JUDGMENT 1. - The instant writ petition has been filed for issuing a direction to the respondent to grant senior and selection scale to the petitioner with effect from 1.1.1986 and 5.2.1994 respectively; i.e. after completion of 8 and 16 years service, by way of Career Advancement Scheme in terms of the Ordinance 317 of the respondent University. 2. The facts and circumstances giving rise to this case are that petitioner, after acquiring the Degree of Bachelor of Engineering, was appointed as Lecturer in Structure Engineering in the respondent University vide order dated 3.2.1977. He had been involved in a criminal case, thus could not attend the University and his services were terminated by the respondent University vide order dated 13.11.1982. He remained in jail from 5.1.1983 to 26.7.1991. After being released from jail, he preferred Writ Petition No. 3888/1991 before this Court challenging the order of removal dated 13.11.1982, which was allowed vide judgment and order dated 28.8.1991. The said Judgment stood confirmed by the Appellate Courts and attained finality. In pursuance of the same, petitioner was reinstated and claimed that as the termination order had been set-aside by this Court, he would be deemed in continuous service and, therefore, entitled for the aforesaid selection grades after completion of 8 and 16 years' service. However, the respondent University, while calculating the required period, excluded the period not actually served by him. Hence this writ petition. 3. While allowing the aforesaid petition, this Court issued following orders- (i) Termination order dated 13.11.1982 is quashed. (ii) Reinstate petitioner forthwith with continuity of past service with all consequential benefits. (iii) He shall not be entitled to any salary for the period he remained incarcerated during pendency of the criminal case and further remained gainfully employed. 4. In view of the aforesaid judgment, the consequential order was passed by the University on 5.12.1997 (Annx. 2) and while considering his case for grant of selection grades, vide order dated 9.1.1999, it was held that as petitioner joined the service on 5.2.1977, he would be eligible for first selection grade with effect from 1.1.1994 (excluding the period he remained incarcerated in criminal case from 5.1.1983 to 26.7.1991). Mr. 2) and while considering his case for grant of selection grades, vide order dated 9.1.1999, it was held that as petitioner joined the service on 5.2.1977, he would be eligible for first selection grade with effect from 1.1.1994 (excluding the period he remained incarcerated in criminal case from 5.1.1983 to 26.7.1991). Mr. Mridul, learned Senior Advocate appearing on behalf of the petitioner, has submitted that the judgment and order of this Court has to be complied with in its true spirit and as petitioner had been allowed to be reinstated with continuity of service, the question of excluding the period not actually served is not permissible for the reason that he shall be deemed to be in continuous service even for the purpose of getting the selection grades. 5. Mr. J.M. Bhandari, learned Counsel for respondent University, has vehemently opposed the submission contending that in view of the statutory provisions of the relevant Rules, the actual rendered service is to be reckonded. 6. I have considered the rival submissions made on behalf of the parties. 7. It is settled proposition of law that unless the statute provides for a deeming clause, the Court should be very slow in accepting such a contention, as laid down by a Constitution Bench of the Allahabad High Court in Rana Pratap Singh v. State of U.P. 1995 (1) Civil & Revenue Cases 732 . The Court held that had the intention of the legislature been to provide for fiction/deeming sanction/refusal, specific provision could have undoubtedly been made for it in the Act or the Rules. In absence of any statutory provision/rule, it should not be construed as to provide for a fiction in such an eventuality. 8. Moreso, creating a fiction by judicial interpretation may amount to legislation, a field exclusively within the domain of the legislature. Vide State of Jammu & Kashmir v. Triloki Nath Khosa, AIR 1994 SC 1 ; and Ajaib Singh v. Sirhind Coop. Marketing-cum-Processing Service Society Ltd., (1999) 6 SCC 82 . 9. In Union of India v. Deoki Nandan Aggarwal A.I.R. 1992 S.C. 96 , the Hon'ble Apex Court observed as under- It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. 9. In Union of India v. Deoki Nandan Aggarwal A.I.R. 1992 S.C. 96 , the Hon'ble Apex Court observed as under- It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. 