IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18/06/2005
CORAM
THE HON'BLE MR.MARKANDEY KATJU, CHIEF JUSTICE
and
THE HON'BLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
W.A.No.1088 of 2005
and
W.A.M.P.No.1978 of 2005
Prof. Arun Nigavekar,
Chairman,
University Grants Commission,
Bahaduras Zafar Marg,
New Delhi - 110 002. ..Appellant.
-Vs-
1. Dr.R.Natarajan,
S/o. M.Ramaswamy,
No.135, 3rd Street,
Heritage Jayendra Nagar,
Chembakkam, Chennai.
2. The Secretary to Government,
Ministry of Human Resources Development,
Department of Secondary & Higher Education,
Union of India, New Delhi.
3. The Secretary to Government,
Ministry of Law, Justice and Company Affairs,
Union of India, New Delhi.
..Respondents.
PRAYER: Appeal filed against the order of the learned single Judge
dated 10.05.2005, passed in W.P.No.30499 of 2004.
!For Appellant :: Mr.K.M.Vijayan, Senior Counsel
For Mr.A.Sasidaran
^For Respondent-1 :: Mr.K.Chandru, Senior Counsel
For Mr.M.Lakshmipathy
For Respondents 2&3 :: Mr.Gopal Subramaniam,
Senior Counsel
for Mr.Muralikumaran, ACGSC
:J U D G M E N T
THE HON’BLE THE CHIEF JUSTICE
This writ appeal has been filed against the impugned order of the
learned single Judge dated 10.05.2005 by which the learned single Judge
quashed the appointment of the appellant as Chairman of the University Grants
Commission (hereinafter referred to as the “UGC”) by notification dated
16.07.2002.
2. We have heard learned counsel for the parties and have perused the
record as well as the impugned judgment.
3. The ground for quashing the appointment of the appellant as
Chairman of the UGC was that according to the learned single Judge the said
appointment was in violation of the second proviso to Section 6(1)(c) of the
University Grants Commission Act, 1956 (hereinafter referred to as the “Act”)
Section 6(1) of the Act states:-
“6. Terms and Conditions of Service of members, —
(1)A person appointed as Chairman, Vice-Chairman or other member after
commencement of the University Grants Commission (Amendment) Act, 1 985 shall,
unless he sooner becomes disqualified for continuing as such under the rules
that may be made under this Act, —
(a)in the case of Chairman, hold office for a term of five years or until he
attains the age of sixty-five years, whichever is earlier.
(b)in the case of Vice-Chairman, hold office for a term of three years or
until he attains the age of sixty-five years, whichever is earlier;
(c)in the case of any other member, hold office for a term of three years;
(i)a person who has held office as Chairman or Vice-Chairman shall be eligible
for further appointment as Chairman, Vice-Chairman or other member; and
(ii) a person who has held office as any other member shall
be eligible for further appointment as Chairman, Vice-Chairman or other
member;
Provided further that a person who has held office for two terms, in
any capacity, whether as Chairman, Vice-Chairman or other member excluding a
member referred to in clause (a) of sub-section (3) of Section 5, shall not be
eligible for any further appointment as Chairman, Vice-Chairman or other
member.”
4. According to the learned single Judge the appellant was
disqualified from being appointed as Chairman of the UGC because he had held
office for two terms, one as member of the UGC and the other as ViceChairman
of the UGC, and hence, he was disqualified in view of the 2 nd proviso to
Section 6(1)(c) of the Act. We do not agree.
5. Admittedly, the appellant held office as member of the UGC from 3
1.05.1992 to 30.05.1995, i.e., for one full term as a member. He was then
appointed as Vice-Chairman for a term of 3 years from 28.09.2000.
However, he did not continue as Vice-Chairman for a full term of 3
years because by order dated 16.07.2002 (the impugned order) he was appointed
as Chairman of the UGC and admittedly, he has been functioning as Chairman
from 16.07.2002. Hence, factually he did not complete the 3 years full term
as Vice-Chairman of the UGC.
6. It was contended by the appellant before the learned single Judge
that since the appellant (respondent-1 in the writ petition) had not completed
a full term of 3 years as Vice-Chairman, it could not be said that he was
disqualified under the 2nd proviso to Section 6(1)( c) of the Act as he had
not held office for two terms. It was also contended by him that the writ
petition should have been dismissed as belated as it was filed only on
18.10.2004 i.e., after a lapse of more than two years and three months from
the date of his appointment as Chairman.
