Central Administrative Tribunal - Lucknow
Bhaskar Sharma vs Union Of India on 11 March, 2022
CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI
Central Administrative Tribunal
Lucknow Bench, Lucknow
Reserved on 21.02.2022
Pronounce on 11.03.2022
Original Application No. 193 of 2017
Hon'ble Mr. Devendra Chaudhry, Member (A)
Hon'ble Mr. Swarup Kumar Mishra, Member(J)
Bhaskar Sharma, aged about 59 years, S/o Late Sri Ramakar
Sharma, at present resident of C-8 Type III, Jail Road,
Charbagh, Lucknow
.............. Applicant
By Advocate: Sri Praveen Kumar
Versus.
1. Union of India through the General Manager, Northern
Railway, Baroda House, New Delhi
2. The Divisional Railway Manager, Northern Railway,
Hazratganj, Lucknow.
3. The Senior Divisional Finance Manager, Northern
Railway, Hazratganj, Lucknow.
4. The Senior Divisional Personnel Officer, Northern
Railway, Hazratganj, Lucknow.
.............Respondents
By Advocate: Sri Ashutosh Pathak
ORDER
BY HON' DEVENDRA CHAUDHRY, MEMBER-A Throughout history, it has been the inaction of those who could have acted, the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.The present Ordinal Application O.A. is based on this quote of Haile Selassie who attempted to modernize the country through a series of political and social reforms, Page 1 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI including the introduction of Ethiopia's constitution of 1931, its first written constitution, and the abolition of slavery.
2. The O.A. has been preferred against the order dated 17/02/2017 (Annexure A-1) whereby the claim of the applicant has been rejected with regards to fixing of pay in his Pension Payment Order.
3. Per applicant, brief facts of the case are that he was initially appointed as Local Cleaner in 1981 and later promoted to the post of Diesel Assistant with Grade Pay Rs 1900/- which is 'running cadre' post. However due to medical problems he wasmedically decategorized vide order dated 12/06/2007 and posted as Senior Clark andvide connected order dated 24/08/2009 granted Grade Pay Rs 2800 (Annexure A-2 & A-3 respectively). Later as per eligibility he was given Grade pay Rs 4200/- inJanuary 2010. However,due to poor eye sight he was medically decategorized further for all posts vide medical examination order dated11/03/2013 (Annexure A-4) and thereupon retired from the Railway services with effect from 30/06/2013 vide orders dated 17/06/2013 (Annexure A-5). APPO was accordingly issued (Annexure A-6) followed by a revised PPO(Annexure A-6, page
17) but in the PPO his Grade pay (GP)is stated as Rs 2000/- instead of GP of Rs 4200/-which he was drawing immediately prior to being retired on medical grounds. Aggrieved against this, he filed a representation for correction of this pay fixationin the PPO done allegedly in context of a RBE circular dated 30/04/2013 on the ground that (i) he had been medically decategorized vide order dated 11/03/2013 whereas the circular which has been applied in his case is dated30/04/2013 ('2013 circular' for short)whichcould not be applied retrospectively, that is on a retirement case based on order dated 11/03/2013 and further that (ii) the 2013 circular Page 2 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI itself has been clarified later vide RBE circular 20/05/2015 ('2015 circular' for short) circulated by vide PS number 14549 (Annexure A-8) wherein it is clearly directed that the 2013 circular was not to be applied retrospectively, that is for cases of medical decategorisation based retirement before 30/04/2013.Accordingly, therefore, he was entitled to the same GP as obtained to him just prior to medical superannuation, viz GP Rs 4200/- but, however, since his representation with regards to same has been rejected by the impugned order, hence the O.A.
