Central Administrative Tribunal - Kolkata
Dr Bijita Dutta vs Employees State Insurance Corporation ... on 21 February, 2025
1 O.A. 1369 of 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
Date of Hearing : 13.02.2025
O.A. 350/1369/2023 Date of Order: 21.02.2025
Coram : Hon'ble Mr. Manish Garg, Judicial Member
Hon'ble Mr. Anindo Majumdar, Administrative Member
Dr. Bijita Dutta, Wife of Anirban Dutta, aged about
40 years, presently serving as Assistant Professor
of Pathology, Department of Pathology, ESI-
PGIMSR & ESIC Medical College & ESIC Hospital
Joka, presently residing at S-1/55, Acharya Prafulla
Nagar, Sonarpur, Kolkata-700150. Email -
[email protected] Mobile-8910626147.
....... Applicant.
-versus-
1. The Union of India, Service through the
Secretary, Ministry of Labour and Employment,
Shram Shakti Bhawan, Rafi Marg, New Delhi, Pin -
110001.
2. The Director General, Insurance Employees'
State Corporation, Panchdeep Bhawan, Comrade
Indrajeet Gupta (CIG) Marg, New Delhi - 110 002.
3. The Medical Commissioner, (Medical
Administration), Employees' State Insurance
Corporation, Panchdeep Bhawan, Comrade
Indrajeet Gupta (CIG) Marg, New Delhi 110 002.
4. The Additional Director, Employees' State
Insurance Corporation, Panchdeep Bhawan,
Comrade Indrajeet Gupta (CIG) Marg, New Delhi -
110 002.
5. The Dean in Charge, ESI-PGIMSR, ESIC Medical
College and ESIC Hospital & ODC(EZ), Diamond
Harbour Road, P.O. Joka, Kolkata 700104.
...... Respondents.
Digitally signed by Dhrubajyoti banerjee
Dhrubajyoti banerjee
DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2,
PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee
Reason: I am the author of this document
Location:
Date: 2025.02.24 12:32:25+05'30'
Foxit PDF Reader Version: 2024.4.0
2 O.A. 1369 of 2023
For the Applicant : Mr. B. Nandy, Counsel
Mr. M.N. Roy, Counsel
For the Respondents : Mr. S.C. Prasad, Counsel
ORDER
Per Mr. Manish Garg, Judicial Member :
1. The applicant has filed this Original Application under Section 19 of the Administrative Tribunal Act, 1985, praying for the following relief(s) highlighting the facts of the case:
"(a) An order do issue quashing/setting thereby aside the impugned Reasoned Order passed by the Respondent No. 2, being The Director General, ESIC, vide No. A-29013/4/2022-DPC(M)-Part(1) dated 14.07.2023, by which the promotion of the applicant to the post of Associate Professor (Pathology) has been denied.
(b) An order do issue directing thereby the concerned respondent authorities to immediately accord promotion to the applicant to the post of Associate Professor (Pathology), w.e.f. 26.05.2021, when the applicant completed her regular service of 5 years as Assistant Professor.
(c) An order do issue directing thereby the concerned Respondent Authorities to consequentially restore the seniority of the applicant upon promoting her to the said post of Associate Professor (Pathology), w.e.f. 26.05.2021.
(d) An order do issue directing thereby the concerned Respondent Authorities to immediately pay the applicant all her arrears of salaries and also to refix her pay commensurating with that of her promotional post of Associate Professor (Pathology), w.e.f. 26.05.2021.
(e) An order do issue directing thereby the concerned respondent authorities to transmit all the records before this Hon'ble Tribunal in the ends of justice so that any adverse order/orders may be judicially reviewed and quashed by This Hon'ble Tribunal which affects the entitlement of the applicant for being promoted to the post of Associate Professor.
(f) Any other appropriate order/orders direction/directions as this Hon'ble Tribunal may deem fit and proper to protect the right of the applicants."
