Andhra HC (Pre-Telangana)
Principal Secretary To Government ... vs Chadavada Koteswara Rao And Anr. on 16 October, 2001
Equivalent citations: 2002(1)ALD537
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. The Writ Appeals by the State are directed against the interim orders passed in the Writ Petitions by a learned single Judge of this Court directing the appellants not to retire the petitioners-archakas from service on their attaining the age of 58 years and to continue them in service until further orders in the Writ petitions. When the Writ Appeals came up for hearing, with the consent of learned counsel appearing for both the parties, the Writ Petitions were also taken up for hearing and accordingly both the writ appeals and writ petitions are being disposed of by this common judgment.
2. The respondents-writ petitioners are the Archakas working in different temples under regulatory jurisdiction of the Endowments Department of the State. By individual notices, they were informed that they will be retired from service with effect from 31-7-2001 before they attain the age of 65 years. Aggrieved by such notices, the petitioners filed the writ petitions for a writ of mandamus declaring the action of the appellants respondents in seeking to retire them before attaining the age of 65 years as illegal, arbitrary and unjust and for a direction to continue them as archakas till they attain the age of 65 years. They also prayed for interim directions directing the respondents not to retire them from service before they attain the age of 65 years.
3. On a prima facie satisfaction of the rule position relating to the age of superannuation of the Office holders and servants of endowments institutions, a learned single Judge of this Court granted interim directions not to retire the petitioners from service on their attaining the age of 58 years, but to continue them in service until further orders in the respective writ petitions. Aggrieved by and dissatisfied with the orders of the learned single Judge, the appellants -official respondents preferred the aforementioned appeals.
4. Mr. Nooty Ramamohan Rao, learned counsel appearing for the writ petitioners would submit that the Scheme of the Act would clearly show that the Archakas who had been serving religious institutions for a long time are not affected by reason thereof. The saving clause under Rule 47, the learned counsel would urge, applies in relation to the entire Act and the Rules and thus those who had been appointed prior to coming into the force thereof would not come within the purview thereof. Strong reliance in this connection has been placed on the decisions in SHAH BHOJRAJ KUVERJI OIL MILLS & GINNING FACTORY V. SUBHASH CXHANDRA YOGRAJ SINHA, , S. SUNDARAM V. V.R. PATTAB1RAMAN, , MANGAL DAS K.DESAI v. SHASHIKANT R. DESAI, .
5. Mr. Satyananarayana Prasad, learned Government Pleader for Endowments appearing on behalf of the respondents on the other hand would submit that the age of superannuation at 58 years had been uniformly fixed for all the employees and servants of the religious institutions including the archakas/ulthurai servants. The learned counsel would contend that Rule 47 of the Rules do not save the rules in their entirety but only Rules 36 to 46 thereof. It was submitted that no employee has a legal right to hold a post contrary to the provisions of the statute. Reliance has been placed on E.ROYAPPA V. STATE OF TAMIL NADU, , K. NAGARAJU V. STATE OF A.P., and in PRABHAKAR RAO V. STATE OF A.P, .
6. The learned Government Pleader for Endowments inter alia contends that the rules framed under the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 (for short 'old Act') and under A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short "new Act) have no bearing to the case of the petitioners and that the petitioners are not entitled to any relief from this Court especially when the validity of Rule 9 of the 2000 Rules is not questioned.
7. If Rule 47 is to be interpreted as to mean that it affects Rule 9 also which fixed the age of retirement as 58 years, such an interpretation would lead to making the said rule and redundant which would also be inconsistent with the Scheme and Object of the Rules.
8. The Government while making rules issued in G.O.Ms.No. 888 dated 8th December, 2000 is well within its power to fix the retirement age to be on par with all other State Governments employees and employees of Public Sector Undertakings.
9. Originally, there was no specific age of superannuation for the Archakas. The State fixed 70 years as the age of superannuation which was later on reduced to 65 years by the Rules issued in terms of G.O.Ms.No. 171, Revenue (Endowments-I) dated 16.12.1987 known as Archakas and other Office-holders and Servants Qualifications and Emoluments Rules, 1987 (for short "1987 Rules") in exercise of the power under Section 4(3) of the New Act and it was further reduced to 58 years (Rule 9) by the Rules issued in G.O. Ms. No. 888 dated 8.12.2000 issued In exercise of the powers conferred under Section 35(4) of the Act known as The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Office Holders and Servants Service Rules, 2000 (for short "2000 Rules").
