Central Administrative Tribunal - Delhi
S.R. Adige vs Union Of India (Uoi) And Ors. on 23 August, 2005
Equivalent citations: 2006(92)SLJ137(CAT)
ORDER Shanker Raju, Member (J)
1. By virtue of the present Original Application, applicant, who retired as Vice Chairman from the Central Administrative Tribunal, has assailed respondents' order dated 18.02.2005 whereby his request for payment of gratuity as per Sub clause (ii) of Sub-rule 3 of Rule 17(A) of the High Court Judges (Conditions of Service) Act, 1954 has been turned down despite recommendation by the Chairman of the Central Administrative Tribunal on the ground that condition of service of the High Court Judges ibid is not applicable to the applicant and as the case of the applicant is not covered under clarification letter dated 1,7.2004, he is not entitled for revision of Death-cum-Retirement Gratuity.
Background Facts:
2. Applicant, on completion of 33 years of service in the Indian Administrative Service, on voluntary retirement joined as an Administrative Member in the Central Administrative Tribunal. At the time of voluntary retirement, applicant was holding the post of Member, Board of Revenue and drawing the basic pay of Rs. 8000 fixed. Upon joining the Tribunal as an Administrative Member, his pay was protected and as recommendations of 5th Central Pay Commission were accepted, his basic pay was revised to Rs. 26,000 w.e.f. 1.1.1996. Applicant was subsequently elevated as Vice Chairman w.e.f. 29.8.1997 and on attaining the age of 65 years demitted the office on 4.5.2002 having rendered service of more than 4 years as Vice Chairman. Applicant made a representation for payment of gratuity for the service rendered by him as Vice Chairman. By an order dated 30.11.2004, the Chairman of the Central Administrative Tribunal approved payment of gratuity in terms of provisions of High Court Judges (Conditions of Service) Act ibid. However, despite sanction, the accord of gratuity was turned down by respondent No. 3, giving rise to the present Original Application.
Provisions of Act and Rules:
3. On appointment to the Central Administrative Tribunal, salaries, allowances and conditions of service of Vice Chairmen are regulated under Central Administrative Tribunal (Salaries, Allowances and Conditions of Services of Chairman, Vice Chairmen and Members) Rules, 1985. Following are the provisions relating to the conditions of service including pension:
8. Pension - (1) Every person appointed to the Tribunal as the Chairman, a Vice Chairman or a Member shall be entitled to pension provided that no such pension shall be payable-
(i) if he has put in less than two years of service; or
(ii) if he has been removed from an office in the Tribunal under Sub-section (2) of Section 9 of the Act.
(2) Pension under Sub-rule (1) shall be calculated at the rate of rupees seven hundred per annum for each completed year of service and irrespective of the number of years of service in the Tribunal, the maximum amount of pension shall not exceed rupees three thousand five hundred per annum:
Provided that the aggregate amount of pension payable under this rule together with the amount of any pension including commuted portion of pension (if any), drawn or entitled to be drawn while holding office in the Tribunal shall not exceed the maximum amount of pension prescribed for a Judge of the High Court.
9. Provident Fund--The Chairman, a Vice-Chairman or a Member shall be entitled to subscribe to the General Provident Fund at his option and in case of his so opting shall be governed by the provisions of the Central Provident Fund (Central Services) Rules:
Provided that if the Chairman, a Vice Chairman or a Member was Judge of a High Court or was a Member of an All India Service immediately before his joining the Tribunal, he shall be governed by the rules which were applicable to him immediately before joining the Tribunal.
10. Travelling Allowances--The Chairman, a Vice Chairman or other Member while on tour as on transfer (including the journey undertaken to join the Tribunal or on the expiry of his term with the Tribunal to proceed to his home town) shall be entitled to the travelling allowances, daily allowance, transportation of personal effects and other similar matters at the same scales and at the same rate as are prescribed in the High Court Judges (Travelling Allowances) Rules, 1956.
11. Leave Travel Concession--The Chairman, a Vice Chairman or a Member shall be entitled to the leave travel concession at the same rates and at the same scales and on the same conditions as are applicable to a Group 'A' Officer of the Central Government drawing a pay in the scale of Rs. 7300-100-7600 or above].
12. Accommodation--(1) Every person appointed to the Tribunal as a Chairman, a Vice Chairman or a Member shall be entitled to the use of an official residence from the general pool accommodation of the type admissible to an officer of the rank of a Secretary to the Government of India stationed at Delhi on the payment of the licence fee at the rates prescribed by the Central Government from time to time.