2. The factual matrix of the present case are as follows:
Digitally signed by Dhrubajyoti banerjeeDhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0
3 O.A. 1369 of 2023 2.1. Ld. Counsel for the applicant has submitted that this is the second round of litigation. In the first round of litigation, an Original Application was preferred before this Tribunal being O.A No. 350/556/2023. The said O.A was disposed of with the following direction:
"7. Accordingly, I direct the Director General, ESIC or any other competent respondent authority to consider the representation of the applicant and pass a reasoned and speaking order on the same as per law and extant rules within a period of 6 weeks from the date of receipt of copy of this order and communicate the decision to the applicant forthwith.
8. It is made clear that I have not entered into the merits of the matter and therefore, all points are kept open for consideration."
Based on the said order, speaking order has come to be passed on 14.07.2023, which is subject matter of challenge in the present O.A. 2.2. The reasoning assigned in the present O.A is as under:
"f) Since Dr. Bijita Dutta proceeded for Extraordinary Leave (for study purpose) from 01.08.2016 to 08.08.2019 for pursuing a super specialty course DM (Clinical Haematology) only after 2 months of her joining in ESIC, she does not possess the required teaching experience as per Recruitment Regulations of ESIC vis a vis NMC Norms for promotion to the post of Associate Professor on the date of her eligibility, i.e., on 26.05.2021.
g) In the light of above facts, it is clear that the recommendations of the Departmental Promotion Committee held on 02.02.2023 for considering promotion to the post of Associate Professor recommending Dr. Bijita Dutta 'unfit' for promotion to the post of Associate Professor, on being short of mandatory teaching and research experience as Assistant Professor in concerned department' and therefore, not fulfilling the criteria of promotion, are in order."
2.3. Ld. Counsel for the applicant draws attention to the fact that it is not in dispute that the applicant had got a sanctioned leave for which an application was preferred to the competent authority. Though the said application has not been brought on record, assuming that the application that has been filed is a correct one, an office order on the EOL was granted to the applicant for higher Digitally signed by Dhrubajyoti banerjee Dhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 4 O.A. 1369 of 2023 studies. The office order dated 03.05.2019 had come to be passed which was followed by a corrigendum, which reads as under:
"In partial modification to Hqrs. O.O. No. 177/2019 dated 03/05/2019 communicating the EOL (for higher studies) in r/o Dr. Bijita Dutta, Assistant Professor, it is informed that the period of EOL may be read as 01/08/2016 to 08/08/2019 instead of 30/05/2016 to 08/08/2019.
Other contents of the previous order remain same."
2.4. He further draws attention to the RRs pertaining to the post of Associate Professor. It is not in dispute that Assistant Professor is a feeder category to the promotional post of Associate Professor.
As per the RRs, following will be the stipulation for promotion:
"Assistant Professor with *five years regular service in pay band-3 Rs.15600-39100 with grade pay Rs. 6600 subject to satisfaction of Medical Council of India (MCI) Norms and satisfactory completion of mandatory training before consideration for promotion. (*Extra Ordinary Leave availed for reasons other than on Medical Certificate and for study purpose, shall be excluded from the qualifying service.)"
2.5. Ld. Counsel for the applicant would further submit that the respondents have misconstrued the proviso to the RRs highlighted hereinabove.
He would further submit that the proviso for Extra Ordinary Leave availed for reasons other than on medical certificate and for study purpose has to be read in consonance and in conjunction with the main stipulated condition for promotion of Assistant Professor with 05 years of regular service.
2.6. He would further submit that the Extra Ordinary Leave is a sanctioned leave and is a kind of leave, and so the benefit ought to be accorded and it has to be read in consonance with regular service. He would also submit that there is no doubt that the applicant has gone for a sanctioned Extra Ordinary Leave after 02 months from joining as an Assistant Professor for higher studies.
Since it is one kind of leave which is duly sanctioned, the same cannot be equated Digitally signed by Dhrubajyoti banerjee Dhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 5 O.A. 1369 of 2023 to that of a private person or personal in nature and the benefit of the same ought to be accorded to the applicant.