10. The A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 was enacted to consolidate and amend the law relating to the administration and governance of Charitable and Hindu Religious Institutions and Endowments in the State of Andhra Pradesh. The said Act was replaced by the new Act, 1987.
11. Firstly we shall advert to the relevant provisions of law.
Section 31 (3) of the old Act reads thus:
31. Appointment etc., of Office holders and Servants:
3)a) Where there is a dispute respecting the right of succession, or where such vacancy cannot be filled up immediately or where the person entitled to succeed is a minor without a guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or where the hereditary, office holder or servant is on account of incapacity, illness or otherwise unable to perform the functions of the Office or perform the service, or is suspended from his office under subsection (1) of Section 32, the trustee may appoint a fit person to perform the functions of the office or service until the disability of the office holder or servant ceases or another person succeeds to the Office or service, as the case may be.
b) In making any appointment under Clause (a), the trustee shall have due regard to the claims of members of the family, if any, entitled to the succession.
Section 31(5) reads:
The Government may make rules to regulate qualifications, method of recruitment, Pay and allowances, discipline and conduct and other conditions of service of the office holders and servants of a charitable or religious institution or endowment.
12. Pursuant to or in furtherance of the said provision, the State made the Rules in terms of G.O. 1478 dated 17.11.1986. The retirement age of Archakas in terms whereof was fixed at 65 years.
Section 35(3) and 35(4) of the new Act read as follows;
Seclion 35: Appointment of Office holders and servants etc. :
(3) Every office holder or servant including Pedda Jeeyanagar, Chinna Jeeyanagar and Mirasidar, Archaka and Pujari whether hereditary or not holding office as such on the dale of commencement of this Act, shall continue as such office holder or servant and notwithstanding any scheme, judgment, decree or order of a Court, Tribunal or other authority or any agreement or custom or usage relating to the payment of any perquisites, emoluments or remuneration, either in cash or kind or both, before the commencement of this Act, be paid only such emoluments as may be prescribed.
Provided that it shall be lawful for the Government to direct such office holders and servants as they may consider necessary to acquire such qualifications and to undergo training in such manner for such period and no such terms as may be prescribed.
(4) The qualifications, method of recruitment and temporary appointments, pay and allowances, discipline and conduct and other conditions of service of the office holders and servants of a charitable or religious institution or endowment, shall be such as may be prescribed.
Section 153 of the new Act reads:
Section 153: Power to make rules :--(1) The Government may, after previous publication and by notification in the Andhra Pradesh Gazette, make rules for carrying out all or any of the purposes of this Act.
2} Every rule made under this Act shall immediately after it is made, be laid before the Legislative Assembly of the State if it is in session and if it is not in session, in the session immediately following for a total period of fourteen days which may be comprised in one session or in two successive sessions and if, before the expiration of the session in which it is so laid or the session immediately following the Legislative Assembly agrees in making any modification in the rule or in the annulment of the rule, the rule shall from the date on which the modification or annulment is notified have effect only, in such modified form or shall stand annulled, as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of any thing previously done under that rule.
13. A notification containing the A.P. Charitable and Hindu Religious Institutions and Endowments Office Holders and Servants Service Rules, 2000 was issued by the State through G.O.Ms.No. 888 , Revenue (Endowments.I) Department dated 8.12.2000. Rule 2(e) of the said Rules defines "Ulthurai Servant" to mean A servant whose duties relate mainly to the performance, or rendering assistance in the performance of puja, rituals and other services to the deity, the recitation of Manthras, Vedas, Prabhandas, Thevarams, and similar invocations and the performance of duties connected with such performance or recitation. The category of the posts coming under this definition shall be as may be specified by the competent authority.
Rule 16: LEAVE:
An office holder and servant shall be entitled to:
a) earned leave at the rate of one day for every fifteen days spent on duty and such leave may be accumulated upto a maximum of one hundred and twenty days.
b) Leave on medical grounds with full pay will be as in the case of Government employees.
c) Maternity leave in the case of women-employees, as may be applicable to Government employees from time to time.
NOTE: No leave shall ordinarily granted under this rule to an ulthurai servant unless he provides a proper substitute to the satisfaction of the appointing authority.
18. CERTIFICATE OF FITNESS FOR PERFORMING CERTAIN SERVICE:
Every 'Ulthurai Servant' whose duty is to recite mantras, Vedas, prabhandham, thevaram, and other invocations shall, before being appointed to an office, obtain a certificate of fitness for performing such duties attached to his office from such authority as may be specified by the Commissioner in this behalf.
