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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.  1919   OF 2008

B. Rugmini Amma & Anr. ... Appellant(s) Versus

B.S. Nirmala Kumari & Ors.         ... Respondent(s)

J U D G M E N T

RANJAN GOGOI, J.

An appellate order dated 01.02.2006 of the Kerala High  

Court  affirming  the  order  dated  09.02.2005  of  the  learned  

Single Judge passed in a writ petition has been put to challenge  

in  this  appeal.  The  aforesaid  two  orders  having  somewhat  

circumscribed  the  perceived  avenues  for  promotion  of  

Graduate Typists/Confidential Assistants to the post of Section  

Officer in the Administrative Secretariat, two affected Graduate  

Typists, who have since been promoted to even higher post in  

the Secretariat, have instituted the present appeal.  

2. To unravel  the controversy between the parties,  a brief  

narration of the essential  facts would be required. Initially,  a

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Government Order (for short “G.O.”) dated 10.1.1977 governed  

the method of promotions to the post of Section Officer in the  

Administrative  Secretariat  and  also  laid  down  the  essential  

qualifications of the incumbents in the feeder category to be  

eligible  for  consideration  for  such  promotion.   The aforesaid  

G.O. dated 10.1.1977 was superseded by another order dated  

5.6.1989 under which G.O. three categories of incumbents in  

the ratio of 15:1:1 (in a cluster of 17 posts) were made eligible  

for  promotion  to  the  post  of  Section  Officer.   Senior  Grade  

Assistants,  Typists  and Confidential  Assistants (in  that order)  

formed  the  feeder  categories  eligible  for  consideration  for  

promotion.  Insofar as Typists and Confidential Assistants are  

concerned,  the  requirement  spelt  out  by  the  G.O.  dated  

5.6.1989 is that they should have passed the Secondary School  

Leaving  Certificate  (S.S.L.C.)  examination  besides  passing  a  

suitability  test  conducted  by  the  Kerala  Public  Service  

Commission.  Such an incumbent should also have satisfactorily  

completed training as Assistant for a minimum period of one  

year.  It would be necessary to specifically notice that by the  

G.O.  dated  5.6.1989,  Graduate  Typists  and  Confidential  

Assistants  were continued to  be exempted from passing the

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suitability test for promotion to the post of Section Officer in  

terms of an earlier G.O. dated 17.6.1988.  The aforesaid G.O.  

dated  17.6.1988  exempted  the  Graduate  Typists  and  

Confidential  Assistants  in  the Administrative Secretariat  from  

passing  the  qualifying  examination  subject  to  the  conditions  

mentioned in the several clauses thereto.  Clause (d) being the  

relevant clause may be usefully noticed at this stage.

“The graduate typists/confidential  assistants   will  not  be  appointed  as  Section  Officer  in   preference  to  the  typists/confidential   assistants  who  have  already  passed  the  suitability  test  and  who  are  awaiting  appointment  as  Section  Officer.   However,   qualified  and  eligible  graduate  typists/confidential  assistants  will  be   appointed  as  Section  Officers  if  eligible   suitability  test  passed  trained  typists/confidential  assistants  are  not   available  in  their  turn  for  appointment  as   Section Officer.”

3. Clause (d) contained in the G.O. dated 17.6.1988 came to  

be  subjected  to  different  interpretations  and  understandings  

unravelling several ambiguities.  The core of the controversy  

was with regard to the purport and effect  of the exemption,

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namely,  whether  it  gave  a  preferential  right  to  Graduate  

Typists/Confidential Assistants for consideration for promotion  

and, if so, was the said right available in perpetuity after the  

date of coming into force of the G.O. w.e.f.  17.6.1988.  The  

aforesaid controversy between the Graduate and Non-graduate  

aspirants  for  the  promotional  post  was  attempted  to  be  

resolved by several court orders until the Government thought  

it appropriate to clarify the matter by issuing a subsequent G.O.  

almost a decade later, i.e., on 19.3.1998.  The aforesaid G.O.  

dated 19.3.1998 which is on record goes on to recite that, “The  

Typists/Confidential Assistants who had passed the Suitability   

Test and completed the training for one year as Assistant and   

became  qualified  for  appointment  as  Section  Officer  in  the   

Administrative  Secretariat  as  on  17.06.1988  alone  would  be   

eligible for preference over the Graduate Typists/Confidential   

Assistants”.

