Andhra HC (Pre-Telangana)
M. Rosaiah Sweeper, Nbkr Institute Of ... vs Cor on 18 September, 2012
Author: Nooty Ramamohana Rao
Bench: Nooty Ramamohana Rao
THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION NO.3941 OF 2009
18-09-2012
M. Rosaiah Sweeper, NBKR Institute of Science & Technology Vidyanagar, Kota
Mandal, Nellore District
Correspondent, NBKR Institute, Kota Mandal, Nellore District & 3 Others
Counsel for the Petitioner: Sri G. Jagdeeshwar
Counsel for the Respondents: Sri Kasa Jaganmohan Reddy GP for Technical
Education Sri T. Balaji
<Gist:
>Head Note:
?CITATIONS:
1. (1868) LR 3 CP 511 522
2. (1912) 14 CLR 220, 229
3. (1887) 14 IA 30, 35
4. (1910) ILR 34 Mad 130
5. (1914) ILR 37 Mad 113, 115
6. (1914) ILR 39 Bom 182, 185, 189-90
7. (1861) 1 B&S 101, 106
8. AIR 1924 Mad 455
9. AIR 1929 PC 69, 71
10. AIR 1931 All 154
11. (1935) 39 CWN 910, 912
12. AIR 1937 Bom 39, 41
13. (1998) 3 SCC 192
ORDER:
The petitioner, a Sweeper working in the first respondent College sought for a Writ of Mandamus for declaring the action of the College in retiring the petitioner on 28.02.2009 on attaining the age of 58 years and not permitting him to work in the college up to the age of 60 years, as illegal and unjust and consequently to direct the respondents to continue the petitioner in service till he attains the age of 60 years. The petitioner was appointed as a Sweeper in the first respondent College, which is a private educational institution. He submits that his date of birth being 02.02.1951 and the age of superannuation for the last grade servants being 60 years, he is entitled to continue in the service till the end of February 2011, whereas, the respondents 1 & 2 sought to retire him from service on his attaining the age of 58 years. The case of the petitioner is that, in accordance with Section 3 of Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act 1984, every government employee, not being a workman, who belongs to the last grade shall be retired from service in the afternoon of the last day of the month in which he attains the age of 60 years. It is the further case of the writ petitioner that, in terms of and in accordance with Section 78(A) of the Andhra Pradesh Education Act, 1982 (henceforth referred to as the Act), every teaching or member of the non-teaching staff employed in any aided or private educational institution not belonging to the last grade service shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years. For those who are working in the last grade service of such institutions, the age of retirement is 60 years. Since the post of a Sweeper falls within the last grade service, the petitioner claims that he is entitled to continue in service till he attains the age of superannuation of 60 years. Since the respondents 1 & 2 are seeking to prematurely retire him from service on attaining the age of 58 years, the present writ petition is instituted.
2. On behalf of the 1 and 2 respondents, the second respondent/Principal of the engineering college filed a detailed counter affidavit in the matter. It is asserted that, the engineering college established by the first respondent is a self-financed and unaided institution and it is purely dependent upon the fees collected from its students and does not receive any aid from the Government. It is further asserted that the Governing Body of the Society which established the college has been vested with the exclusive power to formulate policy decisions and that the Governing Body accordingly framed certain terms and conditions of employment which are applicable in respect of the employees/staff of the said engineering college. Condition No.2 of the terms and conditions formulated by the Governing Body of the college reads as under:
"Subject to the provisions of the Rules, the appointments to posts under the Institute shall ordinarily be made on probation for a period of two years after which period the appointee, if confirmed, shall continue to hold his office, subject to the provisions of the Rules and the Bye laws, till he attains the age of 60 years in case of teaching staff or 58 years in case of other staff."
3. Based on the above condition, it is pleaded that the writ petitioner being a non-teaching staff member, is entitled to continue in service till such time he attains the age of 58 years and hence he was rightly retired from service in the afternoon of 28.02.2009 and there is nothing illegal about this action. It is specifically urged that the provisions of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act 1984, are not applicable in respect of the employees/staff working in the first respondent college of engineering. It is also further contended that, since the first respondent is an unaided private educational institution, the provision contained in Section 78(A) of the Act does not have any applicability to it and hence this writ petition is devoid of any substance.
