Rajasthan High Court - Jodhpur
Shyam Lal Tailor vs State Of Raj on 5 March, 2022
Bench: Manindra Mohan Shrivastava, Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 1025/2020
Shyam Lal Tailor S/o Satya Narayan, Aged About 55 Years,
Luharon Ka Bass, Bader Chowk Bilara, Tehsil Bilara, District
Jodhpur, Rajasthan.
----Petitioner
Versus
1. State Of Raj., Through The Principal Secretary, Skill
Employment And Entrepreneurship, Technical Education
Directorate, Rajasthan, Jaipur.
2. Deputy Secretary To The Government, Government Of
Rajasthan, Department Of Personnel, Directorate, Jaipur.
3. The Director (Training), Skill Employment And
Entrepreneurship, Technical Education, Directorate,
Rajasthan, Jodhpur.
4. The Principal, Government Women Industrial Training
Institute, Makupura, Ajmer, Rajasthan.
----Respondents
Connected With
D.B. Civil Writ Petition No. 19008/2019
Ghanshyam Bhargava S/o Bhanwar Lal, Aged About 57 Years,
Near Police Station, Chuna Bhatiya, Pipar City, District Jodhpur,
At Present Working As Junior Instructor, Industrial Training
Institute, Sagwara, District Dungarpur (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, Skill
Employment And Entrepreneurship, Technical Education
Directorate, Rajasthan, Jaipur.
2. The Director (Training), Skill Employment And
Entrepreneurship, Technical Education, Directorate,
Rajasthan, Jaipur.
3. The Director, Government Industrial Training Institution
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(Iti), Sagwara, Dungarpur.
----Respondents
D.B. Civil Writ Petition No. 794/2020
Ramavtar Tailor S/o Shri Mangi Lal, Aged About 51 Years, R/o
Junior Instructor, Government Women Industrial Institute, Patel
Nagar, Bikaner, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, Skill,
Employment And Entrepreneurship, Technical Education
Directorate, Rajasthan, Jaipur.
2. Deputy Secretary To The Government, Government Of
Rajasthan, Department Of Personnel, Directorate, Jaipur.
3. The Director (Training), Skill, Employment And
Entrepreneurship, Technical Education, Directorate,
Rajasthan, Jodhpur.
4. The Superintendent, Government Women Industrial
Training Institute, Bikaner (Women), Rajasthan.
----Respondents
D.B. Civil Writ Petition No. 2150/2020
Rajendra Prakash S/o Kanhaiya Lal Chhipa, Aged About 58 Years,
115, Khasra No.87, Keta Nagar, Ramjan Ji Ka Hatha, Banar
Road, Jodhpur, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary, Skill
Employment And Entrepreneurship, Technical Education
Directorate, Rajasthan, Jaipur.
2. Deputy Secretary To The Government, Government Of
Rajasthan, Department Of Personnel, Directorate, Jaipur.
3. The Director (Training), Skill, Employment And
Entrepreneurship, Technical Education, Directorate,
Rajasthan, Jaipur.
4. The Superintendent/principal, Government Women
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Industrial Institute Jodhpur, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Nikhil Dungawat
Mr. M.S. Choudhary
For Respondent(s) : Mr. Manish Vyas, AAG assisted with
Mr. Kailash Choudhary
HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE FARJAND ALI Order Reportable 05/03/2022 By way of these writ petitions under Article 226 of the Constitution of India, the petitioners have prayed for a declaration that Rajasthan Various Service Second Amendment, 2009 (hereinafter referred to as 'the Rules') may be declared ultra-virus and same may be quashed and set aside to the extent the amendment declares appointment effective only from the date of issuance of appointment order under sub clause (2) of the notification dated 08.07.2009.
Consequential relief of issuance of direction to regularize the service of the petitioner w.e.f. 04.03.1999 i.e. the initial date of appointment with substantial benefit and service benefit to which every regular employees is entitled has also been prayed for.
