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2004 DIGILAW 178 (JK)

State Of J. &K. v. D. N. Kotwal

2004-06-05

S.K.GUPTA, V.K.JHANJI

body2004
Per V. K. Jhanji, J. This Letters Patent Appeal arises out of judgment and order dated 29th December, 2000 passed in writ petition, OWP No. 3/94, whereby the learned Single Judge has held all the Members, including the Chairman, of Jammu and Kashmir Public Service Commission entitled to count the service rendered by them as such Members or Chairman, as the case may be, of the Commission for pension and other pensionary benefits, notwithstanding whether they are appointed to such office while in active service or after their retirement, and directed that the pensionary benefits be counted and released in favour of the petitioners, respondents herein, within a period of three months. The core issue involved in this matter basically relates to the purport of the Regulations framed by the Governor in pursuance of constitutional provisions. Therefore, before narrating the case of the respondents that was put forth in the writ petition, we deem it appropriate and advantageous to refer to the relevant provisions of the Constitution of Jammu and Kashmir and the Rules governing the appointment as, and conditions of service of, Members and Chairman of the Jammu and Kashmir Public Service Commission. The Jammu and Kashmir Public Service Commission (hereinafter referred to as "the Commission") is the creature of Constitution of Jammu and Kashmir. Section 129 of the Constitution provides for appointment and term of office of Members of the Commission. Sub-section (1) of Section 129 of the Constitution empowers the Governor to make appointment of Members and Chairman of the Commission. Sub-section (2) thereof says that a Member of the Commission shall hold office for a term of 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. In terms of the mandate of Section 132 of the Constitution, on ceasing to hold office, the Chairman and the Members of the Commission become ineligible for further appointment under the Government of the State, except that a Member other than the Chairman being eligible for appointment as Chairman of the Commission. In exercise of the powers conferred by Section 131 of the Constitution, the Governor of the State has made the Jammu and Kashmir Public Service Commission (Conditions of Service) Regulations, 1957 (hereinafter referred to as "the Regulations of 1957"). In exercise of the powers conferred by Section 131 of the Constitution, the Governor of the State has made the Jammu and Kashmir Public Service Commission (Conditions of Service) Regulations, 1957 (hereinafter referred to as "the Regulations of 1957"). Under Regulation 2(d) of the Regulations of 1957, "Member" is defined to mean a Member of the Commission and includes the Chairman thereof and so shall we refer in this judgment hereafter. Eversince the Regulations of 1957 were promulgated, certain amendments have been made therein from time to time. Regulation 8 of the Regulations of 1957 contained in part VI under the caption "Pension" was first amended vide SRO 324 of 1964 and then by SRO 480 of 1966. Subsequently, it was substituted vide SRO 478 dated 26th September, 1970. The substituted Regulation 8 of the Regulations read as under: "8. No pension shall attach to the office of the Chairman/Member as such but a Chairman/Member who on the date of appointment to the Commission was in the State/All India Service shall be deemed to have retired from such service with effect from the date of his appointment as Chairman/Member of the Commission. His lien on the post held by him or in the cadre shall stand terminated; Provided that the Chairman/Member at the time of his appointment as such shall, at his option to be exercised within a period of six months from the date of his appointment, be entitled to draw his pension and other retirement benefits, under the rules applicable to the service to which he belonged with effect from the date of his appointment as Chairman/Member; Provided that in such an event, his pay as Chairman/Member shall be reduced by an amount equivalent to the pension and other retirement benefits and he shall be entitled to draw his pension and other retirement benefits separately; Provided that if the Chairman/Member who at the time of his appointment as such, was in the State/All India Service, does not exercise option referred to in proviso 1 above, his service as Chairman/Member shall count for pension and other retirement benefits under the Rules applicable to the service to which he belonged immediately before such appointment. In such a case the retirement benefits will be subject to the overall ceiling of the amount of retirement benefits which the officer would have drawn had he not been appointed to the Commission and continued in service to which he belonged. Provided that nothing contained in the Jammu and Kashmir Public Service Commission (Condition of Service) Amendment Rules 1970 shall have effect so as to give to a Chairman/Member who is serving at present as such less favourable terms in respect of his pay allowances and other regular service benefits or pension than those to which he would have been entitled had the said amendment not come into force." Vide SRO 678 dated 22nd October, 1986, the third proviso to Regulation 8 (Part VI, Pension) was substituted by the following: "Provided that if the Chairman/Member who at the time of his