2026 INSC 911

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. OF 2026

(ARISING OUT OF SLP (CIVIL) NOS. 23378-79 OF 2025)

R.J. GAJENDRA KUMAR APPELLANT(S)

VERSUS

GOVERNMENT OF TAMIL NADU

AND ANR. RESPONDENT(S)

J U D G M E N T

UJJAL BHUYAN, J.

Leave granted.

2. Subject matter of the two appeals being

interrelated, those were heard together and are being

disposed of by this common judgment and order.

3. The related special leave petitions have been

filed against the judgment and order dated 06.06.2023

passed by a Division Bench of the High Court of Judicature

at Madras (briefly ‘the High Court’ hereinafter) in W.A. No.

2

1789 of 2022; and against the order dated 18.11.2024

passed by the High Court in Review Application No. 308 of

2024. Both the writ appeal and the review application were

filed by the appellant Shri R.J. Gajendra Kumar.

4. The matter relates to promotion of the appellant

to the post of Assistant Director of Tourism in the

Department of Tourism, Government of Tamil Nadu.

5. By order dated 22.07.2020, the Additional Chief

Secretary to the Government of Tamil Nadu, Tourism,

Culture and Religious Endowments Department (‘the first

respondent’ hereinafter) held that appellant was not

qualified to hold the post of Tourist Officer and, therefore,

his request to promote him to the post of Assistant Director

of Tourism was not feasible as per the rules. This came to

be challenged by the appellant before the High Court by way

of a writ petition being W.P. No. 10251 of 2020. By judgment

and order dated 16.08.2021, learned Single Judge allowed

the writ petition by setting aside the order of the first

respondent dated 22.07.2020 and directing the authorities

to place the name of the appellant in the panel as per

seniority and, thereafter, to promote him to the post of

3

Assistant Director of Tourism if his juniors have been

promoted. Respondents assailed this judgment and order of

the learned Single Judge before the Division Bench in Writ

Appeal No. 1789 of 2022. By the judgment and order dated

06.06.2023, the writ appeal has been allowed and the

judgment and order of the learned Single Judge dated

16.08.2021 has been set aside. Appellant preferred a review

application before the Division Bench for review of the

judgment and order dated 06.06.2023 which was registered

as Review Application No. 308 of 2024. By order dated

18.11.2024, the review application has been dismissed.

Hence, the two appeals.

Facts

6. Appellant completed his SSLC (10

th standard) in

the year 1982 from the Sourashtra Higher Secondary

School, Madurai. He thereafter completed his 11

th standard

from the said school during the academic year 1982 -83.

However, he could not pursue further studies in the said

higher secondary school due to the untimely death of his

father. His father served as Receptionist Grade I (now

designated as Assistant Tourist Officer Grade I) in the

4

Tourism Department, Government of Tamil Nadu. Following

the death of his father, appellant was appointed as Junior

Assistant in the Department of Tourism on 25.05.1983 on

compassionate ground. Thereafter, appellant was appointed

as Receptionist Grade II (now designated as Assistant

Tourist Officer Grade II) and joined duty on 25.07.1990.

Subsequently, appellant was temporarily promoted as

Tourist Officer in the year 2011. In terms of GO Ms No. 110

of the Tourism and Culture Department dated 01.08.2011,

appellant was posted as Tourist Officer in New Delhi in

which post he joined on 05.08.2011.

7. It may be mentioned that at the time of his entry

into service, appellant had the qualification of SSLC +1

which would be evidenced from the transfer certificate

issued by the school. Appellant, thereafter, sought for and

was granted permission by the authority (Director of

Tourism) to join the second year of the foundation course

from the Madurai Kamraj Open University. He completed his

second year foundation course from the said University in

April, 1984, certificate of which was issued on 27.07.1984.

He went on to complete his undergraduate course obtaining

5

a B.Com. degree from the said University in October, 1987.

He also obtained postgraduate diploma in Personal

Management in June, 1983, postgraduate diploma in

Tourism in May, 1993 and obtained M.Com. degree in April,

2003. It may be mentioned that all the above degrees and

diplomas were obtained by the appellant through the

distance education mode from the said Madurai Kamraj

Open University (except the postgraduate diploma in

Personal Management which he obtained through the

distance education mode from the Annamalai University).

8. Appellant’s service as Tourist Officer came to be

regularized with effect from 05.08.2011 vide GO Ms No. 224

dated 16.10.2017.

9. It is stated that after serving for nearly six years

in the post of Tourist Officer, appellant made a request to

the authority to consider his case for promotion to the next

higher post of Assistant Director of Tourism. In this regard,

appellant had submitted a number of representations before

the authority including one dated 13.05.2019. As there was

no consideration of his representations, he approached the

High Court by filing a writ petition being W.P. No. 18392 of

6

2019. A learned Single Judge of the High Court vide the

order dated 24.10.2019 directed the first respondent to

consider the representation dated 13.05.2019 and to pass

appropriate order(s) thereon on merit within a period of

twelve weeks.

10. In terms of the directions of the High Court, the

first respondent considered the case of the appellant. The

first respondent noted that appellant had passed the 10

th

standard (SSLC) in March, 1982 and joined the higher

secondary (+1) first year during the academic year 1982-83

on 12.07.1982. In the meanwhile, appellant was appointed

as Junior Assistant on compassionate ground in the

Tourism Department in which post he joined on 25.05.1983.

Later on, appellant got admitted in the second year

foundation course directly in the Madurai Kamraj Open

University during 1984 and then obtained a degree in

commerce through the distance education mode during

1987.

