Jallaluddin v. Kerala Agricultural University — 1999 DIGILAW 483 (KER)

Judgment :- Arijit Pasayat, C.J. The only point that arises for consideration is the scope and ambit of Clause (6) of the Notification (No. GA/18128/AS/82) dated 6.7.1984 issued in exercise of the powers conferred under sub-s.(2)(b) of S.12 of the Kerala Agricultural University Act, 1971 (in short 'the Act'). By the said Notification, an earlier S.R.O. No. 264/72 was amended. The notification dated 6.7.1984 was indicated to be operative from 7.6.1984. It was issued after assent of the Chancellor under S.49(6) of the Act. 2. Factual position which is undisputed is as follows: Petitioner was a transferred employee within the meaning of S.58(4) of the Act. He was first appointed on 1.1.1963 as a Veterinary Surgeon under the Government, and on 3.7.1964 he opted and joined the Kerala Agricultural University thereinafter referred to as 'the University') as Junior Lecturer and as per the statutory provision, his service under the University is deemed to have started from 1.1.1963. In order to become eligible for promotion to the rank of Professor, an Associate Professor is required to complete 22 years of active service, besides possessing other qualifications like Ph.D. Appellant submitted an application on 1.1.1985 for up gradation of his post to that of Professor on the ground that by 1.1.1985 he became eligible to hold the said post. He was directed to appear before the Assessment Committee for an interview. As the said direction was cancelled, he filed O.P. No. 1922/86 before this Court. By judgment dated 14.12.1986, in the said case, a direction was given to the University to interview the appellant for the purpose of up gradation of his post of Associate Professor to that of Professor. The Assessment Committee did not select him on the ground that he had not completed the required length of active service to be eligible for promotion. The same was challenged in O.P. No. 1986/88 which was not pressed. On the basis of the order dated 14.12.1986, as referred to above, he was directed to appear before the Selection Committee and by Ext. P7 to the O.P. (order dated 24.4.1989) he was appointed as Professor with effect from 10.2.1989. 3. Appellant as petitioner filed O.P. No. 9006/92 praying for a direction to the respondent to count his seniority in the cadre of Professor from 1.1.1985 instead of 10.2.1989. P7 to the O.P. (order dated 24.4.1989) he was appointed as Professor with effect from 10.2.1989. 3. Appellant as petitioner filed O.P. No. 9006/92 praying for a direction to the respondent to count his seniority in the cadre of Professor from 1.1.1985 instead of 10.2.1989. This Court by referring Clause (6) of the notification dated 6.7.1984, held that the appellant had not completed the required length of active service to be eligible for promotion with effect from 1.1.1985. , 4. Learned counsel for the appellant reiterating the ground of challenge in the Original Petition, stated that the leave for five years granted to acquire the Degree of Ph.D. was to be computed while working out the period of active service. It is his stand that in respect of period for which extraordinary leave was granted, the entire balance period should be counted as active service for the purpose of promotion. Learned counsel for the appellant has stressed on the stipulation that for the purpose of the active service all leave with pay and allowance including half pay leave and periods spent for higher studies shall be counted. He also contended that even if he has taken leave for five years for acquiring the Degree of Ph.D., the same has to be taken into consideration as that period is leave with pay and allowances, as the same was spent for higher studies. Learned counsel for the University submitted that the provision is very clear and the conclusion arrived at by the learned Single Judge is correct. 5. In order to appreciate rival contentions, it is necessary' to note of Clause (6) of the Notification dated 6.7.1984 which reads as follows: "(6) The length of service required for the different levels of posts in the case of transferred employees referred to in S.58(4) of the Act shall be active service in any or all of teaching, research and extension wings in the Agricultural University or in the Department under Government. For the purpose of their active service all leave with pay and allowances including half pay leave and periods spent for higher studies shall be counted provided that the maximum period allowed in the case of successful candidates shall be one year for Post Graduate Diploma, 2 years for M.Sc., and 3 years for Ph.D." 6. Submission of appellant as noted above overlooks the proviso to the main stipulation. Submission of appellant as noted above overlooks the proviso to the main stipulation. The maximum period that can be allowed for computation is three years for Ph.D. Even if the leave is granted for a period of more than three years, in view of the. stipulation in the proviso, the same is applicable. 7. It is too well settled that the proviso is in the nature of an exception to the stipulation in the main provision. The normal function of a proviso is except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. Proviso is a qualification of the preceding enactment which is expressed in terms of too general to be quite accurate. (SeeLocal Government Board v. South Stoneham Union, (1909) AC 57 (HL). As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general Rule. (See S.B.K. Oil Mills v. Subhash Chandra, AIR 1961 SC 1596). The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of proviso to read it as something by way of an addendum or dealing with a subject which is foreign to the main enactment. (See/.T. Commissioner v. I.M. Bank Ltd., AIR 1959 SC 713). When one finds a proviso to the provision, the normal presumption is that, but for the proviso, the enacting part of the provision would have included the subject matter of the proviso. (Se&Mullins v. The Treasurer of the County of Surrey, (1880) Vol. V QBD 170 and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta, 1965 SC 1728). 8. In terms of Clause (6) of the Notification, as enacted above, the maximum period available to be computed was three years. That has been done. The stipulated length of active service was 22 years as on 1.1.1985. The same was completed after 1.1.1985. 9. V QBD 170 and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta, 1965 SC 1728). 8. In terms of Clause (6) of the Notification, as enacted above, the maximum period available to be computed was three years. That has been done. The stipulated length of active service was 22 years as on 1.1.1985. The same was completed after 1.1.1985. 9. It also to be noted that in sub-clause (4) of paragraph 5 of the Notification, it has been clearly indicated that the up gradation shall take effect only if the candidate has completed the stipulated length of service. As the appellant had not completed requisite length of service as on 1.1.1985, he is not entitled to any relief. We find no infirmity in the conclusion of the learned Single Judge which warrants interference. Accordingly, this Writ Appeal is dismissed.