4. Per Contra, the respondents while admitting the basic facts relating to dates of medical decategorization as also the grant of GP of Rs 4200/- as financial upgradation under MACP scheme with effect from 17/01/2010, have denied any error in fixation of Grade Pay in the PPO. It is assertedin para-9 of CA that after the implementation of the recommendations of the 6th CPC the Railway Board on 30/04/2013 issued instructions laying down the procedure for fixation of pay of disabled / medically unfit running staff on being appointed against alternative stationary post wherein it has been prescribed that while determining the pay in pay band for the purpose of fixation of pay of medically unfit running staff in alternative stationary post an amount equal to such percentage of basic pay (pay in pay band + grade pay) representing pay element of running allowance as may be in force from time to time may be added to the existing pay in pay band and resultant figure would be the pay in the Pay band in the alternative Post with no change in the GP of the substantive post (Annexure C-1). That the applicant was declared unfit for all medical categories vide order dated 11/03/2013 and retired from service on medical ground vide order dated 17/06/2013 w.e.f. 30/06/2013 and so the provisions of the 2013 circular having been issued earlier to the date of retirement were applicable on Page 3 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI the applicant and so the pay fixation of GP 2800 was accordingly rectified as per procedure laid down in the 2013 circular and so pay refixed in GP 1900 w.e.f. 24/08/2009 and further that the financial upgradation under MACP scheme granted to the applicant in GP 4200 w.e.f. 17/01/2010 was also revised and the same revised to GP 2000. That as regards the clarification dated 20/05/2015 (Annexure A-8 in O.A.) the said clarification was not issued when his settlement dues were finalised implying thereby that the settlement dues having been finalised earlier in 2013 and at which time the 2015 circular was not issued and hence the same was not applied. That hence there is no error in pay fixation and so the O.A. has no merits and deserves to be dismissed.
5. Heard ld. counsels for the parties at length and perused all the pleadings filed carefully. The key issue is as to whether the circular dated 30/04/2013 would have prospective effect or retrospective particularly in light of the later circular dated 20/05/2015 and how does the impugned order thereby stand with respect to its lawful validity given the date of medical decategorisation and consequential retirement.
6. In order to decide the issue, it would be well to examine the two key circulars dated 30/04/2013, 20/05/2015 and the impugned order of 17/02/2017. Relevant portions of the same are extracted below for ready reference:
Circular dated 30/04/2013 RB/ESTT.No.41/2013 GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) ****** No. E(NG)1-2008/RE-3/4 New Delhi, dated 30.04.2013 The General Managers (P) All Indian Railways and Production Units.
(As per standard list) Page 4 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI Sub: Fixation of pay of disabled/medically unfit running staff on being appointed against alternative (stationary) posts in revised (6 CPC) pay structure.
Reference Railway Board's letter containing No.E(NG)I-96/RE-3/9(2) dated 29.04.1999 procedure for absorption of alternative disabled/medically unfit Railway servant in employment, framed Disabilities pursuant to the enactment of Persons with (Equal Opportunities, Protection of Rights and Full Participation) Act 1995.
2. Consequent upon merger of various implementation of revised pay structure inter-alia involving pre-revised scales Pay based and comprising running Pay Bands & Grade on recommendations of 6" Central Pay Commission, a arisen question has regarding methodology for fixation of pay of medically unfit running staff on considered being posted/appointed against stationary posts. The matter has, accordingly, been by the Ministry of Railways (Railway Board) and based on the recommendations of a Committee constituted for the purpose, it has been decided that while determining pay in Pay Band for the purpose of fixation of unfit pay of medically running staff in alternative (stationary) post, an amount equal to such percentage of basic pay (pay in Pay Band + Grade Pay) representing pay element of running allowance as may be in force from time to time may be added to the pay in Pay Band existing and the resultant figure (ignoring the fraction of rupee, if rounded off to the next any) multiple of 10, would be the pay in the Pay Band in the alternative post with no change in the Grade Pay of substantive post, in suitable alternative post. An illustration in this regard is enclosed as Annexure-1.
3. For this Manual, purpose, Para 1307 and 1308 of Indian Railway Establishment Volume-l, (Revised Edition-1989) First Re-print Edition-2009 may be amended as per Advance Correction Slip No.224 enclosed as Annexure-ll.
4. This issues with the concurrence of Finance Directorate of Ministry of Railways Please acknowledge receipt.
Sd/-
(M.K. Meena) Deputy Director Estt. (N) Railway Board Circular dated 20/05/2015 Government of India (Bharat Sarkar) Ministry of Railways (Rail Mantralaya) (Railway Board) New Delhi, dated 20.05.2015 No. To, The General Manager (P) North Western Railway, Jaipur Sub. : Fixation of Pay of disable/medically unfit running staff on being appointed against alternative (Stationary) posts in revised (6th CPC) Pay structure.