10.1. The first respondent referred to GO Ms No. 107

dated 18.08.2009 whereby and whereunder degree

qualification in the pattern of 10+2+3 was prescribed for

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appointment and promotion to public services in the State

of Tamil Nadu. In the subsequent letter dated 03.12.2010 of

the Personnel and Administrative Reforms Department, it

has been clarified that a degree awarded by the open

universities after passing the pre-foundation course and two

years foundation course through open university would not

be recognized as a degree as per norms of the University

Grants Commission for the purpose of employment and

promotion in public services since such pre-foundation

course and two years foundation course are not

contemplated in the regulations of the University Grants

Commission.

10.2. Thereafter, the first respondent referred to GO

Ms No. 144 dated 20.11.2017 on the basis of which orders

were issued to the effect that the foundation courses offered

by various universities are not equivalent to higher

secondary course +2. As per Section 25 of the Tamil Nadu

Government Servants (Conditions of Service) Act, 2016, for

appointment to public service, a degree should be in the

pattern of 10+2+3. Adverting to Rule 5 of the Special Rules for

the post of Tourist Officer, the first respondent was of the view

8

that the educational qualification of degree is prescribed for

appointment to the post of Tourist Officer.

10.3. The first respondent found that the appellant

had not passed the degree course in the regular pattern of

10+2+3 i.e. after passing SSLC (10

th) and higher secondary

course (+2). Hence, vide the order dated 22.07.2020, he

declared that the appellant is not qualified to hold the post

of Tourist Officer. Therefore, the request of the appellant to

promote him to the post of Assistant Director of Tourism has

been found to be not feasible as per rules in force and, thus,

rejected.

11. The aforesaid order came to be challenged by the

appellant before the Single Bench of the High Court by filing

W.P. No. 10251 of 2021. Learned Single Judge framed the

question for adjudication as to whether appellant was

having a valid qualification for being appointed as a Tourist

Officer and whether the appellant was eligible to be

promoted as an Assistant Director.

11.1. Learned Single Judge noted that the appellant

had completed the foundation course and thereafter

graduated from the Madurai Kamraj Open University

9

through the distance education mode prior to issuance of

GO Ms No. 107 dated 18.08.2009 and GO Ms No.242 dated

18.12.2012. When the appellant was appointed as Tourist

Officer on 01.08.2011, both the aforesaid GO Ms were not in

force; those were given effect subsequently. Learned Single

Judge also noted that at the relevant point of time, GO Ms

No. 180 dated 11.09.2000 was in force. As per the said GO

Ms, Government of Tamil Nadu had decided to accept and

to treat the diploma, graduation and postgraduation

courses offered through the system of distance education

by the universities in Tamil Nadu and recognized by the

University Grants Commission at par with the diploma ,

graduation and postgraduation courses offered through

regular courses by those universities and recognized for

the purpose of employment in public services.

11.2. Thus, as per the said GO Ms No. 180 dated

11.09.2000, diploma, graduation and postgraduation

through open university system were treated at par with the

regular stream for the purpose of employment in public

services. This GO Ms was explained and reiterated by the

subsequent GO Ms No. 217 dated 08.09.2007. Therefore,

10

when the appellant was appointed as Tourist Officer, GO Ms

No. 217 dated 08.09.2007 was in force. After the appellant

had joined the post of Tourist Officer in 2011, GO Ms No.

242 dated 18.12.2012 came to be issued which clarified that

those who have studied two years foundation course after

completing the 10

th standard (SSLC) and graduation

through open university would be treated at par with

those who have studied 10

th standard, 12

th standard and

under graduation (10+2+3) for the purpose of

appointment to and promotion in public services. Learned

Single Judge came to the conclusion that the qualification

obtained by the appellant through open university cannot

be questioned by the first respondent either for the purpose

of his appointment to the post of Tourist Officer in 2011 or

for the purpose of being considered for promotion to the post

of Assistant Director.

11.3. Consequently, vide the judgment and order

dated 16.08.2021, the order dated 22.07.2020 passed by the

first respondent was set aside with a direction to the

respondents to place the name of the appellant in the panel

list in order of seniority and to promote him to the post of

11

Assistant Director of Tourism, if his juniors have been

promoted in the meanwhile.

12. The judgment of the learned Single Judge dated

16.08.2021 came to be challenged by the respondents before

the Division Bench of the High Court in W.A. No. 1789 of

2022. The Division Bench referred to GO Ms No. 107 dated

18.08.2009 which prescribed the degree qualification in the

pattern of 10+2+3 for appointment and promotion in public

services. The Division Bench also referred to the letter dated

03.12.2010 of the Personnel and Administrative Reforms

Department clarifying that those who have obtained a degree

under the open university system after passing the pre-

foundation course and two-year foundation course without

passing the 10

th standard and +2 examination do not satisfy

the conditions laid down in the said GO Ms No. 107 dated

18.08.2009. Therefore, the Division Bench observed that

before considering the entitlement of the appellant for

promotion to the post of Assistant Director of Tourism, it

was inclined to go into the question as to whether the

appellant was eligible to hold the feeder cadre post of Tourist

Officer.

12

12.1. The Division Bench took the view that in terms

of GO Ms No. 107 dated 18.08.2009 and other related

government office memoranda, the degree qualification in

the pattern of 10+2+3 is very much required for appointment

and promotion in the public services in the State of Tamil

Nadu. Since the appellant had completed the second year

higher secondary course through foundation course offered

by the open university, the same is not equivalent to +2

course. Thus, he had not obtained the degree qualification

in the pattern of 10+2+3. Therefore, the Division Bench

found fault with the view taken by the learned Single Judge.

12.2. The Division Bench went further ahead

observing that appellant was not eligible to be appointed as

Tourist Officer in the year 2011 and was erroneously given

promotion to the said post. However, the Division Bench did

not proceed further in this regard and did not disturb the

promotion granted to the appellant to the post of Tourist

Officer but held that he is not qualified to be further

promoted to the post of Assistant Director of Tourism

without being qualified for holding the feeder post of Tourist

Officer.