The fact necessary for adjudication of controversy involved in the petitions are that the petitioners applied for appointment to the post of Junior Instructor (Non-Engineering Trade) in pursuant to advertisement No.01/1992. After having participated in the process of selection, the petitioners were selected and appointed on adhoc basis on 04.03.1999.
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(4 of 21) [CW-1025/2020] Thus appointment was on adhoc because qualifications prescribed in the rules were not possessed by the petitioners but for the purposes of adhoc appointment, the eligibility criteria was relaxed.
After initial appointment vide order dated 04.03.1993, which was for the period of one year, adhoc appointment of the petitioners was continued from time to time and last order for extension of adhoc appointment was issued on 12.03.1999. Thereafter, no further order was issued but the petitioners are continue in service.
In the meantime, the Rules applicable were amended vide notification dated 18.05.1999. By this amendment, the eligibility qualification, which was earlier prescribed in respect of post of Junior Instructor (Non-Engineering Trade) was relaxed. Thus, the Rules as stood prior to amendment had requirement of academic qualification of secondary or equivalent with Mathematics and Science whereas after the amendment, this academic qualification was relaxed as Secondary under old scheme from any Central/State Board of Secondary Education. The petitioners were thereafter considered for regular appointment and order was issued on 16.10.2019 (Annexure -7). By this order petitioners were given regular appointment by regularizing their services.
However, in view of the provision contained in the Rules vide notification dated 08.07.2009, the petitioners were denied regular appointment from the date of their initial appointment i.e. 04.03.1993. Since this amendment in the rule is impediment to petitioners' claim for regular appointment w.e.f. initial date of appointment, i.e., 04.03.1993, these petitions came to be filed by the petitioners challenging the validity of the Rules. (Downloaded on 25/12/2022 at 11:10:13 PM)
(5 of 21) [CW-1025/2020] Argument of learned counsel for the petitioners is that earlier when the petitioners were initially appointed under limited relaxation for the purpose of adhoc appointment on 04.03.1993, they were continued in service and while are continuing in service, Rule was amended to regularize the criteria and thus petitioners, from date of amendment carried out in the year 1999, became eligible to the post on which they were initially appointed on 04.03.1999. A subsequent amendment, which was carried out on 08.07.2009, as is stood on that day, denied the petitioners' claim of regular appointment from 04.03.1993, but the respondents again amended the Rule vide notification dated 18.02.2019 by giving retrospective effect to the relaxed eligibility criteria. As retrospective effect was given from 16.07.1991, for all legal and practical purposes, the petitioners were qualified for appointment to the post of Junior Instructor (Non-Engineering Trade) on the date, they were actually appointed on 04.03.1993. Therefore, it is contended that, the amendment in the Rule carried out vide notification dated 08.07.2009 to the extent it declared that appointment shall be effective from the date of issuance of such appointment order, became inapplicable to the petitioners. As the Rule was not amended to bring it in informity with subsequent amendment in the year 2019, it is manifestly arbitrary, irrational and unreasonable and therefore, violative of Article 14 of the Constitution of India. Therefore, it is prayed, that rule may be declared as unconstitutional as the deeming fiction by giving retrospective effect to relax the minimum eligibility criteria would become Otiose and meaningless.
On the other hand, counsel for State would submit that as on the initial date of appointment on 04.03.1993 petitioners were (Downloaded on 25/12/2022 at 11:10:13 PM) (6 of 21) [CW-1025/2020] admittedly not possessed of the minimum eligibility criteria as prescribed in statutory Rules governing regular appointment, the petitioners could not claim regular appointment from that date. He would submit that amendment was carried out vide notification dated 08.05.1999, whereby the minimum eligibility criteria was relaxed and is only from that date the petitioners became eligible for regular appointment under the Rules. His next submission is that the provision under the amendment carried out vide notification dated 08.07.2009 is in accordance with the settled principles propounded by Hon'ble the Supreme Court in catena of decisions that an employee could not claim regular appointment prior to the date from which he was regularly appointed. As the petitioners did not possess prescribed eligibility criteria, they could not claim regular appointment from initial date and therefore, prescription under the Rule to the extent that appointment shall be effective from date of issue of appointment order could not be faulted. His last submission is that scope and ambit of amendment Rules carried out vide notification dated 18.02.2019 could not be stretched to the extent that the petitioners who were actually not qualified on the date of their appointment from 04.03.1993, would become eligible from such a date merely because subsequently the Rules were amended to relax the minimum eligibility criteria for holding the post for appointment.
