CASE NO.: Appeal (civil) 3603-3605 of 2005 PETITIONER: State of Kerala and Anr. RESPONDENT: P.V. Neelakandan Nair and Ors. DATE OF JUDGMENT: 11/07/2005 BENCH: Arijit Pasayat & S.H. Kapadia JUDGMENT:
JUDGMENT
ARIJIT PASAYAT, J.
Leave granted.
Point of controversy in all these appeals is whether teachers
superannuating during a particular academic year but continuing in service
by virtue of Rule 62 of Chapter XIV (A) of the Kerala Education Rules, 1959
(in short the `KER’ ) are entitled to the benefit of pay revision coming
into effect during such extended period.
Detailed reference to the factual aspect is unnecessary as the basic
feature in each of the appeals is that the concerned teachers were to
retire on the date of attaining the age of superannuation. The said date in
each case fell within academic year. In view of the provisions contained in
Rule 62 of Chapter XIV (A) of the KER they continued till the last date of
the month in which the academic year ends. Undisputedly the academic year
in each case came to end on 31st March of the concerned year. The age of
retirement in each case is 55 years, but benefit of continuance in service
is granted till the end of the academic year. In each case, the concerned
teachers were to superannuate on attaining the age of 55 on various dates
between July, 1996 and March, 1997. i.e. during the course of academic year
1996-97. Irrespective of their due date of superannuation, they were
allowed to continue in service by virtue of Rule 62 of the Chapter XIV(A)
of KER. They retired from service on 31.3.1997. The Government of Kerala
(Finance Department) by G.O. No. 3000/98/Fin dated 25.11.1998 had issued
orders on acceptance of the recommendations of the Pay Revision Committee
1997 that the existing scales of Pay will be revised and the revised scales
will come into force with effect from 1.3.1997. Writ petitions were filed
by the concerned teachers claiming benefit of the pay revision and for
fixation of pensionary benefits on the basis of the revised pay. The Writ
Petitions were allowed by several judgments passed by learned Single
Judges. The State preferred Writ Appeals before the Division Bench. When
the matter was placed before a Division Bench, it was noted that there
appeared to be conflicting views expressed by different Division Benches.
The matter was, therefore, referred to a Full Bench, which by its common
judgment affirmed the view that the revised pay scale was to be given.
Subject matter of challenge in the appeals arising out of SLP(C) Nos.
17525-17527 of 2003 is the said common judgment. In the connected appeals
the said judgment of the Full Bench was followed and the State’s appeals
were dismissed.
In support of the appeals, learned counsel for the appellant-State and its
functionaries submitted that the High Court has failed to notice that
though continuance is permitted, it was clearly stipulated in the Rule
60(C) (Part I) of the Kerala Service Rules. (in short the `Service Rules’)
that the benefit of increment or promotion was not to be granted during the
period of service beyond the date of superannuation. It was submitted that
though Rule 60(c) of the Service Rules does not specifically refer to pay
revision, it has to be read into the said rule as it is clearly a case of
casus omissus.
In response, learned counsel for the respondents submitted that the
language of the provision is clear and, therefore, the view taken by the
High Court cannot be faulted.
In order to appreciate the rival submissions the relevant rules needs to be
quoted.
Rule 62 of Chapter XIV(A) of the Kerala Education Rules:-
“62. Retirement. A teacher who completes the age of retirement during the
course of an academic year but not within one month from the date of
reopening, shall continue in service till the close of the school for the
mid-summer vacation. But if he is on leave on such date with no prospect of
returning to duty or on leave from the commencement of the academic year to
the date of superannuation he may be retired on the due date. If the
teacher applies for any leave other than casual leave during the period of
the continuance under thus rule beyond the age of retirement he shall be
retired forthwith.
[Provided that in cases where the academic year is extended beyond the 31st
day of March in any year, a teacher to whom this rule is applicable shall
retire on the last day of March itself].
Rule 60(c) of Kerala Service Rules (Part I):-
60(c) The teaching staff of all educational institutions (including
Principals of Colleges) who complete the age of 55 years during the course
of an academic year shall continue in service till the last day of the
month in which the academic year ends. They shall be entitled to the
benefits of increments and promotion, which fall due, before the last day
of the month in which they attain the age of 55 years. But they shall not
be eligible for increment or promotion during the period of their service
beyond such date. If they are on leave on the day they attain the age of 55
years and if there is no prospect of their returning to duty before the
closing day of the academic year, they shall be retired from service on the
day of superannuation or on the date of suspension whichever is later.