Rule 41 MAXIMUM AGE :- No person shall be eligible for appointment by direct recruitment if he has attained or will attain the age specified in the column (5) of Annexure III on the first day of July of the year in which the selection is made. The persons belonging to scheduled castes; scheduled tribes and backward classes communities shall be eligible for concession of age as provided in the A.P. State and Subordinate Service Rules.
47. SAVINGS:- Nothing in these rules shall adversely effect any office holder or servant who has been holding any office or post on the date of coming into force of these rules.
14. The contention of Mr. Rammohan Rao to the effect that the age of retirement fixed in terms of the 1987 Rules issued in G.O.Ms.No. 1171 dated 16.12.1987 is saved by Rule 47 of the Rules issued in G.O.Ms.No. 888 Revenue (Endowments-I) Department dated 8.12.2000 cannot be accepted for more than one reason. It will bear repetition to state that in the earlier Rules no conditions of service of the Office holders and servants of the institutions have been laid down. Any rule, which has been made in derogation of the rule making power, would be ultra vires.
15. Even assuming that the 1987 Rules would still survive and by reason of Rule 14 under Part-I of the said rules the age of retirement would be 65 years, the age of retirement having been fixed under 2000 Rules as 58 years, the earlier rule must be held to have been repealed by necessary implication.
16. In this connection, we may refer to the decision of the Apex Court in SWASTIC RUBBER PRODUCTS LTD V MUNICIPAL CORPORATION OF CITY OF POONA, . In the said case, the Apex Court was considering the Octroi Rules framed under the Bombay Provincial Corporation Act, 1949.
17. Before, we refer to the ratio laid down by the Apex Court; it is necessary to refer to few facts. The said Act into operation in the City of Poona with effect from 15.2.1950. In order to boost industrial development and to encourage the industrialists to establish industries in the city, exemption was given from levy of octroi under Rule 62-B of the Rules framed under the said Act by the Municipal Corporation of Poorna for a period of twelve years from the date on which the said rule came into force. Later on, new Octroi Rules came into force with effect from 7.8.1962. Rule 5(8) of the new rules provides that in respect of any raw materials, or machinery belonging to and imported by the industrial, manufacturing, processing or assembling concern established or to be established in the industrial estate or area for the purpose of, manufacturing, processing or assembling concern established or to be established in the industrial estate or area the Commissioner shall not levy octroi for a period of ten years from the date of demarcation of such areas as an industrial estate or area. The claim of the appellant therein for exemption from payment of octroi under Rule 5(8) was rejected on the ground that area in question was not been demarcated as an industrial area by the Corporation. When the matter was pending before the High Court, it appears that Rule 5(8) was repealed by a notification with effect from. 1.9.1968. Before the High Court it was contended that the repeal of Rule 5(8) was illegal and/or ultra vires and, therefore, it continues to be effective and that in any event the appellant can get the benefit of earlier Rule 62-B, which has not been repealed. On a consideration of the Preamble to the new Octroi Rules, the Apex Court held:
It is true that seven rules covering the subject of octroi and contained in Chapter VIII of the Schedule to the Bombay provisional Municipal Corporations Act, 1949 have been specifically mentioned in the Preamble as being rescinded and Rule 62-B is conspicuous by its absence therefrom, which fact apparently supports Dr. Singhivi's contention. A closer analysis of title Preamble under which new rules were framed, however makes it clear that Rule 62-B relating to octroi was repealed by implication. It is noteworthy that Ch. VIII above-mentioned does not contain any rule relating to octroi, except Rule 62-B, which did not find a place in the Preamble. All rules relating to octroi and enacted under the 1901 and the 1925 Acts were also repealed without exception. Another pointer (which is perhaps the most important in this connection) is available in the last that octroi was made the subject-matter of a new and comprehensive set of rules which not only dealt with the matters covered by the rules contained in Ch. VIII and specifically mentioned in the Preamble but also the one covered by Rule 62-B) namely, the matter of exemption of goods from octroi in areas considered suitable for industrialisation. It does not stand to reason that the rule-making authority framed new rules) of which Rule 5(8) covers the entire field of the earlier Rule 62-B, and yet left the latter intact. It could possibly not have been the intention ofthat authority to have two rules on the same subject and thus create confusion. The promulgation of Rule 5(8) as a part of an exhaustive set of new rules, in our opinion, has the effect of a repeal of Rule 62-B by necessary implication, although not in express terms.
