{"id":8636,"date":"2005-07-11T00:00:00","date_gmt":"2005-07-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-and-anr-vs-p-v-neelakandan-nair-and-ors-on-11-july-2005"},"modified":"2016-10-09T03:21:47","modified_gmt":"2016-10-08T21:51:47","slug":"state-of-kerala-and-anr-vs-p-v-neelakandan-nair-and-ors-on-11-july-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-and-anr-vs-p-v-neelakandan-nair-and-ors-on-11-july-2005","title":{"rendered":"State Of Kerala And Anr vs P.V. Neelakandan Nair And Ors on 11 July, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Kerala And Anr vs P.V. Neelakandan Nair And Ors on 11 July, 2005<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, S.H. Kapadia<\/div>\n
           CASE NO.:\nAppeal (civil)  3603-3605 of 2005\n\nPETITIONER:\nState of Kerala and Anr.\n\nRESPONDENT:\nP.V. Neelakandan Nair and Ors.\n\nDATE OF JUDGMENT: 11\/07\/2005\n\nBENCH:\nArijit Pasayat & S.H. Kapadia\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
Leave granted.\n<\/p>\n
Point of controversy in all these appeals is whether teachers
\nsuperannuating during a particular academic year but continuing in service
\nby virtue of Rule 62 of Chapter XIV (A) of the Kerala Education Rules, 1959
\n(in short the `KER’ ) are entitled to the benefit of pay revision coming
\ninto effect during such extended period.\n<\/p>\n
Detailed reference to the factual aspect is unnecessary as the basic
\nfeature in each of the appeals is that the concerned teachers were to
\nretire on the date of attaining the age of superannuation. The said date in
\neach case fell within academic year. In view of the provisions contained in
\nRule 62 of Chapter XIV (A) of the KER they continued till the last date of
\nthe month in which the academic year ends. Undisputedly the academic year
\nin each case came to end on 31st March of the concerned year. The age of
\nretirement in each case is 55 years, but benefit of continuance in service
\nis granted till the end of the academic year. In each case, the concerned
\nteachers were to superannuate on attaining the age of 55 on various dates
\nbetween July, 1996 and March, 1997. i.e. during the course of academic year
\n1996-97. Irrespective of their due date of superannuation, they were
\nallowed to continue in service by virtue of Rule 62 of the Chapter XIV(A)
\nof KER. They retired from service on 31.3.1997. The Government of Kerala
\n(Finance Department) by G.O. No. 3000\/98\/Fin dated 25.11.1998 had issued
\norders on acceptance of the recommendations of the Pay Revision Committee
\n1997 that the existing scales of Pay will be revised and the revised scales
\nwill come into force with effect from 1.3.1997. Writ petitions were filed
\nby the concerned teachers claiming benefit of the pay revision and for
\nfixation of pensionary benefits on the basis of the revised pay. The Writ
\nPetitions were allowed by several judgments passed by learned Single
\nJudges. The State preferred Writ Appeals before the Division Bench. When
\nthe matter was placed before a Division Bench, it was noted that there
\nappeared to be conflicting views expressed by different Division Benches.
\nThe matter was, therefore, referred to a Full Bench, which by its common
\njudgment affirmed the view that the revised pay scale was to be given.
\nSubject matter of challenge in the appeals arising out of SLP(C) Nos.