13

12.3. Vide the judgment and order dated 06.06.2023,

the Division Bench allowed the writ appeal and set aside the

judgment and order of the learned Single Judge dated

16.08.2021.

13. Appellant thereafter preferred a review application

before the Division Bench of the High Court which was

registered as Review Application No. 308 of 2024. By the order

dated 18.11.2024, the Review Bench held that appellant’s

qualification upto the higher secondary stage is not a

problem as the foundation course completed by the

appellant may be taken as qualification of +2. However, the

Review Bench held that since the appellant did his

graduation through the distance education mode, he cannot

be considered as eligible for promotion to the post of

Assistant Director of Tourism.

13.1. The Review Bench also rejected the contention of

the appellant that since the authorities had permitted him

to undergo and obtain the degree course through the

distance mode, therefore, the said authority would be

estopped from not giving the benefit of the said degree

obtained by the appellant. According to the Review Bench,

14

mere permission granted by the Government to undergo a

course during employment would not mean that the

Government is estopped from questioning the qualification

of the employee as per rules. Consequently, vide the order

dated 18.11.2024, the review application has been

dismissed.

14. Learned senior counsel for the appellant

submits that the Review Bench ought not to have

entertained a completely new ground of the appellant not

possessing the degree qualification, which was not agitated

before the Division Bench. As a matter of fact, when the

Review Bench holds that the appellant’s qualification upto

the higher secondary stage is not a problem as the

foundation course completed by the appellant may be taken

as equivalent to +2, the Review Bench has practically held

that the view taken by the Division Bench in writ appeal is

erroneous. This is because the Division Bench had held that

the degree of the appellant cannot be taken into

consideration because appellant did not complete the higher

secondary in its entirety through the regular course. But

when the Review Bench holds that the appellant’s

15

qualification upto the higher secondary stage is not a

problem, then it amounts to endorsing the stand of the

appellant.

14.1. He further submits that the Review Bench fell in

gross error while taking the view that the degree obtained by

the appellant through the distance education mode is not

acceptable as it did not fulfill the qualification prescribed for

promotion to the post of Assistant Director of Tourism.

Nowhere it is provided that the degree should be obtained

through the regular physical course and not through the

distance education mode.

14.2. Assailing the impugned order of the Division

Bench, learned senior counsel submits that the issue before

the court was not the eligibility of the appellant to hold the

post of Tourist Officer; rather the issue was about eligibility

of the appellant to be considered for promotion to the next

higher post of Assistant Director of Tourism. Instead of

adjudicating on this issue, the Division Bench completely

misdirected itself by confining the adjudication to the

eligibility of the appellant to hold the feeder post of Tourist

Officer. Appellant was promoted as Tourist Officer on

16

01.08.2011 and subsequently his services as Tourist Officer

were regularized with effect from 05.08.2011 (on which date

he had joined the post of Tourist Officer at New Delhi) vide

GO Ms No. 224 dated 16.10.2017. Appellant has served as

Tourist Officer for about 15 years now.

14.3. It is nobody’s case that appellant is not eligible

to hold the post of Tourist Officer. Unfortunately, the first

respondent raked up this issue only with a view to deny the

benefit of promotion to the appellant. The Division Bench fell

in gross error in confining its adjudication to the eligibility

of the appellant to hold the post of Tourist Officer.

14.4. Learned senior counsel submits that appellant

has been holding the post of Tourist Officer for about 15

years now without any challenge. Therefore, it was improper

on the part of the Division Bench to make a declaration that

appellant was not eligible to be promoted as Tourist Officer

and observing that appellant is not fit to be further promoted

to the post of Assistant Director of Tourism without being

qualified for the feeder category post of Tourist Officer.

14.5. According to learned senior counsel, appellant is

entitled to be considered for promotion to the post of

17

Assistant Director of Tourism. Division Bench fell in error in

giving retrospective effect to GO Ms No. 144 dated

20.11.2017. He submits that a Coordinate Bench of the High

Court in the case of P. Thavam Vs. State of Tamil Nadu

1 has

clearly held that the cut off date for applicability of GO Ms

No. 144 is the date of its notification i.e. 20.11.2017. A

special leave petition filed before this Court against the

decision in P. Thavam has been rejected. Therefore, the

Division Bench ought to have followed the decision of the

Coordinate Bench in P. Thavam. Failure to do so has

rendered the impugned orders of the High Court wholly

untenable in law.

15. Per contra, learned counsel for the respondents

submits that the contention of the appellant that the

eligibility prescription of 10+2+3 pattern of education came

to be introduced in the year 2017 is fundamentally

erroneous. Following the decision of this Court in Annamalai

University Vs. Secretary to the Government, Information and

Tourism Department

2, GO Ms No. 107 dated 18.08.2009

1

2022 SCC Online Madras 6177

2

(2009) 4 SCC 590

18

came to be issued. This GO Ms was already in existence at

the time of appointment of the appellant as Tourist Officer.

GO Ms No. 144 dated 20.11.2017 did not introduce any new

norm but merely restated the requirements as stipulated in

GO Ms No. 107 dated 18.08.2009; thus, making it

clarificatory in nature and not prospective in its application.

He further submits that letter dated 03.12.2010 clarified GO

Ms No. 107 by stating that foundation courses from open

universities are not equivalent to 10

th or 12

th standard.

15.1. Learned counsel for the respondents further

submits that reliance placed by the appellant on GO Ms No.

224 dated 16.10.2017 which regularized the temporary

promotion of the appellant to the post of Tourist Officer is

misconceived as regularization is merely an administrative

act to confirm continuity of service and does not amount to

relaxation of statutory eligibility.