(2) When a Chairman, a Vice-Chairman or a Member is not provided with or does not avail himself of the general pool accommodation referred to in Sub-rule (1) he may be paid every month and allowance of an amount equal to fifteen per cent of his pay.
(3) Where the Chairman, a Vice Chairman or a Member occupies an official residence beyond the permissible period he shall be liable to pay additional licence fee...
13. Facilities of conveyance--The Chairman , Vice Chairman and a Member shall be entitled to the facility of staff car for journeys for official and private purposes in accordance with the Staff Car Rules of the Government of India.
14. Facilities for Medical Treatment--The Chairman, Vice Chairman or other Member shall be entitled to medical treatment and hospital facilities as provided in the Contributory Health Service Scheme Rules, 1954 and in places where the Central Health Services Scheme is not in operation, the Chairman, Vice Chairman and Members shall be entitled to the facilities as provided in the Central Services Medical Attendance Rules.
15. Condition of Service of sitting Judges of the High Court appointed as Chairman or Vice Chairman--Notwithstanding anything contained in these rules, where a sitting Judge of a High Court is appointed as the Chairman or a Vice Chairman of the Tribunal the service conditions as contained in the High Court Judges (Conditions of Service) Act, 1954 and the rules made thereunder shall apply to him.
15-A. Notwithstanding anything contained in Rules 4 to 15 of the said rules, the conditions of service and other perquisites available to the Chairman and Vice Chairman of the Central Administrative Tribunal shall be the same as admissible to a serving Judge of a High Court as contained in the High Court Judges (Conditions of Service) Act, 1954 and High Court Judges (Travelling Allowance) Rules, 1956.
16. Residuary provision--The conditions of service of the Chairman, Vice Chairman or other Member for which no express provision is available in these rules shall be determined by the rules and orders for the time being applicable to a Secretary to the Government of India belonging to the Indian Administrative Service.
17. Power to relax rules--The Central Government shall have power to relax the provisions of any of these rules in respect of any class or categories of persons.
4. Clause (ii) of Sub-rule 3 of Rule 17(4) of the High Court Judges (Conditions of Service) Act, 1954 allows grant of gratuity to a High Court Judge.
5. Rule 15(A) of the Conditions of Service of Vice-Chairman ibid makes no distinction between a High Court Judge or a Vice Chairman of the Central Administrative Tribunal and does not discriminate or makes a valid classification as regard the source from which the Vice Chairman has been appointed i.e. either from a serving or a retired Government servant or a retired for serving High Court Judge. Whatever conditions applicable to High Court Judge as per the conditions of Service Act, 1954 mutatis mutandis apply to the conditions of service and other perquisites available to the Vice Chairman.
6. Residuary provisions provide that in case no express provision is available in the rules regarding conditions of service shall have to be determined by the rules and orders as applicable to the Secretary to the Govt. of India belonging to Indian Administrative Service.
7. Rule 17(A)(3)(ii) of the High Court Judges (Salary and Conditions of Service) Act, 1954 provide as under:
17(A) Where a Judge, who being in service on or after the Commencement of the High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1986, dies, whether before or after retirement in circumstances to which Section 17 does not apply, family pension calculated at the rate of sixty per cent of the pension admissible to him on the date of his death shall be payable to the person or persons entitled thereto and the amount so payable shall be paid from the date following the date of death of the Judge for a period of seven years or for a period upto the date on which the Judge would have attained the age of sixty five years, had he survived whichever is earlier, and thereafter, at the rate of half of the family pension so admissible subject to a minimum of (twelve hundred and seventy five rupees) per month.
Explanation--For the purposes of determining the person or persons entitled to family pension under sub-section:
(i) in relation to a Judge, who elects or is eligible to receive pension under part-I of the first schedule, the rules, notifications and orders for the time being in force with regard to the person or persons entitled to family pension in relation to an officer of the Central Civil Services, Group-A, shall apply;
(ii) in relation to a Judge who elects to receive pension under Part-II or Part-III of the first schedule, the ordinary rules of his service if he had not been appointed a Judge with respect to person or persons entitled to family pension shall apply and his service as a Judge being treated as service therein.