  4. The  private  respondents  in  the  appeal,  who  are  Non-

graduates, moved the High Court of Kerala under Article 226  

challenging what they contended to be their belated promotion  

to the post of Section Officer and the accelerated promotions  

given to the present appellants (impleaded as respondents in

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the writ petition) notwithstanding the fact that the respondent-

writ petitioners were available for consideration for promotion,  

having passed the suitability test and also having undergone  

the requisite period of training of one year.  The learned Single  

Judge upheld the contentions made by the Non-graduates in  

the writ petitions filed and took the view that the G.O. dated  

17.3.1998,  if  read  to  contain  a  preference  in  favour  of  the  

Graduates  would  amount  to  virtually  setting  at  naught  the  

effect of the initial orders which merely provided an exemption  

to  the  graduate  typists/confidential  assistants.   The  writ  

petition, therefore, was allowed with consequential directions to  

the State to give due benefits to the petitioners (respondents  

herein)  and scale down the undue benefits  that  had already  

been conferred  on  the  Graduates.   Aggrieved,  the  Graduate  

Section  Officers  moved  the  High  Court  in  its  Letters  Patent  

jurisdiction.  The Division Bench by its order dated 01.02.2006  

having affirmed the view taken by the learned Single Judge, the  

Graduate Section Officers have filed this appeal.

5. Efflux  of  time  has  resulted  in  a  virtual  erosion  of  the  

substantive rights of the parties before us, as admittedly most  

of them, if not all, have in the meantime retired and such of

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them who may still be in service could possibly be on the verge  

of  completion  of  their  tenure.   Nevertheless  as  the  legal  

issue(s) survive, an analysis thereof and a resolution must be  

made.

  6. Under  the  initial  G.O.  dated  10.01.1977  Typists  and  

Confidential  Assistants  were  required  to  pass  a  qualifying  

examination to be conducted by the Public Service Commission  

and thereafter to complete one year of training as Assistant in  

order to be eligible for promotion to the post of Section Officer.  

The second requirement i.e. completion of a period of one year  

of training is not in issue in the present proceedings.  In order  

to provide some kind of incentive to the Graduates who were  

working as Typists/Confidential Assistants (a somewhat unusual  

feature at that  point  of  time),  an exemption was granted to  

these  Graduates  from  the  requirement  of  passing  the  

qualifying/  suitability  test  by  the  G.O.  dated  17.6.1988.  

However, the aforesaid G.O. in clause (d) had made it clear that  

Graduates/Confidential  Assistants  will  not  be  appointed  in  

preference to the Non-graduates who have already passed the  

suitability test and were awaiting promotion as Section Officer.  

The  aforesaid  clause  (d)  also  made  it  clear  that  Graduate

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Typists/Confidential Assistants will be considered for promotion  

only  if  eligible  Non-graduates  were  not  available.   Properly  

read,  the  G.O.  dated  17.6.1988  merely  exempted  Graduate  

Typists/ Confidential Assistants from the requirement of passing  

the  qualifying examination.   The said  G.O.  did  not  give any  

priority/preference in the matter of promotion to the Graduates  

over  the  qualified  Undergraduates/Non-graduates.  The  

clarificatory  G.O.  dated  19.3.1998,  though  seeking  to  clarify  

and throw light on the confusion caused by reading the date of  

the  G.O.  i.e.  17.6.1988  as  a  cut  off  date  for  working  out  a  

preference in favour of the Graduates, had gone beyond the  

terms of the main G.O. dated 17.6.1988 by stating that it is  

only those Typists and Confidential Assistants who had passed  

the  qualifying  examination  before  17.6.1988  who  will  be  

entitled  to  have  priority  over  Graduate  Typists/Confidential  

Assistants.  How the clarification sought to be made by the G.O.  

dated  19.3.1998  could  have  the  effect  of  giving  priority  to  

either of the 2 groups of incumbents when no such priority or  

preference  was  contemplated  by  the  initial  G.O.  dated  

17.6.1988  defies  logic.   The  above  stated  effect  of  the  

clarification, if accepted, would occasion a corollary that after

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17.6.1988, Graduate Typists/Confidential Assistants will always  

have priority over Non-graduates though such Non-graduates  

may have passed the qualifying examination and are otherwise  

eligible for promotion.  If the above meaning is to be attributed  

to the clarificatory G.O. the same would surpass the main G.O.  

dated 17.6.1988.  The effect of the clarificatory G.O. cannot, by  

any means, supersede or override the terms of the main order.  

This  is  an  elementary  principle  of  interpretation.   This  is  

precisely how the High Court has understood the issue before it  

and has  held  that  the  original  G.O.  dated 17.6.1988 merely  

exempts Graduate Typists/ Confidential Assistants from passing  

the suitability test and no further.  If that is the true purport  

and effect of the G.O. dated 17.6.1988, on which we have no  

doubt, naturally, the clarificatory G.O. has to be restricted in its  

meaning as has been done by the High Court and cannot be  

allowed to work to the undue advantage of the Graduates and  

to the detriment of the non-Graduates.

  7. For the aforesaid reasons, we do not find any merit in this  

appeal.  We  accordingly  dismiss  the  same  and  affirm  the  

judgment and order dated 01.02.2006 of the Division Bench of  

the High Court.

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...…………………………J. [H.L. GOKHALE]

.........……………………J. [RANJAN GOGOI]

New Delhi, May 6, 2013.