15.2. He finally submits that the impugned judgment

and order of the Division Bench as well as the impugned

order of the Review Bench have been passed by taking into

consideration all relevant factors. No case for interference is

made out. Therefore, the appeal should be dismissed.

19

16. Submissions made by learned counsel for the

parties have received the due consideration of the Court.

17. The following facts are not disputed. Appellant

had completed his SSLC 10

th standard in the year 1982 from

the Sourashtra Higher Secondary School, Madurai. Thereafter,

he completed his 11

th standard in the said school during the

academic year 1982-83. However, he could not continue his

studies further due to the untimely demise of his father. His

father served as Receptionist Grade I (now Assistant Tourist

Officer Grade I) in the Tourism Department, Government of

Tamil Nadu. On the sudden death of his father, appellant

was appointed on compassionate ground as Senior Assistant

in the Tourism Department on 25.05.1983.

18. While serving as Senior Assistant, appellant

sought for and was granted permission by the authority i.e.

the Director of Tourism to join the second year of the

foundation course from the Madurai Kamaraj Open

University which he successfully completed in April, 1984.

Thereafter, he obtained his B.Com degree from the said

university in October, 1987. Appellant also obtained the

postgraduate diploma in Tourism from the Madurai Kamaraj

20

Open University in May, 1993 and finally obtained the

M.Com degree from the said university in April, 2003.

19. From Senior Assistant, appellant came to be

appointed as Receptionist Grade II (now Assistant Tourist

Officer Grade II) on 25.07.1990. He was temporarily

promoted as Tourist Officer in the year 2011 in terms of GO

Ms No. 110 dated 01.08.2011 and came to be posted as

Tourist Officer in New Delhi in which post he joined on

05.08.2011. His service as Tourist Officer came to be

regularized w.e.f. 05.08.2011 vide GO Ms No. 224 dated

16.10.2017.

20. After serving for nearly six years in the post of

Tourist Officer, appellant sought for his promotion to the

next higher post of Assistant Director of Tourism which

came to be rejected by the first respondent vide the order

dated 22.07.2020.

21. Appellant approached the High Court before the

Single Bench complaining against the rejection of his

request for promotion to the post of Assistant Director of

Tourism. Learned Single Judge upheld the contention of the

appellant and set aside the order of the first respondent. On

21

appeal by the first respondent, the Division Bench reversed

the decision of the learned Single Judge and upheld the

order of the first respondent. Review filed by the appellant

also came to be dismissed.

22. Till this stage, there is not dispute.

23. Question before the High Court, both before the

Single Bench and before the Division Bench, was the

eligibility of the appellant to be considered for promotion to

the next higher post of Assistant Director of Tourism .

Unfortunately, the High Court diverted its attention to the

aspect of appellant’s eligibility to hold the post of Tourist

Officer, rather than considering his eligibility for promotion

to the next higher post of Assistant Director of Tourism.

Nobody had challenged appellant’s promotion to the post of

Tourist Officer in which post he has rendered service for

more than 15 years now. Though the learned Single Judge

held that appellant had the eligibility to hold the post of

Tourist Officer and, therefore, he is eligible to be considered

for promotion to the next higher post of Assistant Director

of Tourism, the Division Bench disagreed therefrom and

held that in the first place, appellant was not eligible to even

22

hold the post of Tourist Officer (though it did not disturb the

service of the appellant as Tourist Officer); therefore, he is

not eligible for promotion to the next higher post of Assistant

Director.

24. Let us now deal with the legal framework.

25. Information and Tourism Department, Government

of Tamil Nadu issued GO Ms No. 290 dated 18.06.1986 notifying

the rules framed in exercise of the powers conferred by the

proviso to Article 309 of the Constitution of India making it

clear that the General Rules applicable to the holders of

permanent posts in the Tamil Nadu General Service shall

apply to the holders of the temporary post of Assistant

Director (Tourism), sanctioned from time to time, in the

Directorate of Tourism. As per Rule 3, appointment to the

post of Assistant Director of Tourism shall be made in the

following manner:

(i) by promotion from amongst the holders of the post

of the Tourist Officer (on and from the 10

th

September, 1976 from amongst the holders of the

post of Publication Officer); or

(ii) by direct recruitment; or

23

(iii) by transfer from any other class; or

(iv) by recruitment by transfer from any other service.

25.1. Rule 4 provides that promotion to the post of

Assistant Director of Tourism shall be on the basis of merit

and ability, seniority being considered only where merit and

ability are approximately equal. Rule 5(b) lays down the

other qualifications for appointment to the post of Assistant

Director of Tourism. In case of promotion, the qualification

prescribed is ‘a pass in the accounts test for executive

officers’. For direct recruitment or transfer, the qualification

prescribed is (i) a degree; (ii) practical experience in travel,

hotel, journalism or public relations in a promotional or

managerial capacity for a period not less than 5 years. As

per the proviso, other things being equal, preference would

be given to persons who possess a degree or diploma in

Tourism from a recognised university. Ofcourse in this case,

we are only concerned with the promotion method of

appointment in which case the qualification prescribed was

‘pass in the accounts test for executive officers’.

24

26. As per GO Ms No. 45 dated 27.02.1997, the

following eligibility criteria for promotion to the post of

Assistant Director of Tourism was prescribed:

i. a pass in the accounts test for executive officers;

ii. must have served one year as Tourist Officer in the

Tourist Offices under the control of Directorate of

Tourism, located outside the State of Tamil Nadu.

27. On 06.08.2010, GO Ms No. 174 was issued by

the Tourism and Culture Department as per which the

Special Rules for the Tamil Nadu General Service were

amended in exercise of the powers conferred by the proviso

to Article 309 of the Constitution of India. As per this

amendment, for the post of Tourist Officer, the following

eligibility was prescribed:

i. a degree;

ii. a pass in the accounts test for executive officers

and the Tamil Nadu Government Office Manual Test.