7. Mr.Gopal Subramaniam learned Senior Counsel for respondents 2 and
3 submitted that the word “term” would include a part of a term also. He
submitted that if this contention is not accepted then if a Vice-Chairman
functions for 2 years and 364 days as Vice-Chairman, it cannot be held that he
had put in a full term as Vice-Chairman, simply because he relinquishes his
post at the fag end of the full term of 3 years. He submitted that this will
go against the very intention of the 2nd proviso to Section 6(1)(c). Hence,
he submitted that a term would include a part of the term as also held by the
learned single Judge.
8. We cannot agree with this submission. If this submission is
accepted we will logically have to go to the extent of holding that if a
person has been appointed as Vice-Chairman and assumed office on the same day,
but resigns on the very next day, he will have held the office of
Vice-Chairman for a term. In other words, we have to hold that holding office
even for one day is holding office for a term. In our opinion, such an
interpretation will not only go against common sense but it will also go
against the very language of Section 6(1)( b) which states that the term of
Vice-Chairman is 3 years or until he attains the age of 65 years whichever is
earlier.
9. No doubt, the appellant held office as Vice-Chairman from 28.09.2
000 till 16.07.2002 i.e., for about one year and 10 months, which is more than
half the full term of 3 years as prescribed under Section 6
(1)(b). However, this Court cannot hold that holding office for more than
half a term will be deemed to be treated as holding office for the full term,
as that would amount to legislation.
10. In this connection, we may refer to the 22nd amendment to the US
Constitution which states:-
“No person shall be elected to the office of the President
more than twice, and no person who has held the office of President, or acted
as President, for more than two years of a term to which some other person was
elected President shall be elected to the office of the President more than
once.”
11. It is interesting to note the background in which the 22nd
amendment to the US Constitution was enacted. Before the 22nd amendment there
was no provision in the US Constitution which de-barred a person from holding
office of the President of the USA for more than 2 terms (of 4 years each).
George Washington, the 1st President of the USA, was elected twice as
President, but when he was offered the candidacy for a 3rd term he declined
saying that no one should be the President more than twice, as that would tend
to make the office perpetual in one man, i.e. a hereditary monarchy, which
was precisely what the Americans fought against in their War of Independence.
The subsequent Presidents of U.S.A. followed this custom established by
Washington. However, this was only a custom, and it was broken when President
Franklin Roosevelt was elected as President of the USA 4 times, viz., in 1932,
1936, 1940 and 1944 (the 3rd and 4th time when World War II was going on).
Hence, to prevent in future any person being elected President more than twice
the 22nd amendment was enacted. However, it was provided therein that if a
person (the Vice-President in the case of death or resignation of a President)
has acted for more than 2 years as President in the unexpired term of the
previous President that will be treated as one full term as President. Thus,
President Truman became President on the death of President Roosevelt in April
1945 after Roosevelt had served only 4 months of his 4th term. Hence, Truman
was President for more than 2 years of the remaining term of President
Roosevelt, and thus that remaining term was treated as one full term for
President Truman. Hence, he was, and could be, elected only once again, i.e.,
in 1948.
12. The 22nd amendment to the US Constitution has provided that more
than half of a term as President will be treated as a full term, but less than
half of a term will be disregarded. However, there is no such similar
provision in Section 6 or any other provision of the UGC Act stating that more
than half a term will be treated as a full term. This Court cannot act as a
legislature and by judicial interpretation amend Section 6 of the UGC Act.
Under the garb of interpretation the Court cannot legislate vide, J.P.Bansal
Vs. State of Rajasthan, AIR 2003 SC 1405 (vide paragraphs 14 to 16). It is
for the legislature to amend the law and not for the Court.
13. Mr.Gopal Subramaniam may have made out a good case for amending
the law as it is possible to hold that if a person relinquishes his office one
day before his full term that may defeat the intention of the statute.
However, it is not for us to amend the law, and we cannot go into the supposed
intention of the legislature when the language of a provision is clear (which
in our opinion it is), vide J.P. Bansal’s Case (Supra). Thus, in State of
Haryana Vs. Bhajanlal, AIR 1 992 SC 604 (vide paragraph-42) the Supreme Court
quoted with approval the following observation of the Privy Council in
P.Narayanaswamy Vs. Emperor:-
“When the meaning of the words is plain, it is not the duty of Courts to busy
themselves with supposed intentions.” .
14. When the language of a provision is clear we have to go by that
plain and literal language, and not try to twist it by probing into the
intention of the statute. Thus Craies on Statute Law, Seventh Edition, First
Indian Reprint 1999 (published by Universal Law Publishing Co.Pvt. Ltd., New
Delhi p.65) quotes the decision of the House of Lords in Warburton Vs.