If, however, the day on which the teaching staff (including
Principals of Colleges) attains, the age of 55 years falls within
the period of one month beginning with the day of re-opening of the
institutions they shall cease to be on duty with effect from the
date of such re-opening and they shall be granted additional leave
from the date of re-opening to the last day of the month in which
they attain the age of 55 years. They shall be entitled to the
benefit of increment if it falls due before the actual date on
which they attain the age of 55 years.
If they are eligible to continue in service till the close of the
academic year under the 1st paragraph of this sub-rule they shall
be granted addition leave from the date of closing for vacation
till the last day of the month when the date of closing is earlier
than the last day of the month.
The additional leave granted under this sub-rule will not be
counted against the eligible leave and will count for pension.
During the period of leave they will draw leave allowance at the
same rate as the pay and allowances they would have drawn if they
were on duty.”
On a bare reading of Rule 60(c) of the Service Rules the position is clear
that the ineligibility indicated relates to increment or promotion. Learned
counsel for the appellant submitted that the expression “increment” is
conceptually capable of reading as “the enhanced amount received or
receivable due to pay revision”. His other submission is that even though
same has not been specifically stated, it can be read into the provision
being a case of casus omissus.
It is well settled principle in law that the Court cannot read anything
into a statutory provision which is plain and unambiguous. A statute is an
edict of the Legislature. The language employed in a statute is the
determinative factor of legislative intent.
Words and phrases are symbols that stimulate mental references to
referents. The object of interpreting a statute is to ascertain the
intention of the Legislature enacting it. (See Institute of Chartered
Accountants of India v. M/s Price Waterhouse and Anr., AIR (1998) SC 74).
The intention of the Legislature is primarily to be gathered from the
language used, which means that attention should be paid to what has been
said as also to what has not been said. As a consequence, a construction
which requires for its support, addition or substitution of words or which
results in rejection of words as meaningless has to be avoided. As observed
in Crawford v. Spooner, (1846) 6 Moore PC 1, Courts, cannot aid the
Legislatures’ defective phrasing of an Act, we cannot add or mend, and by
construction make up deficiencies which are left there. (See The State of
Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr., JT (1998) 2 SC
253). It is contrary to all rules of construction to read words into an Act
unless it is absolutely necessary to do so. (See Stock v. Frank Jones
(Tiptan) Ltd., (1978) 1 All ER 948 HL). Rules of interpretation do not
permit Courts to do so, unless the provision as it stands is meaningless or
of doubtful meaning. Courts are not entitled to read words into an Act or
Parliament unless clear reason for it is to be found within the four
corners of the Act itself. Per Lord Loreburn L.C. in Vickers Sons and Maxim
Ltd. v. Evans, (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v.
Kodimaniandra Deviah and Ors., AIR (1962) SC 847.
The question is not what may be supposed and has been intended but what has
been said, “Statutes should be construed not as theorems of Euclid”.
Judge Learned Hand said, “but words must be construed with some
imagination of the purposes which lie behind them”. (See Lenigh Valley
Coal Co. v. Yensavage, 218 FR 547). The view was re-iterated in Union of
India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama, AIR (1990) SC
981.
In D.R. Venkatachalam and Ors. etc. v. Dy. Transport Commissioner and Ors.
etc., AIR (1977) SC 842, it was observed that Courts must avoid the danger
of a priori determination of the meaning of a provision based on their own
pre-conceived notions of ideological structure or scheme into which the
provision to be interpreted is somewhat fitted. They are not entitled to
usurp legislative function under the disguise of interpretation.
While interpreting a provision the Court only interprets the law and cannot
legislate it. If a provision of law is misused and subjected to the abuse
of process of law, it is for the legislature to amend, modify or repeal it,
if deemed necessary. (See Commissioner of Sales Tax, M.P. v. Popular
Trading Company, Ujjain, [2000] 5 SCC 511). The legislative casus omissus
cannot be supplied by judicial interpretative process.
Two principles of construction – one relating to casus omissus and the
other in regard to reading the statute as a whole- appear to be well
settled. Under the first principle a casus omissus cannot be supplied by
the Court except in the case of clear necessity and when reason for it is
found in the four corners of the statute itself but at the same time a
casus omissus should not be readily inferred and for that purpose all the
parts of a statute or section must be construed together and every clause
of a section should be construed with reference to the context and other
clauses thereof so that the construction to be put on a particular
provision makes a consistent enactment of the whole statute. This would be
more so if literal construction of a particular clause leads to manifestly
absurd or anomalous results which could not have been intended by the
Legislature. “An intention to produce an unreasonable result”, said
Danackwerts, L.J. in Artemiou v. Procopiou, (1966) 1 QB 878, “ is not to
be imputed to a statute if there is some other construction available”.
