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2004 DIGILAW 977 (ALL)

Ravi Shanker Jaiswal v. State of U. P.

2004-05-06

MARKANDEY KATJU, R.S.TRIPATHI

body2004
ORDER M. Katju and R. S. Tripathi, JJ.—This Special Appeal has been filed against the impugned judgment of the learned single Judge dated 8.4.2004. 2. We have carefully perused the impugned judgment and find no infirmity in the same. 3. Respondent Nos. 6 and 7 in this Special Appeal had filed the writ petition before the learned single Judge. They are admittedly senior to the present appellants in this Special Appeal. However, admittedly they had not obtained B.T.C. Certificate and they have not done the training required for getting the certificate. 4. By a Government order dated 21.10.1994, which is referred to in the letter of the D.I.O.S. dated 13.11.1995, copy of which is Annexure-1 to the writ petition, the State Government had provided that those untrained teachers who have completed ten years service on 1.1.1994 shall be exempted from training. The writ petitioners relied on the said Government order and their contention was accepted by learned single Judge. Hence this Special Appeal. 5. Learned counsel for the appellants has submitted that the exemption in respect of training was granted only for the purpose of pay scale and not for other purposes. We do not accept this contention. There is nothing in he Government order dated 21.10.1994 which shows that the exemption was granted only for the purpose to pay scale. A perusal of the letter of the D.I.O.S. dated 13.11.1995 copy of which is Annexure-1 to the writ petition shows that the State Government by its Government order dated 21.10.1994 had directed that those untrained teachers who have been in service for 10 years on 1.9.1994 are exempted from training. It follows logically that such untrained teachers will be treated as trained teachers. 6. The Government order dated 13.11.1995 creates a legal fiction. It treats an untrained teacher as a trained teacher after completion of ten years service. Legal fictions are well known in law. They assume something which is not real to be real. For instance under Section 43 (3) of the Income-tax Act the word “Plant” has been defined to include books. Ordinarily a plant mean a factory and by no stretch of imagination would a layman regard a book as a factory. However, the Income-tax Act under Section 43 (3) treats it so for the purposes of depreciation. Many other similar examples of legal fictions could be given. 7. Ordinarily a plant mean a factory and by no stretch of imagination would a layman regard a book as a factory. However, the Income-tax Act under Section 43 (3) treats it so for the purposes of depreciation. Many other similar examples of legal fictions could be given. 7. In respect of legal fictions the well settled” principle is that one’s eye should not boggle and the fiction must be carried to its logical extent and cannot be restricted, vide Prafulla Kumar v. State of Orissa, JT 2003 (9) SC 477 para 39. 8. In the oft-quoted passage in the judgment of Lord Asquith in East and Dwelling Co. Ltd. v. Finsbury Borough Council, (1951) 2 All ER 587, it was observed : “If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs ; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” 9. Similarly in State of Bombay v. Pandurang Vinayak, AIR 1953 SC 244 , the Supreme Court observed that “full effect must be given to a statutory fiction, and it should be carried to its logical conclusion. This view was followed in AIR 1996 SC 1963 (1976) ; AIR 1986 SC 137 ; AIR 1959 SC 352 , etc. 10. In the present case once an untrained teacher is being treated as a trained teacher when he has completed ten years service he should be treated as a trained teacher for all purposes. 11. Thus, there is no infirmity in the impugned judgment and the appeal is dismissed.