Allahabad High Court
Ram Anand vs State Of U.P. Through Secy. on 5 March, 2020
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 17 Case :- SERVICE SINGLE No. - 4336 of 1988 Petitioner :- Ram Anand Respondent :- State Of U.P. Through Secy. Counsel for Petitioner :- D.P.Dewadi,U C Pandey Counsel for Respondent :- C.S.C. Hon'ble Manish Mathur,J.
1. Heard Mr. U.C. Pandey learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties.
2. Petition has been filed against order dated 13th May, 1988 and the order dated 15th February, 1988 whereby petitioner's temporary services as Lekhpal have been terminated. There was no interim order granted to petitioner and the petitioner has thereafter attained the age of superannuation in the year 2012.
3. As per averments made in the petition, petitioner was appointed as Lekhpal in Tehsil Bikapur on Ist May, 1978 in a temporary vacancy and subsequently appointment was made on 31st January, 1982 against permanent vacancy of one Bhawani Prasad who superannuated. It has been stated that thereafter petitioner appeared in Special Lekhpal Examination in the year 1981 and completed the same but by means of impugned orders, the training undergone by petitioner and certificate issued in pursuance thereof has been cancelled and petitioner's services have been terminated on account of the fact that he had not completed three years of continuous service as on 30th April, 1980 as required by the Government order dated 15th May, 1980.
4. Learned counsel for petitioner has submitted that it is an admitted fact that petitioner was appointed in a temporary vacancy on a temporary basis on Ist May, 1978. It has been further submitted that as per the U.P. Lekhpal Service Rules, 1958, the source of recruitment as required under Rule 5 is only for a candidate to have obtained the Patwari or Lekhpal School certificate. Names of such candidates having obtained the aforesaid certificate were required to be included in the list mentioned in Rule 6 for the purposes of procedure for recruitment. Learned counsel has also drawn attention to Rule 212 of Chapter XIV of Land Records Manual wherein it has been provided that candidates for admission to Lekhpals' schools will be selected by the District Officer of the District in which candidate resides. Attention has also been drawn to paragraph 214-B pertaining to cancellation of Lekhpal Examination Certificate and the conditions under which such cancellation can be effected. Learned counsel for petitioner has further submitted that it is an admitted fact that petitioner was prmitted to complete the special lekhpal examination in the year 1981 and was also issued a certificate to that effect, which however has been cancelled by means of the impugned orders. In view of aforesaid provisions, it has been submitted that cancellation order being contrary to provisions of paragraph 214-B of the Land Records Manual is thus liable to be quashed.
5. Learned counsel for petitioner has submitted that the condition for completion of three years in service prior to appearance in the Lekhpal examination has been incorporated in terms of the government order dated 15th May, 1980 which is only an enabling provision and can not run counter to the specific service rules governing the petitioner.
6. Learned State Counsel appearing on behalf of opposite parties has rebutted the submissions advanced by learned counsel for petitioner with the submission that petitioner's engagement in service was on a purely temporary basis in terms of rule 7(3) read with 18(b) of the Rules of 1958. It has been submitted that although there is no provision in the service rules with regard to requirement of a candidate having completed three years in service as on 30th April, 1980 but the same has been introduced by means of government order dated 15th May, 1980, which is not contradictory to any service regulations. It is an independent provision included by government order and is thus required to be seen in that light.
7. After consideration of submissions advanced by learned counsel for parties and perusal of record, it is evident that the opposite parties have admitted the fact that petitioner was granted appointment as a Lekhpal purely on a temporary basis on a temporary post in the year 1978. In the counter affidavit filed to the amended portion of writ petition, it has been admitted that petitioner was allowed to appear in the special lekhpal examination in the year 1981 but after verification, it was found that till the cut off date of 8th May, 1980 as required by the government order dated 15th May, 1980 he had completed only two years of service as untrained Lekhpal due to which the certificate issued to petitioner was cancelled.