28. Thus, as of 06.08.2010, to be eligible for holding the

post of Tourist Officer, the following were the eligibility criteria:

i. a degree;

25

ii. a pass in the accounts test for executive officers and

the Tamil Nadu Government Office Manual Test.

29. Instead of confining the adjudication as to the

eligibility of the appellant for promotion vis-à-vis the

qualification prescribed, the High Court proceeded to

examine as to whether the appellant had the eligibility to be

promoted to the post of Tourist Officer. While the Division

Bench found that the degree obtained by the appellant could

not be accepted as the appellant had not obtained the degree

after completing the higher secondary course in the pattern

of 10+2, the Review Bench held that appellant’s qualification

upto the higher secondary stage is not a problem as the

foundation course completed by the appellant may be taken

as equivalent to +2. However, since the appellant obtained

his graduation through the distance education mode

(meaning thereby he should have obtained the degree

through the regular physical course), he cannot be

considered as eligible for the promotion post. Thus, the

Review Bench has actually taken a contrary view to that of

the Division Bench by holding that the appellant’s

qualification upto 10+2 is not a problem.

26

30. The Tamil Nadu Government Servants (Conditions of

Service) Act, 2016 (briefly ‘The 2016 Act’ hereinafter) has been

enacted to regulate the service conditions of the Tamil Nadu

Government Servants. It has been notified on 14.09.2016.

As per Section 1(2), barring sub-section (1) of Section 40

which shall be deemed to have come into force on the 01

st

January, 1955, all the remaining provisions of the 2016 Act

shall come into force at once. It means that barring Section

40(1), all the other provisions of the 2016 Act came into effect

on and from 14.09.2016.

30.1. Section 25 of the 2016 Act lays down special

qualifications. As per Explanation 1(b), in cases where the

Special Rules prescribe a degree as a qualification for

appointment, then the candidate must possess a degree

obtained after completion of SSLC and higher secondary

course (10+2+3 or more) from any university or institution

recognized by the University Grants Commission which shall

be accepted as the qualification.

30.2. Section 54 of the 2016 Act is the saving clause.

Sub-section (1) clearly says that unless a contrary intention is

expressly indicated therein, nothing contained in the 2016 Act

27

shall adversely affect any person who was a member of any

service on the date of coming into force of the 2016 Act. Sub-

section (3) further clarifies that where the provisions of the

2016 Act or the Special Rules would adversely affect in respect

of any matter, a person who was a member of any service

before the date of coming into force thereof, he shall, in respect

of such matter, be governed by the rules and orders, if any,

which were applicable to him immediately prior to such date.

30.3. Explanation 1(b) to Section 25 of the 2016 Act

came into effect on and from 14.09.2016. It does not effect the

degrees obtained prior thereto in view of the saving clause in

Section 54 of the said 2016 Act.

30.4. That apart, no where does Explanation 1(b) to

Section 25 say that the degree obtained should be through the

regular physical course and not through the distance

education mode. Therefore, the Review Bench fell in error in

taking the view that because the appellant had obtained the

degree through the distance education mode, his degree would

not be considered as valid for the purpose of promotion to the

post of Assistant Director though appellant’s education up to

28

the graduation level is not a problem. This is the fundamental

flaw committed by the Review Bench.

31. Though based on the aforesaid analysis, we are

of the view that the appellant fulfils the criteria for

promotion to the post of Assistant Director of Tourism in

terms of the aforesaid norms, in order to reassure ourselves

we would like to examine the correctness or otherwise of the

view taken by the High Court.

32. For this, it would be appropriate to advert to and

analyse the relevant Government Office Memoranda.

33. GO Ms No. 528 dated 18.05.1985 was issued by

the Personnel and Administrative Reforms Department,

Government of Tamil Nadu. A request was made by the

Registrar of Madurai Kamaraj Open University to the

Government to recognize the first year foundation course of

the open university system as equivalent to the old 11 years

SSLC/matriculation examination and the second year

foundation course as equivalent to the pre-university course

or 12-year higher secondary examination for the purpose of

employment in public services in the State of Tamil Nadu.

The Government after careful consideration of the request

29

directed that the pre-foundation course of the Madurai

Kamaraj Open University be recognized as equivalent to the

10 years SSLC of the Tamil Nadu Government for the

purpose of entry into the public services in the State. The

Government also directed that the two-years foundation

course of the said open university should be recognized as

equivalent to higher secondary (+2) course for the purpose

of entry into public services in the State of Tamil Nadu.

34. GO Ms No. 336 dated 22.07.1988 pertains to the

post of Tourist Officer in the Directorate of Tourism,

Government of Tamil Nadu. As per this office memorandum,

the General Rules applicable to the holders of permanent

posts in the Tamil Nadu General Service shall apply to the

holders of the temporary post of Tourist Officer, sanctioned

from time to time, in the Directorate of Tourism. As per Rule

3, appointment to the post of Tourist Officer could be made

through the following process:

i. direct recruitment; or

ii. by transfer from the category of Publication

Officer; or

30

iii. by promotion from amongst the holders of the

post of Publication Assistant in the Directorate of

Tourism; or

iv. by recruitment by transfer from amongst the

holders of the post of Information Assistant or

Receptionist Grade I in the Directorate of Tourism; or

v. by recruitment by transfer from amongst the

holders of the post of Receptionist Grade II in the

Directorate of Tourism.

34.1. As per Rule 4(b), in case of direct recruitment,

the qualification prescribed was a degree from a recognized

university and practical experience in travel etc. of not less

than three years. In case of other modes of recruitment,

what was required was that ‘accounts test for executive

officers and District Office Manual Test should be passed’.