2.7. He further relies upon the decision rendered by the Hon'ble Apex Court in the case of Shripal Bhati & Anr. Vs. State of U.P. & Ors. reported in (2020) 12 SCC 87, the operative part of which reads as under:
"12. The argument is based on an isolated reading of Regulation 16(2)(i) which is impermissible. It is well settled that a provision is required to be read in whole and not in part and in isolation to the other parts of the provision. The entire provision is required to be read out harmoniously. Regulation 16(i)(c) clearly provides that recruitment to any post under the Authority can be made by deputation. If the provisions of Regulation 16 are to be read in a manner suggested by the learned counsel for the appellant it would render Clause 16(i)(c) totally redundant. It is well-settled principle of law that any particular portion of provision cannot be read in isolation in a manner so as to render the other part of the same provision totally redundant. Similar situations exist under Clauses 16(2)(ii) and (iii) providing for appointment on post falling under Groups 'B' and 'C'. If the provisions of Regulation 16 are read in the mode and manner suggested by the learned counsel for the appellant, the provisions of Section 16(i)(c) would be rendered totally redundant in respect of posts falling under Groups 'B' and 'C' as well. Regulation 16 is intended to provide the modes of recruitment and combined reading of the entire regulations makes it amply clear that an appointment to a post falling either under Groups 'A', 'B' and 'C' can very well be made on deputation."
3. Opposing the grant of relief, Ld. Counsel for the respondents would rely upon the averments contained in the counter affidavit. Ld. Counsel for the respondents has also filed their written notes of argument. He would contend as under:
3.1. Ld. Counsel for the respondents would rely upon the definition of Extra Ordinary Leave as per Swamy's Handbook 2017 which reads as under:
"No leave of any kind can be granted to a Government servant for a continuous period exceeding five years. Subject to this limitation, any amount of EOL may be sanctioned to a permanent Government servant.-Rule 12."Digitally signed by Dhrubajyoti banerjee
Dhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 6 O.A. 1369 of 2023 3.2. It is further contended that study leave has been taken by the applicant for her own benefit personal to her and has no relation or nexus for the purpose of grant of promotion.
3.3. He would further contend that Extra Ordinary Leave has been granted purely on the basis of discretion so that the applicant joins service after completion of the leave period.
3.4. He would rely upon the fact that the applicant is not having a period of regular service as contemplated in the rule itself, vis a vis, National Medical Council's Guidelines for promotion to the post Associate Professor on the date of eligibility, i.e., 26.05.2021.
3.5. He further submits that as per mandatory provisions contained in the ESIC Recruitment Regulations of Teaching Sub-cadre qualifying service for promotion of Assistant Professor to the post of Associate Professor is "Assistant Professor" with 5 years 'regular service' in pay band - 3 Rs.14,600-Rs.39,100 with grade pay Rs.6,600/- subject to satisfaction of Medical Council of India (MCI) norms.
3.6. It is also contended that the period spent by the teaching faculty towards acquisition of degree in super specialty subject on concurrent duties/deputation shall not be counted as teaching experience for fulfilling eligibility criteria for promotion in the concerned super specialty department.
3.7. It is further stated that she would be treated as on duty but with regard to promotion, the three years study leave will not be taken into account because the petitioner has not discharged her duty and there was no assessment with regard to her service rendered towards the employer. The applicant has only Digitally signed by Dhrubajyoti banerjee Dhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 7 O.A. 1369 of 2023 enhanced her educational qualification for her benefit under career advancement.
3.8. It is further contended that promotion has to be adjudicated keeping in mind the duties discharged, educational qualification and seniority. Hence all the three ingredients are not there for consideration for her promotion and that performance is also a basic criterion to judge a person for promotion.
3.9. Ld. Counsel for the respondents would also submit that as per Regulation 8.2 (x) of UGC Regulation 2018, study leave can only be counted as a service for the purpose of retirement benefits. In fact, the required teaching experience to be eligible for appointment in the post of Associate Professor was eight years, which shall not include the leave period taken for study purposes. The eight years of experience should be either in teaching or in research.