(2) Where any Judge, who has elected to receive the pension payable to him under Part-II or Part-Ill of the first schedule, retired, or dies in circumstances to which Section 17 does not apply, gratuities, if any shall be payable to the person or persons entitled thereto under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for purpose of calculating that gratuity.
(3) The rules, notifications and orders for the time being in force with respect to the grant of death-cum-retirement gratuity benefit to or in relation to an officer of the Central Civil Services Class-I (including the provisions relating to deduction from pension for the purpose) shall apply to or in relation to the grant of D.C.R.G. being to a Judge, who being in service on or after the 1st day of October, 1974, retires, or dies in circumstances to which Section 17 does not apply, subject to the modifications that -
(i) the minimum qualifying service for the purpose of entitlement to the gratuity shall be two years and six months;
(ii) the amount of gratuity shall be calculated on the basis of ten days salary for each completed six months period of service as Judge;
(iii) omitted.
Explanation--In Sub-section 3 the expression 'Judge' has the same meaning as in Section 14.
Precedents:
8. In CWP No. 4728/2001 decided by the High Court of Delhi on 7.11.2002 controversy was for grant of revised pension to retired Vice Chairman of the Central Administrative Tribunal who after superannuation as District Judge from U.P. was appointed as Member, Central Administrative Tribunal and elevated as Vice Chairman. Taking resort to Rules 8 & 15(a) of the Conditions of Service of Vice Chairman in Central Administrative Tribunal ibid, the following observations have been made:
The only reason which has been given by the respondent for not granting the pension to the petitioner was that the petitioner has retired as a District Judge and not as a Judge of the High Court. The plea was taken that the petitioner was governed by the provisions of State Service Rules and not by provisions of High Court Judges (Salaries and Conditions of Service) Act, 1954. It was further contended that service rendered after retirement is not countable with the earlier services for computing the pension. It was also contended that as the petitioner never attained the position of a Judge of a High Court before retirement, his services did not have any relation with High Court Judges (Salaries and Conditions of Service) Act, 1954.
There is an obvious fallacy in the arguments of the respondent. In para 6 of the counter affidavit respondent admitted that the Chairman and Vice Chairman of the CAT have been given same service conditions as those of High Court Judges. Again in para 8 of the counter affidavit, respondent has stated that the claim of the petitioner that he was entitled to pension under Part III of First Schedule of the (Salaries) Act, 1954 is accepted but the respondent has again taken inconsistent stand that the same representation of petitioner regarding fixing his pension was rightly denied to the petitioner as he had retired as District Judge before appointment as Member of CAT and after a short gap of few months as Vice Chairman of CAT. The question which has to be answered is whether the petitioner is entitled for pension under Rule 8 or Rule 15-A of the Rules. Rule 15-A of the Rules provided that notwithstanding anything contained in Rules 4 to 15 of the aid rules, the conditions of service and other perquisites available to the Chairman and Vice Chairmen of the CAT shall be same as admissible to a serving Judge of High Court as contained in High Court Judges (Salaries and Conditions of Service) Act, 1954 and High Court Judges (Travelling Allowances) Rules, 1956. Therefore, it was of no consequence that petitioner retired as a District Judge as the said Rule 15-A has to be applied for limited purpose of applying the service conditions of High Court Judges as contained in the Act of 1954 to the Chairman and Vice Chairman of CAT. I am also not impressed with the arguments of the respondent that there was no continuity in service. In Union of India v. Pratibha Banerjee and Anr. Supreme Court had ruled that the conditions of service and other perquisites available to the Vice Chairman shall be the same as admissible to a serving Judge of a High Court. A serving Judge of a High Court is entitled to pension under Part III of the Act. The Court held that the pension has to be same as admissible to a serving Judge of the High Court as per Rules made therein.
The appointment of the petitioner was challenged when he was appointed as Vice Chairman of the CAT. Supreme Court in Binay Kant Mani Tripathi v. Union of India and Ors. held that as the age of superannuation for the purposes of Vice Chairman was 65 years, Shri D.K. Aggarwal was qualified to be a Judge of High Court and his appointment cannot be challenged on the ground that he has crossed the age of 62 years.