We have heard learned counsel for the parties. The undisputed facts of the case as revealed from the record and necessary for adjudication of the controversy involved are that initially when the petitioners were appointed on 04.03.1993, the Rules at that point of time prescribed minimum eligibility criteria that the petitioners admittedly did not possess. The (Downloaded on 25/12/2022 at 11:10:13 PM) (7 of 21) [CW-1025/2020] minimum eligibility criteria as prescribed in the Rule at the time of initial adhoc appointment as below: -
Junior Instructor 100% by (a) Academic:
direct Secondary or
recruit- equivalent with
ment. Mathematics and
Science
(b) Technical
National Trade
Certificate in the
Trade concerned
Or
National
Apprenticeship
Certificate in the
Trade concerned
The pleadings made and the documents which are placed on record further reveals that the Rule making Authority relaxed the minimum eligibility criteria by an instruction though without carrying out any amendment in the Rules for the limited purposes of making adhoc appointment. It was under this scheme that the advertisement was issued applications were invited and petitioners were appointed on adhoc vide order dated 04.03.1993.
The Rules however underwent, amendment from time. Vide notification dated 18.05.1999, the existing schedule appended to the Rules were substituted. In relation to the post occupied by the petitioners on the post of Junior Instructor (Non-Engineering Trade) in clause 4(a) of the Schedule, it was now provided below:-
4(a) Junior 100% by (A) Academic:
Instructor direct Secondary under
(Non recruit- Old scheme from
Engineering ment. any Central/State
Trade) Board of Secondary
Education.
or
Secondary under
10+2 scheme from
any Central/State
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Board of Secondary
Education.
(B) Technical:
Diploma in
appropriate branch
awarded by any
state Board of
Technical
Education.
or
National Trade
Certificate in the
Trade concerned.
Earlier qualification which was prescribed under the Rules and which were now prescribed by way of amendment clearly shows that the minimum eligibility criteria was relaxed. While there was no change brought about in the technical qualifications, academic qualifications underwent change. Earlier, as far as minimum eligibility criteria of academic qualification was concerned, in place of Secondary or equivalent with Mathematics and Science it was substituted as Secondary under old scheme from any Central/State Board of Secondary Education.
The effect of this amendment in the Rule was that the petitioners who were at the time of their initial appointment on 04.03.1993, not possessed of the minimum eligibility criteria, became eligible for the appointment on regular basis as the qualification possessed by them, indisputably was one as prescribed under the amendments made.
The Rule underwent another amendment vide notification dated 08.07.2009. The schedule appended to the Rule was once again amended by adding a new sub Rule. There were other amendment also made but for the purpose of this petition, we are concerned with the amendment as provided in clause (2) of the notification which reads as below:-
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(9 of 21) [CW-1025/2020] "2. Amendment - After the existing last sub-rule of rule as mentioned in Column No. 3 against each of the Service Rules as mentioned in Column No. 2 of the Schedule appended herewith, the following new sub-rule at the next serial number shall be added, namely: -
"Notwithstanding anything contained in these rules the persons, irrgularly appointed on duly sanctioned posts and completed ten years service on 10.04.2006, without intervention of any court or tribunal and continuously working as such on the date of commencement of these amendment rules, shall be screened by a committee consisting of -
(a) in case of posts falling within the purview of the Commission:
(i) Chairman of commission or a member nominated by him;
(ii) Pr. Secretary/ Secretary to the Government, Department of Personnel;
(iii) Pr. Secretary/ Secretary to the Government Department, Finance Department or his nominee not below the rank of Deputy Secretary; and
(iv) Pr. Secretary/ Secretary to the Government of the concerned department;
(b) In case of the posts outside the purview of the Commission: -
(i) Pr. Secretary/ Secretary to the Government, Department of Personnel;
(ii) Pr. Secretary/ Secretary to the Government Department, Finance Department or his nominee not below the rank of Deputy Secretary;
(iii) Pr. Secretary/ Secretary to the Government of the concerned department;
Provided they were eligible for appointment, as per rules on the date of their initial irregular appointment and vacancy is available at the time of screening. The Appointing Authority shall issue appointment order of the person, who is (Downloaded on 25/12/2022 at 11:10:13 PM) (10 of 21) [CW-1025/2020] adjudged suitable by the screening committee and appointment shall be effective from the date of issue of such appointment order".