3.10. He further relies upon a note dated 13.02.2025 which reads as under:
"In the instant case of Dr. Bijita Dutta, the officer had joined the Govt. Service on 26.05.2016 and her five years of continuous service was supposed to be completed on 25.05 2021. For pursuing higher studies with proper study leave she should have proceeded on or after 26.05.2021. In her case, she proceeded for Super Speciality Course which was DM in Clinical Haematology on 01.08.2016 to 08.08.2019. After completion of her course she has been serving in ESI Corporation till date. Now, it is pertinent to mention here, that Dr. Dutta was not sanctioned Study Leave for her Super Speciality Course by the Headquarters of the respondent authority. The Competent. Authority had sanctioned Extra Ordinary Leave for Study Purpose for the period 01.08.2016 to 08.08.2019 to regularize the services of the officer concerned. Study Leave Rules have been mentioned above and as the officer did not render 5 years of continuous service, she was not granted study leave to prosecute for her Super Speciality Course.
However, considering that the Super Speciality Course would be of paramount importance in the career prospective of the officer, the Competent Authority permitted her to continue the study with the condition that the period would be regularized by sanction of EOL.Digitally signed by Dhrubajyoti banerjee
Dhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 8 O.A. 1369 of 2023 Hence, as no study leave has been granted, it is to be considered that the super speciality course prosecuted by her is her "own interest".
Furthermore, as per NMC Notification dated 14th February, 2022, the General Norms for Appointment of Faculty in Medical Institution, Point No. 3.11 specifies "That the period spent by the Teaching Faculty towards acquisition of degree in Super Speciality subject on concurrent duties/deputation shall not be counted as Teaching Experience for fulfilling eligibility criteria for promotion in the concerned Super Speciality Department."
3.11. He further relies upon the decision rendered in the case of University Grants Commission Vs. Priya Varghese & Ors., wherein even though the relief was granted by the Hon'ble Kerala High Court but the same has been subsequently stayed by the Hon'ble Apex Court.
4. We have heard the Ld. Counsel for the parties and perused the records in this case.
5. ANALYSIS 5.1 We have to examine whether Extra ordinary sanctioned leave ought to be counted for purpose of "regular service" and "qualifying service" under RR"s for promotion to the post of Associate Professor. What effect is to be given such leave in terms of RRs and proviso thereto has to be looked into.
5.2. We have already re-produced the proviso herein above.
5.3. In CRIMINAL APPEAL NO. 349 OF 2021 -THE STATE OF GNCT OF DELHI AND OTHERS VERSUSPRAVEEN KUMAR @ PRASHANT decided on 17.05.2024, the Hon'ble Apex Court observed as under:-
"13.4 A proviso is a clause that introduces a condition by the word 'provided'. (Webster's Second New International Dictionary1995 (1934)). The main function of a proviso is to put a qualification and to attach a condition to the main provision. It indicates the exceptions to the provision but may aid in Digitally signed by Dhrubajyoti banerjee Dhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 9 O.A. 1369 of 2023 explaining what is meant to be conveyed by its part.