4. On behalf of the fourth respondent/Director of Technical Education, counter affidavit has been filed. It is admitted that the first respondent is a private unaided engineering college but however, in accordance with the provision contained in Sub-section 2 of Section 78(A) of the Act, the petitioner is entitled to continue in service till he attains the age of 58 years.
5. Heard Sri G. Jagdishwar, learned counsel for the writ petitioner, learned Government Pleader for Higher Education and Sri T. Balaji, learned counsel on behalf of the 1 and 2 respondents.
6. In view of the divergent stands taken by the parties, I consider it appropriate to decipher the applicability of the provisions of the Act, at the first instance to a technical educational institution like the first respondent and then decide as to whether the writ petitioner is entitled to continue in service till he attains the age of 60 years in accordance with the provision contained in Sub-section 2 of Section 78(A) of the Act.
7. The Kothari Commission on Education set up by the Government of India during 1964 had undertaken a fairly exhaustive study on various aspects relating to educational, administrative and supervision and one of the conclusions reached by the said Commission was that, education should be given a statutory basis and hence every state must endeavour to formulate comprehensive acts covering the various aspects relating to administration and supervision of education and the institutions established for imparting the same. The State Government has also followed it up by constituting a Committee comprising of educationists, educational administrators, legislators and students representatives and other segments whose value inputs would go a long way in formulating an appropriate policy by the State. This Committee under the Chairmanship of Sri M.V. Rajgopal, after extensive deliberations, incorporated its recommendations -embodied in a draft comprehensive education bill appended to their report. Thereafter, the Consultation Committee of Legislators for Education Bill and also Cabinet Sub-Committee on Education had undertaken a detailed examination and scrutiny of the recommendations made by the Rajgopal Committee and the draft bill prepared by it and made suitable and necessary modifications wherever considered appropriate by them. Thus, a fairly comprehensive bill has been prepared and presented for consideration of the State Legislature which after due deliberations passed the same. The bill was reserved by the Governor on 03.06.1981 for consideration and assent of the President, who accorded it on 27.01.1982. Thus, on and from 27.01.1982, the Act was ushered in for reforming, organizing and developing the educational system in the state, duly providing for all matters connected there with and incidental thereto. However, by Amending Act No. 17 of 1993, Section 78(A) came to be inserted in the principal Act. The Amending Act No.17 of 1993, is in fact replacing the Andhra Pradesh Education (Amendment) Ordinance, 1993, promulgated by the Governor on 12.07.1993. The newly introduced Section 78(A) reads as under:
"78A Age of superannuation of the staff in aided private educational institutions:-
(1) Every teacher or member of the non teaching staff employed in any aided, private educational institutions, not belonging to last grade service, shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years: Provided that a teacher or a member of the non-teaching staff aforesaid, who has already attained the age of fifty-eight years and continuing in service on the date of commencement of the Andhra Pradesh Education (Amendment) Act, 1993, shall retire on the afternoon of the last day of the month of the commencement of the said Act.(2) Every member belonging to the last grade service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.