Loveland (1832) 2 D. & CC. (H.L.) 480 wherein it was observed:
“Where the language of an Act is clear and explicit, we must give
effect to it, whatever may be the consequences, for in that case the words of
the statute speak the intention of the legislature”.
15. In Kanailal Sur Vs. Paramnidhi, AIR 1957 SC 907 (910) the
Supreme Court observed:
“If the words used are capable of one construction only then it would
not be open to the Courts to adopt any other hypothetical construction on the
ground that such construction is more consistent with the alleged object and
policy of the Act”.
16. Similarly, in State of U.P. Vs. Vijay Anand Maharaj, AIR 1963
SC 946 (950) the Supreme Court observed:
“When a language is plain and unambiguous and admits of only one
meaning, no question of construction of the statute arises, for the Act speaks
for itself”.
17. In Emperor Vs. Benoarilal Sarma, AIR 1945 P.C.48 the Privy
Council observed (per Viscount Simonds, L.C.):
“Again and again this Board has insisted that in construing enacted
words we are not concerned with the policy involved or with the results,
injurious or otherwise, which may follow from giving effect to the language
used” (See also Ajay Pradhan Vs. State of M.P., AIR 1988 S.C. 1875 p.1878,
Rananjaya Singh Vs. Baijnath Singh, AIR 1954 SC 749 p.752, Senior
Superintendent, RMS Vs. K.B.Gopinath, AIR 1972 S.C. 14 8 7 p.1488).
18. Where the language of a statute is plain and clear, the results
of the construction are then not a matter for the Court, even though they may
be strange or surprising, unreasonable, unjust or oppressive, vide A.W. Meads
Vs. Emperor, AIR 1945 F.C. 21(23), Paklal Narayanswamy Vs. Experor, AIR
1939 P.C. 47 (51), Duport Streets Ltd., Vs. Sirs (1930) 1 All E.R. 529,
Precision Steel and Engg. Works Vs. Premdeva, AIR 1982 SC 1518 (1526),
Nasiruddin Vs. S.T.A.T., AIR 1976 S.C. 331.
19. Thus, it is well settled that hardship, inconvenience, injustice,
etc., cannot be gone into when the words of a statute are susceptible to only
one meaning. It is only when there is ambiguity or unclarity in a statute
that the Court can go into these considerations or try to find out the
intention of the statute.
20. Thus, in M/s.Hiralal Ratanlal Vs. S.T.O., AIR 1973 S.C.1034(vide
paragraph – 21) the Supreme Court observed:-
“In construing a statutory provision the first and foremost rule of
construction is the literary construction. All that we have to see at the
very outset is what does the provision say? If the provision is unambiguous
and if from the provision the legislative intent is clear, the Court need not
call into aid the other rules of construction of statutes. The other rules of
construction are called into aid only when the legislative intent is not
clear”.
21. Learned counsel for the respondents 2 & 3, Mr.Gopal Subramaniam,
submitted that the word ‘term’ in the second proviso to Section 6(1)(c) can
have 2 meanings i.e. the full term and also part of a ‘term’. We do not
agree. In our opinion, the word ‘term ‘ has only one meaning i.e. the full
term, and it cannot mean part of a term.
22. It may be noted that the second proviso uses the words ‘had held
office for two terms’. The word ‘held’ indicates that what has to be seen is
the factual aspect. In other words, factually the person must have held
office for 2 terms, and it is not sufficient that he was appointed for 2
terms.
23. In the New International Webster’s Dictionary Thesaurus the word
‘term’ has been defined as “A fixed period or definite length of time: a term
of office”.
24. No doubt the word ‘term’ can also have other meanings. One word
can have several meanings, and there can be several words having the same
meaning (synonyms). However, in the context in which the word ‘ term’ occurs
in the second proviso to Section 6(1)(c) in our opinion it can have only one
meaning, and that is a full term. This context is the language of Section 6
itself, wherein the terms of Chairman, Vice-Chairman and member are defined in
Section 6(1)(a), (b) and (c).
25. The principle of interpretation known as ‘Noscitur a Sociis’ will
apply here. This principle has been explained by Lord Macmillan as follows:-
“The meaning of a word is to be judged by the company it keeps” ( See
also G.P.Singh’s ‘Principles of Statutory Interpretation’ Seventh Edition 1999
p.347, and Rohit Pulp and Paper Mills Ltd. Vs. Collector of Central Excise,
AIR 1991 SC 754 (761).
26. As observed by the Privy Council in Angus Robertson Vs. George
Day, (1879) 5 A.C.63 (69):-
“It is a legitimate rule of construction to construe words in an Act
of Parliament with reference to words found in immediate connection with them”
(See also M.K.Ranganathan Vs. Government of Madras, AIR 19 55 SC 604 p.609).