(Jamunabai Motilal etc. v. State of Maharashtra & Anr., 1977 SCC OnLine Bom 38). A proviso is "introduced to indicate the effect of certain things which are within the statute but accompanied by the peculiar conditions embraced within the proviso". (James DeWitt Andrews, "Statutory Construction", in 14 American Law and Procedure 1, 48 (James Parker Hall & James DeWitt Andrews eds., rev. ed. 1948). A proviso is enacted to modify the immediately preceding language. It is apposite while reiterating the interpretation of a proviso to refer to the recent judgement of this Court in Union of India & Ors. v. VKC Footsteps (India) (P) Ltd.(2022) 2 SCC 603:
"F.4. Construing the proviso
91. Provisos in a statute have multi-faceted personalities. As interpretational principles governing statutes have evolved, certain basic ideas have been recognised, while heeding to the text and context. Justice G.P. Singh, in his seminal text, Principles of Statutory Interpretation [ Justice G.P. Singh, Principles of Statutory Interpretation, (14th Edn., Lexis Nexis, 2016) pp. 215-234.] formulates the governing principles of interpretation which have been adopted by courts while construing a statutory proviso. The first rule of interpretation is that:
"The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As stated by Lush, J. [Mullins v. Treasurer of the County of Surrey, (1880) LR 5 QBD 170] : (QBD p. 173) '... When one finds a proviso to the section, the natural presumption is that but for the proviso the enacting part of the section would have included the subject-matter of the proviso.' In the words of Lord Macmillan [Madras & Southern Mahratta Railway Co. Ltd. v. Bezwada Municipality, 1944 SCC OnLine PC 7] : (SCC Digitally signed by Dhrubajyoti banerjee Dhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 10 O.A. 1369 of 2023 OnLine PC) '... The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case.' The proviso may, as Lord Macnaghten [Local Govt. Board v. South Stoneham Union, 1909 AC 57 (HL)] laid down, be 'a qualification of the preceding enactment which is expressed in terms too general to be quite accurate' (AC p. 62). The general rule has been stated by Hidayatullah, J. [Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subbash Chandra Yograj Sinha, AIR 1961 SC 1596] , in the following words : (AIR p. 1600, para 9) '9. ... As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule.' And in the words of Kapur, J. [CIT v. Indo-Mercantile Bank Ltd., AIR 1959 SC 713] : (AIR p. 717, para 9) '9. ... The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment....' "
(emphasis supplied)
92. But then these principles are subject to other principles of statutory interpretation which may supplement or even substitute the above formula. These other rules which have been categorised by Justice G.P. Singh are summarised as follows:
92.1. A proviso is not construed as excluding or adding something by implication:
"Except as to cases dealt with by it, a proviso has no repercussion on the interpretation of the enacting portion of the section so as to exclude something by implication which is embraced by clear words in the enactment." [ Justice G.P. Digitally signed by Dhrubajyoti banerjee Dhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 11 O.A. 1369 of 2023 Singh, Principles of Statutory Interpretation (14th Edn., Lexis Nexis, 2016) p. 218.] 92.2. A proviso is construed in relation to the subject-matter of the statutory provision to which it is appended:
"The language of a proviso even if general is normally to be construed in relation to the subject-matter covered by the section to which the proviso is appended. In other words, normally a proviso does not travel beyond the provision to which it is a proviso. 'It is a cardinal rule of interpretation', observed Bhagwati, J. [Ram Narain Sons Ltd. v. CST, AIR 1955 SC 765, p. 769, para 10] , 'that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.' " [ Justice G.P. Singh, Principles of Statutory Interpretation (14th Edn., Lexis Nexis, 2016) p. 221.] 92.3. Where the substantive provision of a statute lacks clarity, a proviso may shed light on its true meaning:
"If the enacting portion of a section is not clear, a proviso appended to it may give an indication as its true meaning. As stated by Lord Herschell [West Derby Union v. Metropolitan Life Assurance Society, 1897 AC 647 at p. 655 (HL)] : (AC p. 655) "Of course a proviso may be used to guide you in the selection of one or other of two possible constructions of the words to be found in the enactment, and shew when there is doubt about its scope, when it may reasonably admit of doubt as to its having this scope or that, which is the proper view to take of it;" [ Justice G.P. Singh, Principles of Statutory Interpretation (14th Edn., Lexis Nexis, 2016) p. 223.] 92.4. An effort should be made while construing a statute to give meaning both to the main enactment and its proviso Digitally signed by Dhrubajyoti banerjee Dhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 12 O.A. 1369 of 2023 bearing in mind that sometimes a proviso is inserted as a matter of abundant caution:
"The general rule in construing an enactment containing a proviso is to construe them together without making either of them redundant or otiose. Even if the enacting part is clear effort is to be made to give some meaning to the proviso and to justify its necessity. But a clause or a section worded as a proviso, may not be a true proviso and may have been placed by way of abundant caution." [Id, p. 226.] 92.5. While ordinarily, it would be unusual to interpret the proviso as an independent enacting clause, as distinct from its main enactment, this is true only of a real proviso and the draftsperson of the statute may have intended for the proviso to be, in substance, a fresh enactment:
"... To read a proviso as providing something by way of an addendum or as dealing with a subject not covered by the main enactment or as stating a general rule as distinguished from an exception or qualification is ordinarily foreign to the proper function of a proviso. However, this is only true of a real proviso. The insertion of a proviso by the draftsman has not always strictly adhered to its legitimate use and at times a section worded as a proviso may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before."