(Emphasis is brought out)
8. Based upon the provision contained in Sub-section 2 of Section 78(A), the petitioner laid the claim to continue in service of the first respondent institution till he attains the age of 60 years. As was already noticed supra, the fourth respondent/Director of Technical Education, Government of Andhra Pradesh has seconded the claim of the writ petitioner. However, learned counsel for the respondents 1 and 2 contend that, Sub-section 2 has to be read along with Sub-section 1 of Section 78(A) and then it becomes clear that the provision contained under Section 78(A) would be applicable to the teaching and non- teaching staff employed only in aided private educational institutions and since the first respondent is an unaided private educational institution, Section 78(A) has no such application to them. Learned counsel for the respondents 1 & 2 would urge that the punctuation mark, "comma" used immediately after the words "aided" in Sub-section 1 should be ignored for securing or deciphering the proper purpose and meaning of introduction of Section 78(A) in the Act. Therefore, contended learned counsel for the respondents 1 and 2, that when the punctuation "comma" is ignored, it becomes clear that the teaching staff employed in any aided private educational institution shall retire on attaining the age of 58 years while every member belonging to the last grade service in such an aided private educational institution shall retire from service on attaining the age of 60 years. Learned counsel for the respondents 1 & 2 would also urge that, if a private educational institution is admitted to grant-in-aid by the State, the State provides for the necessary financial assistance for running and managing the institution. Hence, to limit this financial assistance, Section 78(A) was introduced in the Act. Inasmuch as the first respondent/engineering college is a private unaided institution, it is not covered by the Sweep of the provision contained under Section 78(A) and consequently, it is free to prescribe appropriate conditions of service regulating the contract of employment which it enters with its teaching and non-teaching staff. Therefore, the action of the first and second respondents in retiring the writ petitioner from service on attaining the age of 58 years is perfectly legitimate as it is in accord with the conditions of service prescribed by the Governing Body of the first respondent college.
9. In view of the contentions canvassed by the learned counsel for the respondents 1 & 2, I consider it appropriate to examine the reasons and objects of the Amending Act No.17 of 1993, though such reasons and objects are extrinsic for purposes of ascertaining the legislative intent. The objects and reasons of the Bill read as under:
"[Act No.17 of 1993]Statement of Objects and Reasons Consequent on taking up of the responsibility of paying the salaries etc., to the members of the staff of the private aided colleges from out of the Consolidated Fund of the State, orders were issued as early as in the year 1976 in G.O.Ms.No.584, Edn., dated 25-5-1976 and G.O.Ms.No.647, Edn., dated 15-6-1977 fixing the age of superannuation as 55 years and it was subsequently raised to 58 years on par with Government servants. In G.O.Ms.No.276, Edn., dated 21-3- 1977 orders were issued stipulating a condition that no grant-in-aid would be paid to any post against which any member either teaching or non-teaching is continued beyond the age of superannuation as fixed in the said order. In respect of the members of the teaching staff in the affiliated colleges, the age of superannuation was fixed on par with Government employees by way of regulations under the relevant provisions of the respective University Acts with effect from the year 1984, which were continued upto 1987. However, in the year 1987, the said enabling provisions in the respective University Acts were taken away by Act No.28 of 1987 and as such there is no other statutory provision governing the age of superannuation of the teaching and non-teaching staff of the private aided colleges. 2. Certain teaching and non-teaching staff working in private, aided colleges have filed several writ petitions in the High Court as well as in the Supreme Court challenging the executive orders fixing the age of superannuation at 58 years on the ground that the Government have no right to reduce the age of superannuation from 60 years to 58 years as they are employees of private managements. Their claim for 60 years as age of retirement is on the ground that the age of retirement of teachers in Universities to which their colleges are affiliated is 60 years. As on today this litigation is pending before the Hon'ble Supreme Court for the reason that the age of superannuation of the said staff of the private aided colleges is not governed by any Act of State Legislature. 3. In the meantime the said teaching and non-teaching staff have made representations to Government mainly on the grounds that the ceiling of maximum pension of Rs.1,000/- and gratuity of Rs.36,000/- as admissible to them under A.P. Liberalised Pension Rules, 1961 is too low hence it may be removed and they may also be allowed more beneficial Pension Rules. Unless the age of superannuation is equated on par with the Government employees, their request for the said benefits cannot be acceded to. As otherwise they will be in more advantageous position than the staff working in Government colleges. 4. After carefully examining the above issues, Government have decided to fix the age of superannuation of the teaching and non-teaching staff of the aided, private educational institutions at 58 years by amending the A.P. Education Act, 1982 and thereafter to allow them more beneficial Pension Rules with effect from 1st November, 1992 (i.e., both the categories of employees, viz., those retired/retiring at 58 years of age, and those who are continued or continuing beyond 58 years on the strength of court orders) in accordance with separate rules as may be made in this behalf. 5.
