IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.01.2006 CORAM: THE HON'BLE MR. JUSTICE P. SATHASIVAM AND THE HON'BLE MRS. JUSTICE CHITRA VENKATARAMAN WRIT PETITION NO.7773 OF 2003 Tamil Nadu Transport Department Staff Association rep. by President K. Balasubramanian 14/1 Therady Street Triplicane, Chennai 5. .. Petitioner vs. 1. The Government of Tamil Nadu rep. by the Secretary to Home (Transport-II) Department Fort St. George Chennai 9. 2. Tamil Nadu Motor Vehicles Inspectors (Technical) Association rep. by President V. Kandasamy Chennai 33. 3. R.R. Kannan Regional Transport Officer Regional Transport Office Thiruvallur District. 4. Francis Savio Radrigo Motor Vehicle Inspectors Grade I Uthamapalayam Theni District. 5. The Registrar Tamil Nadu Administrative Tribunal Chennai 600 104. .. Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus calling for the records relating to the order dt.19.12.2002 in OA https://hcservices.ecourts.gov.in/hcservices/ No.1331/2002 passed by the 5th respondent quash the same and consequently direct the first respondent to prepare panel for promotion to the post of RTO for the year 1998-99 and subsequently by reserving one fifth post of RTO to personal Assistants as per the proviso to rule 2C of the Special Rules to Transport Service, Award Costs stated therein. For petitioner : Mr. D. Hariparanthaman For respondents : Mr. R. Muthukumarasamy Addl. Advocate General Assisted by Mr. E. Sampath Kumar Government Advocate for R.1 Mr. S. Vadivelu for R.2 Mr. C. Kalyanaraman for M/s. Aiyar & Dolia for R.3 Mr.R.Thiyagarajan, Sr.Counsel for Mr. P. Navaneethan for R4 .. ORDER (Order of the Court was made by P. SATHASIVAM,J.) Aggrieved by the order of the Tamil Nadu Administrative Tribunal, Chennai dated 19.12.2002 made in O.A.No.1331 of 2002, Tamil Nadu Transport Department Staff Association through its President K. Balasubramanian, has filed the above writ petition to quash the same and direct the first respondent, viz., Secretary to Home Department, Government of Tamil Nadu to prepare a panel for promotion to the post of Regional Transport Officer for the year 1998-99 reserving 1/5th of posts of Regional Transport Officer to Personal Assistants as per the proviso to Rule 2 ( c ) of the Special Rules for the Tamil Nadu Transport Service. 2. According to the petitioner Association, it represents various categories of Ministerial staff in the Transport Department including Personal Assistants to Regional Transport Officers, Deputy Transport Commissioner and State Transport Appellate Authority. They are among the feeder categories for the promotion to the post of Regional Transport Officer (in short RTO). The other feeder category for the promotion to the post of RTO is Motor Vehicle Inspector. The promotion to the post of RTO is governed by the Special Rules for Transport Service framed under Article 309 of the Constitution of India. Prior to 26.06.1978, the ratio of 1:1 was followed between https://hcservices.ecourts.gov.in/hcservices/ Motor Vehicle Inspectors and Selection Grade Superintendent, now called, Personal Assistants, for the promotion to the post of RTO. It was changed into 4:1 ratio from 26.06.1978 by amendment to the said Rules. 3. Since the Personal Assistants normally get their chance of promotion to the post of RTO at the fag end of their service, their Association requested through various representations that 1/5th of total number of posts of RTO should be reserved for Personal Assistants. Accepting their request, the Government issued G.O.No.192 Home Department dated 25.01.1990, reserving 1/5th of total number of posts of RTO for Personal Assistants. Pursuant to the same, an amendment to the Special Rules has been made on 14.08.1992 with retrospective effect. Now, the proviso to Rule 2 ( c ) of the Special Rules for Tamil Nadu Transport Service provides for reservation of 1/5th posts of RTO to the feeder category, viz., Personal Assistants. 