Ref. (i) Southern Railway's letter No. P(R) II/P/Vol. V dated 09.05.2014
(ii) North Western Railway letter No. 600E/0/Pay Fixation 125 dated 12.12.2014.
The issue as raised by Southern and North Western Railway has been examined with Finance Directorate Railway Board. It is clarified in this connection that any orders/ instructions under the various circulars being issued from Railway Board have only prospective effects from the date of issue unless specifically stated otherwise. Accordingly, Board's letter No. E(NG)2008/RESPONDENT-3/4 dated 30.04.2013 will also have prospective effect. Southern and North Western Railways make take necessary action accordingly subject to the conditions that the cases already settled prior to issue of above instructions need not to be respondent-opened to avoid to complexity and litigation in the future."
Page 5 of 21CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI Impugned order dated 17/02/2017 mRrjjsyos NORTHERN RAILWAY i= la0 516bZ@6&2@oh-vkj@esfMdy@vufQV@vkWydSVkxjh e.Mydk;kZy;
m0js0 y[kuÅ fn%& 17-02-2017 JhHkkLdj 'kekZ Hkw0iw0 ofj0 fyfid Lkh-vkj vuqHkkx e.My dk;kZy;] y[kuÅ fo"k; % eqfnzd dzekad 14549 ds vk/kkj ij osru fu/kkZj.k ds laca/k esaA lanHkZ%&vkidk izkFkZuk i= fn%& 10-10-2016 mijksDr lanfHkZr izkFkZuki= fn%& 10-10-2016 ds laca/k esa vkidks lwfpr fd;k tkrk gS fd eqfnzd dzekad 14549 ds vUrxZr of.kZr 'krZ fd "already settled prior to issue of above instructions need not re-opened to avoid Complexity and litigation in the future" ds vk/kkj ij iqu% osru fu/kkZj.k fd;k tkuk laHko ugh gSA bls l{ke vf/kdkjh dk vuqeksnu izkIr gSA d`rs e.My jsy izca/kd (dk) mRrjjsyos At the outset we recount that the plea of the applicant that the 2013 circular is not applicable to him since after his decategorisation in 2007 vide order dated 12/06/2007 (first medical decategorisation) he was posted as Senior clerk and as the 2013 circular is with respect to running cadre staff and by virtue of his then being a Senior clerk which is a non - running cadre post, the 2013 circular was not applicable to him is not justifiable inasmuch that the factum of his medical decategorisation continues in the post of senior clerk whose foundation is the 12/06/2007 order which is on account of medical decategorisation ab initio. Hence now to claim per applicant that his medical decategorisation stands extinguished after 12/06/2007 and he is a fresh appointee to the cadre of senior clerk would tantamount to changing the very foundation of the birth of the applicant in the service and Page 6 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI hence not acceptable. Therefore the 2013 circular is applicable on the applicant and now let us see where this leads us to.
6.1 As may be seen above, the 2013 circular specifies as to how the pay is to be fixed with respect to medically decategorized staff in the context of various revisions in pay structures by the 6th Pay Commission whose recommendations were accepted by the government which point is not disputed at all as it does not indeed state any retrospective application benefit point, and so could have qualified for retrospective application given the fact the recommendations of the 6th CPC got implemented as from 01/01/2006 itself. However,the story does not end here, because when the 2013 circular is read along with the circular of 20/05/2015, the controversial issue raises its head inasmuch that the 2015 circular clear lays down that-
"...any orders/ instructions under the various circulars being issued from Railway Board have only prospective effects from the date of issue unless specifically stated otherwise...."
This clearly implies what it says so, viz, the 2013 circular would have only prospective effect implying thereby that cases of medical decategorisation prior to the date of 30/04/2013 would not be governed by the 2013 circular. The plea by the respondents that the 2015 circular cannot be applied now or vide representation of the applicant in 10/10/2016 (Annexure A-7) wherein pay revision was pleaded is not justifiable, inasmuch that the 2015 circular has to be read in time continuum with the 2013 circular otherwise it would have no meaning at all implying thereby, that the 2015 circular cannot be wished away or extinguished by delinking it with the 2013 circular with which it is conjointly linked.
