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Madhya Pradesh High Court · body

2008 DIGILAW 1030 (MP)

Shashi Thakur v. State of M. P.

2008-08-17

DIPAK MISRA, R.K.GUPTA

body2008
JUDGMENT : Dipak Misra, J. Regard being had to the similarity of the controversy involved in these writ appeals, they were heard analogously and are disposed of by the singular order. For the sake of clarity and convenience, the facts that have given rise to Writ Appeal No. 313/2009 are uncurtained herein. 2. The appellant invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India by filing Writ Petition No. 15397/2008 for issue of a mandamus commanding the respondents to permit her to continue in service upto the age of 62 years with all consequential benefits. It was contended in the writ petition that she was appointed on 27.7.1973 as Upper Division Teacher in the Tribal Department of the State Government. On 4.6.1983, she was sent on deputation to another Department of Woman and Child Development as Child Development Project Officer (CDPO) under the Integrated Child Development Scheme (ICDS). She was promoted to the post of a Lecturer on 21.9.84 in her parent Department. Later on, her services were absorbed in the Department of Woman and Child on 6.8.1994 as Project Officer. The State Government issued a circular by which the retirement age of government teachers was enhanced from 60 years to 62 years. As set forth, the State Government has amended Rule 56 of the Fundamental Rules by Madhya Pradesh Act No. 27/1998 with effect from 7.8.1998 and enhanced the age of retirement of every government teacher to 62 years. 3. As is evincible from the expose of facts, the appellant, who was absorbed as a Project Officer in the Department of Woman and Child Development, was superannuated on attainting the age of 60 years according to the service rules applicable to the services in which she was absorbed and working. Being dissatisfied with the said order of superannuation, she preferred the writ petition contending, inter alia, that her lien was retained on the post of teacher in the parent Department for 20 years and she falls within the meaning of teacher as explained in Rule 56 and therefore, the respondents could not have retired her before she attained the age of 62 years. 4. 4. The respondents resisted the stand by filing a return on the foundation that the appellant does not come within the definition of teacher contained in the explanation to Rule 56 and further that she had no right to continue in service beyond the age of 60 years as she has already been absorbed in the department to which she was deputed. 5. The learned single Judge adverted to the anatomy of Fundamental Rule 56, interpreted the same and came to hold that the order passed by the authorities retiring her at the age of 60 years cannot be found fault with. 6. We have heard Mr. D.K. Dixit, learned counsel, alongwith Mr. Swapnil Ganguli, Advocate with the appellants and Mr. Kumaresh Pathak, learned Deputy Advocate General for the respondents. 7. Mr. Dixit and Mr. Ganguli, learned counsel for the appellants assailing the soundness of the order of the learned single Judge, have contended that the interpretation made by the learned single Judge is incorrect inasmuch as the requirement of 20 years teaching experience as provided in the Rule has already been declared ultra vires in Original Application No. 685/88 (M.P. Sahayak Jila Shala Nirikshak Sangh and others vs. State of M.P. and others) by the Madhya Pradesh Administrative Tribunal, Jabalpur (hereinafter referred to as 'the tribunal') on 12.9.1989 and the said has gone un-assailed and attained finality. It is further urged by them that by mere absorption, the lien on the post of teacher in the parent department is not lost and therefore, the finding recorded by the learned single Judge in that regard is absolutely indefensible. To bolster the aforesaid submission, learned counsel appearing for the appellants have commended us to the decision rendered in Ali M.K. and others vs. State of Kerala and others, (2003) 11 SCC 632. 8. Mr. Kumaresh Pathak, learned Deputy Advocate General for the respondents, submitted that the appellant having been absorbed as Project Officer in the Department of Woman and Child Development ceased to be a teacher and therefore, could not claim to retire on attaining the age of 62 years. It is canvassed by him that even if the part of the Explanation which has been declared ultra vires has not been challenged and accepted by the State Government, that would also not aid and assist the appellant to claim the age of superannuation equivalent to that of a teacher. 9. It is canvassed by him that even if the part of the Explanation which has been declared ultra vires has not been challenged and accepted by the State Government, that would also not aid and assist the appellant to claim the age of superannuation equivalent to that of a teacher. 9. To appreciate the submissions raised at the bar, it is appropriate to reproduce Fundamental Rule 56. It reads as under: "56. Age of superannuation - (1 -a) Subject to the provisions of sub-rule (2), every, Government Teacher shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty two years. Provided that a Government teacher whose date of birth is the first of month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty two years. Explanation - For the purposes of this sub-rule "Teacher" means a Government servant by whatever designation called, appointed/or the purpose of teaching in Government educational Institution including technical or medical educational institutions, in accordance with the recruitment rules applicable to such appointment and shall also include the teacher who is appointed to a administrative post by promotion or otherwise and who has been engaged in teaching for not less than twenty years provided he holds a lien on a post in the concerned School/Collegiate/Technical/Medical education service." 10. Be it noted, the learned single Judge in paragraph 5 of the order has referred to the second limb of the Explanation and expressed the opinion that a person must be engaged in teaching for not less than 20 years to qualify to have the benefit of the age of retirement. We may note here that in M.P. Sahayak Jila Shala Nirikshak (supra), the tribunal, in paragraphs 23 and 24 of its order, has expressed the view as under: "23. The Supreme Court has repeatedly ruled that Art. 14 of the Constitution strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is attracted when equals are treated differently without any reasonable basis. The principle underlying the guarantee is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. The Supreme Court has repeatedly ruled that Art. 14 of the Constitution strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is attracted when equals are treated differently without any reasonable basis. The principle underlying the guarantee is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws must be applied equally and there should be no discrimination between one person and