4. After reservation of 1/5th posts of RTO was made in G.O.No.192 dated 25.01.1990, panels for promotion to the post of RTO were periodically prepared in accordance with the Government Order from the year 1990 to 1996. However, the panels for the year 1996-97 and 1997-98 were not prepared in accordance with the said Government Order. When the petitioner's Association agitated the same before the Government, the second respondent, viz., Tamil Nadu Motor Vehicle Inspectors (Technical) Association filed O.A.No.3503 of 2001, praying for direction to the Government to prepare a panel for promotion to the post of RTO for the year 1998-99, as prepared for the years 1996- 97 and 1997-98. The said Original Application was ordered on 29.05.2001 at the admission stage itself without hearing the petitioner Association and the Government. The said order was challenged in W.P.No.20434 of 2001 and this Court by order dated 23.10.2001, directed the petitioner Association to prefer a review application before the Tribunal. Accordingly, the petitioner Association filed a review application before the Tribunal. Meanwhile, the first respondent published a panel for promotion to the post of RTO for the year 1998-99 in G.O.20 dated 12.01.2002. Questioning the same, the petitioner Association has filed O.A.No.1331 of 2002 before the Tribunal seeking direction to follow the Special Rules, as upheld by the Apex Court. By order dated 19.12.2002, the Tribunal, dismissed the said Original Application. However, the review application filed by the petitioner Association was later allowed on 14.01.2003. Questioning the order in O.A.No.1331 of 2002, the petitioner Association has filed the present writ petition. 5. Heard Mr. D. Hariparanthaman, learned counsel for the petitioner, Mr. R. Muthukumarasamy, learned Additional Advocate General for the first respondent, Mr. S. Vadivelu, learned counsel or the second respondent, Mr. Kalyanaraman, learned counsel for the third respondent and Mr. R. Thiagarajan, learned senior counsel for https://hcservices.ecourts.gov.in/hcservices/ the 4th respondent. 6. The only point for consideration in this writ petition is, whether the Tribunal is justified in dismissing the application filed by the petitioner Association and whether the petitioner Association has made out a case for interference by this Court? 7. The post of RTO is governed by the Special Rules for the Tamil Nadu Transport Service. The post of RTO is defined as category 2.1 in Rule 1 of the Special Rules and appointments to the post of RTO as dealt with under Rule 2 of the Special Rules is by recruitment by transfer among the following persons. (i) Motor Vehicle Inspector Grade I in the Tamil Nadu Transport Subordinate Service; (ii) Personal Assistant to Deputy Transport Commissioner; Personal Assistant to State Transport Authority and Personal Assistant to Regional Transport Officer in the Tamil Nadu Ministerial service. The relevant rule is extracted hereunder. "Category 2(1) Regional Transport 1) By Recruitment by Officer and transfer from among Addl. Regional i) Motor Vehicles Transport Officer Inspector, Gr.I in the Tamil Nadu Transport Subordinate service (2) Assistant Secretary ii) Personal Assistant State Transport to Deputy Transport Authority Commissioner, Personal Assistant to State Transport Authority and Personal Assistant to Regional Transport Officer in the Tamil Nadu Ministerial service. (b) Promotion to the category 1 shall be made on grounds of merit and ability, seniority being considered only where merits and ability of competing candidates are approximately equal. ( c ) The posts in category 2 other than those filled up by https://hcservices.ecourts.gov.in/hcservices/ transfer from Assistant Engineer (Motor Vehicles) shall be filled up by rotation, the first, second, fourth and fifth posts being filled up by recruitment by transfer from among Motor Vehicles Inspector Gr.I and the third post being filled up by recruitment by transfer from Personal Assistant to Deputy Transport commissioner, Personal to State Transport Authority and Personal Assistant to Regional Transport Officer in the Ministerial Service. Provided that this rotation shall be followed in respect of appointment made on and from the 26th June 1978. Provided further that the temporary appointments to category 2 made on and from the 15th September 1974 to 25th June 1978 shall be regulated in the proportion of 1:1 between Motor Vehicles Inspector Grading I and Superintendents Selection Grade, including Personal Assistants to Regional Transport Officers in the Ministerial Service. Provided also that one fifth of the total number of posts in category 2 other than those filled up by transfer from among the holders of the post of Assistant Engineer (Motor Vehicles) shall be reserved for appointment by recruitment by transfer from among the holders of the posts of Personal Assistant to the Regional Transport Officer or Personal Assistant tot he Deputy Transport Officer or Personal Assistant to State Transport Authority in the Tamil Nadu Ministerial Service. " 8. It is the grievance of the petitioner Association that though proviso to Rule 2 ( c ) makes it clear that there will be reservation of 1/5th of total number of posts of RTO for Personal Assistants, the Government prepared a panel without adhering to the said proviso. It is also its claim that the Tribunal has committed an error in not considering its case and dismissed the application. In other words, the pith and substance of the claim of the petitioner Association is that the panel prepared by the Government as well as the impugned order of the Tribunal is contrary to the Special Rules for Tamil Nadu Transport Service. 