I do not see any force in the arguments of the respondent that the petitioner was appointed as a Vice Chairman after a gap of few months as continuity was not a condition precedent for applying the Act of 1954 as Act of 1954 governing the conditions of service of High Court Judges has to be applied for limited purpose for grant of pension. I do not see any force in the arguments of the respondent that the petitioner is entitled to pension under Rule 8 of the Rules in view of the interpretation given by the respondent. The Department of Personnel and Training issued a letter dated 27.8.1999 which is to be following effect:
No. A. 11013/14/2000-AT Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training 27th Aug., 1999 To The Registrar, Central Administrative Tribunal, Principal Bench, Faridkot House, Copernicus Marg, New Delhi.
Sub: Revision of pension/family pension payable to Chairman and Vice Chairmen of the Central Adm. Tribunal.
Sir, I am directed to refer to your letter No. CAT/PB/Rev/Pensiori/99-JA dated 31.3.1999, 6.5.1999 mentioned subject and to say that as per Rule 15A of the Central Administrative Tribunal (Salaries and Allowances and Conditions of Service of Chairman, Vice Chairmen and Members ) Rules, 1985, the pension/family pension admissible to Chairman and Vice Chairman of the Central Adm. Tribunal is the same as those of the High Court Judges as prescribed in the High Court Judges (Salaries and Conditions of Service) Act, 1954. As the pension/family pension admissible to High Court Judges has been revised w.e.f. 1.1.1996 vide Department of Justice letter No. L. 11016/8/97-Jus. Dated 13.1.1999, the pension/family pension of Chairman and Vice Chairmen of the CAT irrespective of the fact whether they retired before 1.1.1996 also stand revised w.e.f. that date accordingly. While revising the pension in the case of those Chairman, Vice Chairmen who were in position on or after 1.1.1996, it may be noted that the same has to be deducted from their revised pay as provided in (illegible) Central Administrative Tribunals (Salaries and Allowances of Chairman, Vice Chairmen and Member (illegible).
2. A copy of the Department of Justice O.M. dated 2.4.98 referred to in para 3 of Department of Justice letter dated 13.1.1999 is also sent herewith.
Rule 15-A extended the same conditions of service and other perquisites as are available to the serving Judge of the High Court to the incumbents of the posts of Chairman and / or Vice Chairman of the CAT and to that extent the provisions of the Act and the Rules of 1985 were made inapplicable and that is what the tenor and contents of the aforesaid letter reproduced above and that aspect of the matter has not been taken into consideration by the respondent while rejecting the application of the petitioner for grant of pension in terms of Rule 15-A of the Rules. After coming into existence of Rule 15-A of the Rules, any provision, which was inconsistent with the said Rules, would not hold the filed. The stand of the respondent that service in Tribunal is distinctly a separate service and cannot be considered as a service in continuation of the State Judicial Service, is contrary to provisions of para 2(a) of Part III of First Schedule of the Act of 1954 as this is contrary to the ratio of judgment of the Supreme Court reported as M.L. Jain and Anr. v. Union of India . Prior to insertion of Rule 15-A vide GSR 417(c) dated 31.3.1989 the pension of the petitioner had been governed by Rule 5 of said Rules but by insertion of Rule 15-A, Rule 5 became inapplicable due to non-obstinate clause of Rule 15-A. The arguments of the respondent that the pension was to be determined by the State Civil Service Act is also not tenable in view of what has been held in All India Judges' Association and Ors. v. Union of India and Ors. that the judicial service is not service in the sense of employment and the Judges are not employees. Supreme Court in All India Judges' Association and Ors, (supra) held:
It is not necessary to repeat here what has been stated in the judgment under review while dealing with the same contentions raised there. We cannot, however, help observing that the failure to realize the distinction between the judicial service and the other services is at the bottom of the hostility displayed by the review petitioners to the directions given in the judgment. The judicial service is not service in the sense of 'employment'. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three (illegible) of the State and each one of them in turn represents the authority of the State, However, those who exercise the State power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist the implementing their decision. The council of ministers or the political executive is different from the secretarial staff or the administrative executive, which carries out the decision of the political executive. Similarly, the Legislators are different from the legislative staff, so also the Judges from the judicial staff. The parity is between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive. In some democracies like the USA, members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on a part with the members of the judiciary, either constitutionally or functionally.
