Narsingh Jha v. State Of Bihar — 1974 DIGILAW 13 (PAT)

Judgment SARWAR ALI, J. 1. Two prayers have been made in this writ application. The first prayer is that the appointment of respondents 3 to 6 and the reversion of the petitioners (all of whom belong to Bihar Public Health Engineering Service), as contained in annexures 1 and 2 of the writ application, be quashed. The other prayer made is that a writ of mandamus commanding respondents 1 and 2 be issued directing them not to consider the cases of respondents 3 to 6 in matters of appointment and promotion to higher posts in Bihar Subordinate Engineering Service, vis-a-vis the petitioners. At the time of argument, however, challenge was restricted to the order relating to the ad hoc appointment as contained in annexure 2. It was further pointed out that during the pendency of the writ application an order, as contained in annexure C has been passed appointing respondents 3 to 5 as Assistant Engineers (Mechanical) in Class II of Bihar Public Health Engineering Service. It was further pointed out that in view of the order passed at the time of admission of this writ application on the 24th of July, 1972, to the effect "Any action taken during the pendency of the writ application will be subject to its final result", in case the main grievance of the petitioners is found to be sustainable, the appointments as contained in annexure C will have to be quashed by this Court or will have to be -withdrawn by the State Government. 2. It will be necessary to give salient facts as stated in the writ petition. It is so necessary because one of the objections raised during the course of argument was that the submissions that have been made during the argument in this case are beyond the allegations in the writ petition. The petitioners state in paragraph 2 of the writ application that they are holders of diploma granted by "State Board of Technical Education under the Directorate of the Technical Education State of Bihar". Petitioner No. 1 was appointed in the Bihar. Subordinate Engineering Service in the year 1960. Petitioners 2 and 3 were appointed in the year 1961. The petitioners state in paragraph 2 of the writ application that they are holders of diploma granted by "State Board of Technical Education under the Directorate of the Technical Education State of Bihar". Petitioner No. 1 was appointed in the Bihar. Subordinate Engineering Service in the year 1960. Petitioners 2 and 3 were appointed in the year 1961. According to the averments made in the writ application, respondents 3 to 6 (who were admittedly appointed earlier than the petitioners) did not fulfil at the time of their appointment the necessary qualifications as laid down in the rules for appointment to Bihar Subordinate Engineering Service. In respect of respondent No. 3, it is stated that he did not possess any diploma recognised by the State Board of Technical Education. Bihar and thus he did not fulfil the necessary qualification. The absence of necessary qualification so far as respondents Nos. 4 to 6 are concerned, is based on the assertion that respondent No. 4 does not possess any diploma in Engineering subject and that respondents Nos. 5 and 6 likewise do not possess any such diploma. In paragraph 13 of the writ application it is stated that in view of the fact that respondents Nos. 3 to 6 were ineligible for appointment as overseers, they were disqualified from being (Promoted as Sub-divisional Officer (which is a post in Bihar Public Health Engineering Service Class II). Emphasis is laid at several places on the lack of educational qualification as laid down in Rule 2 relating to the Recruitment Rules of the Subordinate Engineering Service. These are allegations and assertions made in the writ application itself. Certain other statements have been made in reply to the counter-affidavit, reference whereof will be made later. 3. Counter-affidavits have been filed on behalf of respondents 3, 4, and 5. No counter-affidavit has been filed on behalf of respondent No. 6, but the action of the State was supported by learned counsel for the said respondent at the time of hearing. Respondents 1 and 2 have also filed a separate counter-affidavit. The counter-affidavit of respondent No. 3, after specifying his qualification and experience, asserts that the said respondent being a confirmed overseer having experience of the work for about twenty years, the question of educational qualification is not the criteria for consideration for promotion to the next higher post. Respondents 1 and 2 have also filed a separate counter-affidavit. The counter-affidavit of respondent No. 3, after specifying his qualification and experience, asserts that the said respondent being a confirmed overseer having experience of the work for about twenty years, the question of educational qualification is not the criteria for consideration for promotion to the next higher post. It has also been asserted that the contention of the petitioners, that respondent No. 3 was not eligible for appointment as overseer and was disqualified for promotion to the post of Sub-divisional Officer is misconceived, and incorrect. The counter-affidavit of respondent No. 4 likewise gives his qualification and experience and it is asserted therein that for the purpose of promotion to Bihar Engineering Service Class II merit and seniority are alone the relevant considerations. It is also