1. The petitioner mainly challenges Ext.P4 order issued by the Government directing the petitioner to hand over charge of the Registrar of the second respondent University, to the third respondent herein. According to the petitioner, her appointment is for a period of five years as per Ext.P1 and hence the said order cannot be supported in law.
2. The second respondent, viz. Kerala University of Fisheries and Ocean Studies, was established as per the Kerala University of Fisheries and Ocean Studies Act, 2010 (Act 5 of 2011) (for short 'the Act'). At the time of appointment as Registrar, the petitioner was working as Professor and Head of the Department of Aquatic Biology and Fisheries, in the University of Kerala.
3. The contentions raised by the petitioner in a nutshell are the following: The petitioner's appointment by the Government under Section 37(9) of the Act is evidenced by Ext.P1 order and the appointment is for a period of five years from the date of assumption of office. It is submitted that the same is therefore a tenure appointment. As far as the University is concerned, it was at its infancy, as various statutory bodies are yet to be constituted and the Statute has also to be framed.
4. It is submitted that sub-section (9) of Section 37 contains a non obstante clause and the appointment of the first Registrar can be for a period not exceeding five years. It is therefore submitted that the termination is abrupt and the Act does not enable the Government to cut short the period.
5. In fact, the prayer of the petitioner to grant an interim order was rejected by this Court in the order in I.A. No.15050/2011 dated 26.9.2011 which was taken up in W.A. No.1410/2011 and the same was dismissed on 3.10.2011.
6. The substantial contention raised by the respondents is that the order Ext.P1 has been cancelled as per Ext.R1(a) notification which was also made available by the learned Government Pleader, along with a memo. In the Explanatory Note the reason for cancellation shown is that as per sub-sections (6) and (7) of Section 50 of the Act, the retirement age of officer of the University has been fixed at 55, and hence the Government decided to cancel the appointment.
7. Heard learned Senior Counsel for the petitioner, Shri P. Ravindran, learned Special Government Pleader Shri C.S. Manilal and learned Standing Counsel for the second respondent University, Shri Millu Dandapani.
8. During the pendency of the writ petition, it appears that the period of charge arrangement given to the third respondent was over and another officer has been put in charge as Registrar.
9. Learned Senior Counsel for the petitioner, Shri P. Ravindran mainly contended that the tenure appointment under Section 37(9) is not subject to other provisions of the Act, especially regarding the retirement age. Learned Senior Counsel relied upon the principles stated by the Apex Court in Dr.L.P. Agarwal v. Union of India and others (AIR 1992 SC 1872), P. Venugopal v. Union of India {(2008) 5 SCC 1) and J.S. Yadav v. State of Uttar Pradesh and another {(2011) 6 SCC 570) to contend for the position that when a tenure appointment is made, the person is entitled to continue till the completion of his or her tenure. It is pointed out that the scheme of the Act will show that as far as the appointment of first Registrar is concerned, it could be made for a period not exceeding five years. The same is an exception to the method of appointment provided under the other provisions. The assumption therefore that the attainment of the age of 55 by the petitioner will disentitle her to continue for five years, cannot be supported. It is submitted that Sections 33 and 35 contain various provisions with regard to the appointment of the Vice Chancellor (Section 33(5) and Pro Vice Chancellor (Section 35(5) which are similar to the provision under Section 37(9). The power conferred on the Government therefore has to be understood in the light of the statutory scheme. It is submitted that Section 50 confers power on the University Governing Council to appoint members of staff "subject to the provisions of the Act". The same will therefore imply that the tenure appointment is meant for smooth functioning of the University and therefore Section 50 has no overriding effect. It is also submitted that Section 50 can apply only to officers other than those specified in Section 30 of the Act.
