A. Thangaraju, C. Shanmugam and P. Paramasivam and Others vs The Secretary to Government, Revenue Department, Secretariat, Chennai-600009 and Others etc. etc.

K. Chandru, J.—Heard both sides.

In W.P.(MD) Nos. 12918, 12919 of 2009, 189, 255 and 1394 of 2010, the prayer is more or less identical. The petitioners, who are direct

recruit to the post of Assistants in Revenue Department, seek for a restraint order against the District Collector from re-drawing the panel for

various years starting from 1996 and seek for a further direction to the Collector to retain the old approved list till the time frame fixed by this

Court. They also seek for quashing of the fresh panel prepared by the District Collector.

In W.P.(MD) No. 13757 of 2009, the prayer of the petitioners is for setting aside the orders of the Secretary to Government, Revenue

Department, Secretariat, Chennai and the Principal Secretary and Commissioner of Revenue Administration, Chennai, and after setting aside the

same, seek for amendment of Rule 5(g) of the Tamil Nadu Revenue Subordinate Service Rules, as per the order of the Supreme Court.

In W.P.(MD) No. 13405 of 2009, the prayer is for setting aside the panel drawn by the District Collector and revising the earlier panel of

Deputy Tahsildar and for a further direction to strictly implement the judgment of the Supreme Court, in accordance with the principles of carried

over vacancies.

The subject matter of the present Writ Petitions is squarely covered by the judgment passed by this Court in W.P.(MD) Nos. 3481, 2785 of

2010, etc., batch, dated 11.10.2011. However, Mr. S. Visvalingam, learned counsel for the petitioners contended that in the absence of the

relevant service rules being amended, the State should not give effect to the order passed by the Supreme Court and secondly, the judgment of the

Supreme Court should be made applicable prospectively and not retrospectively and in the light of the approved panels made already, there is a

vested right created in favour of the petitioners. Therefore, there is no question of taking advantage of the judgment of the Supreme Court to re-

draw the panels, thereby affecting the interest of the petitioners, after so many years.

For the purpose of deciding the contention raised, one must look into the judgment of the Supreme Court, which arose out of the interpretation

of Rule 5 of the Tamil Nadu Revenue Subordinate Service Rules. The said judgment has been reported in M. Rathinaswami and Others etc. Vs.

State of Tamil Nadu and Others etc., . In that case, while upholding the right of the State Government in making a distinction, which is in the same

cadre of Assistant, based upon educational qualification, for further promotion and holding in such cases, even though persons may be found in the

same category, there will not be any discrimination and any distinction based upon academic qualification for the higher posts is valid. But, at the

same time, the Supreme Court held that even among the rank promotees, if there are graduates (it was alleged before the Supreme Court there

were also many post graduates), in such cases, the promotee graduates also stand on par with direct recruit assistants and, therefore, the rule, as it

stands, is discriminatory and violative of Articles 14 and 16, insofar as it excludes the graduate promotees from being considered for higher posts.

The higher post being the post of Deputy Tahsildar, coming under the Tamil Nadu Revenue Subordinate Service, the qualified Assistants are

transferred and promoted and posted as Deputy Tahsildar. The Supreme Court, instead of directing the State Government to amend the rules,

held, in the exercise of its power under Article 142, that by reading down the rule, it can be made consistent with Articles 14 and 16 and,

therefore, held that the graduate promotees are also eligible to be treated on par with direct recruit assistants for being promoted to the next higher

cadre. The said direction is binding on the State Government and it is unnecessary for the State Government to make any formal amendment, as

under Article 142, the State Government is bound to give effect to the judgment, order or decree passed by the Supreme Court and it does not

require any formal order to be passed and, therefore, the prayer of the petitioners in some of the Writ Petitions that there must be a direction to

amend the rule of Revenue Subordinate Service Rules is unnecessary.

Insofar as the submission that the respondents are not carrying out the order of Supreme Court and there is nothing in the order of the Supreme

Court to recast the old panels is concerned, the counsel, in effect, submits that the judgment of the Supreme Court read to mean that they are

prospective. It must be noted that the doctrine of prospective overruling will apply only to the Supreme Court, in view of the special power

conferred under Article 142 of the Constitution and unless and until the Supreme Court, in its judgment, expresses its right to make a particular

judgment applicable prospectively, all judgments are declaratory. Once the law is declared, it must be understood, that was the law at all times and

this Court cannot reinterpret the Supreme Court to mean that the judgment is prospective.

Such a power does not exist for this Court under Article 226 of the Constitution of India and a reading of M. Rathinaswami''s case (cited supra)

would clearly show that but for the Supreme Court reading down the rule to bring it consistent with the principles laid down under Articles 14 and

16, the rule would have become unconstitutional and all the panels drawn on the basis of the unconstitutional rule would have become automatically

invalid. Therefore, the petitioners must thank that their position for getting further promotion is not disturbed by the order of the Supreme Court.

But, at the same time, merely because their names were included earlier in the panel on that basis, otherwise, the unconstitutional rule can be

implemented by orders passed by this Court. Therefore, the submission made that a direction should be issued to the District Collector to

implement the judgment of the Supreme Court is unnecessary and the impugned panel itself has been prepared only pursuant to the directions

issued by the Supreme Court, which direction is bound to be obeyed by all authorities including the District Collector.

In that view of the matter, the Writ Petitions seeking for a direction to the authority to strictly implement the orders is unnecessary and it has

been done by the authorities.

Insofar as the other submission that there is a vested interest in favour of persons whose names were included in the panel is concerned, it must

be noted that mere inclusion in the panel or found in the select list without there being any further orders will not confer any right on the part of the

petitioners. The Supreme Court, vide its judgment in S.S. Balu and Another Vs. State of Kerala and Others, , has held that mere inclusion in the

rank list no right of appointment accrues and the Government is free to fill up or not to fill up such posts and in such circumstances, no Writ in the

nature of Mandamus can be issued by the High Court. In the present case, the fact that the names of some of the petitioners were found in the

earlier panel does not give them any vested right to continue in the panel, especially when the respondent authorities were bound to re-cast the

panel, to give effect to the judgment of the Supreme Court.

In the said circumstances, there is no case made out to entertain anyone of the Writ Petitions and hence, all the Writ Petitions are dismissed.

Consequently, the connected miscellaneous petitions are closed. No costs.