appointment as such, was in the State/All India Service, does not exercise option referred to in proviso 1 above, his service as Chairman/Member shall count for pension and other retirement benefits under the Rules applicable on the date of expiry of his term, to the service to which he belonged immediately before such appointment." The respondents herein were appointed, from time to time, as Members of the Commission after their retirement from State/All India Service. Their case before the Writ Court was that, on account of the aforesaid amendment made in terms of SRO dated 22nd October, 1986, substituting the third proviso to Regulation 8, a person who, on the date of his appointment as Member of the Commission, was in the State or All India Service, was entitled to get the period of service rendered in the Commission as a Member counted for the pensionary benefits whereas this benefit was denied to them. They claimed that since both the categories of such Members, i.e., those who were appointed as such Member / Chairman after retirement and those who were appointed as such during their active service, perform identical duties in the Commission, they were entitled to similar benefit. According to them, denial of identical treatment to them was an artificial classification, violative of their right of equality guaranteed under Article 14 and 16 of the Constitution of India and the doctrine of equal pay for equal work. The learned Single Judge allowed the writ petition with directions already noticed above. The State has come in appeal. According to them, denial of identical treatment to them was an artificial classification, violative of their right of equality guaranteed under Article 14 and 16 of the Constitution of India and the doctrine of equal pay for equal work. The learned Single Judge allowed the writ petition with directions already noticed above. The State has come in appeal. We have heard learned counsel for the parties and have carefully gone through the constitutional provisions and the Rules and Regulations governing the subject-matter of controversy raised by the respondents. On behalf of the State, the case was argued by Mr. B. S. Salathia, learned Additional Advocate General. However, we also requested the learned Advocate General to assist the Court. We may at the out-set observe that the respondents herein, in their writ petition, in effect, had sought for a hypothetical interpretation of third proviso to Regulation 8 of the Regulations of 1957, tantamounting to legislating than declaring the law. We say so firstly because the respondents in their writ petition had not laid any factual foundation to demonstrate that any of the Members of the Commission appointed during active service had been given the benefit of counting the service rendered only as such Member for pension and other pensionary benefits; secondly, they sought to found their claim only on the proviso, ignoring the enacting provision, distorting the very intent and import of the whole Regulation. The respondents case is mainly based on the third proviso to Regulation 8 of the Regulations of 1957. A proviso is a proviso, i.e., a condition attached to the main provision. The object of a proviso is to cut down or make an exception from the ambit of the main provision, or to amplify or qualify the main provision. It is settled law that before a proviso can have any application, the main provision itself must apply. Further, a proviso cannot be read in isolation; in order to understand the exception, restriction, amplification or qualification contained in the proviso, it has to be read in context of the main provision. On going through the impugned judgment, we find that this cardinal rule of interpretation has not been adhered to. Regulation 8 of the regulations comprises of two clauses. The first clause reads that "no pension shall attach to the office of the Chairman/Member as such but". This clause, obviously, is negative and, therefore, mandatory. On going through the impugned judgment, we find that this cardinal rule of interpretation has not been adhered to. Regulation 8 of the regulations comprises of two clauses. The first clause reads that "no pension shall attach to the office of the Chairman/Member as such but". This clause, obviously, is negative and, therefore, mandatory. It conveys in simple terms that office of the Chairman/Member by itself does not attach any pension. The word "but" has been used as a conjunction between the negative clause and the second clause, i.e., rest of the enacting provision of the Regulation. The conjunction "but" after negative clause means "other than" (Reference: Concise Oxford Dictionary Tenth Edition). In our opinion, that, of course, is the import of the Regulation. Reading thus, the second clause of the provision carves out an exception for those mentioned therein to the application of the general rule contained in the first clause of the provision. In other words, the provision deals with and postulates two distinct situations, i.e, appointment of a retired Government servant as Member of the Commission and appointment of a Government servant as such who is still in service. A reading of the Regulation further reveals that the second clause thereof, as referred to above, relates to none other than such a Member who is appointed to the office while in active service. Again, the second clause not only describes the excepted category, but also indicates the