stated that in the past persons not holding diploma, as prescribed in the Bihar Public Works Department Code, having been found suitable for appointment as mechanical overseer, have been appointed by the Government and given promotions according to their efficiency and experience. It has also been stated that respondents Nos. 3 to 6 were eligible for promotion to the Bihar Engineering Service Class II by virtue of their being in service as Subordinate Engineers for a number of years and on account of their efficiency and seniority. Respondent No. 5 in his counter-affidavit states that the statements made regarding the qualification, or the lack of it. as made in the petition are not correct. The qualification and experience have been mentioned in paragraph 12 of this counter-affidavit. It is asserted that the petitioners having made incorrect statements were not entitled to invoke the writ jurisdiction of this Court. It has further been stated that the rules relating to recruitment to Bihar Public Health Engineering Service Class II as originally formulated, have been substituted by new rules as contained in annexure 5-A and that those will govern eligibility to promotion. This respondent, who admittedly fulfilled the requirements thereof, has been rightly promoted. The stand of the State (respondent No. 1) and the Chief Engineer Public Health Engineering Department (respondent No. 2) as disclosed in the counter-affidavit is that respondents Nos. 3 to 6, although not fulfilling the requisite qualification were appointed as there was dearth of qualified technical personnel having requisite qualification capable of coping with the work at that time. The stand of the State (respondent No. 1) and the Chief Engineer Public Health Engineering Department (respondent No. 2) as disclosed in the counter-affidavit is that respondents Nos. 3 to 6, although not fulfilling the requisite qualification were appointed as there was dearth of qualified technical personnel having requisite qualification capable of coping with the work at that time. It was in those circumstances that those respondents were appointed. They having been so appointed, and having worked as overseers for a number of years, were entitled to seniority and for promotion to the higher post. A supplementary counter-affidavit has been filed on behalf of respondents 1 and 2 in which it has been stated that in the exigencies of public service respondents 3, 4. and 5 were appointed ad hoc as Assistant Engineer (Mechanical) in Class II of the Bihar Public Health Engineering Service for a period of six months by Government notification dated the 10th of January, 1973. (These appointments have been made during the pendency of the writ application). It has been explained in this supplementary counter-affidavit that the Bihar Public Service Commission had already recommended the names of respondents 3 and 4 for promotion to the post of Assistant Engineer and that concurrence for promotion in the case of respondent No. 5 had been sought. It would be proper here to quote a few lines from two of the paragraphs of the counter-affidavit of respondents Nos. 1 and 2. It is stated in paragraph 9 as follows : "......... prior to the year 1960 there was dearth of qualified technical personnel having requisite qualification and to cope with the works, the technical posts were being filled by the candidates having less qualification either by direct recruitment or by promotion from lower posts on the basis of their seniority and merit. Such Mechanical overseers were again promoted on the basis of seniority and merit as Assistant Mechanical Engineer in Public Health Engineering Service Class II with the concurrence of Public Service Commission and they also held charge of Division temporarily as Executive Engineer in Class I service. The relevant portion of paragraph 12 is as follows: "Though the respondents Nos. Such Mechanical overseers were again promoted on the basis of seniority and merit as Assistant Mechanical Engineer in Public Health Engineering Service Class II with the concurrence of Public Service Commission and they also held charge of Division temporarily as Executive Engineer in Class I service. The relevant portion of paragraph 12 is as follows: "Though the respondents Nos. 3 to 6 did not possess the requisite qualification for the post, but due to the technical ability and experience in the field and due to dearth of qualified persons at the time, they were promoted or appointed as Overseers and some of them were confirmed and once they came in cadre and enjoy the seniority, their cases for promotion to the higher posts have to be considered........." 4. Two contentions have been raised on behalf of the petitioners. They are : (a) That respondents Nos. 3 to 6 having admittedly not fulfilled the requisite qualification as laid down for recruitment to Bihar Subordinate Engineering Service, were ineligible for consideration for promotion to Bihar Public Health Engineering Service Class II. (b) That the relevant rules laid down a minimum educational qualification for eligibility for appointment by promotion to Bihar Public Health Engineering Service Class II. This is contained in Rule 4 (d). Respondents 3 to 6 do not fulfil the requisite minimum qualification. They were thus not entitled to be considered for promotion to class II service aforesaid. 