As the Legislative Assembly of the State was not then in session having been prorogued and as it was decided to give effect to the above decisions immediately the Andhra Pradesh Education (Amendment) Ordinance, 1993 (Andhra Pradesh Ordinance No.2 of 1993) was promulgated by the Governor on 12th July, 1993. 6. The Bill seeks to replace the said ordinance."
10. Before proceeding any further, it would be apt to remind oneself the oft quoted criticism about getting guided by the objects and reasons of Bill, while trying to ascertain the legislative intent:
"As regards the propriety of the reference of the Statement of objects and reasons, it must be remembered that it seeks only to explain what reasons induced the mover to introduce the Bill in the House and what objects he sought to achieve. But those objects and reasons may or may not correspond to the objective which the majority of members had in view when they passed it into law. The Bill may have undergone radical changes during its passage through the House or Houses, and there is no guarantee that the reasons which led to its introduction and the objects thereby sought to be achieved have remained the same throughout till the Bill emerges from the House as an Act of the Legislature, for they do not form part of the Bill and are not voted upon by the members"
11. Sub-section 1 of Section 78(A) has used a punctuation mark "comma" in between the two crucial expressions namely "aided" and "private educational institutions". No such punctuation mark is to be found in Sub-section 2 thereof. Sub-section 2 has an intricate connection to Sub-section 1 of Section 78(A), inasmuch as while dealing with non-teaching staff, Sub-section 1 made it clear that, it was dealing with only such non-teaching staff who do not belong to the last grade service. The generic term "last grade service" also falls within the sweep of the expression "non-teaching staff" used in Sub-section 1, but however, by using the expressions "not belonging to last grade service", Sub-section 1 made it explicitly clear that it was dealing with, only the rest of the non- teaching staff other than those belonging to the last grade service. Hence, arose the necessity for Sub-section 2 to exclusively deal with members belonging to the last grade service. Therefore, Section 78(A) has got to be read as a whole.
12. However, when so read, does Section 78(A) admit of only aided private educational institutions in its sweep? Or does it also cover both aided and unaided private educational institutions? For effectively answering these questions, it was absolutely necessary to understand the role of the punctuation marks used by legislatures.
13. In England, prior to 1849, no punctuation normally appeared in the Acts on the Rolls of Parliament. But since 1849, punctuation has been inserted (See Taylor vs. Charles Bleach, ILR 39 Bom 182). The exposition of Wills J, in Claydan v Green1, (as appeared at page 98 of N S Bindra's Interpretation of Statutes, Ninth Edition), will throw the desired result and it reads as under:
"I desire to record my conviction that this change in the mode of recording them cannot affect the rule which treated the title of the Act, the marginal notes, and the punctuation, not as forming part of the Act, but as a temporanea exposition. The Act, when passed, must be looked at just as if it were still entered upon a Roll, which it may be again in parliament should be pleaded so to order; in which case it would be without these appendages, which, though useful as a guide to a hasty enquirer, ought not to be relied upon in construing an Act of parliament."
14. The American view on the subject discloses that, punctuation is considered as a most fallible standard by which to interpret a writing and it may be resorted to when all other means fail. It is suggested that, the Court will first take the instrument by its four corners in order to ascertain its true meaning and if that is apparent on judicially inspecting the whole, the punctuation will not be suffered to change it. (See Lessees of Ewap v Burnet, 9 L Ed 624). It was also held in US vs Lacher (33 L Ed 1080) that, for purposes of arriving at the true meaning of a statute, Courts read with such stops as are manifestly required. In Barrett vs Van Pelt (69 L Ed 857), it is observed that, punctuation is a minor and not a controlling element in interpretation and the Courts will disregard the punctuation of a statue or re-punctuate it, if need be to give effect to what otherwise appears to be its purpose and true meaning. Therefore, it is clear that the American view is that the punctuation marks are no part of an Act and to determine the intent of the law, the Court while construing a statute will disregard the punctuation or will re-punctuate it, if that be necessary in order to arrive at the natural meaning of the words employed.