treatment that has to be meted out to them, i.e., they shall be deemed to have retired from the active service and their lien against the post shall stand terminated. As noticed, above, the Regulations postulate probability of appointment as Members of the Commission of two categories of persons: one comprising Members having already retired from Government Service on superannuation before appointment to the office of the Commission and the other chosen and picked up from active service for such appointment to be deemed to have retired from the date of such appointment. By implication of second clause of the Regulation, though, as on the date of such appointment, both categories of such Members stand retired from Government service yet, they do not stand on the same footing. Whereas one category would have retired on superannuation from Government service, the other is "deemed to have retired". By implication of second clause of the Regulation, though, as on the date of such appointment, both categories of such Members stand retired from Government service yet, they do not stand on the same footing. Whereas one category would have retired on superannuation from Government service, the other is "deemed to have retired". Such a "deemed retirement" is not envisaged by either the All India Service (Death-cum-Retirement Benefits) Rules, 1958 or the Jammu and Kashmir Civil Service Regulations. Reference to the Rules shall be made a bit later in this judgment. Nor do these rules provide the method and manner as to how the treatment prescribed in the second clause of the Regulation should be effectuated. The method and manner to be adopted to effectuate the "deemed retirement" is provided in the first three provisos under Regulation 8 of 1957 Regulations. These three provisos have no relation to the other category of Members of the Commission who have since retired on superannuation. The provisos are in amplification of and qualify the second clause of the main Regulation 8 which, as said above, concerns only to the excepted class of Members. This may be further explained herein-below. A plain reading of the three provisos reveals that the first proviso provides for exercise of an option to draw pension and other retirement benefits from the date of appointment as Chairman/Member of the Commission. Obviously, this option does not concern a retired Government servant, since he is already in receipt of such pension and other retirement benefits. Option, as envisaged by the proviso, does not contemplate an alternative for what a Member might have already committed to or might be already in receipt of. It connotes a non-committal state and power to choose between two or more available modes or things neither of which the chooser has yet enjoyed. The question of option or exercise thereof, in the circumstances, by a Government servant retired on superannuation, in the contemplation of the proviso, does not arise. Therefore, the first proviso has no relation to a Member who is already retired on superannuation and already in receipt of pension and other retirement/pensionary benefits. The second proviso provides a follow up of action in case option is exercised for pension and other retirement benefits in pursuance of the first proviso. Therefore, the first proviso has no relation to a Member who is already retired on superannuation and already in receipt of pension and other retirement/pensionary benefits. The second proviso provides a follow up of action in case option is exercised for pension and other retirement benefits in pursuance of the first proviso. The third proviso deals with an eventuality that arises when the option under the first proviso is exercised against pension and other retirement benefits. Therefore, this proviso also has no relation or application to the other category of Members who are already in receipt of pension and other retirement benefits. The three provisos only add details to the main provision contained in the second clause of Regulation 8 as referred to earlier in this judgment, i.e., they only qualify or amplify what is already contained in the enacting provision. Once these provisos are not related, in any manner or to any extent, to the category of respondents, they cannot base any claim on the third proviso. We may further observe here that when a retired Government servant is appointed either as Member of the Commission, he happens to be already in receipt of pension under the Rules which governed his service at the time of his retirement. He would also have served the full term of his service and got the benefits accruing under rules in lieu thereof, including promotions etc. Regulation 4 of Part III under the caption "Pay" of the Regulations protects the rights and interests of such a Member or Chairman inasmuch as that if the last salary drawn before his retirement from Government service would be less than the salary attached to the office now held by him in the Commission, he would be entitled to draw the salary under the Regulations, of course, reduced by the amount of pension and pension equivalent of other retirement benefits drawn by him at the relevant time. Further, if the last salary drawn by him before retirement was more than the maximum of the scale of pay prescribed in the Commission, protection is given to him that he would be entitled to draw the same salary in the Commission also, minus the pension and pension equivalent of other retirement benefits. In