10. Shri C.S. Manilal, learned Special Government Pleader submitted that there are certain differences with regard to the appointment of Vice Chancellor, Pro Vice Chancellor and that of the Registrar. It is submitted that Section 2(v) of the Act gives a definition to the term "officer" which will include an officer of the University "specified" in the Act or a person in the employment of the University "designated" as an officer by the Statutes. Section 2 (ab) gives the meaning of "Registrar" and it states that "Registrar means the Registrar of the University." Section 30 of the Act describes the "Chancellor, Pro-Chancellor, Vice-Chancellor, Dean as well as Registrar" as "officers" along with certain others. The Act also gives a clear distinction with the retirement age of Vice Chancellor, Pro Vice Chancellor and others. It is submitted that going by Section 33 (6) the term of appointment of the Vice-Chancellor shall be five years or till he attains the age of sixty five years, and similar is the position as far as the appointment of Pro Vice Chancellor under Section 35(2) is concerned, except that the retirement age is 60. When it comes to the appointment of Registrar, Section 37 does not provide such terms and therefore reference has to be made to Section 50 to figure out the retirement age. Section 50(7) specifically covers the retirement age of Registrar. It is submitted that in respect of others like Dean, sub-section (6) of Section 50 provides the retirement age as sixty years.
11. Therefore, it is pointed out that in the case of Vice Chancellor and Pro Vice Chancellor the retirement age is 65 and 60 respectively, for the academic heads it will be sixty years and for other officers it will be 55 years, which will include the Registrar also. It is pointed out that sub- sections (2) to (5) of Section 50 provide for execution of a written contract by every salaried officer and teacher of the University and the contract cannot be inconsistent with the provisions of Act and in the light of these provisions also sub-section (7) will apply herein.
12. It is submitted that if the distinction as sought by the learned Senior Counsel for the petitioner with regard to the first Registrar is accepted, then such a person can be continued beyond the normal retirement age of 55, whereas the Registrar who is appointed under Section 37(1) will have to retire at the age of 55 years which will be self contradictory and will pave way for a challenge in view of Article 14 of the Constitution of India.
13. Now I shall consider the pleas regarding the general scheme of the Act. As noted already, there is a definition of 'officer' under Section 2 (v) of the Act which reads as follows:
"(v) "Officer" means an officer of the University specified in this Act or a person in the employment of the University designated as an officer by the Statutes."
The same will indicate two sets of officers, viz. (i) those specified in the Act; and (ii) the others who are in employment and are designated as officers by the Statutes. Section 30, as already noticed, is the provision concerning officers under the first category, i.e. specified under the Act and the said section under the heading "Officers" reads as follows:
OFFICERS
"30. Officers of the University -- The following shall be the Officers of the University, namely--
(i) the Chancellor;
(ii) the Pro-Chancellor;
(iii) the Vice-Chancellor;
(iv) the Pro-Vice Chancellor;
(v) the Dean;
(vi) the Registrar;
(vii) the Finance Officer;
(viii)the University Engineer;
(ix) the Librarian;
(x) the Director of Research;
(xi) the Director of Extension;
(xii)Controller of Examinations;
(xiii)Director of Schools;
(xiv) Heads of Departments; and
suchother Officers in the service of the University as may be prescribed in the Statutes."
Therefore, the same is in tune with the definition clause.
14. The next aspect is regarding the retirement age of various officers. The important provisions are Sections 33(6) in relation to the term of appointment including the upper age limit of Vice Chancellor and Section 35 (2) as far as that of the Pro Vice Chancellor which are extracted below:
"33(6) The term of the Vice-Chancellor shall be five years or till he attains the age of sixty five years, whichever is earlier. Provided that he shall be eligible for re-appointment.
35(2) The term of Pro-Vice Chancellor shall be five years or till he attains the age of sixty years, whichever is earlier, provided that a person shall not be appointed as Pro-Vice Chancellor for more than two consecutive terms."
Therefore, in the light of these provisions it can be seen that the age limit is prescribed in those sections itself as contra distinction to other officers and teaching staff which is under Section 50. In Section 37, as regards Registrar, as noticed already, there is no prescription regarding the retirement age. The scheme of Section 50, therefore, has to be noted. Sub-sections (6) and (7) of Section 50 are extracted below:
"50(6) The normal retirement age of the Dean, Directors of Schools, Director of Research, Director of Extension, Director of Regional Centres, Professors and other categories of teachers of the University shall be sixty years.