5. It would be convenient to mention various points that have been raised on behalf of the respondents by the learned counsel appearing for them at one place. They are: (i) the petitioners have not alleged in their writ application that the qualifications required under Rule 4 (d) of the rules were not fulfilled by respondents 3 to 6. The petitioners are therefore not entitled to raise this point for the first time, for which foundation has not been laid in the writ application. (ii) That the petitioners do not themselves fulfil the requisite qualifications as laid down in Rule 4 (d) aforesaid. They do not claim in the writ application to be holding either a degree in civil engineering or a diploma in civil engineering from an Indian Engineering College. (ii) That the petitioners do not themselves fulfil the requisite qualifications as laid down in Rule 4 (d) aforesaid. They do not claim in the writ application to be holding either a degree in civil engineering or a diploma in civil engineering from an Indian Engineering College. The petitioners, therefore, having failed to assert their eligibility to promotion in class II of the service were not entitled to any relief by this Court; (iii) That the petitioners have deliberately made mis-statement of facts in their writ application relating to the qualification of respondent No. 5 and as such they are not entitled to any relief by this Court in exercise of the discretionary power under Article 226 of the Constitution; (iv) That the relevant rules or qualifications which determine the eligibility to promotion in class II service are contained in Annexure 5-A to the counter-affidavit of respondent No. 5. The respondents admittedly fulfilled the relevant qualification. As such their promotion cannot be challenged; (v) Respondents 3 to 6 have been appointed as Overseers as far back as year 1958. The question whether at that stage the qualifications required for appointment were fulfilled by them, or whether there was any valid relaxation in respect of those qualifications at that stage, cannot be raised now in the year 1972. Those respondents having been admitted into service and having continued for about twelve years as such were to be treated like all other members of the said service who were entitled to promotion to higher posts in accordance with the rules relating to such promotions. The petitioners cannot challenge their promotion on the ground of the alleged ineligibility at the time of their initial appointment as Overseers; (vi) That on proper interpretation of Rule. 4 as read along with Rule 1 and the other relevant rules of Bihar Public Health Engineering Service Class II. it is clear that there is no minimum educational qualification required for candidates who are already in the service as Overseers and as such there could be no illegality in promoting the said respondents, who were found fit not only by the State Government, but by the Public Service Commission as well. There is thus no infringement of the rules in their promotion. 6. There is thus no infringement of the rules in their promotion. 6. I propose to deal with the last two points first, for, if the stand of the petitioners in relation thereto is not accepted, it is obvious that the petition cannot succeed. I would, however, like to mention in relation to the lack of requisite qualification in respondents 3 to 6 and the presence of the said qualification in the petitioners, that the learned counsel for the petitioners referred to the statements made in paragraphs 9 and 10 of the reply to the counter-affidavit of respondents 1 and 2. In this affidavit it has been stated that the petitioners alone are eligible for promotion to the post held by respondents 3 to 6. In reply it was asserted on behalf of the respondents that this statement is much too vague and that in any event it should have been made in the petition itself as the High Court Rules do not envisage any reply to the counter-affidavit. 7. I now take up the first contention raised on behalf of the petitioners. As already noticed, they say that the petitioners did not fulfil the required qualification at the time of their appointment in the Bihar Subordinate Engineering Service. The qualification as mentioned at page 30 of the Bihar Public Works Department Code Volume II printed in the year 1960 is as follows: "2. A certificate or diploma in the Subordinate Engineering in the respective branches of Engineering from any institution recognised by the State Government for this purpose will be minimum technical qualifications required." Learned counsel for respondents 3 to 6 tried to contend that the requirements of these rules were not applicable in their cases. But in view of the statements made in the counter-affidavit of respondents Nos. 1 and 2 to the effect that there was lack of the requisite qualification at that stage I propose to proceed on the assumption that there was in fact such a lack of qualification. 8. Before discussing the question further I would like to observe that it is not clear, from the materials placed in the course of hearing, as to how Rule 2 quoted above would be applicable in case of respondents 3 to 6. No material has been placed to establish that their appointment was initially in Bihar Subordinate Engineering Service. 