8. A perusal of the entire counter affidavit makes it evident that the only ground taken for passing of impugned orders rests on the government order dated 15th My, 1980 and the fact that petitioner had not completed three years of service as on the cut off date of 8th May, 1980 provided by government order. No other reason for passing of impugned orders have been indicated either in the impugned orders or in the counter affidavit. As such adjudication in the present writ petition rests only with regard to condition of three years service having been rendered by petitioner in terms of government order dated 15h May, 1980.
9. The U.P. Lekhpal Service Rules, 1958 specifically governs the service conditions of petitioner. Rule 5 pertains to source of recruitment while Rule 6 indicates procedure for recruitment. Rule 8 pertains to educational qualifications required. Admittedly petitioner was appointed in terms of Rule 18(b) of the aforesaid rules pertaining to temporary vacancies read with Rule 7(3).
10. Regarding the source and procedure of recruitment, Rules 5 and 6 of the said Rules are as follows:-
"5. Source of recruitment.-- (1) Only such candidates as have obtained the patwari or lekhpal School Certificate and whose names have been brought on the list mentioned in Rule 6 shall be eligible for appointment to the service.
(2) Notwithstanding anything contained in sub-rule (1), persons who belong to the category mentioned in Paragraph 2(3)(d) of revenue (B) Department G.O. No.4434/B, dated April 27, 1953, and are working in a temporary or officiating capacity, with or without break in service, shall be deemed eligible for appointment to the service.
(3) The ex-patwari who had a good record of service and fulfil other qualifications and conditions prescribed for appointment shall also be eligible for appointment to the service.
(4) Ex-patwaris shall be treated as new candidates and shall not get the benefit of their past service in any matter.
(5) Ex-patwaris who have already been absorbed in the service shall be deemed to have been appointed under these rules.
6. Procedure for recruitment.-(1) For purposes of recruitment, the Collector shall maintain in the following form a list of candidates who have passed the Patwari or Lekhpal School Examination.
xxxx xxxx xxxx (2) Necessary material for the maintenance of this list shall be supplied each year, as soon as examination results are out, by the Collector in whose district the Lekhpal School is located. The Collection may, subject to the approval of the Director, add to the list so received the name of any other candidate who has passed the Patwari of Lekhpal School Examination.
(3) The names, in the list shall be arranged in order of seniority as determined by the year of examination. Seniority as between the candidates of the same year shall be judged on the basis of the aggregate marks obtained at the examination. Where the aggregate marks are equal, the seniority shall be determined on the basis of age.
[(3-A) A district-wise list of ex-patwaris fulfiling the conditions laid down in sub-rule (3) of Rule 5 shall be maintained by each Collector. The names in this list shall be arranged according to the length of service. If the length of service of two or more ex-patwaris is the same the names shall be arranged according to age.
NOTE- If any is is already maintained in this behalf under executive orders of Government it shall be deemed to be maintained under this sub-rule.
(4) The lists referred to the examination and the Collector shall remove the names of-
(a) Candidates who have received permanent appointment;
(b) Other candidates for good and sufficient reasons to be recorded in writing;
(c) Those candidates in the list prescribed in sub-rule (3) of Rule 6 who have exceeded the maximum age-limit for appointment."
11. Provision with regard to admission, training and examination of lekhpal school candidates is required to be done in terms of Chapter XIV of the Land Record Manual. Paragraph 212 of the aforesaid chapter pertaining to candidates for admission is as follows:-
"212. Candidates for admission-(i) Candidates for admission to Lekhpal Schools will be selected by the District Officer of the district in which the candidate resides.
(ii) The candidates to be selected must fulfil the conditions of nationality, as defined under Part II of the Constitution of India, and must have passed the Hindustani Middle or Junior High School or an equivalent or higher examination and shall not be less than 17 years and not more than 21 years of age on or before the date of admission
(iii) No candidate who has once been enrolled in some Lekhpal School will be admitted to another Lekhpal School except for good and sufficient reasons if so certified by the offer-in-charge. A certificate of qualifications obtained by concealment of the fact of previous enrolment in another school shall be void."