34.2. In case of recruitment by transfer from amongst

the holders of the post of Receptionist Grade II in the

Directorate of Tourism, the following two criteria were

prescribed:

31

i. a pass in accounts test for executive officers and

District Office Manual Test; and

ii. service as Receptionist Grade II for a period of

not less than five years.

35. By way of GO Ms No.180 dated 11.09.2000 of the

Personnel and Administrative Reforms Department, Government of

Tamil Nadu, the Government after careful consideration

directed that diploma, degree and postgraduate degree

courses offered through the open university system by the

universities in Tamil Nadu and recognized by the University

Grants Commission be recognized as equivalent to the

diploma, degree and postgraduate degree courses offered

through the regular stream by the respective universities for

the purpose of employment in public services.

36. That brings us to the next GO Ms No. 217 dated

08.09.2007 of the same department which clarified that

diploma, undergraduate and postgraduate degree courses

offered by the Tamil Nadu Open University should be treated

as equivalent to the corresponding awards of the other

universities in the State under the regular stream for the

purpose of employment in public services.

32

37. The next GO Ms No. 107 dated 18.08.2009 of the

same department declared that the diploma and degrees in

undergraduate and postgraduate courses obtained through

the open universities only after having passed the secondary

school examination (10

th standard) and higher secondary

school examination (+2) alone would be accepted for

employment/promotion in public services.

38. Secretary to the Government of Tamil Nadu in

the Personnel and Administrative Reforms Department

informed the Secretary, Tamil Nadu Public Service

Commission vide letter dated 03.12.2010 regarding the

clarification sought for as to whether the qualification

possessed by an individual as per GO Ms No. 528 dated

18.05.1985 could be recognized as the qualification

prescribed in GO Ms No. 107 dated 18.08.2009 . The

following clarification came to be issued:

6. In view of the above, the following clarifications are

issued:

(1) A degree awarded by the open universities after

passing pre-foundation course and two year

foundation course through open university cannot

be recognized as a degree as per the University

33

Grants Commission norms for the purpose of

employment/ promotion in public services, since

such pre-foundation course and 2 year foundation

course are not contemplated in the University

Grants Commission Regulations.

(2) Therefore, those who obtained a degree under

open university system after passing the pre-

foundation course and two year foundation course

without passing 10

th Standard and +2 examination

do not satisfy the conditions laid in G.O (Ms) No.

107, P&AR (M) Department, dated 18.08.2009 which

is in consonance with the order of Supreme Court of

India.

39. By GO Ms No. 100 dated 20.07.2011, appellant

alongwith ten others were promoted as Tourist Officers on

temporary basis in terms of Rule 39(a)(1) of the General

Rules for the Tamil Nadu State and Subordinate Services.

40. As per GO Ms No. 242 dated 18.12.2012 issued

by the Department of Higher Education, it has been ordered

as under:

(i) A three-year graduation course through the open

university/distance education and colleges after studying

a three-year diploma course after 10

th standard (SSLC)

(10+3+3);

34

(ii) An undergraduate course (open university) through

distance education after the completion of eleventh

standard (old SSLC) and then studying a two-year diploma

in Teacher Education offered by the Directorate of

Government Examinations (11+2+3);

(iii) An undergraduate course through distance

education after studying tenth standard (SSLC) and then

a two-year Industrial Training (I.T.I) (10+2+3); and

(iv) Tenth standard, three-year diploma course; after

that, studied a two-year graduation course (lateral-entry)

(10+3+2) are to be treated as an equivalence of

qualification for employment and promotion with those

who studied tenth standard, twelfth standard (+2) and

then 3-year graduation course.

41. The temporary promotion of the appellant to the

post of Tourist Officer was regularized w.e.f. 05.08.2011 vide

GO Ms No. 224 dated 16.10.2017 of the Tourism, Culture

and Religious Endowments Department, Government of Tamil

Nadu. It may be mentioned that the Commissioner of Tourism

had submitted a proposal for regularizing the services of

Tourist Officers from the panel years 1988-89 to 2014-15.

Appellant was placed in the 2009-10 panel. Government

after careful examination accepted the aforesaid proposal

and issued the aforesaid GO Ms No. 224.

35

42. Personnel and Administrative Reforms Department

issued GO Ms No. 144 dated 20.11.2017 as per which the

Government confirmed the recommendations of the

Equivalence Committee and clarified that pre-foundation

course and foundation course offered by various universities

in the State are not equivalent to SSLC and higher secondary

course (+2) respectively.

43. This Court in the case of P. Mahendran Vs. State

of Karnataka

3 was considering an issue relating to selection

and appointment of Motor Vehicle Inspectors in the State of

Karnataka. Karnataka General Service (Motor Vehicles

Branch) (Recruitment) Rules, 1962 (briefly, ‘the 1962 Rules’,

hereinafter) provides for direct recruitment to the post of

Motor Vehicle Inspectors. It further lays down the minimum

qualification requiring a candidate to be the holder of

diploma in automobile engineering or mechanical

engineering. Based on that, the Public Service Commission

issued advertisement inviting applications for filling up a

number of posts of Motor Vehicle Inspectors. Though

interview letters were issued, the Public Service Commission

3

(1990) 1 SCC 411

36

for one reason or the other refused to interview some

candidates which resulted in litigation and stay of the

recruitment process. In the meanwhile, the State

Government amended the 1962 Rules by omitting the

qualification of diploma in mechanical engineering for the

post of Motor Vehicle Inspectors. Consequent to the

amendment of the 1962 Rules, the holders of diploma in

automobile engineering became exclusively eligible for

appointment to the post of Motor Vehicle Inspectors and

holders of diploma in mechanical engineering ceased to be

eligible for selection and appointment to the said post.