8. Before discussing the question further I would like to observe that it is not clear, from the materials placed in the course of hearing, as to how Rule 2 quoted above would be applicable in case of respondents 3 to 6. No material has been placed to establish that their appointment was initially in Bihar Subordinate Engineering Service. Annexure B to the counter-affidavit of respondent No. 3 and Annexure A to the counter-affidavit of respondent 4 shows that they were appointed as Mechanical Overseers There is no mention of "Bihar Subordinate Engineering Service" in either of them. But whatever be the basis of lack of requisite qualification, we have as already pointed out, to proceed, in view of State affidavit, on the assumption that there was lack of requisite qualification in respondents 3 to 6 at the time of their initial appointment as Overseers. 9. The circumstances in which the appointments were made have been explained in the counter-affidavit of the State in paragraphs 9 and 12, extract wherefrom have already been quoted by me. Those statements do not appear to have been denied in the counter-affidavit filed in reply by the petitioners. The position, therefore, clearly is that at the relevant time when these respondents were appointed, there was dearth of qualified technical personnel having the requisite qualifications. I have not examined the question whether the qualiiication aforesaid is capable of relaxation. What, however is clear, is that even if there be some infirmity in the appointment as was made in the year 1958, the same cannot be challenged after a lapse of about twelve years. To permit the petitioners to challenge them for the purposes of finding out whether the respondents aforesaid can be promoted or not would be indirectly permitting challenge to the initial appointments which, in my view, cannot be permitted to be done after a lapse of so many years. What cannot be done directly cannot be done indirectly. It also appears that at that time there was such a dearth of qualified persons that there were other instances in which persons who did not have the requisite technical qualification were permitted to be appointed taking into consideration other relevant circumstances, like the experience and the other diplomas held by them (which may not be the diploma envisaged by the Bihar Subordinate Engineering Service Rules). Once it is accepted that the respondents continued as Overseers and their initial appointment cannot be challenged, it necessarily follows that they must be entitled to all the promotional avenues which are open to the members of such service. It is not possible to re-examine the question of their initial appointment again at the time of consideration for promotion to the higher post. Of course, if there are certain qualifications laid down in the relevant rules relating to promotions, which respondents 3 to 6 do not fulfil thev cannot be considered for further promotion. But whether there was anv aualification laid down in the rules of Bihar Public Health Engineering Services Class II, which was not fulfilled by the said respondents will be considered later. 10. It was contended on behalf of the petitioners that since some of the promoted respondents were still unconfirmed, it was open to the petitioners to challenge their initial appointment. I do not think the petitioners can be allowed to take up the question so late, even though some of the respondents may not have been confirmed. 11. So far as the second contention is concerned, it will be necessary for me first to read some of the relevant rules. Rule 1 of the rules relating to the method of recruitment to Bihar Public Health Engineering Service Class II (as mentioned in the Government publication being Bihar Public Works Department Code , Volume II, 1958 Edition) is as follows: "1. The service shall be recruited. (i) by direct recruitment in accordance with the rules in Part II, or (ii) by the promotion or transfer of officers already in Government service, permanent or temporary, in accordance with the rules in Part III." This rule and Rule 2 are contained in Part I. Part II consists of Rules 4 to 11, Rule 4 which is contained in Part II lays down the qualification which is to be possessed by a candidate. Sub-clause (d) (i) of this rule, with which we are concerned is "(d) (i) hold a degree in Civil Engineering from an Indian University or a diploma in Civil Engineering from an Indian Engineering College; or" After clause (d) which itself consists of four parts, there is a "Note" which reads as follows: "Persons who hold posts in Government service in a temporary or officiating capacity or on probation are eligible to apply for direct appointment, subject to the provisions of this rule. Persons who have been confirmed in Government service are not so eligible except that (i) members of the Subordinate Engineering Service and (ii) members of other services, ipossessing qualifications specified in clause (d), are eligible for appointment by promotion or by transfer in accordance with the procedure laid down in Part HI of these rules," The contention raised on behalf of the petitioners is that the correct interpretation of the later portion of the said note is that members of the Subordinate Engineering Service as also members of other services must possess the qualifications specified in clause (d) before they are eligible for being taken in class II. In other words, the contention is that the expression "possess qualification specified in clause (d)" governs both the members of the Subordinate Engineering Service as also the members of other services. In. this connection great emphasis was laid on the punctuation. It was said that the presence of a comma after expression "members of other services" and the other comma after clause (d). and the absence of any punctuation after the expression "members of Subordinate Engineering Service" clearly indicates that the qualifications were meant to govern both the members of Subordinate Engineering Service as also members of the other services. Reliance was also placed on Rule 13 of the Rules. 