.12.1998, the Administrative
Tribunal adjudicated upon the said disputed question of fact. It
reversed the factual finding recorded by the State Government.
While doing so, the Administrative Tribunal did not await a
response by the State Government. The matter came to be C
disposed of without any reply having been filed by the State
Government. Even though the State Government while seeking
recourse to the writ jurisdiction of the High Court, brought out
other related facts showing that respondent no. 5, K.V.
Karthalingan, could not be treated as an employee entitled to
out of turn/accelerated promotion, the High Court rejected all D
those submissions and reversed the factual finding recorded ·
by the State Government (in its order dated 8.12.1998). We find
it difficult to appreciate the approach of the Administrative
Tribunal, as also, the High Court. The simple reason depicted
in the State Government's order dated 8.12.1998 yvas, that the E
instances of extraordinary service relied upon by respondent
no. 5, K.V. Karthalingan, to claim out of turn/accelerated
promotion, could not be treated as· exceptional or
unprecedented, as such instances were common in the
Transport Department. Even though respondent no. 5, K.V. F
Karthalingan, had not disputed the aforesaid factual position,
it is difficult to understand how the Administrative Tribunal, as
also, the High Court had accepted the claim of respondent no.
5, K.V. Karthalingan, by concluding that he had actually
rendered extraordinary and exemplary service. Since the factual G
assertion made by the State Government in its order dated
8.12.1998, had remained unrebutted, we are of the view, that
the Administrative Tribunal, as also, the High Court, were wholly
unjustified in recording such a conclusion. For the instant reason
also, the impugned orders dated 10. 7 .2002 (passed by the H
1022 SUPREME COURT REPORTS [2013] 10 S.C.R.
A Administrative Tribunal) and 13.10.2004 (passed by the High
Court) deserve to be set aside.
30. For the reasons recorded hereinabove, we find merit
in the various contentions advanced by the learned counsel for
the appellants. The order passed by the Administrative Tribunal
8 on 10.7.2002 (while disposing of Original Application no. 429
of 2002) and the order passed by the High Court on
13.10.2004 (while disposing of Writ Petition (Civil) no. 21562
of 2003) directing the promotion of respondent no. 5, K.V.
Karthalingan, to the post of Regional Transport Officer, are
C clearly unsustainable. They are accordingly hereby set aside.
3'1 . Allowed in the aforesaid terms.
K.K.T. Appeals allowed.
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