this manner, the Regulations have provided for sufficient safeguards and protection in relation to persons who are appointed to these offices after their retirement. In this manner, the Regulations have provided for sufficient safeguards and protection in relation to persons who are appointed to these offices after their retirement. However, it is not always that retired persons would be appointed to the office of Member of the Commission. As postulated by the Regulations, cases are conceivable that a person in active service may be picked up and appointed as Member of the Commission by the Governor, who is deemed to have retired from the Government service on being so appointed. What would happen in the case of such a deemed retiree? Would he forfeit the left-over or remaining portion of his service and the benefits that would otherwise accrue to him under the Service Rules? Would he forfeit his right to pension earned in lieu of the past service? How would be the "deemed retirement", envisaged by Regulation 8 of the Regulations, effectuated? The answer to all these questions is contained in the second part of the main Regulation and the provisos thereunder. The Regulation is not intended at creating a right to pension or conferment of right to pension, but to protect the right to pension and other retirement benefits of a Member chosen from active service which otherwise would accrue to him in his service. Had the Regulation not extended this protection to such a Member, it would create an anomalous situation for him and, in fact, have penal consequences, particularly so when there is an express prohibition as to the holding of offices by Members of the Commission on ceasing to be such Members enshrined in Section 132 of the State Constitution. In order to mitigate the loss that would be caused to such a person on account of his having been chosen for the office, law has provided for the protection to him. A retired Government servant having already reaped the fruit of his service to the full cannot be equated with a Member who is picked up while being in active service. The two stand on two different pedestals and constitute two distinct classes. The question of discrimination, therefore, does not arise The contention that since both perform identical duties and, therefore, both are entitled to identical treatment on the doctrine of equal pay for equal work is totally misplaced and misconceived. The doctrine, as put forward, is not at all attracted to the case. The question of discrimination, therefore, does not arise The contention that since both perform identical duties and, therefore, both are entitled to identical treatment on the doctrine of equal pay for equal work is totally misplaced and misconceived. The doctrine, as put forward, is not at all attracted to the case. As already observed above, the Regulations do not create any right in those of the Members of the Commission who are chosen from active service for being appointed to the office of Member of the Commission. The Regulation only seeks to protect the existing right. It is also relevant to observe here that the second and the third proviso make mention of "rules applicable to the service to which he belonged". Reference clearly is to the relevant Pension Rules. Therefore, Regulation 8 has to be read in context of, and together with, the relevant Pension Rules. In the case of State employees, the Rules are contained in Part IV of Jammu and Kashmir Civil Service Regulations (Vol. I) (hereinafter referred to as "the CSR"). Similarly, in case of persons borne on the All India Services, the Rules are contained in All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as "the All India Service Rules"). Both the set of Rules, as referred to above, envisage only four types of retirements, namely, retirement on superannuation; retirement on invalid pension, voluntary retirement and compulsory retirement before attaining the age of superannuation. The Rules do not envisage "deemed retirement" especially in a case when a Government servant is chosen by the Governor, on the basis of relevant considerations, for discharge of more onerous and responsible duties, having constitutional and legal obligations outweighing the advantages. Note 8 under Article 230 of the J&K CSRs read with Article 185-D (V) thereof provides as to how the cases of permanent absorption of Government employees in Autonomous/Statutory Bodies and in Public Sector Undertakings shall be dealt with. But the appointment of a Government servant as Member of the Commission does not constitute an absorption. It is an appointment for a limited time. But the appointment of a Government servant as Member of the Commission does not constitute an absorption. It is an appointment for a limited time. Similarly, Sub-rule (2) of Rule 5 of the All India Service Rules says that where a member of the service is required to retire or resign from the Service as a condition of his appointment under a Statutory or other body, he shall be granted the retirement benefits to which he would have been entitled if he had been invalidated from the Service and not resigned or retired. Strictly speaking, this Rule also does not directly deal with the situation that arises when a person in active service and before reaching the prescribed age of superannuation is appointed to the office of the Member of the Commission. It appears that pursuant to judgment rendered by Madras High Court in some