[Id, p. 228.]
93. Perhaps the most comprehensive and oft-cited precedent governing the interpretation of a proviso is the decision of this Court in S. Sundaram Pillai v. V.R. Pattabiraman [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591] . S. Murtaza Fazal Ali, J. speaking for a three-Judge Bench of this Court held : (SCC p. 610, para 43) "43. ...To sum up, a proviso may serve four different purposes:
Digitally signed by Dhrubajyoti banerjeeDhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 13 O.A. 1369 of 2023 (1) qualifying or excepting certain provisions from the main enactment;
(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision."
94. While enunciating the above principles, S. Sundaram Pillai [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591] took note of the decision in Hiralal Rattanlal v. State of U.P. [Hiralal Rattanlal v. State of U.P., (1973) 1 SCC 216 : 1973 SCC (Tax) 307] where K.S. Hegde, J., speaking for a four-Judge Bench of this Court observed that while ordinarily, a proviso is in the nature of an exception, the precedents indicate that sometimes a proviso is in the nature of a separate provision, with a life of its own. The Court held : (Hiralal Rattanlal case [Hiralal Rattanlal v. State of U.P., (1973) 1 SCC 216 : 1973 SCC (Tax) 307] , SCC p. 224, para 22) "22. ... Ordinarily a proviso to a section is intended to take out a part of the main section for special treatment. It is not expected to enlarge the scope of the main section. But cases have arisen in which this Court has held that despite the fact that a provision is called a proviso, it is really a separate provision and the so-called proviso has substantially altered the main section. In CIT v. Bipinchandra Maganlal & Co. Ltd. [CIT v. Bipinchandra Maganlal & Co. Ltd., AIR 1961 SC 1040 : (1961) 2 SCR 493 : (1961) 41 ITR 290] this Court held that by the fiction Digitally signed by Dhrubajyoti banerjee Dhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 14 O.A. 1369 of 2023 in Section 10(2)(vii) second proviso read with Section 2(6-C) of the Indian Income Tax Act, 1922 what is really not income is, for the purpose of computation of assessable income, made taxable income."
Besides the decision in CIT v. Bipinchandra Maganlal & Co. Ltd. [CIT v. Bipinchandra Maganlal & Co. Ltd., AIR 1961 SC 1040 :
(1961) 2 SCR 493 : (1961) 41 ITR 290] , the Court in Hiralal Rattanlal [Hiralal Rattanlal v. State of U.P., (1973) 1 SCC 216 :
1973 SCC (Tax) 307] adverted to the earlier decisions in State of Rajasthan v. Leela Jain [State of Rajasthan v. Leela Jain, AIR 1965 SC 1296] and Bihta Coop. Development Cane Mktg. Union Ltd. v. Bank of Bihar [Bihta Coop. Development Cane Mktg. Union Ltd. v. Bank of Bihar, AIR 1967 SC 389] ."
5.4 The "qualifying service" has to be read in consonance with CCS Pension Rules, in the matter of Union of India & others v Ashok Kumar Sharma [2011 (13) SCC 2] in civil appeal No. 568 of 2011 had ruled that, if an employee availed Extra Ordinary Leave (EOL) for private purpose without salary then such period is to be excluded for the purpose of computing qualifying service for grant of financial upgradation. This is not a case here.