43.1. It was in that context, this Court observed that it

is a settled rule of construction that every statute or

statutory rule is prospective unless it is expressly or by

necessary implication made to have retrospective effect.

Unless there are words in the statute or in the rules showing

the intention to affect existing rights, the rule must be held

to be prospective. Since the amending rules were not

retrospective, it could not adversely affect the rights of those

candidates who were qualified for selection and appointment

on the date they applied for the post. The amended rules

37

could not affect the existing rights of those who were being

considered for selection as they possessed the requisite

qualification prescribed by the 1962 Rules before its

amendment. This Court emphasized that construction of

amending rules should be made in a reasonable manner to

avoid unnecessary hardship to those who have no control

over the subject-matter.

44. In Annamalai University Vs. Secretary to Government,

Information and Tourism Department

4, interpretation and

application of the University Grants Commission (the

Minimum Standards of Instruction for the Grant of the First

Degree through Non-Formal/Distance Education in the

Faculties of Arts, Humanities, Fine Arts, Music, Social

Sciences, Commerce and Sciences) Regulations, 1985 vis-à-

vis the provisions of the Indira Gandhi National Open

University Act, 1985 was in question. The con troversy

pertained to appointment to the post of Principal in Film and

Television Institute of Tamil Nadu. We need not delve into

the intricate details of the litigation. Suffice it to say that this

Court expressed the view that provisions of the University

4

(2009) 4 SCC 590

38

Grants Commission Act, 1956 are not in conflict with the

provisions of the Open University Act but the University

Grants Commission Act shall prevail over the Open

University Act in case of any conflict, while endorsing the

view that the University Grants Commission Act, 1956 was

enacted for effectuating coordination and determination of

standards in universities with its powers being very broad

and binding on all universities whether conventional or

open. In the matter of laying down qualifications of the

teachers, running of the university etc., the University

Grants Commission Act and the Regulations framed

thereunder are applicable and binding on all concerned,

including open universities.

44.1. There can be no two views on the proposition of

law laid down in Annamalai University.

44.2. However, in the facts of that case, this Court

endorsed the view taken by the High Court. High Court had

approved the decision of the Government appointing the

appellant as the Principal. The High Court was of the view

that there was no arbitrariness in the appointment, more so,

when the stand of the University Grants Commission was

39

that on the date when the appellant obtained his MA degree,

it was possible for a person who did not have the basic degree

to obtain a MA degree. Therefore, the order appointing the

appellant as the Principal could not be quashed.

45. A two-Judge Bench of this Court in Chandrakala

Trivedi Vs. State of Rajasthan

5 was concerned with a

controversy arising out of the appellant’s appointment to the

post of Teacher for primary and upper primary schools.

Appellant’s selection was cancelled on the ground that she

did not pass the higher secondary/senior secondary

examination after passing the secondary examination.

Appellant’s contention was that at the time when she had

passed the secondary examination, it was permissible for a

candidate passing the secondary examination to get

admission in the higher classes with a preparatory course.

Appellant thereafter completed her graduation from Indira

Gandhi National Open University, which was followed by

B.Ed degree obtained on regular basis. She also got her MA

degree on regular basis. Her writ petition came to be

dismissed by both Benches of the High Court, Single Bench

5

(2012) 3 SCC 129

40

as well as Division Bench, on the ground that the appellant

had not passed the senior secondary examination which is

the basic qualification for the post in question. Therefore, the

candidature of the appellant could not be considered.

45.1. This Court disapproved the reasonings of the

High Court to the extent that it did not consider the higher

qualification as equivalent to the qualification of passing

senior secondary examination even in respect of a candidate

who was selected and emphasized that the word ‘equivalent’

must be given a reasonable meaning. Drawing a distinction

between equivalence and exactness, this Court held thus:

8. The word “equivalent” must be given a

reasonable meaning. By using the expression

“equivalent” one means that there are some degrees

of flexibility or adjustment which do not lower the

stated requirement. There has to be some difference

between what is equivalent and what is exact. Apart

from that, after a person is provisionally selected, a

certain degree of reasonable expectation of the

selection being continued also comes into

existence.

46. In P. Thavam, a Division Bench of the High Court

of Madras was considering the prayer of the petitioners to

41

restrain the respondents from de-promoting them from the

post of Road Inspector Grade II (Skill Assistant Grade II) to

that of Gang Mazdoor on the ground that the pre-foundation

course undertaken by them is not equivalent to SSLC. After

analysing the import of GO Ms No. 528 dated 18.05.1985,

GO Ms No. 107 dated 18.08.2009 and GO Ms No. 144 dated

20.11.2017, the High Court held thus:

24. This Court is of the considered opinion that the

government had recognized the pre -foundation

course vide G.O.Ms. No. 528, P and AR Department,

dated 18.05.1985 and the said G.O. was in

existence from 1985 onwards, subsequently there

was a challenge to the open university degree and

the High Court has held open university degree is

not valid and pre-foundation course as not valid.

When it was considered valid for the past twenty

four years, then it was declared as invalid, the

persons who are affected from this shift/change of

qualification ought to be protected. As rightly

pointed out by the appellants, the Government has

taken eight long years after issuance of G.O.Ms. No.

107, Personnel and Administrative Reforms

Department, dated 18.08.2009, to issue G.O.Ms.