(7) The normal retirement age of officers of the University other than the Chancellor, the Pro-Chancellor, the Vice- Chancellor and those specified in sub-section (6) shall be fifty five years."
Thus, the normal retirement age of officers of the University other than the Chancellor, Pro Chancellor, the Vice Chancellor and those specified in sub- section (6) shall be fifty five years. As far as Vice Chancellor is concerned, it is specified in Section 33. Therefore, it can be seen that in respect of other officers who are officers of the University as specified in Section 30 and those who are designated under the Statutes, the normal retirement age will be as provided under Section 50(7). Definitely, it can be seen that the same will apply to the Registrar.
15. Then the next question is whether, as far as the appointment of first Registrar is concerned, it is a tenure appointment or whether it is controlled by Section 50(7) of the Act.
16. In support of the argument of the learned Senior Counsel for the petitioner, the decision of the Apex Court in Dr.L.P. Agarwal's case (AIR 1992 SC 1872) is heavily relied upon. In para 16 their Lordships have held as follows:
"Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. The question prematurely retiring him does not arise. The appointment order gave a clear tenure to the appellant. The High Court fell into error reading "the concept of superannuation" in the said order. Concept of superannuation which is well understood in the service jurisprudence is alien to tenure appointments which have a fixed life span."
Therefore, going by the above dictum, if the appointment is to a tenure post, such a person will go out of the office on completion of his tenure. The statutory scheme considered by the Supreme Court, will have relevance to consider whether the said dictum will apply here. The facts of the case show that one Dr.L.P. Agarwal was appointed as per a Memorandum dated 6.4.1979 as Director of All India Institute of Medical Sciences (AIIMS) for a period of five years or till be attains the age of 62 years, whichever is earlier. By a resolution dated 24.11.1980 the Institute Body resolved to prematurely retire him from service by giving three months pay and allowances in lieu of notice. This was challenged before the Delhi High Court. The main question examined by the Apex Court was whether a Director can be prematurely retired before the completion of his tenure. A further question was thus examined whether the concept of premature retirement in public interest is applicable to a tenure post filled up by way of direct recruitment. The concerned regulation 30 has been extracted in para 11 of the judgment, which provided a retirement age of 58 for employees of the Institute other than members of the teaching faculty and class IV employees, under Regulation 30(1). Regulation 30(2) provided the age of superannuation of the members of the teaching faculty and class IV employees as 60. There is a provision to retain the members of the teaching staff upto 62 years on satisfying certain conditions. Regulation 30(3) provides for premature retirement in public interest and the power is conferred nothwithstanding anything in sub-regulations (1) and (2), to the appointing authority. The procedure therein is to give notice of not less than three months in writing or three months pay and allowances in lieu of such notice.
17. Para 15 of the judgment will show that going by the Schedule to the Recruitment Rules the post of Director is a Class I post to be filled up by direct recruitment and the tenure is five years inclusive of one year probation. It is in the light of the above statutory provisions, the contentions were examined. The contention of the respondents was that even if it is a tenure post, there is no bar in prematurely retiring him from service. The relevant findings are contained in para 16 which are extracted below:
"We have given our thoughtful considerations to the reasoning and the conclusions reached by the High Court. We are not inclined to agree with the same. Under the Recruitment Rules the post of Director of the AIIMS is a tenure post. The said rules further provide the method of direct recruitment for filling the post. These service-conditions make the post of Director a tenure post and as such the question of superannuating or prematurely retiring the incumbent of the said post does not arise." (Emphasis supplied)
When the above paragraph is read closely, the following aspects are evident. As far as the post of Director of AIIMS is concerned: (a) it is a tenure post; (b) the method of filling up of the post is by way of recruitment. In that context, in para 16 it was held that "these service conditions make the post of Director a tenure post and as such the question of superannuating or prematurely retiring the incumbent of the said post does not arise." It was further held that "even an outsider can be selected and appointed to the post of Director and therefore such an officer cannot be retired prematurely curtailing his tenure of five years. The appointment of the appellant was on a Five Year Tenure but it could be curtailed in the event of his attaining the age of 62 years before completing the said tenure." The view taken up by the High Court was reversed by holding that going by the recruitment rules, the tenure for five years is inclusive of one year probation and the post is to be filled by direct recruitment. It is in that context the principle with regard to the tenure appointment was explained further in the said paragraph which portion was strongly relied upon by the learned counsel for the respondents. With regard to the concept of superannuation it was held that the same is alien to tenure appointments which have a fixed life span. Therefore, the said principle was explained in a case where the tenure of five years was prescribed under the relevant recruitment rules. Accordingly it was held that the same is a tenure post. Finally, it was held that he cannot be prematurely retired.