18. The above decision of the Apex Court applies on all fours to the present case. Therefore, we are of the view that the 1987 Rules shall be deemed to have been repealed by implication.
19. A bare perusal of the rules issued in G.O.Ms.No. 888 in its entirety makes it clear that the same will apply to all the existing employees. It is now well settled by various decisions of the Apex Court that statutory rules, which are declaratory in nature, apply to all existing employees.
20. We may further notice that the rules in G.O.Ms.No. 888 were issued under Section 35(4) of the new Act governing the service conditions of Office holders and servants of all the Charitable and religious institutions in the State after receiving objections and suggestions from various quarters. The 1987 Rules were issued in exercise of the power conferred by Section 35(3) of the Act. The said rules only relates to the qualifications, appointments, promotions and emoluments of the Archakas and other servants. But the 2000 Rules issued in G.O.Ms.No. 888 are wider in nature insofar as that it specifies the conditions of service of the Office holders and servants of the endowment institutions. Therefore, the condition mentioned in Rule 9 of the said rules relating to age of retirement would be applicable to all cases of Office holders and servants of the endowment institutions and in view of the decision of the Apex Court in SWASTIC RUBBER PRODUCTS case (supra), the 1987 Rules should be deemed to have been repealed by necessary implication.
21. Another aspect of the matter must also be borne in mind. The Rules issued in G.O.Ms.No. 888 are in two parts. Rules 1 to 35 apply to all temples. From Rule 36 onwards some special provisions have been made which were specifically made applicable only to Office holders and servants of a group of eight temples specified in Rule 36. In relation to the said group of temples, in addition to Rules 1 to 35, except Rules 5 and 16, special provisions made in terms of Rules 37 to 47 thereof were also made applicable.
22. Purposive construction of the rules, in our opinion, clearly suggests that Rule 47, which is in the second part of the rules, apply only to those specified groups of temples. Rule 47, therefore, cannot have any application in relation to Rule 9, which prescribed the age of retirement,
23. It is now well settled principle of law that the principle of literal construction should be made applicable while interpreting the provisions of a statute.
24. In DADI JAGANNADHAM V JAMMULU RAMULU, 2001 AIR SCW 3051, the Apex Court held:
The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction, which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court could not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not here, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.
25. In GURUDEVDATTA VKSSS MARY ADIT V. STATE OF MAHARASHTRA, , the Apex court held that the words used in a provision should be considered in the following terms:
It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver.
26. A construction of a statute, which make a rule redundant, it is trite, should be avoided. In RESERVE BANK OF INDIA v PEERLESS CO., , it was held:
All that is necessary for us to say is this: Legislatures resort to inclusive definitions (1) to enlarge the meaning of words or phrases so as to take in the ordinary, popular and natural sense of the words and also the sense which the statute wishes to attribute to it. (2) to include meanings about which there might be some dispute, or, (3) to bring under one nomenclature all transactions possessing certain similar features but going under different names. Depending on the context, in the process of enlarging, the definition may even become exhaustive. linterpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual irrterpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then by section, clause by 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.
27. We are, therefore, of the opinion that Rule 47 does not save the employees who would otherwise come within the purview of Rule 9.
28. In MANGAL DAS K. DESAI V SHASHIKANT R. DESAI (supra), the Apex Court was considering the question of seniority. The saving clause contained in the notification-dated 5.2.1987 reads thus:
Seniority already determined in accordance with the existing rules on the date of issue of this notification will not be reopened. In respect of the vacancies for which recruitment action has already been taken, on the date of issue of this notification either by way of direct recruitment or promotions seniority will continue to be determined in accordance with the existing rules.
29. The said saving clause having been found to be clear and the seniority of the persons having been saved by express language, it was held that the seniority list dated 21.1.1986 could not be disturbed.
30. It is now well settled principle that the hereditary rights of the Archakas have been abolished and their service conditions have been subjected to the rules. It is not necessary to delve deep into the matter having regard to the decision of the Apex Court in SRI DIVI KODANDARAMA SARMA V STATE OF A.P., .
31. The dictionary meaning of superannuation is an act of retiring a person on pension. It is essentially a matter of executive power. Such policy decision would depend upon the felt need of the administration. Different ages of superannuation can be fixed for different categories of employees and the same cannot be said to be discriminatory in nature.
