Jharkhand High Court
Rashmi Rekha Nag vs State Of Jharkhand & Ors on 11 July, 2017
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, B. B. Mangalmurti
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.317 of 2009
Rashmi Rekha Nag .... .... .... Appellant
Vrs.
1. The State of Jharkhand
2. The Secretary, Department of Home, Government of Jharkhand
3. The Director General-cum-Inspector General of Police, Jharkhand
4. The Superintendent of Police, East Singhbhum at Jamshedpur
.... .... .... Respondents
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE B. B. MANGALMURTI
For the Appellant : Mr. Indrajit Sinha, Advocate
Mr. Arpan Mishra, Advocate
For the Respondents : Ms. Shweta Singh, J.C. to G.P. V
11 /11.07.2017Heard learned counsel for the parties.
2. The present appeal is directed against the judgment dated 22nd May, 2009 passed in W.P.(S) No.2232 of 2008 by the learned Single Judge. The writ petitioner is the appellant. As the facts on record reveal appellant's husband died on 7th December, 2004 in an extremist violence while posted as Senior Police Officer leaving behind the appellant-widow and two sons. The appellant approached the writ court for payment of the benefits arising out of Government Notification No. 350 dated 21st March, 2001; for payment of a sum of Rs.500/- per month from the Jharkhand Police Benevolent Fund as recommended by the Superintendent of Police on 9th May, 2006; and for payment of family pension and other admissible dues including the payment of salary of deceased on the scale of pay applicable to the officer of the rank of Deputy Superintendent of Police.
3. In terms of notification dated 21st March, 2001, which assures certain benefits to the dependents of the deceased State Government employees, a sum of Rs.10,00,000/- (Rupees Ten lacs) was paid by way of ex-gratia to the writ petitioner-appellant. There is no dispute so far as the payment of total monthly salary of the deceased Government servant which he would have earned till the date of his retirement. There was no dispute either relating to claim for compassionate appointment in lieu of the death of the employee. The writ petitioner had also no grievance relating to provision of rent for Government Quarter for a period of one year. As the facts unfold the grievances was centered around payment of installments of Rs.500/- per month under the Jharkhand Police Benevolent Fund and; the expenses of education of the two dependent children of the deceased Government servant 2 and claim of family pension and other admissible dues in the scale of pay applicable to the officer of the rank of Deputy Superintendent of Police.
4. The respondent-State successfully contested the case before the writ court on all three counts. The writ court was satisfied with the grounds urged by the respondent-State. So far as the claim under the Jharkhand Police Benevolent Fund is concerned it was held that since the said fund was fully funded and managed by the sub-ordinate Police Officers and its representatives, the Managing Committee of the fund had taken a decision that grant from the benevolent fund would not be paid to the family of the Police Officers, who were provided ex-gratia payment of Rs.10,00,000/- (Rupees Ten Lacs) and full pay for the remaining period of service. Recommendation of the Superintendent of Police could not clothe the writ petitioner-appellant with a legal right to claim such payments under the benevolent fund.
The claim of the writ petitioner for admissible dues and family pension and other dues including salary of the deceased in the scale of Deputy Superintendent of Police was also not accepted as the employee could not assume the charge of office prior to his death in spite of the notification of the promotion. In respect of the third grievance, the respondents relied upon the circular dated 10th May, 2008 which explained and clarified the existing circular dated 21st March, 2001 so far it related to the payment of educational expenses of the dependent children of the deceased Government servant. The notification dated 10th May, 2008 is Annexure-A to the counter affidavit of the respondent (dated 16th March, 2009) in writ petition. This resolution issued by the Home Department, Government of Jharkhand explains and clarifies the conditions incorporated in Para 2 (d) (V) of the circular no.350 dated 21st March, 2001 on the very subject of the facilities to be provided for education to the dependent children of the deceased Government employee. As per the resolution dated 10th May, 2008 conditions under Para 2 (d) (V)
(v) to (n) have been kept intact and only a clarification has been made in respect of the liability of the State to reimburse the educational expenses not only incurred in the Government teaching institutes but such other affiliated or approved teaching institutes. The ceiling has also been prescribed at the rate of Rs.7,500/- (Rupees Seven thousand five hundred) per month towards 3 tuition and hostel fees that would come to Rs.90,000/- (Rupees Ninety thousand) annually to be paid for up to the graduation course or for four years whichever is less. Pursuant to the instant resolution, the expenses of the two sons of the appellant, who were undertaking courses in one Siddhartha Dental College, Karnataka and Institute of Business Management & Research, Kolkata have been sanctioned and paid at the prescribed rates to the tune of Rs.6,30,000/- (Rupees Six lacs thirty thousand). The aforesaid payment is not disputed.