12. A perusal of aforesaid statutory provisions make it evident that there is no provision either in the rules or in the land record manual requiring a candidate to have three years of service as on 30th April, 1980 for purposes of admission and issuance of certificate upon completion of training in a lekhpal schools. The only such condition which forms the basis of impugned order is to be found in the government order dated 15th May, 1980.
13. Hon'ble the Supreme Court in the case of Dr. Rajendra Singh versus State of Punjab reported in (2001) 5 SCC 482 has held that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. It has been further held that following any other course would be disastrous and would be against the constitutional scheme and accepted service jurisprudence. The relevant portion of the judgment is as follows:-
"The settled position of law is that no Government Order, Notification or Circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the rules, the Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a Government Order and ignoring the mandate of Article 309 of the Constitution."
14. Similarly a full bench of this Court in the case Vijay Singh and others versus state of U.P. and others reported in 2005 (23) LCD 1696 has held that it is a settled legal proposition that executive instructions can not over ride the statutory provision nor can be issued in contravention of statutory rules for the reason that an administrative instruction is not a statutory rule nor does it have any force of law. Relevant portions of the judgment are as follows:-
" 6. It is settled legal proposition that executive instructions cannot override the statutory provisions [Vide B.N. Nagrajan v. State of Mysore, AIR 1966 SC 1942; Sant Ram Sharma v. State of Rajasthan and Ors., AIR 1967 SC 1910; Union of India and Ors. v. Majji Jangammyya and Ors., AIR 1977 SC 757; B.N. Nagarajan and Ors. v. State of Karnataka and Ors., AIR 1979 SC 1676; P.D. Agrawal and Ors. v. State of U.P. and Ors., (1987) 3 SCC 622; M/s. Beopar Sahayak (P) Ltd. and Ors. v. Vishwa Nath and Ors., AIR 1987 SC 2111; State of Maharashtra v. Jagannath Achyut Karandikar, AIR 1989 SC 1133; Paluru Ramkrishananiah and Ors. v. Union of India and Ors., AIR 1990 SC 166; Comptroller and Auditor General of India and Ors. v. Mohan LalMalhotra and Ors., AIR.1991 SC 2288; State of Madhya Pradesh v. G.S. Dall and Flour Mills, AIR 1991 SC 772; Naga People's Movement of Human Rights v. Union of India and Ors., AIR 1998 SC 431; C. Rangaswamaeah and Ors. v. Karnataka Lokayukta and Ors., AIR 1998 SC 96.]
7. Executive instructions cannot amend or supersede the statutory rules or add something therein, nor the orders be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory Rule nor does it have any force of law; while statutory rules have full force of law provided the same are not in conflict with the provisions of the Act. (Vide State of U. P. and Ors. v. Babu Ram Upadhyaya, AIR 1961 SC 751; and State of Tamil Nadu v. M/s. Hind Stone etc., AIR 1981 SC 711)."
15. This court in the case of Afsar Shahin versus Basic Shiksha Parishad and others reported in 2004 (22) LCD 1164 has also held to the same effect that a statutory provision can not be diluted, modified or overridden by government orders which fall within domain of the government under executive functions.
16. Upon applicability of aforesaid judgments, as is evident the only requirement not being fulfilled by petitioner for continuance and regularization in service has been imposed by government order dated 15th May, 1980. It is thus seen that requirement of three years of service as on 30th April, 1980 has been imposed for the first time by means of the aforesaid government order. As has been held by aforesaid judgments of Hon'ble the Supreme court, such a condition restricting the conditions of appointment under Rules 5 and 6 of the Service Rules of1958 could not have been imposed without necessary amendment in the relevant provision of Rule.
17. Learned State Counsel has however placed reliance upon judgment of Hon'ble Supreme Court in the case of State of Haryana versus S.J. Bahadur reported in (1972) 2 SCC 188 wherein it has been held that while the government can not amend or supercede the statutory rules by administrative instructions, at the same time if the rules are silent on any particular point, the government can very well fill up the gaps and supplement the rules by issuance of instructions not inconsistent with the rules already framed.