18. When we examine Section 37 of the Act herein, it can be seen that the statutory scheme is totally different as the post of Registrar is not prescribed as a tenure post and Section 37(1) provides that "the Registrar shall be a full-time salaried officer of the University and shall be appointed by the University Governing Council in accordance with the Statutes." Therefore, the method of appointment depends upon the Statute. No fixed tenure of the Registrar is provided in the main body of Section 37. Sub-section (9) even though provides for appointment of first Registrar for a period not exceeding five years on such terms and conditions, it will not make it a tenure post. The absence of a fixed term for the post of Registrar, is in contra distinction to the provisions of Section 33 relating to appointment of Vice Chancellor, wherein in sub-section (6) it is provided that the term of the Vice Chancellor shall be five years or till he attains the age of sixty five years whichever is earlier. Regarding the appointment of Pro Vice Chancellor also, the term shall be five years or till he attains the age of sixty years (Section 35(2)). Therefore, in those cases the fixed term is evident. Thus, it can be seen that merely because the First Registrar can be appointed for a period not exceeding five years, the post of Registrar cannot be termed as a tenure post. The principles stated by the Apex Court in Dr.L.P. Agarwal's case (AIR 1992 SC 1872) will not therefore help the petitioner to contend for the position that the petitioner was holding a tenure post. That was a case where the applicability of the provision for premature retirement itself was considered which is not the case herein. The provision invoked herein is one concerning the normal retirement age provided to the post of Registrar under Section 50(7). For all these reasons, it can be safely concluded that the appointment of the Registrar is not a tenure appointment.
19. The next decision relied upon by the learned Senior Counsel for the petitioner is P. Venugopal's case {(2008) 5 SCC 1}. The same also is in respect termination of appointment to the post of Director of All India Institute of Medical Sciences. Therein, the incumbent was appointed for a period of five years but had to suffer a premature termination and consequent removal by curtailing the term. Later, the challenge against the same was upheld by the High Court. This led to an amendment of Section 11 of the Act. Section 11(1A) provided for a fixed term of Director as five years from the date on which he enters upon his office or until he attains the age of sixty-five years, whichever is earlier. The proviso therein was challenged as violative of Article 14 of the Constitution. The same was introduced to apply to the person holding the said post on the date of commencement of Section 11(1A) and provided that in so far as his appointment is inconsistent with the provisions of the said sub-section, he will cease to hold office on such commencement as such Director and shall be entitled to claim compensation not exceeding three months pay and allowances. The Apex Court examined the challenge raised by the petitioner on various grounds including the contention that the proviso and its enactment cannot hold good in the light of Article 14 of the Constitution. The challenge was thus raised on the ground of violation of fundamental rights. In para 31 of the judgment the Apex Court referred to the earlier judgment in L.P.Agarwal's case (AIR 1992 SC 1872 = (1992) 3 SCC 526) and in para 32, it was held as follows:
"From the above quotation, as made in para 16 of the said decision of this Court, it is evident that this Court has laid down that the term of 5 years for a Director of AIIMS is a permanent term. Service conditions make the post of Director a tenure post and as such the question of superannuation or prematurely retiring the incumbent of the said post does not arise at all. Even an outsider (not an existing employee of AIIMS) can be selected and appointed to the post of Director. The appointment is for a tenure to which principle of superannuation does not apply. "Tenure" means a term during which the office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said post begins when he joins and it comes to an end on the completion of tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure."