No. 144, Personnel and Administrative Reforms (M)

Department, dated 20.11.2017. It is only in

G.O.Ms. No. 144, Personnel and Administrative

Reforms (M) Department, dated 20.11.2017 the

42

government has declared that the pre-foundation

course is not recognized equivalent to the pre-

foundation course (sic). The G.O.Ms. No. 107,

Personnel and Administrative Reforms Department,

dated 18.08.2009, has only accepted the

recommendations of the Equivalence Committee. As

rightly pointed out by the learned Counsel appearing

for the appellants, the government has passed

G.O.Ms. No. 144, Personnel and Administrative

Reforms (M) Department, dated 20.11.2017 wherein

it has been categorically held that the pre -

foundation course as invalid. If it is so, then the

date of issuance of the said G.O. Ms. No. 144 ought

to be held as the cutoff date. Moreover, the pre-

foundation course was closed down in the year

2012. In short the pre-foundation course was

recognized in the year 1985, then in the year 2009

it was held by High Court that pre-foundation course

is not equivalent, then equivalence committee has

reported it is not equivalent, the government

accepted the report in 2009 and finally it was

declared in the year 2017. Hence, the mischief of

invalidity has been eradicated in phased manner.

Therefore, this Court is of the considered opinion

that the cutoff date, is the date of issuance of

G.O.Ms. No. 144, Personnel and Administrative

Reforms (M) Department, dated 20.11.2017 i.e.

20.11.2017.

43

46.1. The High Court was of the view that when the

Government had recognized the pre-foundation course and

when it was considered valid for the past 24 years, then

when it was declared as invalid, the persons who are affected

by this change of qualification ought to be protected. The

High Court noted that the Government took eight long years

after issuance of GO Ms No. 107 dated 18.08.2009 to issue

GO Ms No. 144 dated 20.11.2017. It is only in GO Ms No.

144 dated 20.11.2017 that the Government has finally

declared that the pre-foundation course is invalid. If that is

so, then the date of issuance of the said GO Ms No. 144 i.e.

20.11.2017 ought to be held as the cutoff date. The High

Court noted that the pre-foundation course was recognized

in the year 1985; then in the year 2009, it was held that pre-

foundation course and foundation course are not equivalent

to 10

th standard and +2 higher secondary course following

which the Equivalence Committee reported that such

courses are not equivalent to high secondary (10

th standard)

and higher secondary (+2); Government accepted the report;

but the declaration was made in the year 2017 only. Hence,

the mischief of invalidity has been eradicated in a phased

44

manner. In these circumstances, the High Court opined that

the cutoff date is the date of issuance of GO Ms No. 144

dated 20.11.2017 i.e. 20.11.2017.

46.2. Since all the appellants had completed the pre-

foundation course prior to 20.11.2017, the High Court

opined that the appellants are entitled to promotion.

47. We have been informed that the special leave

petition filed against the decision of the High Court in P.

Thavam, being Special Leave Petition (Civil) Diary No.

32036/2022, was dismissed by this Court vide the order

dated 20.01.2023.

48. Both the Division Bench and the Review Bench

erred in not following the Coordinate Bench decision in P.

Thavam.

49. Be that as it may, we are of the view that the

reasonings given by the High Court in P. Thavam are sound

and valid. We accordingly endorse and approve the decision

of the High Court in P. Thavam.

50. As can be seen from the above, a plethora of

Government orders have been issued in the present case by

45

the State of Tamil Nadu. This has created confusion in the

minds of those who had passed the pre -foundation and

foundation courses through the open universities and

thereafter obtained degrees. This came to be finally set at

rest by the decision of the Madras High Court in P. Thavam

which made it clear that the invalidity of the pre-foundation

course and foundation course can only be prospective and

that too with effect from 20.11.2017. A candidate who has

obtained the requisite qualification based on the prevailing

norms i.e. GO Ms No. 528 dated 18.05.1985 which

continued to remain in force for more than 24 years and

finally came to be reversed after 32 years cannot be made

ineligible by resorting to the maze of Government orders. It

needs no reiteration that interpretation of such Government

orders which have the effect of modifying and amending

previous Government orders has to be done in a reasonable

manner to avoid unnecessary hardship to those who have

no control over the subject matter.

51. On due consideration, we are of the considered

opinion that the learned Single Judge was fully justified in

holding that at the time of appointment of the appellant by

46

way of promotion to the feeder post of Tourist Officer, GO Ms

No. 528 dated 18.05.1985 was holding the field. This made

his appointment to the post of Tourist Officer valid. That

apart, as already noted above, nobody has challenged the

promotion of the appellant to the post of Tourist Officer. Now

that the question of consideration for promotion to the next

higher post of Assistant Director of Tourism has arisen, it is

not open to the first respondent to rake up the issue of

eligibility of the appellant to hold the post of Tourist Officer,

which in any view of the matter is not correct.

52. Having said that, as noticed above, we find that

following are the eligibility criteria for promotion to the post

of Assistant Director of Tourism:

(i) a degree from a recognized university;

(ii) pass in accounts test for executive officers; and

(iii) one year experience as Tourist Officer in other

states outside Tamil Nadu.

52.1. It is thus evident that appellant has the eligibility

as above to be considered for promotion to the next higher

post of Assistant Director of Tourism.

47

53. In view of the discussions made above, we are of

the considered opinion that the Division Bench as well as the

Review Bench fell in grave error in interfering with the

judgment and order dated 16.08.2021 passed by the learned

Single Judge. Consequently, we set aside the judgment and

order dated 06.06.2023 passed by the Division Bench of the

High Court as well as the order dated 18.11.2024 passed by

the Review Bench, thus restoring the judgment and order of

the learned Single Judge dated 16.08.2021.

54. We accordingly hold that the appellant has the

eligibility to be considered for promotion to the post of

Assistant Director of Tourism. His case shall now be

considered for promotion in accordance with law.

55. Civil Appeals are allowed. However, there shall

be no order as to costs.

……………………………J.

[MANOJ MISRA]

……………………………J.

[UJJAL BHUYAN]

NEW DELHI;

AUGUST 22, 2026.