15. The view with regard to old enactments in India not only appears to be that, though the punctuation of an Act cannot be discarded wholly, it would be unsafe to allow it to govern the construction. In President of Shire of Charlton vs Ruse2, Griffith CJ, observed 'I think that stops, which may be due to printer's or proof reader's error, ought not to control the sense if the meaning is otherwise tolerably clear'. Dealing with Regulation 8 of 1819, Lord Hobhouse in Maharani of Burdwan Vs Murtonjoy Singh3 opined that, it was an error to rely on punctuation on construing acts of legislature and it is from the words and the context and not from the punctuation, that the meaning of the statue is to be collected. It was therefore construed that punctuation is altogether secondary.
16. Krishnaswami Ayyar J, in Veeraraghavulu vs President, Corpn of Madras4 considered the punctuation in the old Madras Act, 1884, as furnishing a clue to the interpretation of a corresponding section of Madras Act, 3 of 1904. In Secretary of State Vs. Kalekhan5, Sunder Ayyar J, observed as under:
"There is no doubt, authority in English cases for this proposition, but no Indian case has been cited to us, and it may be permissible to express a doubt whether the consideration which induced judges in England to lay down such a rule would be equally applicable in the construction of statutes in this country. The question, however, does not depend on the punctuation alone. In Taylor vs Charles Bleach6, cl (3) of s 37, Divorce Act, 4 of 1869, came up for consideration wherein the material words were '..... order that the husband shall, to the satisfaction of the court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as having regard ...' etc. Scott CJ, observed thereon: 'I can see no reason why the punctuation of the editions of the Act issued by the government of India should be disregarded for so far as I am aware there is not in India any unpunctuated original statue book.' The position is not the same as in England where in Stephenson v Taylor7, Cockburn CJ, said: 'On the parliament roll there is no punctuation, and we therefore are not bound by that in the printed copies'."
17. However, in Board of Revenue, Madras vs. SRMA Ramanadhan Chettiar8, Schwabe CJ, observed:
"The statute has been punctuated, and we must take the punctuation marks, as part of the statue".
Wallace J, concurred with this view of the learned Chief Justice. However, in Pugh vs Ashutosh Sen9, it is observed:
"The truth is that, if the Article is read without the commas inserted in the print, as a court of law is bound to do, the meaning is reasonable clear."
In Niaz Ahmad vs. Parsottam Chandra10, Sulaiman J, felt that the difficulty was caused mainly by the punctuation and duly following the dicta of the privy council cases, ignored the comma. However, SK Ghosh J, of the Calcutta High Court in Birendra Lal Chaudhary vs Nagendra Nath Mukherjee11 observed:
"No doubt there is an old rule that punctuation is not a part of the statute, but where it is not contended that the punctuation is wrongly placed, there is no reason why the punctuation should not be taken as a good guide for the purpose for which it is there, namely, to understand the sense of the passage."
Kania J, in Indian Cotton Co Ltd vs Hari Panjoo12, after taking into consideration the privy council view held that, in considering the plain words of a section, punctuation could not be relied upon. In Colour-Chem Ltd vs AL Alaspurkar and others13, the Supreme Court relied upon a comma to interpret Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971.
18. While it is true that, punctuation is all too minor an element in the construction of a statute and in fact very little attention is paid to it by the Indian Courts and the American Courts. Punctuations may sometimes lend assistance in the construction of sentences but they are always subordinate to the context and the texture employed by the legislature and hence the Court may legitimately punctuate or disregard an existing punctuation for purposes of giving effect to the legislative intent.