The same was a reiteration of the principles stated in the former case which I have already discussed. The post was the same, being the Director of AIIMS and in terms of the provisions of the Act, their Lordships held that it is a tenure post. In para 36, the proviso was declared as void ab initio and unconstitutional. It was held therein that such an impermissible overclassification through a one-man legislation clearly falls foul of Article 14 of the Constitution. In fact, the same also will not help the petitioner herein.
20. The last of the decisions relied upon by the learned Senior Counsel for the petitioner is J.S. Yadav v. State of Uttar Pradesh and another {(2011) 6 SCC 570}. Therein, the relevant facts show that reconstitution of the U.P. State Human Rights Commission was the subject matter of consideration. The appellant who was a member of the U.P. Judicial Service, was appointed as a Member of the Commission on 29.6.2006 for a period of five years. On 28.5.2008 a notification was issued to the effect that the appellant ceased to hold the office as a Member of the Commission, which was challenged on the ground that he had been appointed for a period of five years and that period could not be curtailed. Actually, the said notification was issued in view of the amendment of the Protection of Human Rights Act, 1993 by the Protection of Human Rights (Amendment) Act, 2006. The challenge was mainly that the amendment cannot retrospectively apply to him. In fact, under the unamended provision, viz. Section 21(2)(c), it was stipulated that the Commission will consist of one Member who is or has been a District Judge in that State and when it was amended by the Amendment Act, 2006 it was specified as follows: "One Member who is, or has been, a Judge of a High Court or District Judge in the State with a minimum of seven years experience as District Judge" and based on the same, the term of the appellant was curtailed. A reading of the judgment will show that in para 17, relying upon L.P. Agarwal's case (AIR 1992 SC 1872), it was held that "an employee appointed for a period under the statute is entitled to continue till the expiry of the tenure and in such a case there can be no occasion to pass the order of superannuation for the reason that the tenure comes to an end automatically by efflux of time." In para 18, the decision in P. Venugopal's case {(2008) 5 SCC 1) was also relied upon. The retrospectivity of the amendment was examined from para 21 onwards and finally it was held that the amendment is not retrospective. In para 30, it was held that "there is no specific word in the 2006 Amendment Act to suggest its retrospective applicability."
21. When we compare it to the facts of this case it can be seen that therein also the term of the appointment was for a period of five years under the relevant enactment. The reliance placed on the same therefore will not help the petitioner.
22. Learned Senior Counsel for the petitioner, Shri P. Ravindran opposed the contentions of the learned Special Government Pleader with regard to the applicability of Section 50 of the Act. True that Section 50(1) starts by providing "subject to the provisions of this Act and the Statutes." The question is whether the provision under Section 37(9) will override the provisions of Section 50. As rightly pointed out by the learned Special Government Pleader, the non obstante clause in Section 37(9) provides only that it will be "notwithstanding anything contained in sub clause (1)". Therefore, it will not override other provisions of the Act. Sub-section (1) of Section 37 provides for appointment of Registrar by the University Governing Council in accordance with the Statutes. That provision alone is thus covered by the non obstante clause in Section 37(9) and therefore the other provisions of the Act will have applicability with regard to the terms and conditions, and regarding retirement age, etc. The contention of the learned Senior Counsel appearing for the petitioner is that Section 50(2) and 50(3) will apply to officers other than those provided under Section 30. Section 50(2) provides for execution of a contract in certain appointments and going by Section 50(4), the contract shall not be inconsistent with the provisions of the Act. The general theme therefore is to avoid inconsistency even in such matters. Therefore, even if Section 37(9) is invoked for appointment of the Registrar by prescribing certain conditions it cannot go against the express provisions of Section 50(7) of the Act with regard to normal retirement age. It will thus be applicable to the appointment of Registrar.