Page 7 of 21CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI
7. That said, the point which is to be analysed with cardiac surgery skill is that normally a circular such as that of 2013 when read in connection with the 6th CPC and when accurately applied would have led to the consequences of pay fixation as per directions therein and resulted in revised pay fixation, butthe circular dated 20/05/2015 butts in and clarifies that -
"...any orders/ instructions under the various circulars being issued from Railway Board would have only prospective effect unless specifically stated otherwise. Accordingly, Board's letter No. E(NG)2008/RESPONDENT-3/4 dated 30.04.2013 will also have prospective effect. That Southern and North Western Railways make take necessary action accordingly subject to the conditions that the cases already settled prior to issue of above instructions need not to be respondent-opened to avoid to complexity and litigation in the future..."
Thusclearly,while the 2013 circular would have only prospective effect, it is additionally stated in the 2015 circular that cases which have been settled prior to the 2013 circular shall not be respondent-opened to avoid complexity and litigation in the future. This implies that the cases are(i) not to be opened from the side of the respondents - note the use of the word 'respondent-opened' and not a normal word such as 'department' implying thereby that the respondents expect some litigation as a consequence of the decision contained in the 2015 circular and have therefore placed themselves ab initio itself in the category of a respondent-opened common noun instead of the general typical common noun of - a department - and more importantly (ii) by implication,that the dispute with regards to any claims shall not be opened even if on merits by the department - respondent and thereby become a respondent-opened case. This clearly implies therefore, that should there be a dispute arising due to combined reading of 2013 and 2015 circular, that dispute shall not be gone into by Page 8 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI the respondent department but left open. This is quite a preposterous assumption of law being taken into one's own hands and tantamounts to in fact total disregard to a possible meritorious plea of any appropriate matter. What the department wishes to perhaps convey is that they would not open the Pandora's box of dispute as respondent-opened matter and let the applicant struggle for the same in other non-departmental fora.Quite logically therefore, in such cases, the only recourse available to an aggrieved employee would knock the doors of a Court and so it seems that the department would perhaps wait for a Court order as part of litigation which they ironically seek to avoid abinitio per their circular itself. That is to say that they would deign to look into any such matter only once they are face to face with the litigation and not otherwise even if it may be a merited case just because the said consideration would lead to avoidable complexity and litigation.
7.1 In fact, ironically, we are now faced with exactly the situation which the respondents sought to avoid and like the nemesis it is now confronting them precipitated as it were by the factum of this O.A. In the process the extant matter has become a court opened case and not a respondent-opened one, just like the respondents wanted it to be. Therefore, the burden is now on the Tribunal to adjudicate the matter. Perhaps this is the purpose of the 2015 clarification. That being so, it is now for this Tribunal to go into the task of judging the merits of the applicant's matter because the respondent department has absolved itself, nay abdicated itself from all responsibility to do so inorder to 'avoid complexity and litigation in the future'. This in the least is a good case of an Ostrich hiding its head in the sand in the face of a sand storm and expecting it to go away just because it has stuck its head in the sand.
Page 9 of 21CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI 7.2 What perhaps the respondent department has judged remiss is that notwithstanding the stance of the respondent department this Tribunal and in general the courts cannot have the luxury of absolving and abdicating their role as adjudicator of justice based on judicial merits because then all hell would break loose in a democracy. This is why this judgement started by the quote of Haile Selassie, that once the judicial courts seek to look the other way, evil is destined to triumph.