\n17525-17527 of 2003 is the said common judgment. In the connected appeals
\nthe said judgment of the Full Bench was followed and the State’s appeals
\nwere dismissed.\n<\/p>\n
In support of the appeals, learned counsel for the appellant-State and its
\nfunctionaries submitted that the High Court has failed to notice that
\nthough continuance is permitted, it was clearly stipulated in the Rule
\n60(C) (Part I) of the Kerala Service Rules. (in short the `Service Rules’)
\nthat the benefit of increment or promotion was not to be granted during the
\nperiod of service beyond the date of superannuation. It was submitted that
\nthough Rule 60(c) of the Service Rules does not specifically refer to pay
\nrevision, it has to be read into the said rule as it is clearly a case of
\ncasus omissus.\n<\/p>\n
In response, learned counsel for the respondents submitted that the
\nlanguage of the provision is clear and, therefore, the view taken by the
\nHigh Court cannot be faulted.\n<\/p>\n
In order to appreciate the rival submissions the relevant rules needs to be
\nquoted.\n<\/p>\n
Rule 62 of Chapter XIV(A) of the Kerala Education Rules:-\n<\/p>\n
“62. Retirement. A teacher who completes the age of retirement during the
\ncourse of an academic year but not within one month from the date of
\nreopening, shall continue in service till the close of the school for the
\nmid-summer vacation. But if he is on leave on such date with no prospect of
\nreturning to duty or on leave from the commencement of the academic year to
\nthe date of superannuation he may be retired on the due date. If the
\nteacher applies for any leave other than casual leave during the period of
\nthe continuance under thus rule beyond the age of retirement he shall be
\nretired forthwith.\n<\/p>\n
[Provided that in cases where the academic year is extended beyond the 31st
\nday of March in any year, a teacher to whom this rule is applicable shall
\nretire on the last day of March itself].\n<\/p>\n
Rule 60(c) of Kerala Service Rules (Part I):-\n<\/p>\n
60(c) The teaching staff of all educational institutions (including
\nPrincipals of Colleges) who complete the age of 55 years during the course
\nof an academic year shall continue in service till the last day of the
\nmonth in which the academic year ends. They shall be entitled to the
\nbenefits of increments and promotion, which fall due, before the last day
\nof the month in which they attain the age of 55 years. But they shall not
\nbe eligible for increment or promotion during the period of their service
\nbeyond such date. If they are on leave on the day they attain the age of 55
\nyears and if there is no prospect of their returning to duty before the
\nclosing day of the academic year, they shall be retired from service on the
\nday of superannuation or on the date of suspension whichever is later.\n<\/p>\n
\tIf, however, the day on which the teaching staff (including
\n\tPrincipals of Colleges) attains, the age of 55 years falls within
\n\tthe period of one month beginning with the day of re-opening of the
\n\tinstitutions they shall cease to be on duty with effect from the
\n\tdate of such re-opening and they shall be granted additional leave
\n\tfrom the date of re-opening to the last day of the month in which
\n\tthey attain the age of 55 years. They shall be entitled to the
\n\tbenefit of increment if it falls due before the actual date on
\n\twhich they attain the age of 55 years.\n<\/p>\n
\tIf they are eligible to continue in service till the close of the
\n\tacademic year under the 1st paragraph of this sub-rule they shall
\n\tbe granted addition leave from the date of closing for vacation
\n\ttill the last day of the month when the date of closing is earlier
\n\tthan the last day of the month.\n<\/p>\n
\tThe additional leave granted under this sub-rule will not be
\n\tcounted against the eligible leave and will count for pension.
\n\tDuring the period of leave they will draw leave allowance at the
\n\tsame rate as the pay and allowances they would have drawn if they
\n\twere on duty.”<\/p>\n
On a bare reading of Rule 60(c) of the Service Rules the position is clear
\nthat the ineligibility indicated relates to increment or promotion. Learned
\ncounsel for the appellant submitted that the expression “increment” is
\nconceptually capable of reading as “the enhanced amount received or
\nreceivable due to pay revision”. His other submission is that even though
\nsame has not been specifically stated, it can be read into the provision
\nbeing a case of casus omissus.\n<\/p>\n
It is well settled principle in law that the Court cannot read anything
\ninto a statutory provision which is plain and unambiguous. A statute is an
\nedict of the Legislature. The language employed in a statute is the
\ndeterminative factor of legislative intent.\n<\/p>\n
Words and phrases are symbols that stimulate mental references to
\nreferents. The object of interpreting a statute is to ascertain the
\nintention of the Legislature enacting it. (See Institute of Chartered
\nAccountants of India v. M\/s Price Waterhouse and Anr., AIR<\/a> (1998) SC 74).
\nThe intention of the Legislature is primarily to be gathered from the
\nlanguage used, which means that attention should be paid to what has been
\nsaid as also to what has not been said. As a consequence, a construction
\nwhich requires for its support, addition or substitution of words or which
\nresults in rejection of words as meaningless has to be avoided. As observed
\nin Crawford v. Spooner, (1846) 6 Moore PC 1, Courts, cannot aid the
\nLegislatures’ defective phrasing of an Act, we cannot add or mend, and by
\nconstruction make up deficiencies which are left there. (See The State of
\nGujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr., JT<\/a> (1998) 2 SC\n<\/p>\n
253). It is contrary to all rules of construction to read words into an Act
\nunless it is absolutely necessary to do so. (See Stock v. Frank Jones
\n(Tiptan) Ltd., (1978) 1 All ER 948 HL). Rules of interpretation do not
\npermit Courts to do so, unless the provision as it stands is meaningless or
\nof doubtful meaning. Courts are not entitled to read words into an Act or
\nParliament unless clear reason for it is to be found within the four
\ncorners of the Act itself. Per Lord Loreburn L.C. in Vickers Sons and Maxim
\nLtd. v. Evans, (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v.