12. Whether it be an Act of the legislature or a statutory rule, the duty of the court is to find out the intention of the legislature or the statutory authority. There are a number of well recognised rules of construction, all aiming at the same object, namely, the determination of the intent. It is well settled that effect must be given to each part of the legislation or the rules. Since here we are concerned with the rules, I shall use the expression "rules" instead of using both the expressions Act or the rules. It is well settled that effect must be given to each part of the legislation or the rules. Since here we are concerned with the rules, I shall use the expression "rules" instead of using both the expressions Act or the rules. It is also well settled that the rules should be so interpreted as not to conflict with each other and that even where it is not possible to reconcile two rules, attempt should be made to give effect to both. Thus, in short, the provisions should be harmoniously construed. It is from this point of view that the matter has to be examined. First let me again refer to Rule 1. Rule 1 clearly says that direct recruitment has to be in accordance with the rules in Part II. Ordinarilv therefore, one would not expect that Part II should contain any qualification in respect of promotions or that Part III should contain qualifications in relation to direct recruitment. Of course, where the statutory authority clearly lays down a further qualification in Part H in respect of promotion also, although in the scheme of the rules that part relates to direct recruitment, it would be legitimate to ignore to such an extent as may be necessary, the scheme as contemplated in R. 1. But in order to harmoniously construe the rules, it would be more legitimate to think that the authority would not be laying down a qualification in Part II in relation to persons who were to be promoted in accordance with Part III. It is possible to interpret relevant part of Note to Rule 4 in two ways. It is in my view possible to read the expression "Subordinate Engineering Service" conjunctively with the expression that follows namely "members of other services possessing qualification specified in clause (d)". It is also possible to read them disjunctively in view of the scheme of the rules and the provisions contained in Rule 1. I am inclined to read the two disjunctively, as this fits in more with the scheme of the rules, and gives proper effect to Rule 1. 13. It will be useful now to refer to the manner and the circumstances in which Note to Rule 4 came to be added to the rule. They are contained in Government notification No. 11096-E dated the 23rd of December, 1938. 13. It will be useful now to refer to the manner and the circumstances in which Note to Rule 4 came to be added to the rule. They are contained in Government notification No. 11096-E dated the 23rd of December, 1938. At that time Rule 1 (ii) did not contain the expression "or transfer". Rule 4 then consisted of only clauses (a), (b), (c) and (d). that is to say, so far as direct recruitment was concerned, Rule 4 laid down the qualification for direct recruits. In the year 1942 a "Note" was added. This was by notification No. 1633-E dated 24-2-1942. This was as follows:- "Persons who hold posts in Government service in a temporary or officiating capacity or on probation are eligible to apply for direct appointment, provided that they are within the age limits prescribed in clause (a) of this rule. Persons who have been confirmed in Government service are not eligible except that Upper Subordinates and Overseers in the Public Health Engineering Department, are eligible for appointment by promotion under Part III of these rules." It may be noticed that this is a note added to the rule. Ordinarily we would expect a clarification in the notes and not substantive provisions. This note first made it clear that persons in temporary or officiating Government service were eligible for direct recruitment. It only appears that by way of clarification it was stated that those who are confirmed in Government service would not be eligible for direct recruitment, but would be eligible for appointment by promotion as contemplated under Part III. This latter portion, it appears to me, was indeed not necessary because it was already contained in Rule 1 and it was by way of caution and clarification that the latter portion was also incorporated. It is also to be observed that in this note expression "Subordinate Engineering Service" was not there; instead the expressions were "Upper Subordinates and Overseers in the Public Health Engineering Department". It is thus clear that till then there was no scope for argument that Rule 4 has laid down any educational, or technical qualification for promotion. 14. In the year 1947 this rule appears to have been substituted by notification No. 2811-E dated the 7th of March. 