7.3 Now if we examine the merits of the case,it is clear that the medical decategorisation of the applicant is ordered vide medical examination order dated 11/03/201. That this order which was acted upon by the order dated 17/06/2013 whereby the applicant was retired from the services of the Railways w.e.f. 30/06/2013. A reading of the actual order would do good to the analysis before us for which purpose the relevant portions of the order dated 17/06/2013 are extracted below:
"....No.516E/6-2/VR/Medicallyunfit/All Category/13 Dated 17.06.2013 Office Order Sh. Bhaskar Sharma, s/o Ramakar Sharma, Sr. Clerk CR Sec/Divisional office Lucknow has been declared medically unfit in all medical categories of Indian Railway by CMD Hd. Qrs. Office Baroda House NDLS letter no.99Med/MB/Bs/5/965 dated 11.03.2013 & CMS/NR/LKO's letter no. 10/Med/MB/Bs/13 on 18.03.2013 has requested for his voluntary retirement through application dated 19.03.2013. He also requested that his one son be appointed in Railway service. Accordingly, Sh. Bhaskar Sharma will retire from Railway service voluntary medical ground w.e.f. 30.06.2013.
His name will be struck out from roll wef 01.07.2013 Senior subordinated must be ensure to deposit all the Railway properties under possession of Sri Bhaskar Sharma s/o Sri Ramakar Sharma before retiring from service. The Special supernumerary post creates on 19.03.2013 to 30.06.2013 to accommodate Sri Bhaskar Sharma will ceased if-so-facto w.e.f. 01.07.2013....."Page 10 of 21
CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI It may be seen from above that the respondents state that the applicant has been declared medically unfit vide 11/03/2013 order and his request for voluntary retirement is filed vide application dated 19/03/2013. Moreso, vide above order he will retire as from 30/06/2013. This implies that the foundation of the order of retirement was laid by the order of medical decategorisation dated 11/03/2013 which is earlier to the date of 30/04/2013 which is the date of issue of the circular on which the respondents rest their claim for the revised fixation of pay. Now admittedly the actual order of retirement is dated 17/06/2013 which is admittedly after 30thArpil 2013 and the retirement date from which the retirement will take effect is 30/06/2013 which is also after the date of 30/04/2013. But as against this, it is also noteworthy that the applicant had applied for his retirement vide representation dated 19/03/2013 admittedly per the letter dated 17/06/2013 of the respondents qua the medical decategorisation order of 11/03/2013 which is also before 30/04/2013. In fact a supernumerary post was also created for the period 19/03/2013 to 30/06/2013 for keeping the applicant under employment even if on a supernumerary post due to medical decategorisation vide 11/03/2013. What is to be critically noticed here is that once the medical decategorisationorder dated 11/03/2013 declared the applicant unfit for all services in the Railways, it was willy nillyupto the respondent department to take up the baton for further action thereupon - that is - as to from which exact date would they retire the applicant which is a time governed process and formality to be undergone as a consequence of the order of 11/03/2013. What is important to be seen in this scenario of dates is that - the foundation of the retirement is laid vide order dated 11/03/2013 and the consequential retirement application by the applicant himself vide 19/03/2013 and the delay thereupon causing the Page 11 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI respondents to create a special supernumerary post to keep the applicant on salary - which period could have been reduced if the decision of final retirement had been taken prior to 17/06/2013 made to take effect from 30/06/2013.Therefore, as far as the applicant is concerned his fate is sealed qua the letter of 11/03/2013 and his own application dated 19/03/2013per admission of the respondents in their letter dated 17/06/2013, even if consequential orders of retirement are actually issued vide order dated 17/06/2013 for retiring him w.e.f. 30/06/2013. The point to be noted is that the consequential order that is the one issued after the 11/03/2013 medical decategorisation order is actually issued after a lapse of a period of more than three months to the order of medical decategorisation by the Chief Medical Superintendent of the office of the Respondent. Dates being extremely critical (which is why it was stated upfront in this order that the matter has to be examined with the skill of a cardiac surgery), the applicant cannot be held at fault for delay in issue of the letter concerning his fated retirement on medical grounds,moresowhen for legal purposes he is medically invalidated vide letter dated 11/03/2013.Here, it is useful to examine the letter dated 11/03/2013 and so the relevant portions are extracted below:
Extracts of letter dated 11/03/2013 "....recommendations :-