19. From the statement of objects and reasons as well as the words and expressions used in Sub-section 1 of Section 78(A), it is plain to me that the legislature intended to regulate the age of superannuation of teaching as well as non-teaching staff members of private aided educational institutions. If the legislature never intend to deal with exclusively aided educational institutions in this regard, but really intended to deal with and cover all employees working in private educational institutions, irrespective of the fact that they are aided or unaided, there was no requirement to use the expression "aided" before the expression "private educational institutions" in Section 78(A). Private educational institutions are broadly those which are not run by the Government or by any university established by law. Not all private educational institutions are entitled to receive grant-in-aid from the State. There are conditions prescribed by the state which are essentially needed to be fulfilled for a private educational institution to receive aid. Only such institutions which in all respects fulfilled the conditions set-forth by the State Government, have been admitted to grant-in-aid by a specific order passed by the State Government to that effect, leaving out - from getting financial aid from the State - a vast majority of the private educational institutions. Though the private educational institutions admitted to grant-in-aid do not cease the characteristics of a private educational institution, but only for purposes of understanding the status of the institution very easily, they came to be called as aided educational institutions. They still remain very much to be private educational institutions. They do not suffer any change in such a status. Therefore, by ignoring the punctuation mark 'comma' used in Sub-section (1), when the entire provision is read, the meaning becomes clear that the statute maker was only dealing with both teaching and non-teaching staff employed specifically in private aided educational institutions but not otherwise. If the entire class of employees working in private educational institutions, both aided and unaided and teaching as well as non-teaching were really meant and intended to be regulated in the matter of age of superannuation, there is no necessity whatsoever for the legislature to use the expression "aided". It is a salutary principle of interpretation that, no words used by a statute should either be ignored or should be considered as redundant or useless. Hence, I construe Sub-section 1 of Section 78(A) as intending to cover the staff employed in aided private educational institutions only.
20. In fact, it will not be very difficult if one were to focus attention on Sub-section 1 of Section 79 of the Act, which made it clear that no teacher or member of the non-teaching staff employed in any private institution shall be dismissed, removed or reduced in rank, except after an enquiry in which he has been informed of the charges against him and given reasonable opportunity of being heard in respect of those charges and it was also further provided therein that, no such punishment can be imposed without a prior approval of such authority as may be prescribed for different classes of private institutions. Section 79, advisedly wanted to confer a protection to both teaching and non- teaching staff employed in all the private educational institutions across the State. Such a protection is made available irrespective of the fact whether the institution is receiving grant-in-aid from the State or not. Thus, viewed in the context in which Section 78(A) came to be inserted in the Act, it becomes clear that the State wanted to unmistakably stay clear and firm with regard to the quantum of aid which it was required to pump on the count of salary and allowances for the staff employed in aided institutions and for that purpose, it has attempted to rationally fix the age of superannuation for both teaching and non-teaching staff employed only in aided educational institutions. Thus, even if the terms of the contract or rules or bye-laws framed by a private educational institution enable all their employees to continue in service beyond 58 or 60 years of age, as the case may be, the State now made its intentions clear that the quantum and component of aid would become available only up to the age of 58 or 60 as the case may be. Any service rendered beyond the said age of superannuation by a member of teaching or non-teaching staff, no financial liability towards making available grant can be fastened to the State Government. Therefore, to my mind, the State Legislature has left freedom to the employees working in the private educational institutions and also to the managements of private unaided institutions to negotiate and fix appropriate and suitable terms and conditions of employment including age of superannuation. It is for them to adopt the same formula as is found in Section 78(A). A private unaided educational institution, if it does not prefer to follow the formula laid down in Section 78(A), no fault can be attributed to it. A private unaided educational institution is at liberty to regulate the conditions of service of its employees in a manner considered suitable and appropriate by it. Conditions of service undoubtedly include prescription of the age of superannuation. Therefore, the legislature has left such a choice to the private unaided educational institutions.
21. In view of what has been stated above, I do not find anything illegal or improper on the part of the respondents 1 and 2 in retiring the petitioner upon his attaining the age of 58 years, in accordance with the terms and conditions of his employment as prescribed by the Governing Body of the first respondent/College.
22. Hence this writ petition is dismissed, but however without costs.
NOOTY RAMAMOHANA RAO, J Dt:18.09.2012