5.5. It is not in dispute that an extraordinary leave is one of kind of any leave to which an employee is entitled to leave.
5.6. The extraordinary leave sought under sanction for study leave cannot be regarded as private affairs/ purpose. In other words, all kinds of leave availed except extra ordinary leave on personal grounds shall count as "qualifying service" for eligibility for promotion. The qualifying service is in reference to the total period rendered for purpose of promotion under Promotion Rules i.e. in present case 5 years for promotion to the post of Associate Professor which Digitally signed by Dhrubajyoti banerjee Dhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 15 O.A. 1369 of 2023 necessarily mean and operate when such "regular service" rendered by an employee in the Cadre on a regular basis other than the service on contract or daily wages or ad-hoc but includes ad-hoc promotion or appointment in a cadre post through due procedure followed by regularization to the extant approved by the competent authority. The 'regular service' shall include all periods spent on deputation/foreign service, study leave and other kind of leave duly sanctioned by the Competent Authority. It is also safe to interpret that when the competent authority regularizes the period of leave for purpose of study, it becomes a part of 'regular service'. Hence, it is can be safely inferred that the distinction between 'regular service' and 'qualifying service' needs to be considered and understood properly, as the competent authority had regularised the period and treated it as Extra Ordinary Leave (EOL).
5.7. A strong reliance has been placed on decision rendered in Priya Varghese (Supra) which is pending adjudication before the Hon'ble Apex Court.
We may say said decision pertained to issue of appointment. Even though said decision was passed against the respondent/UOI, here we are concerned with promotion. Ms Varghese, who was appointed as an associate professor in Kannur University's Malayalam Department, has no real teaching experience and issue related to whether she did her research work while pursuing her Ph.D., simultaneously with teaching assignments, without taking any leave wherein it was contended that the time taken to acquire Ph.D. degree will not be counted research/teaching experience, except if it is done simultaneously with teaching assignment without taking any kind of leave. In present matter, we have addressed the issue of counting period of extraordinary sanctioned leave for determining "regular service" under RR's for promotion to the post of Associate Professor.
Digitally signed by Dhrubajyoti banerjeeDhrubajyoti banerjee DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
Date: 2025.02.24 12:32:25+05'30' Foxit PDF Reader Version: 2024.4.0 16 O.A. 1369 of 2023 5.8. The wordings of the proviso to the Rule in question is quiet clear and explicit. The plain reading of the proviso which is to aid to word " regular service"
in form of clarification what is to be excluded or not is also clear. There is no ambiguity in this regard.
5.9. One more aspect of the matter to be pointed out is that while in first round of litigation directions were issued to respondents to consider the representation. However, speaking order so passed exceeded the directions passed by this Tribunal and went a step ahead in referring the matter to DPC without even giving an opportunity to the applicant to put-forth her case thereby declaring "unfit".
6. CONCLUSION In view of the above analysis, we quash and set aside the impugned order(s) passed by the respondents. The respondent(s) are directed to convene the Review DPC in respect of the applicant for purpose of grant promotion to Associate Professor, if otherwise she is fulfilling other eligible conditions. The consequential relief(s) thereto shall follow. The said exercise shall be completed within a period of 45 days from the date of receipt of the certified copy of the order. OA is allowed. All pending applications, if any disposed of. Costs made easy.
(Anindo Majumdar) (Manish Garg)
Member (A) Member (J)
DB
Digitally signed by Dhrubajyoti banerjee
Dhrubajyoti banerjee
DN: C=IN, O=Personal, T=4175, OID.2.5.4.65=1335885743022601584xv4l838ygvJ5Z, Phone=90ed2697919465890397c0e615eece98d6903a5f70d28686aacddcc72088fbe2, PostalCode=713409, S=West Bengal, SERIALNUMBER=3c1d4e3f19f312d282cb79397110e181e5ebdbf76bd6fbc3fbfbb1822c0f4c19, CN=Dhrubajyoti banerjee Reason: I am the author of this document Location:
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