27. Applying this principle we have to hold that the word ‘term’ in
the second proviso must take its colour from the use of the word in Section
6(1)(a), (b) and (c), and hence must be understood accordingly.
28. Secondly, the words ‘had held office for two terms’ indicates
that factually the person should have held office for two full terms.
Mr.Gopal Subramaniam, learned Senior Counsel for respondents 2 and 3 submitted
that even if a person holds the office of Vice-Chairman for one day and
relinquishes it the next day he must be said to have held the office for a
term. In our opinion such an interpretation cannot be accepted, because in
that case the language of the second proviso would have been as follows:-
“Provided further that a person who has held office for any part of
two terms ???”
It is well settled that the Court cannot add to, or delete words from,
a statute, as that is the function of the legislature. As observed by the
Privy Council in Crawford Vs. Spooner (1846) 6 Moore P.C. 1:-
“We cannot aid the legislature’s defective phrasing of an Act, we
cannot add or mend and, by construction make up deficiencies which are left
there” (See also Shyam Kishori Devi Vs. Patna Municipal Corporation, AIR 1966
SC 1678 p.1682, A.R.Antuley Vs. R.S.Nayak, AIR 1984 SC 718, Union of India
Vs. Sankalchand, AIR 1977 SC 2328 p.2337, and State of Gujarat Vs.
D.N.Patel, J.T. 1998 (2) SC 253 p.255). A matter which should have been, but
has not been, provided for in a statute cannot be supplied by Courts, as to do
so will be legislation and not construction, vide Hansraj Gupta Vs. Dehra Dun
Mussoorie Electric Tramway Co., AIR 1933 P.C. 63, W.W.Hiray Vs. Mr.Justice
Lentin, AIR 1 988 SC 2267. The Court cannot supply a causus omissus or lacuna
in a statute, vide Hiradevi Vs. District Board, AIR 1952 SC 362.
29. Hence, we cannot agree with the contention that a term includes a
part of the term. In our opinion, a term means a full term, otherwise, even
if a person serves only for one day, it will have to be held that he has
served for a term. The word “term” has to be understood in the light of
Section 6(1)(a),(b) and (c) of the Act, where the period of the term has been
prescribed. Hence, it cannot be said that a term includes a part of the term.
It is well settled that this Court cannot direct legislation, vide Union of
India Vs. Prakash P.Hinduja, AIR 2003 SC 2612 (paragraph – 29).
30. The learned single Judge in paragraph -36 of his judgment has
referred to the decision of the Orissa High Court in M.M.Pani Vs. State of
Orissa, AIR 1971 Orissa 283) which has relied on the definition of the word
“term” in a dictionary. It must be understood that when we interpret some
word, we have to see the context and the entire statutory provision in which
that word occurs and we cannot interpret the word mechanically.
31. As observed by Allen in “Law in the Making” 5th edn., p.482 no
word has an absolute meaning, for no word can be defined in vacuo without
reference to a context. The same word or expression may have different
meanings in different statutes or sometimes even in the same statute depending
upon the context, vide M/s.Jeewanlal Ltd., Vs. Its Workmen, AIR 1961 SC 1567
(vide paragraph – 4)..
32. It is possible that in some statutes the word “term” may also
mean a part of the term, but in our opinion, as discussed above, in Section
6(1)(a) of the Act the word “term” has to mean the full term and not a part of
the term for the reasons already stated above.
33. As held by the Supreme Court in M/s.Jeewanlal Ltd., Calcutta Vs.
Its Workmen, AIR 1961 SC 1567 and in Deputy Chief Controller of Imports and
Exports, New Delhi Vs. K.T.Kosalram, AIR 1971 SC 1283 the meaning of words in
a particular context must be ascertained by considering the subject matter and
the nature of the context in which the words are found, and the words in other
statutes and in different contexts are of no value.
34. It is no sound principle of construction to interpret the words
or expressions used in one Act with reference to their use in another Act.
The meaning of words and expressions in an Act take their colour from the
context in which they appear. To take a word bearing a peculiar meaning in a
particular Act and to clothe that word with the same meaning when found in a
different context in a different Act is a fallacious process of
interpretation, vide Duraivelu Vs. Corporation of Madras, AIR 1935 Mad 600.
The decision of the Orissa High Court in M.M.Pani Vs. State of Orissa, AIR
1971 Orissa 282 was given in the context of a different Act (The Orissa
Panchayat Samiti and Zila Parishad Act) and even the relevant section has not
been quoted in the judgment. At any event, we are not in agreement with the
Orissa High Court for the reasons given above.