Mr. Gupta, learned Counsel for the petitioner has also pointed out that Ms. Pratibha Banerjee was paid pension for her tenure of Vice Chairman lasting less than three years under Part III of Schedule I of Act, 1954. The tenure of Vice Chairman was treated at par for the purposes of service conditions as that of a Judge of High Court for determination of pension. In view of discussion above, I hold that grant of pension in terms of Rule 15-A of the Rules and Service Conditions of Act, 1954 has to be applied to the petitioner and his pension be determined in accordance with Part III of First Schedule to High Court Judges (Salaries and Conditions of Service) Act, 1954 and additional pay in accordance with sub-paras (a) and (b) of para 2 of Part III of First Schedule to High Court Judges (Salaries and Conditions of Service) Act, 1954 on the basis of Rule 15-A of the said Rules and Memo dated 27.8.1999 issued by the Department of Personnel and Training be fixed. Same may be fixed within a period of eight weeks. Petition is allowed. Rule is made absolute. There is no order as to costs.
Decision of Do P&T:
9. While implementing the directions of the Delhi High Court (supra), the following decision of DoP&T was conveyed to the Central Administrative Tribunal:
I am directed to refer to your letter No. 4/25/92-JA dated 10.6.2003 on the above mentioned subject and to say that this Department agrees with the observations of the Central Administrative Tribunal mentioned in para 6 of the letter under reply that pension means and includes gratuity also. Therefore, Shri D.K. Aggarwal is also entitled to revised gratuity in addition to revised pension. As regards leave encashment, the same may be examined in the light of Rules applicable to him on the date of his retirement and if need be, a further reference may be made to this Department on any specific issue/point.
10. The above leaves no doubt that despite no existing provision for gratuity in the service conditions of Vice Chairmen and Members of the Tribunal yet pension has been construed as including gratuity as well. In this view of the matter, as per Clause 16 of the Conditions of Service of the Tribunal ibid, there is no necessity to bring into operation the residuary provision to compare the service conditions of the Vice Chairmen and Members of the Tribunal with Secretary to the Government of India belonging to Indian Administrative Service.
Decision of Do P&T dated 1.7.2004:
11. A clarification sent by the DoP&T to the Central Administrative Tribunal, a condition precedent for grant of gratuity and pension clarified their service in the judiciary excluding service of a Vice Chairman on post retirement from administrative side, which is reproduced as under:
The pay/pensionary benefits in respect of Chairman, Vice Chairman and Members, Central Administrative Tribunal are regulated in terms of Central Administrative Tribunal (Salaries and Allowances and Conditions of Service of Chairman, Vice Chairman and Members) Rules, 1985. Similarly, he said benefits in respect of State Administrative Tribunals are regulated in terms of the said rules separately framed by the respective State Governments in respect of the concerned State Administrative Tribunal. A per these rules gratuity would not be admissible for the period of service rendered in a Tribunal.
However, notwithstanding anything contained in these rules, where a sitting Judge of a High Court is appointed as the Chairman or a Vice Chairman of the Tribunal the Service conditions as contained in the High Court Judges (Conditions of Service) Act, 1954, and the rules made thereunder shall apply to him. In the matter of grant of Gratuity in respect of a sitting Judge appointed as Chairman/Vice Chairman in a Tribunal, the Andhra Pradesh High Court vide judgment dated 12.3.2004, in W.P. No. 1217/2000-Neeladri Rao v. UOI and Ors., have ordered that in such a case, the total period of service put in by him in the subordinate judiciary, as High Court Judge and also as Chairman/Vice Chairman has to be treated as continuous service for the purpose of calculating Gratuity.
It is, therefore, clarified that when a sitting Judge of a High Court is appointed as Chairman or Vice Chairman, the entire service viz. service put in by him in the subordinate judiciary, as High Court Judge and also as Chairman/Vice Chairman of Central Administrative Tribunal or a State Administrative Tribunal, shall be reckoned as a single spell for the purpose of calculating Gratuity.
Arguments;
12. Learned Counsel of the applicant Shri Krishna contends that it is no moreres integra that for conditions of service which admitted stand of the DoP&T to include gratuity as a pension for grant of pension, a non-obstinate Rule 15(A) in the Rules notwithstanding Rules 4 to 15, conditions of service which include payment of gratuity and other perquisites applicable to Vice Chairman would be mutatis mutandis has applicability with that of a serving Judge of the High Court as per the Service Conditions Act, 1954. In the above backdrop, it is slated that having taken a stand by implementing the decision in case of D. K. Aggarwal's case (supra) and treating that pension includes gratuity, there cannot be a discrimination viz-a-viz Vice Chairman appointed from administrative side to deny gratuity as the differential criteria is not intelligible and has no reasonable nexus with the object sought to be achieved. Accordingly, it is contended that differential treatment to Vice Chairman on the basis of the mode of appointment and their past service in judiciary or administrative side offends principles of equality enshrined under Article 14 of the Constitution of India.