case, holding that a Government servant on appointment as Member or Chairman of Public Service Commission ceases thenceforth to be in the service of the Government, the Government of India, in order to ensure that the officer concerned does not stand to lose benefits of pension, leave and other service benefits, which had accrued to him as a member of an All India Service prior to his appointment to the Public Service Commission, took certain decisions and, in terms of letter No. 15/11/67-AIS (II) dated 26th July, 1969, approached the State Governments to take into consideration these decisions, while revising the relevant Regulations. [Reference: Government of Indias Decision contained under Rule 5 of the All India Service (Death-cum- Retirement Benefits) Rules 1958 (Ejazs All India Services Manual Vol. 1, 2001)]. We deem it appropriate to extract hereunder the Government of Indias decision: "In the case of P. K. Gnanasundara Mudaliar v. State of Madras, the Madras High Court has held that when a Government servant is appointed as a Member of Chairman of the Public Service Commission, he ceases thenceforth to be in the service of the Government. 1, 2001)]. We deem it appropriate to extract hereunder the Government of Indias decision: "In the case of P. K. Gnanasundara Mudaliar v. State of Madras, the Madras High Court has held that when a Government servant is appointed as a Member of Chairman of the Public Service Commission, he ceases thenceforth to be in the service of the Government. The Government of India have accordingly reviewed the position in the light of the judgment under reference, and in supersession of their letter No. 15/6/63-AIS (II), dated the 4th October, 1965, have decided that an officer of an All India Service on his appointment as Chairman or Member of a Public Service Commission shall cease to be a member of the Service from the date he assumes office in the Public Service Commission. His lien on the post held by him or in the cadre shall stand terminated. He shall also cease to be governed by the Rules framed under the All India Services Act in the matter of pay, leave and pension etc., which will be regulated in accordance with the regulations framed by the President / Governor as the case may be, in terms of Article 318 of the Constitution. In order to ensure that the officer concerned does not stand to lose benefits of pension, leave and other service benefits, which had accrued to him as a member of an All India Service, prior to his appointment to the Public Service Commission of the Government may kindly take into consideration the following suggestions, while revising the relevant regulations:- (1) The officer concerned may be permitted to elect or draw his pension and other retirement benefits admissible to him under the All India Services (Death-cum-Retirement Benefits) Rules, 1958, or elect to count his service on the Commission as qualifying service for the purposes of pension under the All India Service (Death-cum-Retirement Benefits) Rules, provided the retirement benefit in the latter case will be subject to the over all ceiling of the amount of retirement benefits which the officer would have drawn, had he not been appointed to the Commission and continued in service. A time limit of six months from the date of his entering office on Public Service Commission, may be allowed to exercise this option and the option so exercised will be final. A time limit of six months from the date of his entering office on Public Service Commission, may be allowed to exercise this option and the option so exercised will be final. (2) If the officer elects to draw pension for the Service as a member of an All India Service, his pay as Chairman or Member of the Commission may be reduced by the gross amount of pension and pension equivalent of the retirement benefits. He will also not be entitled to any other pension for the service as Member / Chairman of the Public Service Commission. (3) Subject to the provisions of sub-para (2) above, the officer will be entitled to the pay of the post of Member / Chairman of the Public Service Commission, as prescribed under the relevant regulations. It will also not be necessary to equate the post in the Commission to a cadre post which he would have held as a member of an All India Service. Nor will the officer be entitled to claim benefits under the Next Below Rules, after assuming office in the Commission. (4) (5) " Consequent to the aforesaid decision of the Government of India, it further appears that, in order protect the rights and interests of such Members and Chairman of the Commission in the State and to bring the Regulations of 1957 in harmony with the Regulations governing similar persons in rest of the States in the country, Regulation 8 was substituted in the year 1970. Subsequently, further such eventualities arose as a result third proviso was substituted vide SRO dated 22nd October, 1986 to bring the Regulation 8 to the state as it stands on date. It is thus manifest that the third proviso of Regulation 8 of the Regulations of 1957 was substituted only to ensure that the concerned officer does not lose the benefits which had accrued to him as a member of State or All India Service. The proviso does not create any new right, nor does it confer any new right, or even an advantage, on such a Member. Therefore, the respondents can not have any grievance on that score. The learned Single Judge in the impugned judgment