| SooperKanoon Citation | sooperkanoon.com/119731 |
| Subject | ;Service |
| Court | Guwahati High Court |
| Decided On | Feb-14-2008 |
| Judge | T. Nandakumar Singh, J. |
| Appellant | Manipur Pensioners Welfare Union |
| Respondent | Accountant General (a and F) and anr. |
| Disposition | Petition dismissed |
| Prior history | T. Nandakumar Singh, J. 1. Petitioner-Petitioner's Union is a registered body, formed in the year 1988, being registered No. 97 of 1988. The members of the petitioner-Union are the pensioners and the families of the pensioners who retired during the period from 31.03.1982 to 31.12.1985 from the service of the Government of Manipur. The relief sought for the present writ petition are for a direction to the respondent No. 1 i.e. Accountant General (A& E), Manipur, Imphal to re-calculate the pens |
T. Nandakumar Singh, J.
1. Petitioner-Petitioner's Union is a registered body, formed in the year 1988, being registered No. 97 of 1988. The members of the petitioner-Union are the pensioners and the families of the pensioners who retired during the period from 31.03.1982 to 31.12.1985 from the service of the Government of Manipur. The relief sought for the present writ petition are for a direction to the respondent No. 1 i.e. Accountant General (A& E), Manipur, Imphal to re-calculate the pension for the members of the petitioner-Union who retired from service during the period from 31.03.1982 to 1985 by taking into consideration the elements of DA and ADA which they enjoyed while in service and also for issuing a writ in the nature of certiorari for quashing the office order dated 30.10.2000 issued by the Accountant General, Manipur.
2. Heard Mr. M. Hemchandra, learned Counsel appearing for the petitioner- Union and Mr. C. Kamal learned Senior CGSC appearing for the respondents.
3. The only question required to be answered in the present writ petition is that whether or not DA and ADA enjoyed by the members of the petitioner-Union who retired from service 31.03.1982 to 31.12.1985 would be taken into consideration at the time of calculating the amount of their pension.
4. In exercise of the power conferred by proviso to Article 309 of the Constitution of India, the Governor of Manipur had been pleased to make the rules call the Manipur Civil Services (Pension) Rules, 1977 which was in force from the 1st day of January, 1977 vide Notification No. 1/3/71/H-F dated 03:03.1977. The Manipur Civil Services (Pension) Rules 1977 was framed by adopting the provisions of Central Civil Services (Pension) Rules, 1972 with the conditions that wherever the word/words 'Union' 'President', 'Government', 'Ministry' and 'Head of Department' had been referred in the Central Civil Services (Pension) Rules, 1972 the same would be construed as referring to 'State of Manipur', 'Governor of Manipur', 'Government of Manipur', 'Department of the Government of Manipur' and the 'Head of Department declared as such by the Governor of Manipur'. Therefore, the Manipur Civil Services (Pension) Rules 1977 (as on 01.01.1977) was the Central Civil Services (Pension) Rules 1972 as on 01.01.1977.
5. The Governor of Manipur in exercise of power conferred by the proviso to Article 309 of the Constitution of India and in partial modification of the Finance Department Memorandum No. 2/PC/FD/79(II) dated 17.12.1982 and other existing rules, regulations, orders etc. in respect of the pension and other retirement benefits was pleased to make the rules called 'Manipur Civil Services' Pension (Amendment) Rules, 1986 vide Notification No. 1/3/71/HF dated 22.07.1986 which reads as follows:
Government of ManipurFinance Department(Pay Implementation Cell)NotificationImphal, the 22nd July, 1986.
No. 1/3/71/H.F.- In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in partial modification of the Finance Department Memorandum No. 2/PC/FD/79 (II) dated 17.12.1982 and other existing rules, regulations, orders, etc. in respect of pension and other retirement benefits, the Governor of Manipur is pleased to make the following rules to further amend the Manipur Civil Services (Pension) Rules, 1977, namely-
1.(1) These rules may be called the Manipur Civil Service (Pension (Amendment) Rules, 1986.
(2) They shall come into force on the date of their publication in the official gazette, save in the case of amendment to the Central Civil Services (Pension) Rules, 1973 or Govt. of India's decision where such amendment or decision came into force from specified date, these rules shall, to the extent of such amendment or decision, be deemed to have come into force from such date as specified in the said amendment or the decision.