9. Before considering the said aspect, it is useful to refer the factual details furnished in the counter affidavit filed by the Additional Secretary (Transport) Home Department, Chennai 9, which show that prior to 26.06.1978 a ratio of 1:1 between Motor Vehicle Inspectors and Personal Assistants was followed and after 26.06.1978, a ratio of 4:1 between Motor Vehicle Inspectors and Personal Assistants was followed. This was challenged by the Ministerial staff before this Court. It is not in dispute that this Court upheld the https://hcservices.ecourts.gov.in/hcservices/ Government's decision and the order of the learned single Judge was confirmed by the Division Bench. In the said orders, the Court took a view that following 4:1 ratio by Transport Department being a technical one, is fair and equitable. It is not in dispute that from 25.01.1990 it was decided that 1/5th of the total number of posts of RTO should be reserved for Ministerial staff. When this was challenged by the technical staff before the Tribunal, the Tribunal upheld the said decision after finding that both 4:1 ratio and 1/5th reservation are one and the same. 10. It is also not in dispute that as a follow up action, the relevant Rules were amended from 14.08.1992 to the effect that 1/5 of the vacancies estimated every year shall be reserved for Ministerial staff. It is relevant to note that the main provision for adopting 4:1 ratio under Rule 2 ( c ) is retained. It is true that the Special Rules as they stand today provide for the ratio system as well as the reservation system. The 4:1 ratio was introduced in 1978 with a view to provide greater representation at higher levels to technical personnel in the Department. It is brought to our notice that the same was announced in the Tamil Nadu Assembly as a policy decision of the Government. 11. On the side of the Government it was brought to our notice that in O.A.No.3503 of 2001, the Tribunal by order dated 29.05.01 ordered that panels should conform to the principles laid down under Rule 4 of the General Rules. In other words, the Tribunal, favoured adopting the ratio 4:1 and the writ petition filed (WP.No.20434/01) against the said order was dismissed by the Division Bench of this Court on 23.10.2001. It also supports the case of the respondents that the ratio 4:1 shall be followed between Motor Vehicle Inspectors and Personal Assistants. It is also brought to our notice that on the line of the order of the Tribunal in O.A.No.3503 of 2001 and the Division Bench of this Court in W.P.No.20434 of 2001, the Government in consultation with the Tamil Nadu Public Service Commission ordered for following the ratio 4:1. 12. The preparation of panel for filling up the posts of RTO is governed by Rule 4(a) of General Rules. It is brought to our notice that the Annual panel is prepared on the basis of estimated number of vacancies arising in a year. It is the claim of the Government that whenever annual panel is prepared, the rotation prescribed in the main part of Rule 2 ( c ) of the Special Rules has to be complied with. In that panel the reservation of 1/5th total vacancies for Ministerial staff has also to be complied with. Accordingly, for the preparation of panel for each year, the number of vacancies has to be estimated and to fill up the vacancies, the rotation mentioned in Rule 2(c) has to be complied with and also the ratio specified in third proviso to Rule 2(c) of Special Rules has to be complied with. For example, as rightly pointed out by the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the third respondent, if there are 10 estimated vacancies, 8 posts have to be filled up from Grade I Motor Vehicle Inspector and 2 posts are to be filled up from the Ministerial staff. 