10. Even if the statute provides for a legal fiction/deeming provision, it must be limited to the purposes indicated by the context and cannot be given a larger effect. Vide Radhakissen Chamria and Ors. v. Durga Prosad Chamria and Anr. A.I.R. 1940 P.C. 167 ; State of Travancore-Cochin v. S.V. Cashewnut Factory Quilon, AIR 1953 SC 333 and Bengal Immunity Co. ltd. v. State of Bihar and Ors., AIR 1955 SC 661 . In Modi Cement Ltd. v. Kuchil Kumar Nandi, AIR 1998 SC 1057 the Hon'ble Apex Court explained the distinction between the "deeming provisions" and "presumption" and held that the distinction was well discernible. 11. Similar view has been taken by the Hon'ble Apex Court in State of Kerala and Ors. v. Dr. S.G. Sarvothama Prabhu, AIR 1999 SC 1195 ; Commissioner of Income Tax v. Mysodet (P) Ltd., AIR 1999 SC 1271 and Garden Silk Mills Ltd., and Anr. v. Union of India and Ors., (1999) 8 SCC 744 . 12. In view of the above referred to judgments, the judgment and order of this Court dated 28.8.1991, quashing the termination order has to be read in the context of the Rules providing for grant of selection scales, i.e. Rules for Career Advancement Scheme, University of Jodhpur, the relevant provisions of which read as under- (2) These Rule shall come into force with effect from 1.1.1986. (3) Every Assistant Professor (Lecturer) will be placed in the senior scale of र 3000-5000 as provided in ordinance 317 of the University, if he/she has: (a) Completed eight years of service after regular appointment. The existing Assistant Professor (Lecturer) with Engineering qualifications having Ph.D. and M.E. Degree will be entitled for relaxation of four and two years, respectively, in service for the purpose of placement in the senior scale. (b) Participated in two refreshers Course (summer period, each of approximately four weeks duration). The existing Assistant Professor (Lecturer) with Engineering qualifications having Ph.D. and M.E. Degree will be entitled for relaxation of four and two years, respectively, in service for the purpose of placement in the senior scale. (b) Participated in two refreshers Course (summer period, each of approximately four weeks duration). (c) Consistently satisfactory performance appraisal reports. 13. Petitioner, admittedly, did not possess the Degree of Ph.D. Moreso, he acquired the Degree of Master of Engineering only in 1993. Therefore, he is not entitled for any relaxation under Clause (a) of rule 3 and he can claim the said scale on completion of eight years of service after regular appointment. 14. The said Rules came into force with effect from 1.1.1986, when petitioner was in jail. Admittedly, he was released only on 26.7.1991. So far as the condition of attending the Refresher Course is concerned, the said requirement stood dispensed with by the Syndicate of the University vide Resolution No. 41/92 (Annex. 6). Therefore, the question remains whether petitioner can be deemed to have completed eight years of service after regular appointment and had consistently satisfactory Performance Appraisal Reports. 15. Mr. Mridul has submitted that in terms of the judgment of this Court, petitioner has been reinstated with continuity of service, therefore, he has completed eight years of service on 4.2.1985 arid, thus, entitled for the benefit with effect from 1.1.1986, i.e. from the date of commencement of the Rules. Even if the submission made by Mr. Mridul is accepted in respect of Clause (a), petitioner must also satisfy the requirement of Clause (c), which provide for having consistently satisfactory performance appraisal reports. The said reports have to be filled up by the Dean/Director/Head of Department after assessing the performance of the employee, meaning thereby assessment of actual performance of the employee. In the instant case, it cannot be held that the Head of Department could assess the performance of petitioner while he was in jail. 16. Rules mandatorily provide for constantly satisfactory Performance appraisal reports. Admittedly, petitioner cannot claim to have any appraisal report whatsoever, good or bad, for the period of eight years and seven months - the period during which he remained in jail. Rules for Career Advancement Scheme provide for grant of selection grade to those persons who faced stagnation for want of promotional avenues. 17. Admittedly, petitioner cannot claim to have any appraisal report whatsoever, good or bad, for the period of eight years and seven months - the period during which he remained in jail. Rules for Career Advancement Scheme provide for grant of selection grade to those persons who faced stagnation for want of promotional avenues. 