1947. By the said notification the expression "or transfer" was inserted after the word "promotion" in Rule 1 (2). 14. In the year 1947 this rule appears to have been substituted by notification No. 2811-E dated the 7th of March. 1947. By the said notification the expression "or transfer" was inserted after the word "promotion" in Rule 1 (2). The said notification substituted the following note for the existing note in Rule 4. "Persons who hold posts in Government service in a temporary or officiating capacity or on probation are eligible to apply for direct appointment, subject to the provisions of this rule. Persons who have been confirmed in Government service are not so eligible except that: (i) Upper Subordinate and Overseers in the Public Health Engineering Department, and (ii) members of other services, possessing qualifications specified in clause (d), are eligible for appointment by promotion or by transfer in accordance with the procedure laid down in Part III of these rules." The manner in which this note has been printed in the Official Gazette does indicate to me that Upper Subordinates and Overseers in Public Health Engineering Department were not being clubbed together with the members of other services in relation to the applicability of clause (d). This is clear from the fact that in the official notification after the clause (i) there is blank space and thereafter it starts "and (ii)". This is an indication, of course, not conclusive, that the intention was to treat the Upper Subordinates and Overseers disjunctively with the numbers of other services. It also stands to reason that this should be so, so far as those officers are concerned, the promotion in class II means only next step. But so far as the members of "other services" [which expression was introduced for the first time in Rule 1 (2)] are concerned, it could not be known beforehand what qualifications they would be possessing. It was only to be expected that in relation to such persons there should be some restriction laying down some qualification. The rule making authority, therefore, in this note clarified the position that only being a member of "other services" was not sufficient but there should be some minimum qualification, and that was to be same as contemplated in clause (d) of Rule 4. This development of rules also indicates that the stand taken by the State that the two are disjunctive is correct. This development of rules also indicates that the stand taken by the State that the two are disjunctive is correct. Although the executive interpretation of the rules cannot be a guide for the courts, I find that the rules have been interpreted and applied in the way in which I am now interpreting. 15. A reference to Rule 8 relating to Bihar Engineering Service Class I (before amendment) may also be relevant. This rule which was as follows: "No person shall be appointed to the Service unless he holds a degree or diploma from an Indian Engineering College or is an Associate Member of the Institution of Engineers (India) or holds a degree from one of the Universities in the United Kingdom enumerated in the Annexure to these rules, or has passed the examinations mentioned therein." lays down the minimum educational or technical qualification. It applies to both, the direct recruits and the promotees. This I have pointed out. to illustrate that where the statute wanted to prescribe minimum qualification both for direct recruits as well as from others, it had made such a provision by a separate rule. 16. The contention of the petitioners that Rule 13 leads to the inference that a minimum technical qualification was prescribed also does not appear to be acceptable. Rule 13 reads: "The Commission shall advise the Governor in respect of each candidate nominated whether his qualifications are sufficient and whether his record proves him to have the requiste character and ability for the Service." The rule requires the Commission to advise whether the nominated candidate has such qualifications which in the opinion of Commission warrants his promotion. This rule does not lead to the conclusion that a minimum technical qualification must be deemed to have been, prescribed in the rules. 17. Before proceeding with further discussion, I wish to point out that the expression "Upper Subordinate and Overseers in the Public Health Engineering Department" as introduced in 1947 has been substituted by the expression. "Bihar Subordinate Engineering Service" in the note to Rule 4 as published in the official publication "The Bihar Public Works Department Code " 1960 Edition. We wanted the counsel for the parties, including the counsel for the State, to point out when and how the change in the language has taken place, but they were not able to enlighten us in this matter. 18. We wanted the counsel for the parties, including the counsel for the State, to point out when and how the change in the language has taken place, but they were not able to enlighten us in this matter. 18. The main plank of the arguments, as learned counsel for the petitioners suggests, is the punctuation in the note to Rule 4. It would, therefore, be relevant and pertinent to refer to the part played by "punctuation" in relation to legislative interpretation. 