13. Under General Rule referred to above and the Special Rules for the post of RTO, particularly under Rule 6 of the Special Rules, only one panel has to be prepared for each year from eligible candidates with reference to crucial date, viz., 1st July of every year. Rule 6 specifically states that whoever eligible for appointment to the post of RTO should be considered by recruitment by transfer. It is not in dispute that Rule 6 has not been modified in any manner. 14. The contesting respondents have also brought to our notice that the post of RTO is a highly technical post. The RTO is entrusted with the function of registering the vehicles, grant of Driving Licences and issue of Fitness Certificates to the vehicles. The question whether a vehicle is technically fit or not has to be decided by RTO and the Motor Vehicle Inspectors. It is for this reason Rules specifies for a ratio of 4:1 between the Motor Vehicle Inspector Grade I and the Ministerial staff. As rightly pointed out, the question whether the Ministerial staff retire within one or two years after promotion or appointment as RTO is not relevant. 15. It is also brought to our notice that by G.O.(2D)No.71 Home (Transport II) Department, dated 06.04.1999, the Government issued a panel for the post of RTO for the year 1996-97 for 10 vacancies in the year out of which 8 were from Motor Vehicle Inspectors and 2 were from Ministerial staff. It is also stated that all of them joined duty. Likewise, in G.O.(2D) Home (Transport-II) Department dated 19.01.2000, the Government issued a panel for the year 1997-98 for 9 vacancies in that year, out of which 7 were from Motor Vehicle Inspectors and 2 were from Ministerial staff. Here again, all of them have joined duty. The panel for the post of RTO for the year 1998-99 was issued in G.O.2(D) No.20 Home (Transport II) Department dated 12.01.2002 for 13 vacancies, out of which 10 were from Motor Vehicles Inspectors and 3 from Ministerial staff. Promotion orders were issued in G.O.RT.No.55 Home (Transport-II) Department dated 12.01.2002. In G.O.2D Nos. 984, 956, 986 annual panels were issued for the years 1999-2000, 2000-2001 and 2001-2002 for 14 vacancies out of which 11 were from Motor Vehicle Inspectors and three were from Ministerial staff. It is also stated that the said officers have joined duty. It is also brought to our notice that annual panel was issued for the year 2002-2003 for 9 vacancies out of which 7 were from Motor Vehicles Inspector and 2 were from Ministerial staff and the officers concerned have joined duty. 16. In the light of the factual details and in view of specific provision, viz., Rule 2(c) which enables the Department to https://hcservices.ecourts.gov.in/hcservices/ adopt rotation, we are of the view that the third proviso of the same Rule has to be read in consonance with Sub-Rule ( c ). In view of our conclusion and in the light of the details mentioned above regarding the appointment of Motor Vehicle Inspector as well as Ministerial staff as RTO, we are in agreement with the conclusion arrived at by the Tribunal and unable to accept the arguments of the petitioner Association. 17. In this regard it is useful to refer the judgment of the Supreme Court in the case of S. Sundaram vs. V.R. Pattabhiraman reported in AIR 1985 Supreme Court 582, wherein after considering the scope of proviso ("explanation") added to the main Section, on para 26, their Lordships have held, "26. ... 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. " In paragraphs 35 and 36, their Lordships have further held, "35. 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. 36. In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself. " By applying the above principle as enunciated by the Hon'ble Supreme Court, we hold that the third proviso cannot over take the main provision, viz., 2 ( c ) of the Special Rules. https://hcservices.ecourts.gov.in/hcservices/ In the light of our above discussion, we do not find any error, infirmity or valid ground for interference. Accordingly, the writ petition fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kh To 1. The Secretary Government of Tamil Nadu Home (Transport-II) Department Fort St. George Chennai 9. 2. The President Tamil Nadu Motor Vehicles Inspectors (Technical) Association, Chennai 33. 3.The Regional Transport Officer Regional Transport Office Thiruvallur District. 4. The Motor Vehicle Inspectors Grade I Uthamapalayam Theni District. 5. The Registrar Tamil Nadu Administrative Tribunal Chennai 600 104. +1cc to Govt. pleader Sr 1093 +1cc to Mr.D.Hariparanthaman,Advocate Sr 1040 +1cc to Mr.S.Vadivelu, Advocate Sr 996 KM (CO) km/12.1. W.P.No.7773 of 2003 https://hcservices.ecourts.gov.in/hcservices/