32. In K. NAGARAJU V. STATE OF A.P., , the Apex Court was dealing with the reduction of age of superannuation of Government employees of the State of Andhra Pradesh from 58 years to 55 years. Based on the facts and circumstances of the case, the Supreme Court held that such reduction was neither arbitrary nor irrational or unreasonable and declined to interfere with the ordinance issued by the State.
33. In the said case, a contention was raised that the deletion of the proviso to Rule 2 of the Fundamental Rules issued by virtue of G.O.Ms.No. 48 dated 17.2.1983, which provides that the rules shall not be modified or replaced to the disadvantage of any person already in service, is beyond the rule making authority or the Legislature. Noticing that the Fundamental Rules and the amendments thereto were issued by the State Government under the powers delegated to it by the Civil Service (Governors' Provinces) Delegation Rules, 1926, the Civil Services (Classification, Control and Appeal) Rules, 1930 and under the proviso to Article 309 of the Constitution, it was observed:
It is well settled that the service rules can be as much amended, as they can be made, under the proviso to Article 309 and that the power to amend these rules carried with it the power to mend them retrospectively. The power conferred by the proviso to Article 309 is of a legislative character and is to be distinguished from an ordinary rule-making power. The power to legislate is of a plenary nature within the field demarcated by the Constitution and it includes the power to legislate retrospectively. Therefore, the amendment made the Fundamental Rules in the exercise of power conferred by Article 309, by which the proviso to Rule 2 was deleted retrospectively, was a valid exercise of legislative power.
34. A State unless there exists a legislative bar has the requisite power to reduce the age of retirement. Such a decision can be taken unilaterally as the relationship of a public servant and the State is ultimately governed by the principle of status. In ROSHANLAL TANDON V. UNION OF INDIA, , it has been held:
It is true that the origin of government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the government. In other words, the legal position of a government servant is more one of status than of contract. The hallmark of status is the attachment, to a legal relalionship of rights and duties imposed by the public 'law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the governor under Article 310. But it is obvious that the relationship between the government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned.
35. Yet again in STATE OF A.P. V. S.K. MOHINUDDIN, , the Supreme Court dealing with an order issued by the Government of Andhra Pradesh reducing the retirement age of teachers working in private aided colleges affiliated to Andhra University from 60 years to 55 years, it has been held:
... the view of the High Court that the Government Order reducing the age of superannuation from 60 years to 55 years has retrospective operation is misconceived. There is no retrospectivity whatsoever. Rule applies to all uniformly notwithstanding whether they entered service prior to the date of order or subsequent thereto. The decision of the High Court which held that the rule had only prospective application and did not apply retrospectively whereby its application was not extended to those employees who had joined service prior to the date of its issue cannot be sustained.
36. Interpreting Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Apex Court in S.B.K. OIL MILLS V. SUBHASH CHANDRA(supra), held:
. . .a section may be prospective in some parts and retrospective in some other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the Legislature is apparent.
37. Interpreting the effect of a proviso to a section, it was observed:
Saving clauses are seldom used to construe Acts. These clauses are introduced into Acts which repeal others, to safeguard rights, which, but for the savings, would be lost.
38. Therefore, the 2000 Rules are applicable in respect of all the Office holders and servants of the religious institutions of the State retrospectively whether they were appointed before or after coming into force of the 2000 Rules.
39. In S. SUNDARAM V V.R. PATTABHIRAMAN, , the Apex Court has explained the functions of a proviso added to a section.
40. However, as already noticed hereinbefore, the saving clause under Rule 47 has application only in respect of the specified group of temples mentioned under Rule 36 of the Rules. Therefore, the above two decisions have no application to the case of the petitioners.
41. In view of the aforementioned authoritative pronouncements, there cannot be any doubt whatsoever that the State was well within its power to fix the age of retirement. At the cost of repetition, it may be stated that the history of the legislation would clearly go to show that the State had been constantly, presumably, having regard to the several suggestions received in this regard had fixed the age of retirement in respect of all the archakas working in the endowments institutions in the State, whether appointed before or after coming into force of the 2000 Rules. The suggestion for continuing the age of superannuation at 65 years has been rejected by the State Government when the approved rules were published. The same is also one of the factors, which cannot be ignored.
42. In any event, as the vires of Rule 9 is not in question before us, in our opinion, the learned single Judge erred in passing the impugned order. The Writ Appeals are, therefore, allowed and the Writ Petitions are dismissed. There shall be no order as to costs.