35. On the facts of the case we are of the opinion that the appellant
was not disqualified from being appointed as Chairman of U.G.C., since, in our
opinion, he had not held office for two terms. Hence, the second proviso to
Section 6(1)(c) has no application.
36. Apart from the above, we are also of the opinion that the writ
petition should have been dismissed on the ground of laches as it was filed
very belatedly. As already noted above, in this case, the impugned
appointment order appointing the appellant was passed on 16.07.20 02, whereas
the writ petition was filed on 18.10.2004 i.e., after a lapse of more than 2
years and 3 months. It is well settled that writ is a discretionary remedy,
vide R.Nanjappan Vs. The District Collector, Coimbatore, 2005 Writ LR 47 and
Chandra Singh Vs. State of Rajasthan, JT 2003 (6) SC 20. One of the grounds
for dismissing a writ petition is that it is filed after unreasonable delay,
vide M.D. Tamil Nadu State Transport Corporation (Madurai Division IV) Ltd.,
Dindigul Vs. P.Ellappan, 2005-II-LLJ 300.
37. It is well settled that if there is undue delay on the part of
the petitioner in filing a writ petition, he would not be entitled to the
discretionary relief under Article 226 of the Constitution of India.
38. In State of Maharashtra Vs. Digambar, AIR 1995 SC 1991:1995 (4)
SCC 683, the Supreme Court observed that it is well settled by the decisions
of the Court that no person is entitled to obtain equitable relief under
Article 226 of the Constitution of India if his conduct is blame-worthy
because of laches, undue delay, acquiescence, waiver and the like.
39. Similarly, in Municipal Council, Ahmednagar Vs. Shah Hyder Beig,
AIR 2000 SC 671: 2000(2) SCC 48 it was held that when there is inordinate
delay in filing a writ petition, the High Court in its discretionary powers
under Article 226 of the Constitution of India can dismiss it on this ground
without going into the merits.
40. In Gian Singh Mann Vs. P & H High Court, AIR 1980 SC 1894:1980
(4) SCC 266 a petition under Article 226 was filed by the petitioner about 11
years from the date on which he claimed promotion. The Supreme Court held
that such inordinate delay could not be overlooked on the ground that the
petitioner was making successive representations.
41. In J.N.Maltiar Vs. State of Bihar, AIR 1973 SC 1343:1973 (1) SCC
811, it was held that where the petitioner, a dismissed Government servant
after being informed that his services were terminated for misconduct, spent
about three years in sending memorials to the Government, a remedy not
provided by law, the High Court was justified in rejecting the petition on the
ground of delay.
42. In Rajalaskshmi Setty K.V. Vs. State of Mysore, AIR 1967 SC 993
the Supreme Court held that the appellants were guilty of laches because after
the impugned order was passed in 1950, they should have filed a writ petition
within a reasonable time thereafter. Merely because the Chief Engineer had
espoused their cause and was writing letters from time to time to the State
Government to do something for them did not mean that they could rest upon
their oars if they really had a grievance.
43.In Srinivasa Rao Vs. State of Karnataka, AIR 1995 SC 722:1996 (9 )
SCC 616, the Supreme Court held that the writ petition was rightly dismissed
by the High Court as belated since it was filed after a long delay of about 15
years.
44. Thus, it is well settled that writ jurisdiction being
discretionary jurisdiction it cannot be invoked by a party who approaches the
High Court after unreasonable delay, vide S.A.Rasheed Vs. Director of Mines
and Geology, AIR 1995 SC 1739:1995 (4) SCC 584).
45. No doubt there is no specific limitation provided for under
Article 226 for filing a writ petition. However, the principle of laches i.e.
undue delay certainly applies to writ jurisdiction. The High Court has to
exercise its writ jurisdiction on settled legal principles, and one of these
legal principles is that a writ petition is liable to be dismissed if the
petitioner has come to the High Court after undue delay, as has happened in
this case. Hence the writ petition deserved to be dismissed on the ground of
laches without going into the merits, vide Delhi Admn. Vs. Hira Lal, (1999)
6 SCC 58.
46. In view of the above, this writ appeal is allowed, the impugned
order of the learned single Judge is set aside and the writ petition is
dismissed. No costs. Consequently, connected W.A.M.P. is closed.
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Copy to:-
1. The Secretary to Government,
Ministry of Human Resources Development,
Department of Secondary & Higher Education,
Union of India, New Delhi.
2. The Secretary to Government,
Ministry of Law, Justice and Company Affairs,
Union of India, New Delhi.