5. The learned Single Judge did not find merit in the plea of promissory estoppel and legitimate expectation raised by the writ petitioner. Relying upon the case M/s Motilal Padampat Sugar Mills Co. Ltd. Vs. The State of Uttar Pradesh & Ors. reported in AIR 1979 SC 621, the learned writ court came to conclusion that the modification of the earlier notification was made in the larger public interest as payment of unlimited amount towards the educational expense of dependent children would entail financial hardship upon the State Exchequer. Therefore, the interest of the writ petitioner as a dependent of the deceased employee had to yield to the larger public interest. Imposition of the ceiling was therefore right and cannot be read in isolation from the original notification dated 21st March, 2001. The plea of legitimate expectation was also not accepted on the same premise.
6. Learned counsel for the appellant has made efforts to put forth the legal submission that the notification dated 10th May, 2008 could not be applied retrospectively to take away a legal right accrued on the basis of the existing notification dated 21st March, 2001. It is submitted that the relevant Para 2(d) (V) have been substituted by the provisions of the resolution dated 10th May, 2008. Therefore, such provision should not be read retrospectively. Counsel for the appellant has sought to rely upon the judgment rendered by the Hon'ble Supreme Court in the case Canara Bank & Anr. Versus M. Mahesh Kumar reported in (2015) 7 SCC 412.
The judgment relied upon by the petitioner relates to claim of compassionate appointment. The old scheme of 1993 for compassionate appointment was scrapped by the appellant bank by the 2005 scheme where under ex-gratia payment in lieu of compassionate appointment was being paid. The applications for compassionate appointment made under the 1993 4 scheme were however pending as on the date of the new circular. The appellant-Bank, had taken a plea that on coming into force of 2005 scheme, pending applications for appointment on compassionate ground have to be considered as per the new scheme and they would only be entitled to ex- gratia payment in lieu of compassionate ground. This stand of the appellant- bank was not approved. Rather, the 2005 scheme stood superseded by the 2014 scheme which revived the scheme for providing compassionate appointment. As on the date of the judgment, the scheme in vogue provided for compassionate appointment. In that light, the stand of the appellant-bank was not accepted and they were directed to consider the applications as per the scheme in vogue at the time of the death of the employee concerned.
7. On the part of the respondent-State, learned J.C. to G.P.V submits that the language of the resolution dated 10th May, 2008 is explanatory and only clarifies the existing circular. All the conditions of circular are kept intact and due to the lack of clarity in the mode of its distribution and the institution which it intended to cover, the clarificatory resolution was issued. Therefore, it should relate back to the date of original notification. According to the learned counsel for the respondent, in view of the judgment rendered by the Hon'ble Supreme Court in the case of Punjab Traders & Ors. Versus State of Punjab & Ors. reported in (1991) 1 SCC 86 when the amendment are clarificatory in nature, it does not have the effect of replacing the existing circular by supercession. Therefore, the contention of the appellant that a vested right has been taken away is not legally tenable.
8. We have considered the submissions of counsel for the parties and gone through the relevant materials on record including the impugned judgment. We do not find any error in the judgment of learned Single Judge where the claim of payments under the Jharkhand Police Benevolent Fund has been declined as it was managed and funded by a committee of subordinate police officials and its representatives, who had consciously taken a decision not to pay any sum to the families of such deceased officers/personnel in case where State Government has provided ex-gratia grant of Rs.10,00,000/- (Rupees Ten Lacs) and full pay for the remaining period of service. On the second count, as well, we find that the findings of the learned Single Judge do not suffer from any errors as the deceased 5 employee had not assumed charge of the office of the Deputy Superintendent of Police before his unfortunate death. Though the State Government had notified his promotion to the higher post, under the provisions of the Service Code, i.e. Rule 58 of the Service Code, it is only on the assumption of the charge on the substantive post that an employee is entitled to the pay and allowances of such a post. The employee having died before assuming charge could not be held to be legally entitled to the scale of pay of the post of Deputy Superintendent of Police. Therefore, no claim of salary or family pension on such scale would be legally claimed by the writ petitioner.
9. On the third count also, we are satisfied that the claim of the writ petitioner was not tenable in law. Though learned counsel for the appellant has strenuously tried to show that the resolution dated 10th March, 2008 in effect replaced or superceded the existing circular, but we find that the instant resolution only covers part of the original resolution dated 21st March, 2001 so far as it related to the benefits of the educational expenses of the dependent children of the deceased employee. None of the other terms and conditions of the original notification dated 21st March, 2001 have been either amended or abrogated. Moreover, from the language of Para 3 of the instant notification dated 10th May, 2008, we find that it is intended to provide clarity and explanation to the existing notification, so far it related to the educational expenses of the dependent of the deceased employee. All the four conditions of Para 2 (d) (V) of notification dated 21.03.2001 are intact in the resolution dated 10th May, 2008. The State Government has however further clarified that this benefit could be available for undertaking education not only in the educational institutions of the State but such institutions which are either affiliated or approved by the State Government. It has further clarified the ceiling of expenses to be borne by the State and level up to which it is to be borne i.e. graduation or upto four years whichever is less. The learned Single Judge has also found sound reasoning behind laying down the clarifications through the instant resolution. They are in the larger public interest.
10. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair 6 existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only...... "nova constitutio futuris formam imponere debet non praeteritis"..... a new law ought to regulate what is to follow, not the past. It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole.
The Hon'ble Supreme Court in the case of Zile Singh Vs. State of Haryana & Ors. reported in (2004) 8 SCC 1 has, however, also held that the presumption against retrospective operation is not applicable to declaratory statutes. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is "to explain" an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.
It is profitable to quote the opinion of Hon'ble Supreme Court on the aforesaid principle as laid down in the case of Zile Singh (Supra).
14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is "to explain" an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect.
16. Where a statute is passed for the purpose of supplying an obvious omission in a former statute or to "explain" a former statute, the subsequent statute has relation back to the time when the prior Act was passed. The rule against retrospectivity is inapplicable to such legislations as are explanatory and declaratory in nature. A classic illustration is the case of Attorney General v. Pougett (Price at p. 392). By a Customs Act of 1873 (53 Geo. 3, c. 33) a duty was imposed upon hides of 9s 4d, but the Act omitted to state that it was to be 9s 4d per cwt., and to remedy this omission another Customs Act (53 Geo. 3, c. 105) was passed later in the same year. Between the passing of these two Acts some 7 hides were exported, and it was contended that they were not liable to pay the duty of 9s 4d per cwt., but Thomson, C.B., in giving judgment for the Attorney General, said: (ER p. 134) "The duty in this instance was, in fact, imposed by the first Act; but the gross mistake of the omission of the weight, for which the sum expressed was to have been payable, occasioned the amendment made by the subsequent Act: but that had reference to the former statute as soon as it passed, and they must be taken together as if they were one and the same Act;" (Price at p. 392)
17. Maxwell states in his work on Interpretation of Statutes (12th Edn.) that the rule against retrospective operation is a presumption only, and as such it "may be overcome, not only by express words in the Act but also by circumstances sufficiently strong to displace it" (p. 225). If the dominant intention of the legislature can be clearly and doubtlessly spelt out, the inhibition contained in the rule against perpetuity becomes of doubtful applicability as the "inhibition of the rule" is a matter of degree which would "vary secundum materiam" (p. 226). Sometimes, where the sense of the statute demands it or where there has been an obvious mistake in drafting, a court will be prepared to substitute another word or phrase for that which actually appears in the text of the Act (p. 231).
19. The Constitution Bench in Shyam Sunder v. Ram Kumar has held: (SCC p. 49, para 39) "Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is to supply an omission or to explain a previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed, invariably it has been held to be retrospective. Mere absence of use of the word 'declaration' in an Act explaining what was the law before may not appear to be a declaratory Act but if the court finds an Act as declaratory or explanatory, it has to be construed as retrospective." (p. 2487).
11. In the instant case, the benefits of the resolution dated 21st March, 2001 have accrued to the petitioner and the same relating to the educational expenses of her children have neither been taken away. It has not abrogated any legal right which had been conferred under the notification no. 350 dated 21st March, 2001. This resolution of 10th May, 2008 being clarificatory/explanatory in nature, the argument of learned counsel for the appellant that the resolution dated 10th May, 2008 cannot be applied retrospectively to abrogate or extinguish a legal right which accrued under the notification no.350 dated 21st March, 2001 cannot be accepted in the eye of law. The judgment relied upon by the learned counsel for the appellant is in relation to a claim for compassionate appointment and is of no aid to the appellant. The factual context of the said case shows that the appellant-bank 8 had chosen to deny consideration to claims for compassionate appointment pending on the date of the coming into force of the 2005 scheme on the plea that the same had replaced the existing circular by making provision for ex- gratia payment in lieu of compassionate appointment. This in effect had taken away a right of consideration existing in favour of the applicants under the existing old scheme of 1993, though the applications were made before coming into the force of 2005 scheme and had remained pending apparently for no fault of the applicants. The ratio of the case of Canara Bank & Anr. (supra) also does not improve the case of the appellant.
12. Therefore, on the totality of facts, circumstances and the reasons discussed hereinabove, we do not find any error in the judgment of the learned Single Judge.
13. Accordingly, the instant appeal is dismissed.
(Aparesh Kumar Singh, J.) (B.B.Mangalmurti, J.) Anit/RP