A reading of the aforesaid provision would disclose that the statutory scheme and the policy of the Rule making authority was that though it seeks to regularize regular appointment, it clearly provided that the appointment shall be effective from the date of appointment on regular basis. This was in accordance with the settled principles initiated in the catena decisions of Hon'ble the Supreme Court and the service jurisprudence that person could not claim regular appointment on the post unless he was regularly appointed in accordance with the rules. A person appointed without being possessed minimum eligibility criteria as prescribed under the Rules could not claim regular appointment unless he was possessed of minimum eligibility criteria. This eligibility requirement was fulfilled by the petitioners only by virtue of amendment dated 18.05.1999 and not before that.
Therefore, the prescription under the Rules that appointment shall be effective from the date of issuance of appointment order was perfectly in accordance with law.
However, further amendment is carried out in the Rule vide notification dated 18.02.2019 which gave retrospective effect to the entry made it clear at serial no. 4(a) schedule appended to the Rule as below: -
"2. Amendment of Schedule.- The existing provisions of serial number 4(a) and entries thereto of the Schedule appended to the Rajasthan Technical Training Subordinate Service Rules, 1975 shall be deemed to have come into force with effect from 16.07.1991."(Downloaded on 25/12/2022 at 11:10:13 PM)
(11 of 21) [CW-1025/2020] A fair and logical interpretation of this provision reveals that the provision of serial No.4(a) and entries thereto were deemed to have come into force and effect from 16.07.1991. A clear and unequivocal deeming fiction was provided. The effect was that the petitioner who had become eligible under the Rule amended on 18.05.1999, by virtue of amendment carried out by notification dated 18.02.2019, were deemed to be qualified and possessed of the minimum eligibility criteria from date of his initial appointment i.e. 04.03.1993 because this retrospective effect was given from the date prior to their actual appointment.
The amendment made in the relevant Rules vide notification dated 08.07.2009 and further amendment made vide notification dated 18.02.2019 in two different parts of the Rules, have to be read harmoniously because there is an apparent conflict in literal meaning, if read in isolation. The provision contained in the Rules, as amended vide notification dated 08.07.2009 provided that insofar as the post outside the purview of the Commission is concerned, regularization of irregular appointments on duly sanctioned posts upon completion of 10 years service on 10.04.2006, without intervention of any court or tribunal, subject to the conditions of continuously working as such on the date of the commencement of the amendment effected vide notification dated 08.07.2009, would be effective only from the date of issuance of appointment order and not with effect from the date prior to the date of appointment order.
However, the Rule making Authority made further amendment in the Rules vide notification dated 18.02.2019, giving retrospective effect to the provisions of Serial No.4(a) and entries related thereto of the Schedule appended to the Rajasthan (Downloaded on 25/12/2022 at 11:10:13 PM) (12 of 21) [CW-1025/2020] Technical Training Subordinate Service Rules, 1975. The legal consequences flowing from such a deeming provision would be that the provision shall be deemed to have come into force from dated 16.07.1991. The intention of the Rule making Authority apparently was to recognize the qualifications from retrospective effect i.e. from 16.07.1991. The eligibility criteria of the post specified at Serial No.4(a) reads as under:-
4(a) Junior 100% by (A) Academic:
Instructor direct Secondary under
(Non recruit- Old scheme from
Engineering ment. any Central/State
Trade) Board of Secondary
Education.
or
Secondary under
10+2 scheme from
any Central/State
Board of Secondary
Education.