13. Learned Counsel would contend that the clarification is not only a contempt of the decision in D.K. Aggarwal's case (supra) but also against Rule 15(A) of the Conditions of Service of Vice Chairmen Rules, 1985 and as the executive instructions are conflicting with the rules, rules have to prevail and in that event there is no justification for the respondents to deny gratuity to the applicant once the Chairman has approved on the basis of Rule 15(A) of the Rules ibid.
14. Mr. Krishna also stated that there is no distinction as per law of the post of Vice Chairman or a sitting or retired High Court Judge and otherwise of a person who is taken from administrative side or even working as a Member in the Tribunal.
15. Do P&T, which is respondent No. 3, is represented by Shri H.K. Gangwani, who withdraws his power for want of instructions. As the service had already been effected on respondent No. 3 and despite opportunity, no reply has been filed. Keeping in view the order dated 22.08.2005 to the effect that if any reply is filed as per directions of the Tribunal the same be brought on record, failing which DoP&T would be proceeded ex-parte, as despite opportunity having not filed the reply, Rule 16 of the CAT (Procedure) Rules, 1987 is resorted to against DoP&T.
16. Respondent No. 2, Principal Registrar, Central Administrative Tribunal has chosen not to contest the present case.
17. Respondent No. 1 - Pay & Accounts Officer is represented by Shri A.K. Bhardwaj through his proxy Mr. M.K. Bhardwaj. According to the reply, it is stated that rule framing authorities of Central Administrative Tribunal is DoP&T. Once clarification dated 1.7.2004 of Do P&T denies the relief to the applicant, if DoP&T decides to grant gratuity, Pay & Accounts Office has no objection to disburse the same to the applicant. However, it is stated that in the decision of the Andhra Pradesh High Court in W.P. No. 12171, Neeladri Rao v. Union of India and Ors. on completion of service in subordinate judiciary and service as Vice Chairman has been treated as continuous service for calculating gratuity on a clarification sought from DoP&T sanction for gratuity has not been accorded.
Conclusion:
18. While interpreting a statute, three Judges Bench of the Apex Court in Bhavnagar -University v. Palitana Sugar Mill (P) Ltd. , held as under:
It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and word by word. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of the statute and unless absolutely necessary, no part thereof shall be rendered surplus age or redundant. True meaning of a provision of law has to be determined on the basis of what it provides by its clear language, with due regard to the scheme of law. Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plaint and unambiguous. In other words, statutory enactments must ordinarily be construed according to their plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurb, unreasonable, unworkable or totally inconcilable with the rest of the statute. It is also well settled that a beneficient provision of legislation must be liberally construed so as to fulfil the statutory purpose and not to frustrate it.
19. Denial of gratuity to a Vice Chairman of the Tribunal when Rule 15(A) of the Conditions of Service Rules, 1985 a non-obstinate clause notwithstanding provision of pension etc. when makes at par the conditions of service and perquisites available to Vice Chairman mutatis mutandis with a serving Judge of a High Court. The clarification of the DoP&T where the question of service rendered in judiciary and Vice Chairman to be reckoned as length of service for grant of gratuity would not be a purposive construction and on literal, contextual and grammatical reading of Rule 15(A) the intent scope of the rule shall be frustrated and the rule would be otiose if in according same conditions of service as of a High Court Judge to the Vice Chairman, gratuity shall not form part, will lead to an absurd reading. In this regard, the Apex Court in the following judgment has held that when the purposive construction would be made without literally reading the statute leads to injustice, following observations have been made:
Basic rule of interpretation of statute is that the Court shall not go beyond the statute unless it is absolutely necessary so to do. Rule of "purposive construction" would be resorted to only when the statute to observe or when read literally it leads to manifest injustice or absurdity, (para 50) DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana .
20. Reducing a statute as not workable is not the intent of the legislator as held by the Apex Court in Balram Kumawat v. Union of India with the following observations:
The Courts will reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the Courts would accept the bolder construction for the purpose of bringing about an effective result. The Courts, when rule of purposive construction is gaining momentum, should be very reluctant to hold that Parliament has achieved nothing by the language it used when it is tolerably plain what it seeks to achieve.