In view of the above findings, prognosis of disease (guarded visual prognosis in (RE) after surgery) Sh. Bhaskar Sharma S/o Late Sh. Ramakar Sharma, Sr. Clerk /CR Section, N. Rly. DRM Office, Lucknow is unfit in all medical categories of Indian Railway and should be invalidated out of Railway Service on Medical Grounds....." (emphasis supplied) As may be seen vide 11/03/2013 directions, the applicant has been declared invalidated out of Railway service on medical grounds, implying thereby he cannot now serve the respondents beginning 12th March 2013. What is to be understood is that had the applicant been retired in the end of month of March say by 30th March - as typically the way any Page 12 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI retirement in government is effected - viz at the end of the appropriate month (exceptions apart), then the 30/04/2013 circular would not have taken effect. We elaborate this point by citing for example the case of an age based superannuation
- which is done on the last date of the monthin which the employee has his date of birth even if the date of birth by which an employee may attain the retirement period -say 60 years may be much before the last date of the month - say 10th of the month, but per standard operating process, the employee is only retired from the last date of the month and such retirement is also deemed one(exceptions apart). When we take such process of action into account, then the 2015 circular read with the 2013 circular would in all justiciability be squarely and fully applied on the applicant and there could not have been a shred of maple leaf cover to the respondents to not benefit the applicant inasmuch that the 2013 circular would be applied prospectively given the factum that the foundation of the retirement of the applicant occurred vide order dated 11/03/2013 supported by his application for retirement dated 19/03/2013, therefore the later date order of 17/06/2013 of issue of retirement order cannot be read against the applicant - which is only a consequential order following the 11/03/2013 decision. That given the peculiar and specific case of the applicant,full and substantive justice requires, that he be given the benefit of non-application of the 2013 circular in light of the 2015 circular by constructively applying the dates prior to 17/06/2013 and not destructively with the sole objective of denying the rightful benefit to the applicant given the peculiar dates of the crucial events read in conjunction withthe 2015 circular of the respondents themselves in whose light the applicant cannot now be held responsible with regards to the date of issue of retirement order of 17/06/2013 w.e.f 30/06/2013 vis a vis medical declaration of decategorisation dated 11/03/2013 and Page 13 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI retirement application dated 19/03/2013) which is earlier to the date of 30/04/2013 when the said circular kicked in given the benefit endowed by the 2015 circular. This is also because once the application for retirement dated 19/03/2013 was submitted in the context of the medical decategorisation of 11/03/2013, the applicant was at the mercy of the respondents for issuing order with respect to actually retiring him - which order could issue albiet with a delay of more than three months bringing into jeopardy, the benefit of retirement which was justifiably the applicant's, should we read the 2013 circular with the 2015 circular. Therefore, the applicant is saved by a hair's breath of time period with respect to the applicability of the circular dated 30/04/2013 that the foundation of action prejudicial to him took place before the prejudice could set in and so he can be given the benefit of non-application of the 30/04/2013 circular in light of peculiar facts and circumstances in this specific case.
8. We seek to fortify our view above by the directions of the Hon Apex Court in respect of applicability of rules and circulars as well as the doctrine of substantive justice.
8.1 As regards the applicability of circulars, rules and statutes, the Hon Apex Court has held in a galaxy of cases that the intention of a circular/statute is as important as the words if not less. Thus:
(i) In the matter of Chief Justice of Andhra Pradesh v.
L.V.A. Dixitulu (1979 (2) SCC 34), the Hon' Supreme Court observed as under:
"The primary principle of interpretation is that a constitutional or statutory provision should be construed "according to the intent of they that made it"
(emphasis supplied). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow.
Page 14 of 21CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI But if the words used in the provision are imprecise, protean or evocative or can reasonably bear meanings more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent (emphasis supplied). In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light, on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation...."
(ii) Similarly,In Kehar Singh v. State (Delhi Admn. (AIR 1988 SC 1883), the Apex Court held thus:
"....But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole (emphasis supplied). We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to- one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.
(iii) In District Mining Officer v. Tata Iron and Steel Co.
(JT 2001 (6) SC 183), the Apex Court stated as under:
"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 words to cover similar problems arising in future. But, from the very nature of thing, it is impossible to anticipate fully in the varied situations arising in future in which the application of the legislation in hand may be called for the words chosen to communicate such indefinite referents are bound to be in many cases, lacking in charity and precision and thus giving rise to controversial questions of construction (emphasis supplied). 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".