(B) Technical:
Diploma in
appropriate branch
awarded by any
state Board of
Technical
Education.
or
National Trade
Certificate in the
Trade concerned.
If the notification dated 08.07.2009, providing for
regularization of the post outside the purview of the Commission is read as giving regular appointment from the date of issuance of appointment order, in those cases where the employee is covered by amendment vide notification dated 18.02.2019, would amount to rendering amendment of schedule as per notification dated 18.02.2019, Otiose and of no effect. Such interpretation would not only lead to conflict between the two provisions under same (Downloaded on 25/12/2022 at 11:10:13 PM) (13 of 21) [CW-1025/2020] Rules placed at different places but would also defeat the intention of the Rule making Authority in amending Rules vide notification dated 18.02.2019. Therefore, an interpretation, which harmonizes the two provisions has to be adopted.
Hon'ble the Supreme Court in the case of Kailash Chandra & Anr. Vs. Mukundi Lal & Ors. (2002) 2 SCC 678 in Para 11 held as below :-
"11. A provision in the statute is not to be read in isolation. It has to be read with other related provisions in the Act itself, more particularly, when the subject- matter dealt with in different sections or parts of the same statute is the same or similar in nature. As in the case in hand, we find that the matter relates to liability of the tenant to pay rent to the landlord and the consequences on failure to do so as provided under Section 20(2) (a) of the Act. Sub-section (4) of Section 20 deals with payment of arrears of rent etc. at the first hearing of the suit which in that event provides protection from eviction. Section 30 deals with the two circumstances in which for one reason or the other, the rent is deposited in the court instead of payment to the landlord. As noted earlier the effect of deposit of rent is provided under sub-section (6) of Section 30. Therefore, all the related provisions have to be read together for the purposes of proper and harmonious construction. It is not only permissible but much desirable for proper understanding of the contents and meaning of the provisions under consideration. In R.S. Raghunath v. State of Karnataka it has been observed: "No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place." In M. Pentiah v. Muddala Veeramallappa a reference was made to the observations made by Lord Davey in Canada Sugar Refining Co. Vs. R., it reads as follows:
"Every clause of a statute should be construed with reference to the context and the other clauses of (Downloaded on 25/12/2022 at 11:10:13 PM) (14 of 21) [CW-1025/2020] the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter."
Hon'ble the Supreme Court in the case of Commissioner of Income Tax Vs. Hindustan Bulk Carriers (2003) 3 SCC 57 in Paragraphs 14 to 21 held as below :-
"14. A construction which reduces the statute to a futility has to be avoided. A statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in the maxim ut res magis valeat quam pereat i.e. a liberal construction should be put upon written instruments, so as to uphold them, if possible, and carry into effect the intention of the parties. [See Broom's Legal Maxims(10th Edn.), p. 361, Craies on Statutes (7th Edn.), p. 95 and Maxwell on Statutes (11th Edn.), p. 221.]
15. A statute is designed to be workable and the interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable. (See Whitney v. IRC, AC at p.52 referred to in CIT v. S. Teja Singh and Gursahai Saigal v. CIT.)
16. The courts will have to reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. (See Salmon v. Duncombe AC at p. 634, Curtis v. stovin referred to in S. Teja Singh case.)
17. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result. (See Nokes v. Doncaster Amalgamated Collieries referred to in Pye v. Minister for Lands for NSW.) The principles indicated in the said cases were reiterated by this Court in Mohan Kumar Singhania v. Union of India.
18. The Statute must be read as a whole and one provision of the Act should be construed with reference (Downloaded on 25/12/2022 at 11:10:13 PM) (15 of 21) [CW-1025/2020] to other provisions in the same Act so as to make a consistent enactment of the whole statute.
19. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with other parts of the law and the setting in which the clause to be interpreted occurs. (See R.S. Raghunath v. State of Karnataka.) Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between two different sections or provisions of the same statute. It is the duty of the court to avoid a head-on clash between two sections of the same Act. (See Sultana Begum v. Prem Chand Jain.)
20. Whenever it is possible to do so, it must be done to construe the provisions which appear to conflict so that they harmonise. It should not be lightly assumed that Parliament had given with one hand what it took away with the other.
21. The provisions of one section of the statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. Thus a construction that reduces one of the provisions to a "useless lumber" or "dead letter" is not a harmonised construction. To harmonise is not to destroy."
Hon'ble the Supreme Court in the case of Madanlal Fakirchand Dudhediya v. Shree Changdeo Sugar Mills Ltd. and Ors. AIR 1962 SC 1543(V 49 C 225) in Para 17 held as below :-
"17. In construing section 76(1) and (2), it would be necessary to bear in mind the relevant rules of construction. The first rule of construction which is elementary, is that the words used in the section must be given their plain grammatical meaning. Since we are dealing with two sub-sections of Section 76, it is necessary that the said two sub-sections must be construed as a whole "each portion throwing light, if need be, on the rest." The two sub-sections must be read as parts of an integral whole and as being inter- dependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy. If repugnancy cannot (Downloaded on 25/12/2022 at 11:10:13 PM) (16 of 21) [CW-1025/2020] possibly be avoided, then a question may arise as to which of the two should prevail. But that question can arise only if repugnancy cannot be avoided."
It is equally well settled and cardinal principle of law that in case of ambiguity, an interpretation which advances the legislative intent and object underlying behind making the legislation has to be adopted.
Hon'ble the Supreme Court in the case of District Mining Officer & Ors. Vs. Tata Iron and Steel Co. & Anr. (2001) 7 SCC 358 in Para 18 held as below :-
"18. --------------- A Statute is an edict of the legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the court is to act upon the true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the true intention of the legislature. This task very often raises difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general (Downloaded on 25/12/2022 at 11:10:13 PM) (17 of 21) [CW-1025/2020] words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for and words chosen to communicate such indefinite referents are bound to be in many cases, lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. The aforesaid principle was enunciated and applied by this Court in the case of State of H.P. v. Kailash Chand Mahajan. Lord Somervell in the case of Attorney- General v. HRH Prince Ernest Augustus (All ER p. 61C- D) has stated:
"The mischief against which the statute is directed and, perhaps, though to an undefined extent, the surrounding circumstances can be considered. Other statutes in pari materia and the state of the law at the time are admissible."
It is also a cardinal principle of construction that external aids are brought in by widening the concept of context as including not only other enacting provisions of the same statute, but its preamble, the existing state of law, other statutes in pari materia and the mischief which the statute was intended to remedy. Chinnappa Reddy, J. in Reserve Ban of India v. Peerless General Finance and Investment Co. Ltd. had observed (SCC p.450, para
33).
"33 Interpretation must depend on the text and the context. They are the bases of interpretation.
One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted."(Downloaded on 25/12/2022 at 11:10:13 PM)
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The most fair and rational method for
interpreting a statute is by exploring the intention of the legislature through the most natural and probable signs which are either the words, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law. In the court of law what the legislature intended to be done or not to be done can only be legitimately ascertained from that what it has chosen to enact, either in express words or by reasonable and necessary implication. But the whole of what is enacted "by necessary implication" can hardly be determined without keeping in mind the purpose or object of the statute. A bare mechanical interpretation of the words and application of legislative intent devoid of concept or purpose will reduce most of the remedial and beneficent legislation to futility. The courts, however, are always warned that they are not entitled to usurp legislative function under the disguise of interpretation and that they must avoid the danger of determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somehow fitted."---------
Further an interpretation which leads to absurdity has to be avoided. In the present case, the effect of amendment in the provision contained in Serial No.4(a) and entries thereto contained in the schedule appended is that even though on the date of actual appointment an employee was not possessed of the eligibility criteria which existed on his date of appointment, all those employees who have been appointed on or after 16.07.1991 and possessed eligibility criteria as provided under the amendment vide notification dated 18.05.1999, have to be treated as qualified. Such interpretation is necessary to give full effect and meaning to the deeming provisions referred to here-in-above. Any (Downloaded on 25/12/2022 at 11:10:13 PM) (19 of 21) [CW-1025/2020] interpretation otherwise would render the deeming provisions meaningless.