17. A Constitution Bench of the Hon'ble Supreme Court in Lalit Mohan v. Union of India and Ors., AIR 1972 SC 995 has explained the concept of and the purpose for grant of selection grade by observing as under- "Selection grade has been recognised by the Central Pay Commission in para 10 of the Report. The Commission observed with the object of providing incentive to employees who have no outlets or very limited outlets for promotion to higher posts, we are recommending in a number of cases that a certain percentage of the posts in the grade - usually 10 per cent should carry a somewhat higher scale of pay even though there will be no change in the duties. Following the terminology in vogue we have described these posts as selection grade posts. It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency." 18. In Dayaram Ashanand Gursahani v. State of Maharashtra, AIR 1984 SC 850 the Hon'ble Supreme Court further explained that the selection grade is to be given purely on merit if the selection grade post constitutes a separate cadre and involves an element of selection. In Union of India v. S.S. Ranadey, (1995) 4 SCC 462 the Hon'ble Supreme Court observed that in selection grade, an element of selection is involved and it is not automatic promotion to the selection grade pay scale, this is for the reason that higher pay scale is granted on the same post. 19. In Union of India v. S.S. Ranadey, (1995) 4 SCC 462 the Hon'ble Supreme Court observed that in selection grade, an element of selection is involved and it is not automatic promotion to the selection grade pay scale, this is for the reason that higher pay scale is granted on the same post. 19. In State of Rajasthan v. Fateh Chand Soni, (1996) 1 SCC 562 it has been held that as promotion includes advancement to a higher position, grade or honour, or preferment in honour, dignity, rank or grade, it not only covers advancement to higher post or rank but also implies advancement to a higher grade. Thus, it cannot be granted without considering the suitability and merit of the employee. 20. The law referred to above makes it clear that it is a kind of promotion or advancement to a higher position and, therefore, cannot be granted unless the employee is found to be suitable and meritorious. In the instant case, the question of examining the merit of petitioner for the period of more than eight and half years, during which he remained in jail, did not arise and, therefore, that period has to be excluded. 21. Word "consistent", contained in Clause (c) of rule 3 has to be given due weightage in the context of the Rules, "Consistent" means : fixed; not fluid; compatible; free from self contradiction; True to principles, (Chambers Twentieth Century Dictionary). 22. Webster's Third New International Dictionary, Vol. 1, page 484, gives the following shades of meaning for the word "consistent." "marked by harmony, regularity, or steady continuity through-out; showing no significant change, unevenness or contradiction marked by agreement concord; Co-existing and showing no noteworthy opposing, conflicting, inharmonious, or contradictory qualities or trends; compatible." 23. Webster's New World Dictionary gives meaning to the word "consistently": "holding together; firm or coherent; as consistent soil, agreeing; in harmony; in accord; compatible; as overeating is not consistent with good health; holding to the same principles or practice; as consistent behaviour," 24. In Raghava Kurup v. Janaradhanan 1984 Ker. L.T. 320 , the Kerala High Court held that "consistently" means regularly, throughout. 25. Similarly, the use of words "satisfactory performance" would lead to an inference that the employee has not only to render the actual service but it must be satisfactory also. In Raghava Kurup v. Janaradhanan 1984 Ker. L.T. 320 , the Kerala High Court held that "consistently" means regularly, throughout. 25. Similarly, the use of words "satisfactory performance" would lead to an inference that the employee has not only to render the actual service but it must be satisfactory also. Performance, in reference to service, would mean rendering specific service Vide C.I.T. v. Calcutta Stock Exchange Association Ltd., AIR 1959 SC 763 . 26. In view of the above, petitioner does not fulfil the requirements of law for the reason that his Performance Appraisal Reports cannot be available for a period of more than eight and half years, nor his services for the said period could be held to be satisfactory, and as such he is not entitled for any relief whatsoever. 27. The petition is devoid of any merit and accordingly dismissed with costs of र 1000/- (Rs. one thousand only).Writ petition dismissed. *******