19. As already pointed out, learned counsel contended that the absence of any punctuation after the expression "members of the Subordinate Service" leads to the interpretation which he was suggesting. I find that courts in India have taken differing views in respect to the importance of punctuation in legislative interpretation. I find that in some cases punctuations have been ignored. It has been said that no importance can be attached to them at all. Some of those cases are Daisy Amelia Borgonha v. Wilfred Churchill Borgonha, AIR 1920 Bom 245; Indian Cotton Co. Ltd. v. Hari Poonjoo, AIR 1937 Bom 39 and Syamapada Banerjee v. Asst. Registrar, Co-op. Societies, AIR 1964 Cal 190 . In some cases it has been said that it is doubtful whether it is permissible to take help of punctuation. [See for instance Secretary of State v. Kalekhan. AIR 1914 Mad 502 and decision of Special Bench of the Calcutta High Court in Tarak Chandra Mu-kherjee v. Rajan Lal Ghosal, AIR 1957 Cal 257 (SB)]. There are some other cases which have taken the view that in modern statutes and those of the Indian legislatures punctuation must be taken to be a part of the statutes and assistance can be derived from the punctuation. I need only refer to Blanche Somerset Taylor v. Charles George Bleach. AIR 19:5 Bom 50 and Board of Revenue v. 3. R. M. A. R. Ramnathan Chettiar. AIR 1924 Mad 455. But before discussing briefly the basis of the decision in these cases it may be useful to refer to the position as in England. 20. The earliest English case that I have noticed is that of Barrow v. Wadkin, (1857) 53 ER 384. R. M. A. R. Ramnathan Chettiar. AIR 1924 Mad 455. But before discussing briefly the basis of the decision in these cases it may be useful to refer to the position as in England. 20. The earliest English case that I have noticed is that of Barrow v. Wadkin, (1857) 53 ER 384. In that case Sir John Romilly, M. R. said "I supposed I should not learn much on the subject from the inspection of the Roll of Parliament : but, as it was in my custody, I have examined it............ it seems that in the Rolls of Parliament the words are never punctuated, and accordingly very little is to be learnt from this document." The same approach has been repeated in Duke of Devonshire v. OComnor, (1890) 24 QBD 468, where Lord Esher, M. R. observed that there were no such things as stops and brackets in an Act of Parliament..." Lord Fry in that very case, refused where the sense was strong to pause at those miserable brackets, though refraining from expressing an opinion whether prackets could be looked at in an Act of Parliament. Similar is the approach in the earlier case Stephenson v. Taylor. (1861) 121 ER 650 (652). But it is clear that the basis of this approach is, as has been mentioned in several books on statutory interpretation, that in the old Acts of Parliament punctuations were not to be found. They were provided by the printers. This is clear from the observation of Cookburn. C. J. in (1861) 121 ER 650 (652) (supra); "On the Parliament roll there is no punctuation, and we therefore are not bound by that in the printed copies." But even in England since 1894 punctuations have been inserted. It is. therefore, difficult to say as to what would be the position which would be accepted in England today if the matter is fully considered. I venture to say that a correct note was struck by Mr. R. E. Megarry, (as he then was) in 75 Law Quarterly Review 29, where he observed "......... Recently in Scotland the Court of Justiciary has refused to ignore commas in a statute. I venture to say that a correct note was struck by Mr. R. E. Megarry, (as he then was) in 75 Law Quarterly Review 29, where he observed "......... Recently in Scotland the Court of Justiciary has refused to ignore commas in a statute. In speaking of modern Acts, Lord Jamieson said "Bills when introduced in Parliament have punctuation, and without such would be unintelligible to the legislators, who pass them into law as punctuated" : Alexander v. Mackenzie, 1947 SC (J) 155 at p. 166; and see at pp. 161, 162, per Lord Mackay. and at p. 168, per Lord Stevenson. The Scottish view appears to be to have regard to the punctuation, but to make it subservient to the words and apparent intention of the Act. Thus where the punctuation shows which of two otherwise fairly balanced interpretations of a section is correct, it seems that the section, although construed in that way in Scotland, may nevertheless be construed the reverse way in England. There seem to be adequate grounds for contending that it is time that the more rational Scottish rule was adopted in England, at all events for modern statutes which were punctuated when they passed through Parliament." I must however, mention here that an observation of Lord Reid in the House of Lords in the case of Inland Revenue Commissioners v. Hinchy, 1960 AC 748 : "......... even if punctuation in more modern Acts can be looked at (which is very doubtful), I do not think that one can have any regard to punctuation in older Act........." It thus appears that the law in England is in a fluid stage. But the basis of all the decisions is that the Acts of Parliament are passed without punctuation. (So far as Indian Legislatures are concerned, we find that there are punctuations in the Bills as presented to the legislatures and the Acts as passed by the legislature do contain punctuation). Similar is the position with statutory rules. 