Hon'ble the Supreme Court in the case of American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd. & Anr.
(1986) 1 SCC 465 in Paragraphs 56, 57, 58 and 66 held as below:-
"56. In a celebrated passage Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council said (at page 132):
If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.
57. In the State of Bombay v. Pandurang Vinayak Chaphalkar this Court held (at page 778) while approving the above passage of Lord Asquith:
When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.
58. The purposes for which the said fiction has been enacted are set out in Section 48(2). These purposes are the purposes of Section 46 or for any other purpose for which such use is material under the 1958 Act or any other law. To confine the purpose only to a part of Section 46 would be to substantially cut down the operation of the legal fiction. The purpose for which the legal fiction is to be resorted to is to deem the permitted use of a trade mark, which means the use of the trade mark by a registered user thereof, to be the use by the proprietor of that trade mark. Having regard to the purposes for which the fiction in Section 48(2) was created and the persons between whom it is to be resorted to, namely, the proprietor of the trade (Downloaded on 25/12/2022 at 11:10:13 PM) (20 of 21) [CW-1025/2020] mark and the registered user thereof, and giving to such fiction its full effect and carrying it to its logical conclusion, no other interpretation can be placed upon the relevant portions of Section 18(1) and of clause (a) of Section 46(1) than the one which we have given, The principle that an interpretation to be least to absurdity has to be avoided was also propounded as below:-
66.------------- It is a well-known principle of interpretation of statutes that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly (see ; M. Pentiah v. Muddala Veeramallappa). The Division Bench of the Calcutta High Court saw the absurdity, inconvenience and hardship resulting from the construction which was placed by it upon Section 48(2), as is shown by the passages from its judgment reproduced earlier. It, however, forgot the above principle of construction and failed to give to the legal fiction enacted by Section 48(2) its full force and effect."----------
On such an interpretation of the provisions contained in the Rules, giving full effect to the intention of Rule making Authority, the provisions upon conjoint reading have to be interpreted in the manner that all those employees who were appointed on or after 16.07.1991 and possessed eligibility criteria as provided vide notification dated 08.07.2009, have to be treated as having been appointed in accordance with rules. In all such cases, therefore, such employees are entitled to be regularized with effect from the date of their initial appointments.
In cases of those employees who have been appointed before 16.07.1991 and were possessed of the eligibility criteria vide amended notification dated 08.07.2009, they would be (Downloaded on 25/12/2022 at 11:10:13 PM) (21 of 21) [CW-1025/2020] entitled to regular appointment only from the date of issuance of order of regular appointment and not before that. In other words, the scheme of the rules, after amendment vide notification dated 18.02.2019, clearly has two classes, i.e. those employees, who were appointed on or before 16.07.1991 and those who were appointed after 16.07.1991.
As an upshot, of above after discussion and analysis of statutory scheme, though, the petitioners having been appointed after 16.07.1991, i.e. in the year 1993 and possessed of eligibility criteria as per amended notification dated 18.05.1999 would be entitled to regular appointment from the date of their order of appointments i.e. date of initial appointments. They are entitled to seniority also from the date of initial appointments with all consequential benefit of seniority from that date.
Petitions are accordingly allowed in the manner and to the extent indicated above.
(FARJAND ALI),J (MANINDRA MOHAN SHRIVASTAVA),J 43-Ravi Kh/- Dharmendra/-(Downloaded on 25/12/2022 at 11:10:13 PM)
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