has noticed as under: ".The other aspect is that on 22nd October, 1986, SRO 678 was issued. The proviso does not create any new right, nor does it confer any new right, or even an advantage, on such a Member. Therefore, the respondents can not have any grievance on that score. The learned Single Judge in the impugned judgment has noticed as under: ".The other aspect is that on 22nd October, 1986, SRO 678 was issued. By this certain amendments were made on account of these amendments, a person who was a member of the State or All India Service, on becoming a Member or Chairman of the Commission was entitled to get the period of service rendered in the Commission also counted for the pensionary benefits. Earlier to this amendment, even this category of Member and Chairman, was deemed to have retired from service and the period of service rendered in the Commission was not to be counted. In nutshell, all the Members / Chairman, who were once upon a time members of the State or All India Service, whether before joining (should be retiring) or were still in service at the time of joining the Commission, were not entitled to have the benefit of counting the period of service rendered with the Commission. On the other hand, whatever pension they were getting on account of the service rendered in the State or All India Service, was supposed to be adjusted in the emoluments which they were getting as the Chairman / Member of the Commission." The fact of the matter is other way round. Even prior to the 1986 amendment, the third proviso, in its relevant texture, existed. We have already quoted the relevant proviso as it existed prior to 1986. The only difference was that earlier it provided that the retirement benefits would be subject to the overall ceiling of the amount of retirement benefits whereas the 1986 amendment omitted the words "subject to the overall ceiling". This was necessitated because there was an amendment in the Pension Rules. Whereas earlier, the relevant Pension Rules prescribed a ceiling on the amount of retirement benefits, later the ceiling was removed. In this regard, Notes 2, 2-A and 4 under Article 240-AAA of J&K CSR (Vol. I) are quoted: "Note 2. This was necessitated because there was an amendment in the Pension Rules. Whereas earlier, the relevant Pension Rules prescribed a ceiling on the amount of retirement benefits, later the ceiling was removed. In this regard, Notes 2, 2-A and 4 under Article 240-AAA of J&K CSR (Vol. I) are quoted: "Note 2. -- The pension as determined in accordance with the above slab plus maximum relief (Dearness Allowance) on pension as admissible w. e. f. Ist April, 1979 will be subject to over-all ceiling of Rs.1,200/- per month. If pension itself exceeds Rs.1,200/- per month then the maximum pension for full service of 30 years will be restricted to Rs.1,200/- per month and no Dearness Allowance will be payable upto price index level of Rs.328. Note 2-A. -- Government employees who retire on or after 31-1-1982 and have opted or are deemed to have opted for the revised scales of pay, will draw pension admissible under rules subject to a maximum of Rs.1,500/- per month including Dearness Allowance on pension (released including February, 1981 instalment D. A. on pension). Note 3. Note 4. -- In the case of Government servants retiring on or after 31st March, 1985 there will be no ceiling on the amount of pension." Identical eventualities had arisen vis--vis the All India Service Rules. It is thus seen that the amendment or substitution of the third proviso of Regulation 8 on 22nd October, 1986 did not alter the import of the Regulation 8 as it existed prior to it, moreso to any disadvantage of the respondents. Lastly, addition to qualifying service beyond the age of superannuation is an antithesis to the Service Rules. Admittedly, the respondents prior to appointment to the office of the Members of the Commission had retired from Government service on superannuation. There is no question of addition to qualifying service after superannuation or after attaining the age of superannuation. The respondents, in effect, had sought for addition to the qualifying service after attaining the age of superannuation much earlier. That is within the domain of the State to do, not of this Court. The import of third proviso of Regulation 8 of the 1957 Regulations also is not intended at giving the benefit of counting of service in the Commission beyond the prescribed age of superannuation. That is within the domain of the State to do, not of this Court. The import of third proviso of Regulation 8 of the 1957 Regulations also is not intended at giving the benefit of counting of service in the Commission beyond the prescribed age of superannuation. The benefit, as contemplated by Regulation 8, is to be given only "under the relevant Rules" and Rules do not envisage giving the benefit beyond the prescribed age of superannuation. We, accordingly, hold that a Member / Chairman of the Public Service Commission appointed after retirement on superannuation from Government service is not entitled to count the service rendered by him as such Member / Chairman for pensionary benefits or for any purpose, whatsoever, under the Rules which governed his service at the time of his superannuation. In view of the above, this Letters Patent Appeal is allowed. The judgment impugned is set-aside. Consequently, the writ petition filed by the respondents is dismissed. No order as to costs.