21. The cardinal rule of construction provides that no word/opportunity of provision should be considered redundant in interpreting the provisions with the following observations in Sankar Ram & Co. v. Kasi Naicker :
It is a cardinal rule of construction that normally no word or provision should be considered redundant or superfluous in interpreting the provisions of a statute. In the field of interpretation of statutes, the Courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute should have effect. It may not be correct to say that a word or words used in a statute are either unnecessary or without any purpose to serve, unless there are compelling reasons to say so looking to the scheme of the statute and having regard to the object and purpose sought to be achieved by it.
22. In Ali M.K. v. State of Kerala as regard legal fiction and deeming provision, the following observations has been made:
15. When a thing is to be "deemed" something else, it is to be treated as that something else with the attendant consequences, but it is not that something else (per Cave, J. R. v. Norfolk Country Court) When a statute gives a definition and then adds that certain things shall be 'deemed' to be covered by the definition, it matters not whether without that addition the definition would have covered them or not (Per Lord President Cooper in Ferguson v. Mc Millan)
16. Whether the word "deemed" when used in a statute established a conclusive or a rebuttable presumption dependent upon the context (see St. Lean Village Consolidated School Distt, v. Ronceray) I...regard its primary function as to bring in something which (Per Viscount Simonds in Barclays Bank v. IRC) "Deems" means "is of opinion" or "considers" or "decides" and there is no implication of steps to be taken before the opinion is formed or the decision is taken.
23. If one has regard to the above keeping in light the provisions of Rule 15(A) of the Rules ibid, the intent of the rule making authority was to make admissible to the Vice Chairman, the same conditions of service including perquisites, salary and allowances, which are applicable and admissible to a serving Judge of the High Court despite Rules 4 & 15 of the Rules ibid. The only logical and rational interpretation which could be rendered to Rule 15(A) is that whereas their exists no provision of gratuity yet the decision of the DoP&T to treat in case of D.K. Aggarwal's case, admissibility of gratuity to retired District Judge in calculating gratuity of continuous service rendered both in judiciary and the Tribunal is an implication of inclusion of gratuity as part of pension and the decision of the DoP&T which is communicated to the Tribunal on implementation of D. K. Aggarwal 's case (supra) and giving not only revised pension but gratuity leave no room to the proposition that a Vice Chairman of the Tribunal is entitled to grant of not only the pension but the gratuity as well at par with admissible gratuity to High Court Judges.
24. As regards treatment of Vice Chairman for the purpose of gratuity differently from a retired High Court Judge or a retired Judicial Officer from higher Judiciary is concerned, right of equality is enshrined under Article 14 of the Constitution of India. As per this right, no two equals can be treated unequally and the Government is precluded from adopting different criteria to identically situated persons. This principle of equality extends to application of rule as per its intent and object sought to be achieved.
25. A Constitution Bench of the Apex Court in D.S. Nakara and Ors. v. Union of India 1983 SCC (L&S) 145 : 1983(1) SLJ 131 (SC), while dealing with the principle of equality in case of cut off date of pension held as under:
13. The other facet of Article 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classification. As was noticed in Maneka Gandhi case in the earliest stages of evolution of the constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article 14 forbids discrimination and there will be no discrimination where the classification making the differential fulfils the aforementioned two conditions. However, in E.P. Royappa v. State of T.N. it was held that the basic principle which informs both Article 14 and 16 is equality and inhibition against discrimination. This Court further observed as under: (CCS p. 38 para 85), From a positivistic point of view, equality is antithetic to arbitrariness. In face equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore, violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Article Hand 16strike at arbitrariness in State action and ensure fairness and equality of treatment.
14 Justice Iyer has in his inimitable style dissected Article 14 in Maneka Gandhi case as under at SCR p. 728: (SCC p. 342, para 94) That article has a pervasive processual potency and versatile quality, egalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. Only knight-errants of executive excesses'- if we may use current cliche- can fall inlove with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it is that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law: Be you ever so high, the law is above you.
Affirming and explaining this view, the Constitution Bench in Ajay Haxia v. Khalid Mujib Sehravardi held that it must, therefore, now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The Court made it explicit that where an act is arbitrary it is implicit in it that it is' unequal both according to political logic and constitutional law and is, therefore, violative of Article 14. After a review of large number of decisions bearing on the subject, in Air India v. Nergesh Meerza the Court formulated propositions emerging from an analysis and examination of earlier decisions. One such proposition held well established is that Article 14 is certainly attracted where equals are treated differently without any reasonable basis.
15. Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
26. If one has regard to the above, fundamental principle under Article 14 of the Constitution of India forbids discrimination. If an action has some intelligible differentia and reasonable nexus with the object sought to be achieved only then it passes the test of reasonableness enshrined under Article 14 of the Constitution of India failing which any arbitrary action of the State having hostile discrimination of equally situated persons cannot be countenanced. Before the High Court of Delhi in the counter affidavit filed by the DoP&T, it is admitted that Vice Chairmen of the Central Administrative Tribunal as well as Chairman have been regulated by the same Service Conditions whether the entitlement of pension, or gratuity was the question holding that retirement as District Judge is of no consequence the Service Conditions are to be applied mutatis mutandis at par with the High Court Judge. Rule 15(A) ibid extends the same conditions of service and perquisites at par with the serving Judges of the High Court. Any provision after coming not existence of Rule 15(A) which is in consistent with the rules would have to give way. The tenure of Vice Chairman irrespective of stream from which the Vice Chairman had joined whether from administrative service or serving as an Administrative Member or a High Court Judge, the test has to be treated at par for purposes of service conditions as Judge of the High Court for determination of pension and gratuity and other perquisites.
27. Keeping in light the above, the ratio laid down, which is binding on me and followed, the DoP&T is estopped from taking different view which would amount to approbate and reprobate the issue. If a decision in case of D.K. Aggarwal is implemented not only for pension but for gratuity, the clarification issued on 1.7.2004 which restricted the gratuity to the service rendered in subordinate judiciary or as a High Court to which rule does not suggest, is certainly an executive instructions which not only supplant the rules but is in consistent with it. The executive instructions cannot supersede the statutory rules as held by the Apex Court in State of Maharashtra v. J.A. Karamuttah 1989 (Supp.) (1) SCC 393.
28. As held by the Apex Court in Udai Pratap Singh v. State of Uttar Pardesh JT 1991(2) SC 678 : 1995(1) SLJ 123 (SC), executive instructions can clarify the rules but it cannot insert provisions of another rules to the detriment of beneficiaries of rules,
29. As held by the Apex Court in Smt. Vidyawati v. State of Punjab , an administrative instructions, cannot modify or add to the statutory rules. It is for the legislator to rectify the lacuna.
30. As Rule 15(a) of the Rules regarding service conditions of Vice Chairman has been interpreted by the High Court of Delhi and given effect to by the DoP&T, administrative instructions cannot whittle down or infiltrate the arena covered by judicial pronouncements as held in Anil Rattan Sharma v. State of West Bengal 2001 (8) SCC 327 : 2001 (3) SLJ 277 (SC).
31. In nutshell, as gratuity is a part of pension then Vice Chairman is entitled to the gratuity at par with the High Court Judges as per conditions of Service. As Administrative Tribunal Act, 1985 does not distinguish between a Vice Chairman appointed from judiciary or from administrative side, denial of gratuity only on the ground of source of recruitment in the light of Rule 15(A) is not an intelligible differentia and this action of the respondents has no reasonable nexus with the object sought to be achieved. When a rule is specific and non-obstinate clause of 15(A) overrides other rules of the conditions of service while according gratuity to a Vice Chairman, the only resort would be to the conditions of service as laid down under Clause (ii) of Sub-rule-3 of Rule 17(a) of the High Court Judges (Conditions of Service) Act, 1954 denial of which not only discriminates the applicant but makes Rule 15(A) redundant which has an object to provide same conditions of service which not only includes gratuity but other perquisites at part with High Court Judges to the Vice Chairmen.
Relief:
32. In the result, for the foregoing reasons, we do not find any justification and legal sanctity behind the order impugned in the present Original Application, which is legally unsustainable. In this view of the matter, the Original Application is allowed. Impugned order is set aside. Respondents Nos. 1 and 3 are directed to sanction the gratuity to the applicant in accordance with Rule 15(A) of the Central Administrative Tribunal (Service Conditions) in the light of Sub rule (ii) of Sub-rule 3 of Rule 17(A) of the High Court Judges (Conditions of Service) Act, 1954 in consonance with the sanction Order dated 30.11.2004, within one month from the date of receipt of certified copy of this order. Applicant shall be disbursed the amount so calculated with a simple interest of 9% per annum within this period. No costs.