(iv) In Reserve Bank of India etc. etc. v. Peerless General Finance and Investment Co. Ltd. and others etc. etc. (1987 (1) SCC 424) while dealing with the question of interpretation of a statute, the Apex Court observed as under:
"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 (emphasis supplied). That interpretation is best which makes the textual interpretation match the contextual. A statue is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, Clause by Page 15 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI Clause, phrase by phrase and word by word. If a statute is looked at in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, Clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each Clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. 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."
(v) In Seaford Court Estates Ltd. v. Asher reported in (1949) 2 All ER 155 (CA), Lord Denning, advised a purposive approach to the interpretation of a word used in a statute and observed as under:-
"The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature...... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in this texture of it, they would have straightened it out? He must then do so as they would have done.A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
The learned counsel rely on the judgment of the Apex Court in a case of Grasim Industries Ltd. Vs. Collector of Customs, Bombay reported in (2002) 4 SCC 297, so also in a case of Abhiram Singh Vs. Commissioner reported in (2017) 2 SCC 629 and submit that, while interpreting the provision of a statute, it is to be seen that the intention of legislature is not frustrated. The Courts will reject that construction, which will defeat the plain intention of the legislature even though there may be some in exactitude in the language used. Reliance is placed on the judgment of the Apex Court in a case of Balram Kumavat Vs. Union of India reported in (2003) 7 SCC 628. Though some amendment has been made to pension Rules, however, rule 116(6) of the Pension Rules has not been amended. This shows the intention of the legislature.
In the context of the above citations, we see that the intention of the 2015 circular is that the 2013 circular shall be applicable retrospectively only and is therefore issued so that no harm comes to such medically decategorized and retired employees who retire after the 2013 circular with regards to their pay fixation. It is not for the cases of normal superannuation due to age. Therefore, this benevolent Page 16 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI intention should not be taken away by the purely technical interpretation that just because the order of retirement on medical grounds was issued vide 17/06/2013, that is after the issue of the 2013 circular therefore, the protection and benevolence of the 2015 circular is denied. It is trite to observe that in a case of normal superannuation due to date of birth, the retirement age is fixed and hence there is no ambiguity or any lapse or early date of normal superannuation. But the present matter of medical decategorisation based retirement is not normal and is predicated upon by whenever firstly the medical test is conducted, secondly as to when the medical examination report is finalised and the related order of medical decategorisation is issued and thirdly - finally as to when the order with respect to the findings of the medical examination along with the specified date on which the medical based retirement would take effect. In the present case, to recap, the medical examination direction is vide date 11/03/2013 and the order of retirement is vide date 17/06/2013, viz more than three months after the medically declared date of retirement on account of medical unfitness for all category of services of the Applicant. Therefore, the substantive justice principle in this very peculiar case and circumstancesif adopted would incline us to not to neglect the date of 11/03/2013 inasmuch that the foundation of the medically decategorized retirement took birth on 11/03/2013 and the applicant also applied for retirement as a consequence vide representation dated 19/03/2013. Therefore, all actions possible towards retirement were complete from the side of the applicant by 19/03/2013 and he had to just wait for the final order of retirement for which the Respondents took more than three months and were able to issue the same only by 17/06/2013. This delay cannot be held to the account of the Applicant.Implying thereby that, the respondents have delayed in a matter concerning the 2013 circular qua the date Page 17 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI of issue of orders with respect to the retirement,viz 17/06/2013 of the applicant even though the cause of action arose three months earlier, viz 11/03/2013 / 19/03/2013.