18. So far as aforesaid submission is concerned, it is evident that the judgment would be applicable only where rules are silent on any particular point which is a necessary requirement for the purposes of appointment and such instructions can be issued which are not inconsistent with the rules already framed. While there is no dispute with regard to the aforesaid proposition of law as held by Hon'ble the Supreme court but at the same time it is also a relevant issue as to whether the government order dated 15th May, 1980 merely fills in a gap or dilutes the very condition of appointment envisaged under the extant service rules. In the present case, it is evident that the condition imposed by the government order restricts conditions of appointment as required under service rules. Such a fact exceeds the authority of competent government since it has effect of diluting or restricting the service conditions indicated in the service rules, without amendment to same. This can not be done in view of judgments of Hon'ble the Supreme court indicated herein above.
19. The matter can be examined from another aspect as well that the condition imposed by the government order dated 15th May, 1980 is merely an enabling provision and has been passed to enable proper implementation of Rules 5 and 6 of the Service Rules. As such the conditions imposed by government order are to be seen in its purposive character.
20. With regard to purposive interpretation of statute or subordinate legislation, Hon'ble the Supreme Court in Abhiram Singh versus C.D. Commachen and others reported in (2017) 2 SCC 629 has held as follows:-
"37. In the same decision, Lord Steyn suggested that the pendulum has swung towards giving a purposive interpretation to statutes and the shift towards purposive construction is today not in doubt, influenced in part by European ideas, European community jurisprudence and European legal culture. It was said: [R. (Quintavalle) case [R. (Quintavalle) v. Secy. of State for Health, 2003 UKHL 13 : (2003) 2 AC 687 : (2003) 2 WLR 692 (HL)] , AC p. 700 C-F, para 21] ?21. ? the adoption of a purposive approach to construction of statutes generally, and the 1990 Act [Human Fertilisation and Embryology Act, 1990] in particular, is amply justified on wider grounds. In Cabell v. Markham [Cabell v. Markham, 148 F 2d 737 (2d Cir 1945)] Learned Hand, J. explained the merits of purposive interpretation [at p. 739]:
?Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.?
The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v. Adamson [River Wear Commissioners v. Adamson, (1877) LR 2 AC 743 at p. 763 (HL)] . In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, e.g. social welfare legislation and tax statutes may have to be approached somewhat differently.?
(emphasis supplied) xxxx xxxx xxx
39. We see no reason to take a different view. Ordinarily, if a statute is well drafted and debated in Parliament there is little or no need to adopt any interpretation other than a literal interpretation of the statute. However, in a welfare State like ours, what is intended for the benefit of the people is not fully reflected in the text of a statute. In such legislations, a pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses. Of course, in statutes that have a penal consequence and affect the liberty of an individual or a statute that could impose a financial burden on a person, the rule of literal interpretation would still hold good."
21. Similarly in the case of EERA versus State ( NCT of Delhi) and another reported in (2017) 15 Supreme Court Cases 133, while following the judgment of Abhiram Singh (supra), it has been held as follows:-
" 30. The above expansion of purposive interpretation has been approvingly quoted by the majority in Abhiram Singh v. C.D. Commachen [Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629 : (2017) 2 SCC (Civ) 68] and that is why Section 123(3) of the Representation of the People Act, 1951 has been construed keeping in view electorate-centric interpretation rather than candidate-centric one. The submission is that the purposive interpretation has become the lan vital of statutory interpretation because of progressive social climate and the Judges' statesmanship. Krishna Iyer, J., in his inimitable style, had said ?when legislative purpose or intention is lost, then the process of interpretation is like to adorn the skin, and to miss the soul?. A court has to be progressive in its thought and should follow the path of construction that comprehensively meets the legislative intention. If a Judge gets stuck with the idea that construction is the safest, the enactment is not fructified, the purpose is missed and the soul is dismissed. A narrow construction of a concept invites a hazard whereas a broad exposition enlarges the sweep and achieves the statutory purpose. These are certain abstractions. It will apply in a different manner in different statutes, like Tax law, Penal law, Social Welfare legislation, Excise law, Election law, etc. That apart, the law intends to remedy a mischief. It also sets goal and has a remedial intent. It also states certain things which clearly mean what has been said. In that case, there is no room for the Judge and solely because he is a constructionist Judge, cannot possess such tool to fly in the realm of fanciful area and confer a different meaning. His ability to create in the name of judicial statesmanship is not limitless. It has boundaries. He cannot afford to romance all the time with the science of interpretation. Keeping these aspects in mind, I shall presently refer to some authorities where purposive construction has been adopted and where it has not been taken recourse to and the cardinal principle for the same."