2. Amendment to Rule 3.
The following shall be substituted for Rule 3 of the Manipur Civil Services (Pension) Rules, 1977
The Central Civil Services (Pension) Rules, 1972 as amended upto date (including Government of India's decision in regard to matters relating to pension and retirement benefits) are hereby adapted with the condition that wherever the word, words 'Union', 'President', 'Government', 'Ministry', 'Head of Department' and 'Union Public Service Commission' has/have been referred to in the Central Civil Services (Pension) Rules, 1972, the same shall be construed referring to the 'State of Manipur', 'Governor of Manipur', 'Government of Manipur', 'Department of the Government of Manipur', 'Head of Department declared as such by the Governor of Manipur' and 'Manipur Public Service Commission' respectively except the words 'Central Government' referred to in Sub-rule (13-B) of Rule 54 which will continue to mean the Central Government.
Sd/-Secretary (Finance) to theGovt. of Manipur
6. Since the all members of the petitioner-Union are the retired employees of the Government of Manipur who retired during the period from 31.03.1982 to 31.12.1985 it would be pertinent to see the relevant the Manipur Services (Revision of Pay) Rules and accordingly it is required to decide which of the ROPs would be applicable to the members of the petitioner-Union. The 'Manipur Services (Revision of Pay) Rules, 1975 came into force on 01.01.1973 and it was followed by the subsequent rules 'Manipur Services (Revision of Pay) Rules 1982 which came into force on 31.03.1982. Manipur Services (Revision of Pay) Rules, 1982(ROP 1982) was in force till the Manipur Services (Revised Pay) Rules 1987 came into force on the 01.01.1986. Therefore, the pay/case of the members of the petitioner-Union who retired during 31.03.1982 to 31.12.1985 is governed by the ROP 1982.
7. The words 'basic pay', dearness allowance' and existing emoluments of a government servant are defined in Rule 3 of the ROP 1982. For ready reference Rule 3(1) 'basic pay'. Rule 3(2) 'dearness allowance' and Rule 3(3) 'existing emoluments' of a government servant are quoted hereunder:
3. Definition- In these rules, unless the context otherwise requires.
(1) 'basic pay' means existing pay plus Dearness Allowance and Additional Dearness Allowance merged as per grading below:
(a) Upto Rs. 800/-As on 1.4.1981 (16th Dose)
(b) Upto Rs. 1150/-As on 1.7.1980 (12th Dose)
(c) Rs. 1151 and above -As on 1.1.1978 (6th Dose)
Note: The details of existing dearness allowance and additional dearness allowance which have been merged to the existing pay are given in Schedule-III.
(2) 'dearness allowance' means the allowance which has been sanctioned from time to time on account of rise in the price of essential commodities and is admissible under rules and orders in force on the 31st March, 1982 as shown under rule 8, and include-
(a) in respect of a Government servant who retained the scale of pay by exercising option under the Manipur Services (Revision of Pay) Rules, 1975, as amended from time to time, dearness and other allowances, which are admissible under the said rules and orders of Government which are in force on the 31st March, 1982 and subsequent changes thereto, if any.
(3) 'existing emolument' of a Government servant includes;
(i) Basic pay as mentioned above:
(ii) Dearness and other allowances, as may be admissible to (i) above, on the date on which he is liable to draw pay in the revised scale, in terms of the orders in force on the 31st March, 1982.
8. Rule 11 of the ROP 1982 reads as follows-
11. Over-riding effect of the Rules- These rules shall have effect, notwithstanding anything to the contrary in any other rules, orders or notifications, and all such other rules, orders and notifications, including the Fundamental Rules, shall have effect subject to the provisions of these rules.
9. Therefore, Rule 11 of the ROP 1982 envisage that ROP 1982 will have over-riding effect, result being that ROP 1982 shall have effect notwithstanding anything to the contrary in any other rules, order and the notification and also that the other order and notification including the fundamental Rules shall have effect subject to the provision of the ROP 1982. Therefore, the Government of Manipur cannot issue any orders/notification contrary to the provision of ROP 1982.