\nKodimaniandra Deviah and Ors., AIR<\/a> (1962) SC 847.\n<\/p>\n
The question is not what may be supposed and has been intended but what has
\nbeen said, “Statutes should be construed not as theorems of Euclid”.
\nJudge Learned Hand said, “but words must be construed with some
\nimagination of the purposes which lie behind them”. (See Lenigh Valley
\nCoal Co. v. Yensavage, 218 FR 547). The view was re-iterated in Union of
\nIndia and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama, AIR<\/a> (1990) SC\n<\/p>\n
981.<\/p>\n
In D.R. Venkatachalam and Ors. etc. v. Dy. Transport Commissioner and Ors.
\netc., AIR (1977) SC 842, it was observed that Courts must avoid the danger
\nof a priori determination of the meaning of a provision based on their own
\npre-conceived notions of ideological structure or scheme into which the
\nprovision to be interpreted is somewhat fitted. They are not entitled to
\nusurp legislative function under the disguise of interpretation.\n<\/p>\n
While interpreting a provision the Court only interprets the law and cannot
\nlegislate it. If a provision of law is misused and subjected to the abuse
\nof process of law, it is for the legislature to amend, modify or repeal it,
\nif deemed necessary. (See Commissioner of Sales Tax, M.P. v. Popular
\nTrading Company, Ujjain,<\/a> [2000] 5 SCC 511). The legislative casus omissus
\ncannot be supplied by judicial interpretative process.\n<\/p>\n
Two principles of construction – one relating to casus omissus and the
\nother in regard to reading the statute as a whole- appear to be well
\nsettled. Under the first principle a casus omissus cannot be supplied by
\nthe Court except in the case of clear necessity and when reason for it is
\nfound in the four corners of the statute itself but at the same time a
\ncasus omissus should not be readily inferred and for that purpose all the
\nparts of a statute or section must be construed together and every clause
\nof a section should be construed with reference to the context and other
\nclauses thereof so that the construction to be put on a particular
\nprovision makes a consistent enactment of the whole statute. This would be
\nmore so if literal construction of a particular clause leads to manifestly
\nabsurd or anomalous results which could not have been intended by the
\nLegislature. “An intention to produce an unreasonable result”, said
\nDanackwerts, L.J. in Artemiou v. Procopiou, (1966) 1 QB 878, “ is not to
\nbe imputed to a statute if there is some other construction available”.
\nWhere to apply words literally would “ defeat the obvious intention of the
\nlegislature and produce a wholly unreasonable result” we must “ do some
\nviolence to the words” and so achieve that obvious intention and produce a
\nrational construction. Per Lord Reid in Luke v. IRC, (1963) AC 557 where at
\np. 577 he also observed: “this is not a new problem, though our standard
\nof drafting is such that it rarely emerges”.\n<\/p>\n
It is then true that, “ when the words of a law extend not to an
\ninconvenience rarely happening, but due to those which often happen, it is
\ngood reason not to strain the words further than they reach, by saying it
\nis casus omissus, and that the law intended quae frequentius accidunt.”
\n“But,” on the other hand, “ it is no reason, when the words of a law do
\nenough extend to an inconvenience seldom happening, that they should not
\nextend to it as well as if it happened more frequently, because it happens
\nbut seldom” (See Fenton v. Hampton, (1858) XI Moore, P.C. 347). A casus
\nomissus ought not to be created by interpretation, save in some case of
\nstrong necessity. Where, however, a casus omissus does really occur, either
\nthrough the inadvertence of the legislature, or on the principle quod semel
\naut bis existit proetereunt legislators, the rule is that the particular
\ncase, thus left unprovided for, must be disposed of according to the law as
\nit existed before such statute-Casus omissus et oblivioni datus
\ndispositioni communis juris relinquitur; “a casus omissus,” observed
\nBuller, J. in Jones v. Smart, 1 T.R. 52, “can in no case be supplied by a
\ncourt of law, for that would be to make laws.”<\/p>\n
The golden rule for construing wills, statutes, and, in fact, all written
\ninstruments has been thus stated: “The grammatical and ordinary sense of
\nthe words is to be adhered to unless that would lead to some absurdity or
\nsome repugnance or inconsistency with the rest of the instrument, in which
\ncase the grammatical and ordinary sense of the words may be modified, so as
\nto avoid that absurdity and inconsistency, but no further” (See Grey v.