22. Although the aforesaid judgments pertained to interpretation of statute viz-a-viz the Constitution of India but the same can be made applicable in the present case in view of the fact that statutory provisions regarding appointment have been sought to be diluted or conditions imposed by means of administrative orders.
23. In the light of aforesaid judgments of Hon'ble the Supreme court, it can be seen that the purpose of imposing the condition as indicated in the government order is only for a candidate to have necessary experience in the filed or subject prior to which he can be considered for regularization.
24. In the present case, it is admitted by opposite parties that petitioner was not only enrolled in the certificate examination but had successfully cleared the same in 1981. It is also admitted between parties that petitioner had completed two years of service as on 30th April, 1980. The only deficiency was with regard to one year service which was yet to be rendered by petitioner as on the cut off date.
25. If seen through the spectrum of purposive construction of any provision, it is apparent that the entire purpose of the government order was that a person entitled to be regularized in service should have sufficient experience in the field. In view of the fact that petitioner has already cleared the certificate examination in the year 1981 and was bereft of required service for only one year, it can be seen that the purpose of condition imposed by the government order dated 15th May, 1980 stood fulfilled by the petitioner.
26. It is also an admitted factor that at the time of passing of the impugned order, petitioner had completed more than 10 years of service and therefore to hold him ineligible for regularization only on the basis that he had not completed requisite one year extra service is unreasonable.
27. Another aspect of the matter as submitted by learned counsel for petitioner is that petitioner was permitted to be admitted and trained in terms of paragraph 212 of Chapter XIV of the land record manual whereafter he has successfully completed the examination and was issued the certificate thereof in the year 1981. Once a lekhpal examination certificate has been issued, the same can be cancelled only in terms of paragraph 214-B of Chapter XIV of land record manual which imposes the following conditions:-
"214-B. Cancellation of Lekhpal Examination Certificate- The Director may, at any time, cancel the Lekhpal Examination Certificate of a candidate if he is satisfied on the report of the collector that the candidate has been guilty of serious misconduct in circumstances connected with his securing the certificate; provided that no candidate's certificate will be cancelled unless either his explanation has been taken or he refuses to give his explanation or is not traceable. The Director may also report his case to Government for debarring him from service under the State Government."
28. Upon a perusal of the aforesaid provision, it is clear that there is no allegation against petitioner of serious misconduct regarding circumstances connected with his securing the certificate. It is also not the case of opposite parties that any opportunity of hearing was provided to petitioner prior to passing of the impugned orders. As such the conditions required for cancellation of lekhpal examination certificate also do not stand fulfilled in case of petitioner.
29. In view of aforesaid facts, it is apparent that the impugned order has been passed in violation of statutory provisions and without considering the purposive construction of the government order dated 15th May, 1980.
30. In view of the aforesaid, a writ in the nature of certiorari is issued quashing the orders dated 13th May, 1988 and 15th February, 1988. Since the petitioner has not actually performed the duties of post subsequent to passing of the impugned orders, he shall not be entitled to any salary for the said period but would be entitled to pensionary benefits of the post including pension with allowances with effect from the date of superannuation, as admissible and revised from time to time. The service period between 15.2.1988 till superannuation shall count as qualifying service for calculation of pensionary benefits. Orders pertaining to same shall be passed within a period of two months from the date a copy of this order is produced before the competent authority.
31. Consequently, the writ petition stands allowed.
Order Date :- 5.3.2020 prabhat