10. On bare perusal of Rule 3(1) it is crystal clear that 'basic pay' means existing pay plus dearness allowances and the additional dearness allowances merged as per quoted below-
a) Upto Rs. 800/- As on 1.4.1981 (16th Dose)
(b) Upto Rs. 1150/- As on 1.7.1980 (12th Dose)
(c) Rs. 1151 and above-As on 1.1.1978 (6th Dose)
and also bare perusal of Rule 3(2) 'existing emoluments' of the government servant it is clear that the existing emoluments consist of-
(1) Basic pay mentioned in Rule 3(1) and (2) Dearness and other allowances, as may be admissible to basic pay on the date on which he is liable to draw pay in the revised scale in terms of the order in force on 31.03.1982.
11. Justice Mathew in Shri Mandir Sita Ramji v. Governor of Delhi and Ors. reported in : [1975]1SCR597 observed that 'the observation of the procedure laid down by Statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. When a procedure is prescribed by the legislature, it is not for the Court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser'. (Underlined is mine). We may also here recall the decision of the Apex Court in Kartar Singh v. State of Punjab reported in (1994) 3 SCC 560 (C.B.) that law is made not to be broken but to be obeyed and respect for the law is not retained by demonstration of strength but by better appreciation of reasons, better understanding of its reality and implicit obedient. The law is, what the Judges say, it is since the power to interpret the law vest in the Judges.
12. It is no doubt, well settled that it is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and word by word. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, or in-consistancy therein and not otherwise. An effort should be made to give effect to all parts of the statute and unless absolutely necessary, no part thereof shall be rendered superlusage or redundant. True meaning of a provision of law is to be determined on the basis of what it provides by its clear language, with due regard to the scheme of law (Reference may be made to Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. reported in : AIR2003SC511 .
13. The Apex Court in Kunal Singh v. Union of India and Anr. reported in : (2003)IILLJ735SC held that in the definition clause, if two distinct definitions are given defining word or expression in the same enactment, they must be understood accordingly in terms of the definition. The Apex Court in Union of India and Anr. v. Tulsiram Patel etc. reported in : (1985)IILLJ206SC had discussed 'the Maxim- 'Espressum facit cessare taciturn' while interpreting a statute and held that it is in the nature of constitutional prohibitory, injunction restraining the disciplinary authority from holding an enquiry under Article 311(2) or from giving any kind of opportunity to the concerned government servant. There is, thus, no scope for introducing into the second proviso some kind of enquiry or opportunity by a process of interference or implication. The maxim 'Espressum facit cessare tacitura' (when there is expression mentioned of certain things, then anything not mentioned is excluded). The ratio laid down in Union of India and Anr. v. Tulsiram Patel etc. (supra) is followed by this Court (D/B) in Heman Bihari Singh v. State of Manipur reported in (2004) 1 GLT1.
14. It is cardinal rule of construction that no word should be construed redundant or surplus in interpreting the provision of a statute of rule (Ref: Dinesh Chandra Sangma v. State of Assam and Ors. : (1978)ILLJ17SC ). The Apex Court in State of Maharashtra and Ors. v. Santosh Shankar Acharya : 2000CriLJ3939 held that it is too well known principle of construction of statute that the legislature engrafted every part of the statute for a purpose. The legislative intention is that every part of the statute should be given effect. Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons.
15. The Apex Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. : AIR2003SC511 held that it is the basic principle of construction of statute that statutory enanctment must ordinarily be construed according to their plain meaning and no words should be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the stature. Paras 24, 25 and 26 of the Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. (supra) read as follows-
24. True meaning of a provision of law has to be determined on the basis of what it provides by its clear language, with due regard to the scheme of law.
25. Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute.
26. It is also well settled that a beneficent provision of legislation must be liberally construed so as to fulfill the statutory purpose and not to frustrate it.
16. It is also equally well settled that law/regulation is made not be to broken but to be obeyed according to the decisions of the Apex Court in a catena of cases, one of which is the decision of the Apex Court, i.e. a Constitution Bench in Kartar Singh v. State of Punjab reported in . Para 36 of SCC in Kartar Singh (supra) reads as follows:
36. Law is made not to be broken but to be obeyed and the respect for law is not retained by demonstration of strength but by better appreciation of the reasons, better understanding of its reality and implicit obedience. It goes without saying that the achievements of law in the past are considerable, its protection in the present is imperative and its potential for the future is immense. It is very unfortunate that on account of lack of respect, lack of understanding, lack of effectiveness, lack of vision and lack of proper application in the present day affairs, law sometimes fails in crises.