23. The argument of the learned Special Government Pleader is that the provisions will have to be harmoniously understood and an interpretation which caters to the object and purport of the Act should be adopted.
24. The Apex Court in R.S. Raghunath v. State of Karnataka and another {(1992) 1 SCC 335) has explained the effect of the non obstante clause in an enactment. Therein, the Apex Court explained the scope and concept about the interpretation of non obstante clause. It was laid down in paragraphs 7 to 13 as follows:
"The non-obstante clause in amended Rule 3(2) of the General Rules does not abrogate the earlier Special Rules. The non-obstante clause is sometimes appended to a section or a rule in the beginning with a view to give the enacting part of that section or rule in case of conflict, an overriding effect over the provisions or Act mentioned in that clause. Such a clause is usually used in the provision to indicate that the said provision should prevail despite anything to the contrary in the provision mentioned in such non- obstante clause. There should be a clear inconsistency between the two enactments before giving an overriding effect to the non- obstante clause. But the non-obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules. Further, the influence of a non-obstante clause has to be considered on the basis of the context also in which it is used. The Court should examine every word of a statute to its context and to use context in its widest sense."
25. Learned Special Government Pleader relied upon the following decisions of the Apex Court, viz. Anwar Hasan Khan v. Mohd. Shafi and others {(2001) 8 SCC 540}, Gurpreet Singh Bhullar and another v. Union of India and others {(2006) 3 SCC 758}, A.N. Roy,Commissioner of Police and another v. Suresh Sham Singh {(2006) 5 SCC 745} Bihar State Council of Ayurvedic and Unani Medicine v. State of Bihar and others {(2007) 12 SCC 728) and Leelabai Gajanan Pansare and others v. Oriental Insurance Company Limited and others {(2008) 9 SCC 720}.
26. In the first of those decisions, viz. Anwar Hasan Khan's case [(2001) 8 SCC 540}, in para 8 the importance of the cardinal principle of construction of a statute, that conflict should be avoided while construing the provisions, was laid down in the following words:
"It is settled that for interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding the conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well-known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provision to a "dead letter" is not harmonious construction"
It will therefore show that the provisions of a Statute will have to be read as a whole and a harmonious construction should always be adopted to avoid a conflict.
27. In para 14 of the decision in Gurpreet Singh's case {(2006) 3 SCC 758} the Apex Court relied upon an earlier decision in Balram Kumawat v. Union of India {(2003) 7 SCC 628} wherein, in para 30 the following principles were laid down:
"30. Yet again in Supdt. and Remembrancer of Legal Affairs to Govt. of W. B. v. Abani Maity, (1979) 4 SCC 85, the law is stated in the following terms (SCC p. 90, Para 18) :
"19(18). Exposition ex visceribus actus is a long-recognised rule of construction. Words in a statue often take their meaning from the context of the statute as a whole. They are therefore, not to be construed in isolation. For instance, the use of the word 'may' would normally indicate that the provision was not mandatory. But in the context of a particular statute, this word may connote a legislative imperative, particularly when its construction in a permissive sense would relegate it to the unenviable position, as it were, 'of an in effectual angel beating its wings in a luminous void in vain.' 'If the choice is between two interpretations', said Viscount Simon, L. C. In Nokes v. Doncaster Amalgamated Collieries Ltd., 1940 AC 1014 at AC p. 1022).
'the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result'."
It will show that a narrower interpretation which will reduce the legislation to futility should be avoided.
28. In A.N. Roy's case {(2006) 5 SCC 745}, in paragraphs 23 and 24 the same position was reiterated thus:
"23. It is now well-settled principle of law that the court cannot enlarge the scope of legislation or intention when the language of the statute is plain and unambiguous. Narrow and pedantic construction may not always be given effect to. The courts should avoid a construction, which would reduce the legislation to futility. It is also well settled that every statute is to be interpreted without any violence to its language. It is also trite that when an expression is capable of more than one meaning, the court would attempt to resolve the ambiguity in a manner consistent with the purpose of the provision, having regard to the great consequences of the alternative constructions.