21. I would now refer to the position as obtains in Scotland as explained in the case of Alexander v. Machkenzie, 1947 Session Cases 155 (Scot). Summarising the position Lord Jamieson observed as follows: "......... No case was cited to us, and I know of none, where punctuation was rejected in construing a statute, and as regards marginal notes the editor of Maxwell on Interpretation of Statutes says. Summarising the position Lord Jamieson observed as follows: "......... No case was cited to us, and I know of none, where punctuation was rejected in construing a statute, and as regards marginal notes the editor of Maxwell on Interpretation of Statutes says. "The rule regarding their rejection for the purposes of interpretation is now of imperfect obligation". He cites authorities, the latest of which is Dormer v. New Castle-upon-Tyne Corporation, where a sidenote was held to indicate that a section containing a proviso was applicable only to a particular series of sections and not to other parts of the Act. I am not prepared to hold that in construing a modern Act of Parliament a Court may not have regard to punctuation. Bills when introduced in Parliament have punctuation, and without such would be unintelligible to the legislators, who pass them into law as punctuated. There appears to me no valid reason why regard should be denied to punctuation in construing a statute so passed, when effect may be given to it in a punctuated writing under the hand of a testator, as was held in Houston v. Burns." Observation of Lord Mackay at page 161 and Lord Stevenson at page 168 (which is not necessary to be quoted here) are also pertinent. 22 There are two Privy Council cases, reference whereto would be necessary. The first is a decision reported in (1887) ILR 14 Cal 365 (PC) (The MahaTani of Burdwan v. Krishna Kamini Dasi). In that case Regulation VIII of 1819 was being considered. It was in that context that Lord Hobhouse delivering the opinion of the Judicial Committee observed at page 372 "......... But their Lordships think that it is an error to rely on punctuation in construing Acts of the Legislature..." This case, in my view, has been rightly distinguished in Taylors case (supra) where Justice Hayward observed "......... It should be no matter of surprise, therefore, that the old rule should be applied to the old Regulations promulgated in this country, and it will be found that the Privy Council remarked upon a consideration of an old Bengal Regulation of 1819 that it was an error to rely on punctuation in construing the Act of the Legislature in the case of Maharani of Burdwan v. Krishna Kamini Dasi. But whatever may have been the practice under the old Regulations, the practice would appear, since the constitution of regular Legislatures in India, to have been to insert stops in Bills before the Legislatures and to retain them in the authentic copies of the Acts signed by the Governor-General and published in the Gazette of India........." The other case is that of Lewis Pugh Evana Pugh v. Ashutosh Sen, AIR 1929 PC 69. Here also there is one sentence which supports the contention that punctuation is to be ignored. It is "......... The truth, is that, it the article is read without the commas inserted in the print, as a Court of Law is bound to do........." It would thus appear that in this case also the assumption is that comma has "been inserted in the print but was not in the original Act. 1974 Lab.I. C./83 XI 23 It is clear that if the punctuation is not in the original Act or the Original Statutory Rule , it has to be ignored. There cannot be two opinions about it. But if the punctuation is there in the Act of the legislature or in the Statutory rule, it would be unrealistic to hold that even in doubtful cases no assistance can be derived from punctuation. I, therefore, respectfully follow the view taken in AIR 1915 Bom 50 and AIR 1924 Mad 455. This, however, does not mean that too much emphasis has to be laid on punctuations. They can only be used as aids to interpretation. Where there are equally balancing views, then the punctuation may tilt the balance in favour of one interpretation. But if such is not the situation the maximum one can do is to take help from the punctuation in interpreting the relevant provisions along with general scheme, the purpose of the legislation or the rules, and all other relevant considerations. 24. Thus If the narrow view that punctuation cannot be taken into consideration be the correct view, it is clear, that the main plank of the argument of the petitioners disappears. Even if the other view, which I have respectfully ventured to propound is correct, it is clear that in view of the considerations which have been discussed by me, the interpretation put forth on behalf of the petitioners cannot be accepted. 25. Even if the other view, which I have respectfully ventured to propound is correct, it is clear that in view of the considerations which have been discussed by me, the interpretation put forth on behalf of the petitioners cannot be accepted. 25. In the view that I have taken in respect of the two points raised on behalf of the petitioners, neither of which, in my opinion, is acceptable, it is not necessary to deal with the other contentions raised on behalf of the respondents. 26. In the result I do not think that the petitioners have been able to make out a case for issue of a writ by this Court. This application is, accordingly, dismissed. but without costs. ANWAR AHMAD, J. 27 I agree.