\nPearson, (1857) 6 H.L. Cas. 61). The latter part of this “golden rule”
\nmust, however, be applied with much caution. “if,” remarked Jervis, C.J.,
\n“the precise words used are plain and unambiguous in our judgment, we are
\nbound to construe them in their ordinary sense, even though it lead, in our
\nview of the case, to an absurdity or manifest injustice. Words may be
\nmodified or varied where their import is doubtful or obscure. But we assume
\nthe functions of legislators when we depart from the ordinary meaning of
\nthe precise words used, merely because we see, or fancy we see, an
\nabsurdity or manifest injustice from an adherence to their literal
\nmeaning” (See Abley v. Dale, 11, C.B. 378).\n<\/p>\n
At this juncture, it would be necessary to take note of a maxim “Ad ea
\nquae frequentius accidunt jura adaptantur” (The laws are adapted to those
\ncases which more frequently occur). (See Maulavi Hussein Haji Abraham
\nUmarji v. State of Gujarat and Anr.,<\/a> [2004] 6 SCC 672 and Prakash Nath
\nKhanna and Anr. v. Commissioner of Income Tax and Anr.,<\/a> [2004] 9 SCC 686).\n<\/p>\n
There is no dispute that the Service Rules are statutory. Chapter VIII
\ndeals with retirement from service and Rule 60 deals, with age of
\nsuperannuation. Clause (c) deals with Teachers. Apart from Clause (c) of
\nRule 60 Clause (a) is also relevant. It reads as follows:\n<\/p>\n
\t“60(a) Except as otherwise provided in these rules the date of
\n\tcompulsory retirement of an officer shall take effect from the
\n\tafternoon of the last day of the month in which he attains the age
\n\tof 55 years. He may be retained after this date only with the
\n\tsanction of Government on public grounds, which must be recorded in
\n\twriting. But he must not be retained after the age of 60 years
\n\texcept in every special circumstances.”<\/p>\n
A civil servant retires under the applicable rules in the afternoon of the
\nlast day of the month in which he attains the age of 55 years. Similarly a
\nteacher is normally to retire on completing the age of 55 years. But in the
\nspecifically prescribed cases the date of retirement is postponed “till
\nthe last day of month in which the academic year ends” so that the
\neducation of the students is not disturbed during the academic year. The
\nlegislature has denied the benefit of increment and promotion during the
\nextended period. There is no scope for reading into the provision the
\nbenefits of pay revision. “Increment” has a definite concept in service
\nlaws. It is conceptually different from revision of pay scale.
\n“Increment” is an increase or addition on a fixed scale; it is a regular
\nincrease in salary on such a scale. As noted by this Court in State Bank of
\nIndia v. The Presiding Officer, Central Government Labour Court, Dhanbad
\nand Anr.,<\/a> [1972] 3 SCC 595, under the Labour and Industrial Laws, an
\n“increment” is in the same scale. A promotion involves going to a higher
\ngrade. The pay of an employee is generally fixed with reference to a pay
\nscale. On the other hand, in the case of revision, the pay scale is revised
\nwhich may incidentally result into increment. Rule 60(c) does not refer to
\npay revisions which is conceptually different from annual increments within
\nthe prescribed pay scale. Therefore, entitlement of the concerned teachers
\nfor the benefits of pay revision cannot be doubted. The view taken by the
\nHigh Court does not suffer from any infirmity to warrant interference.\n<\/p>\n
The appeals are dismissed with no orders as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Kerala And Anr vs P.V. Neelakandan Nair And Ors on 11 July, 2005 Author: A Pasayat Bench: Arijit Pasayat, S.H. Kapadia 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-8636","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Kerala And Anr vs P.V. 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