Where to apply words literally would “ defeat the obvious intention of the
legislature and produce a wholly unreasonable result” we must “ do some
violence to the words” and so achieve that obvious intention and produce a
rational construction. Per Lord Reid in Luke v. IRC, (1963) AC 557 where at
p. 577 he also observed: “this is not a new problem, though our standard
of drafting is such that it rarely emerges”.
It is then true that, “ when the words of a law extend not to an
inconvenience rarely happening, but due to those which often happen, it is
good reason not to strain the words further than they reach, by saying it
is casus omissus, and that the law intended quae frequentius accidunt.”
“But,” on the other hand, “ it is no reason, when the words of a law do
enough extend to an inconvenience seldom happening, that they should not
extend to it as well as if it happened more frequently, because it happens
but seldom” (See Fenton v. Hampton, (1858) XI Moore, P.C. 347). A casus
omissus ought not to be created by interpretation, save in some case of
strong necessity. Where, however, a casus omissus does really occur, either
through the inadvertence of the legislature, or on the principle quod semel
aut bis existit proetereunt legislators, the rule is that the particular
case, thus left unprovided for, must be disposed of according to the law as
it existed before such statute-Casus omissus et oblivioni datus
dispositioni communis juris relinquitur; “a casus omissus,” observed
Buller, J. in Jones v. Smart, 1 T.R. 52, “can in no case be supplied by a
court of law, for that would be to make laws.”
The golden rule for construing wills, statutes, and, in fact, all written
instruments has been thus stated: “The grammatical and ordinary sense of
the words is to be adhered to unless that would lead to some absurdity or
some repugnance or inconsistency with the rest of the instrument, in which
case the grammatical and ordinary sense of the words may be modified, so as
to avoid that absurdity and inconsistency, but no further” (See Grey v.
Pearson, (1857) 6 H.L. Cas. 61). The latter part of this “golden rule”
must, however, be applied with much caution. “if,” remarked Jervis, C.J.,
“the precise words used are plain and unambiguous in our judgment, we are
bound to construe them in their ordinary sense, even though it lead, in our
view of the case, to an absurdity or manifest injustice. Words may be
modified or varied where their import is doubtful or obscure. But we assume
the functions of legislators when we depart from the ordinary meaning of
the precise words used, merely because we see, or fancy we see, an
absurdity or manifest injustice from an adherence to their literal
meaning” (See Abley v. Dale, 11, C.B. 378).
At this juncture, it would be necessary to take note of a maxim “Ad ea
quae frequentius accidunt jura adaptantur” (The laws are adapted to those
cases which more frequently occur). (See Maulavi Hussein Haji Abraham
Umarji v. State of Gujarat and Anr., [2004] 6 SCC 672 and Prakash Nath
Khanna and Anr. v. Commissioner of Income Tax and Anr., [2004] 9 SCC 686).
There is no dispute that the Service Rules are statutory. Chapter VIII
deals with retirement from service and Rule 60 deals, with age of
superannuation. Clause (c) deals with Teachers. Apart from Clause (c) of
Rule 60 Clause (a) is also relevant. It reads as follows:
“60(a) Except as otherwise provided in these rules the date of
compulsory retirement of an officer shall take effect from the
afternoon of the last day of the month in which he attains the age
of 55 years. He may be retained after this date only with the
sanction of Government on public grounds, which must be recorded in
writing. But he must not be retained after the age of 60 years
except in every special circumstances.”
A civil servant retires under the applicable rules in the afternoon of the
last day of the month in which he attains the age of 55 years. Similarly a
teacher is normally to retire on completing the age of 55 years. But in the
specifically prescribed cases the date of retirement is postponed “till
the last day of month in which the academic year ends” so that the
education of the students is not disturbed during the academic year. The
legislature has denied the benefit of increment and promotion during the
extended period. There is no scope for reading into the provision the
benefits of pay revision. “Increment” has a definite concept in service
laws. It is conceptually different from revision of pay scale.
“Increment” is an increase or addition on a fixed scale; it is a regular
increase in salary on such a scale. As noted by this Court in State Bank of
India v. The Presiding Officer, Central Government Labour Court, Dhanbad
and Anr., [1972] 3 SCC 595, under the Labour and Industrial Laws, an
“increment” is in the same scale. A promotion involves going to a higher
grade. The pay of an employee is generally fixed with reference to a pay
scale. On the other hand, in the case of revision, the pay scale is revised
which may incidentally result into increment. Rule 60(c) does not refer to
pay revisions which is conceptually different from annual increments within
the prescribed pay scale. Therefore, entitlement of the concerned teachers
for the benefits of pay revision cannot be doubted. The view taken by the
High Court does not suffer from any infirmity to warrant interference.
The appeals are dismissed with no orders as to costs.