24. In Anwar Hasan Khan v. Mohd. Shafi {(2001) 8 SCC 540} this Court held: (SCC p.543. para 8)
"8...It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved."
29. The decision of the Apex Court in Bihar State Council of ayurvedic and Unani Medicine's case {(2007) 12 SCC 728} was relied upon by the learned Special Government Pleader to point out that if it is held that the tenure of the first Registrar is subject to any restriction regarding retirement age, there will be two types of officers in the cadre of Registrar: (i) subject to the restriction in Section 50(7) with regard to retirement age and the other, under Section 37(9), continuing without any control of Section 50(7). It is submitted that it will work out injustice and the provision could easily be termed as arbitrary and discriminatory. It is therefore argued that an interpretation for the smooth working of the Statute should be adopted by the Court. Para 51 of the above decision of the Apex Court laid down the relevant principle thus:
"51. In our opinion, where the legislation has used words in an Act which if generally construed, must lead to palpable injustice and consequences revolting to the mind of any reasonable man, the court will always endeavour to place on such words a reasonable limitation, on the ground that the legislature could not have intended such consequence to ensue, unless the express language in the Act or binding authority prevents such limitation being interpolated into the Act. In construing an Act, a construction ought not be put that would work injustice, or even hardship or inconvenience, unless it is clear that such was the intention of the legislature. It is also settled that where the language of the legislature admits of two constructions and if construction in one way would lead to obvious injustice, the courts act upon the view that such a result could not have been intended, unless the intention had been manifested in express words. Out of the two interpretations, that language of the statute should be preferred to that interpretation which would frustrate it. It is a cardinal rule governing the interpretation of the statutes that when the language of the legislature admits of two constructions, the court should not adopt the construction which would lead to an absurdity or obvious injustice. It is equally well settled that within two constructions that alternative is to be chosen which would be consistent with the smooth working of the system which the statute purported to be regulating and that alternative is to be rejected which will introduce uncertainty." (emphasis supplied)
Therefore, the court should not endeavour to adopt any construction which will lead to absurdity or obvious injustice. The statutory scheme is one providing a retirement age to all and sundry, without any exception. Such an object will have applicability and precedence, wherever required. It can be safely concluded that even in the case of Registrar appointed under Section 37(9) of the Act, the said appointment is also controlled by Section 50(7) as far as retirement age. Importance of purposive construction was laid down by the Apex Court in Leelabai Gajanan Pansare's case {(2008) 9 SCC 720}. The said principles are also well settled.
30. In the light of the above, if a construction which promotes the object and purport of the Act is applied, it can be seen that the contentions of the petitioner cannot be accepted. Otherwise, there can be a Registrar who can continue beyond the retirement age, if appointed under Section 37 (9) and another incumbent who happen to be appointed under Section 37 (1) will be controlled by the normal retirement age under Section 50(7). Such an interpretation will lead to absurdity and conflict.
31. Therefore, it can be safely concluded that the non obstante clause in Section 37(9) will have overriding effect only in respect of Section 37(1) and not in respect of Section 50 and other provisions of the Act. The Registrar being a full time salaried officer of the University and being an officer defined under Section 2(v) and is covered by the provisions of Section 30, and still further, will be covered by the provisions of Section 50(7). In fact, the other conditions of service with regard to the Registrar will be the same, viz. payment of emoluments etc.
32. One aspect to be noticed is that the petitioner only challenges Ext.P4 which is the consequential order issued by the Government directing handing over charge to the third respondent. In fact, the cancellation of Ext.P1 is by Ext.R1(a) produced along with the counter affidavit of the first respondent. The same is not under challenge in this writ petition.
For all these reasons, the writ petition fails and the same is dismissed.