8.2 At this juncture, we may well advert to the famous maxim, 'salus populi est suprema lex (Let the good of the people be the supreme law) by Cicero in his De Legibus which in a certain sense is a legally cited quote for establishing that the good of the people shall prevail. In the present case, we find that the respondents have factually delayed the issue of the retirement much to the disadvantage of the applicant and so it would be unjustifiable in the ever-vigilant untiring eyes of the law to turn a blind eye to this very crucial factum when seen in light of the above citations. Further the respondents would do well to avoid an Ostritch like attitude referred to earlier in this judgment wherein they should not place themselves in the place of an Ostritch - fabled to avoid a sand storm by sticking its head in the very sand which is part of the sand-storm it is seeking to avoid. To elaborate a little here, the Ostrich effect is a cognitive bias that causes people to avoid information that they perceive as potentially unpleasant. For example, the Ostrich effect can cause someone to avoid looking at their vagrant ward, because they're worried about how would they deal with the vagrancy, or not being concerned with a robbery next door just because it has not occurred in their own house.Information avoidance can lead to detrimental outcomes in a variety of situations, so it's important to understand it. And this is precisely what we have here due to the Ostritch attitude of the respondents.
8.3 It would be well also to recap certain decisions of the Hon Apex Court on the doctrine of substantive justice and on the issue of not holding an applicant liable for no fault of his or her. Thus, in this context, Page 18 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI
(i) the Hon Apex Court in the matter of Noor Mohammed vs Jetha Nand &Anr on 29 January, 2013 in CIVIL APPELLATE JURISDICTIONSpecial Leave Petition (C) No. 25848 of 2011 held as under:
"....In a democratic body polity which is governed by a written Constitution and where Rule of Law is paramount, judiciary is regarded as sentinel on the qui vive not only to protect the Fundamental Rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the faith and hope of the people in the constitutional system are not atrophied. Sacrosanctity of rule of law neither recognizes a master and a slave nor does it conceive of a ruler and a subject but, in quintessentiality, encapsules and sings in glory of the values of liberty, equality and justice ...... The fundamental conception of democracy can only be preserved as a colossal and priceless treasure where virtue and values of justice rule supreme and intellectual anaemia is kept at bay by constant patience, consistent perseverance, and argus-eyed vigilance. ......The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence -- processual, as much as substantive."
(ii) The Hon Delhi High Court in the matter ofSuman Kundra vs Sanjeev Kundra on 28 May, 2015 held as under:
"....45. But at the same time, it is pertinent to note that the courts must act in a manner so as to deliver substantive justice and to ensure that a litigant is not made into a litigant non grata for inadvertent deficiencies as the same might lead to a meritorious case being thrown out at the very threshold for mere technicalities...."
(iii) The Hon Apex Court held in the matter of Sambhaji & Ors. vs. Gangabai & Ors. reported in 2008(17) SCC 117 that processual law is not a tyrant but a servant not an obstruction but an aid to justice. The procedural prescription is the hand maid and not the mistress, the lubricant and not a resistant in the administration of justice. The relevant portions of the said judgment are quoted below:-
"11. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic Page 19 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode.
A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.
(iv) In Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur [AIR 1965 SC 895] a Constitution Bench of the Hon Apex Court held that the question whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.
(vi) In Sangram Singh v. Election Tribunal, Kotah [AIR 1955 SC 425] considering the provisions of the Code dealing with the trial of suits, it was opined that: (SCR pp. 8-9) `Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not Page 20 of 21 CAT LUCKNOW BENCH O.A. NO.193 OF 2017 -BHASKAR SHARMA VS. UOI be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.' " [See: SK.
Salim Haji Abdul Khyumsab v. Kumar (2006(1) SCC 46)] and R.N. Jadi & Bros. v. Subhashchandra [2007(6) SCC 420]"
9. All the above views of the Hon Apex Court guide this Tribunal to take into consideration principles of substantive justice in this peculiar and atypical case instead of a procedural claim by the Respondents which also does not squarely go against the claim of the applicant as discussed above and so his claim is justified and worthy of being allowed. Discretioest scire per legem quid sit justum-Discretion consists in knowing what is just in law - and not arbitrary.
10. In conclusion therefore the O.A. is allowed and it is directed as follows:
i. The order dated 17/02/2017 is quashed forthwith;
ii. The competent authority shall revise the PPO in light of the quashing of the impugned order;
iii. All due arrears shall be paid without interest; and iv. The above orders shall be complied within a period of two months of the date of receipt of a certified copy of this order O.A. allowed in above terms.No Costs.
(Swarup Kumar Mishra) (Devendra Chaudhry)
Member-J Member-A
Girish/-
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