17. We may also remember the decision of the Apex Court (Constitution Bench) in Dr. D.C. Wadhwa and Ors. v. State of Bihar and Ors. reported in : [1987]1SCR798 that it is well settled law that even the constitution authority cannot do indirectly what is not permitted what is not do indirectly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provisions cannot be allowed to be defeated by adoption of any subterfuge that would be clearly a fraud on the constitutional provision. It is also know to all that the arm of the Court is long enough to reach injustice wherever it is found. Ref: Air India Statutory Corporation v. United Labour Union and Ors. reported in 1997 (2) Supreme 165.
18. It is also fairly settled law that when the legislature has spoken, Judge cannot afford to be wiser. Reference to be made to the decision of the Apex Court in Shri Mandir Sita Ramji v. Governor of Delhi and Ors. reported in : [1975]1SCR597 . It is well settled principle of law that validity of the rules framed under the proviso to Article 309 of the Constitution of India shall continue to operate until replaced or repealed by the validity framed the new rules. Reference may be made to the decision of the Apex Court in Union of India through the Govt. of Pondicherry and Anr. v. V. Ramakrishnan and Ors. reported in : AIR2005SC4295 .
19. It is fairly well settled principles of interpretation of rules that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. The Court cannot add words to a statute or read words into it which are not there, especially when the literal reading proceeds an intelligible result. The Court would not go to its aid to correct the legislature's defective phrasing of an Act. Para-13 of the SCC in Dadi Jagannadham v. Jammulu Ramulu and Ors. : AIR2001SC2699 reads as follows:
13. We have considered the submissions made by the parties. The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot add the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.
20. The word 'Emoluments' so far the pension of the retired government employee is concerned is defined Rule 33 of the Pension Rules. Under Rule 33 of the Pension rules the expression 'emoluments' means basic pay as defined in Rule 9(21)(a)(i) of the Fundamental Rules which a government servant was receiving immediately before his retirement or on the date of his death, and will also include non-practicing allowances granted to Medical Officers in lieu of private practice.
FR 9 (21) (a) (i) reads as follows--
(21) (a) Pay means the amount drawn monthly by a Government servant as--
(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre;
21. Under Rule 34 of the Pension Rules 'average emoluments' shall be determined with reference to the emoluments drawn by government servant during the last ten (10) months of his service. The amount of pension of the pensioner is to be determined in the manner as provided in Rule 49 of the Pension Rules basing on the average emolument of the employee.
Finding and Decision
22. On conjoint reading of Rule 3(1), 'basic pay', Rule 3(2) 'dearness allowances', Rule 3(3) 'existing emoluments' of government servant and the Rule 11 of the ROP 1982, Rule 33, 34 and 49 of the Manipur Pension Rules and the FR 9(21) (a) (i), it is crystal clear that the 'average emoluments' of the members of the petitioner-Union who retired from service died during the period from 31.03.1982 to 31.12.1985 would consist of (1) Basic pay as mentioned in Rule 3(1) of the ROP 1982 and (2) The dearness and other allowances as may be admissible to basic pay on the date on which he is liable to draw in the revised scale in terms of the orders in force on 31.03.1982. Therefore, DA & ADA of the members of the petitioner-Union shall be taken into consideration while determining the amount of pension.
23. As discussed above, the legislature in clear term had spoken the meaning of 'basic pay' and the 'existing emoluments' through legislation i.e. ROP 1982 in the manner as defined in Rule 3(1) and Rule 3(3) of the ROP 1982. Neither the Accountant General, Manipur nor the Government of Manipur could afford to be wiser substituting a different meaning according their notion of justice. For the sake of repetition it is reiterated that under Rule 11 of the ROP 1982. ROP 1982 will have the over-riding effect and all order and notification of the Government of Manipur including fundamental rules shall have effect subject to the provision of ROP 1982. Therefore, the impugned order dated 30.10.2000 issued by the Accountant General. Manipur is quashed to the extent of the petitions which are contradictory to the ROP 1982. In the result, the writ petition is allowed to the extents indicated above. The Accountant General, Manipur is directed to determine the amount of pension of the members of the petitioner Union who retired from service or died during the period from 31.03.1982 to 31.12.1985 in the light of the decision of this Court in the above para Nos. 22 and 23 within a period of four (4) months from the date of receipt of certified copy of the judgment and order.