another, if as regards the subject-matter of either administrative action or of legislation, their position is substantially the same. An. 14 forbids class legislation but permits reasonable classification for the purpose of legislation or administrative mandate. The classification must, however, be founded on an intelligible basis which distinguishes persons or things, that are grouped together from those that are left out of the group and that differentia must have a rational nexus with the object to be achieved by the differentiation made in the statute or order in question. In other words, there ought to be casual connection between the basis of classification and the object of the classification. In M.P. Singh, DSP, CBJvs. Union of India, (1987) 1 SCC 592 , the Supreme Court reiterated that it was will settled that in order to pass the test of permissible classification of per sons belonging to the same class into groups for purposes of differential treatment, two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes persons who are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the law which brings about discrimination between the two groups. Judged from this yardstick, we find that the classification of ADISs in a different group is irrational and that it has no rational nexus with the objects sought to be achieved. The object to be achieved is to get for betterment and in general interest of the students, the teaching experience of the teachers and this experience can be made available to the students in a much better way if the teachers are adequately and administratively supervised, for it is well known these days that unless there is effective supervision, it is hardly possible to get any results or to deliver the goods. We would then say that the function or the nature of the jobs of the ADISs is to supplement the aims and objects of the legislation whereby the age of retirement of the teachers was raised from 58 years to 60 years. On the facts of the case, not allowing the ADISs and other educational administrators to continue in service beyond the age of 58 years does not pass the test of reasonable classification. 24. In our view, therefore, to restrict this teaching experience of 20 years, for purposes of getting the benefit of the age of retirement from the age of 58 years to 60 years or not treat them as teachers is violative of Article 14 of the Constitution and is declared ultravires of the Constitution." 11. On a perusal of the aforesaid order, it is clear as crystal that the tribunal has applied the doctrine of severability and struck down that part of the explanation which invites the frown of Article 14 of the Constitution. True it is, the learned single Judge has placed reliance on the said part of the Explanation which could not have been done but that really does not change the character of the controversy. It is contended by Mr. Dixit and Mr. Ganguli that once a person is appointed as a teacher, he would have the benefit of retirement with him once the rigor of 20 years teaching experience becomes extinct in the Explanation to the Rule. It is their further submission that despite absorption, unless he/she is confirmed, he/she would be a probationer and therefore, lien on the parent department would not cease to continue. 12. As far as the first limb of submission is concerned, if we permit ourselves to say so, it is based on total irrational foundation. The submission that a person once appointed as a teacher would retire at the age of 62 years as he would have the same status in the course of the entire service period is unacceptable as common sense does not give consent to it. That apart, the explanation categorically postulates as to who can be put in that compartment. The submission that a person once appointed as a teacher would retire at the age of 62 years as he would have the same status in the course of the entire service period is unacceptable as common sense does not give consent to it. That apart, the explanation categorically postulates as to who can be put in that compartment. The explanation, analyzed with studied scrutiny, conveys that a teacher means a Government servant by whatever designation called, appointed for the purpose of teaching in Government Educational Institution including technical or medical educational institutions, in accordance with the recruitment rules applicable to such appointment and shall also include the teacher who is appointed to an administrative post by promotion or otherwise. Reading the explanation in a purposeful manner, there can no scintilla of doubt that one can be appointed for the purpose of teaching or should be appointed on an administrative post meant for teachers, as the words used are promotion or otherwise. 13. In this context, it would be seemly to appreciate the language employed in the Explanation. The Explanation to Fundamental Rule 56 stipulates what a "teacher" means and what it includes. Thus, the terms used are "definitive in character". In this context, we may refer with profit to the decision rendered in Kuchiyan Govinda Swami vs. Kalliani Amma Lakshmi Amma, AIR 1966 SC 1937 wherein it has been held as follows: "(3)......Had there been no special definition of the expression "kuzhikanam" in Act 1 of 1964, we would have been inclined to hold that the grantee under the deed of 1921 was a kuzhikanamdar. But Section 2 (28) of Act 1 of 1964 provides that in this Act unless the context otherwise requires, "kuhikanam means and includes a transfer of garden lands or of other lands or of both, with the fruit-bearing trees, if any, standing thereon at the time of the transfer, for the enjoyment of those trees and for the purpose of planting such fruit-bearing trees thereon, but shall not include a usufructuary mortgage as defined in the Transfer of Property Act, 1882". This definition of kuzhikanam is both inclusive and exhaustive......" 14. In this regard, it is fruitful to reproduce a passage from Mahalakshmi Oil Mills vs. State of A.P., (1989) 1 SC 164. It reads as under: "11. This definition of kuzhikanam is both inclusive and exhaustive......" 14. In this regard, it is fruitful to reproduce a passage from Mahalakshmi Oil Mills vs. State of A.P., (1989) 1 SC 164. It reads as under: "11. We are inclined to accept the contention urged on behalf of the State that the definition under consideration which consists of two separate parts which specify what the expression means and also what it includes is obviously meant to be exhaustive. As Lord Watson observed in Dilworth vs. Commissioner of Stamps the joint use of the words "mean and include" can have this effect. He said, in a passage quoted with approval in earlier decisions of this Court: (AC pp. 105-06). "Section 2 is, beyond all question, an interpretation clause, and must have been intended by the legislature to be taken into account in construing the expression "charitable devise or bequest," as it occurs in Section 3. It is not said in terms that "charitable bequest" shall mean one or other of the things which are enumerated, but that it shall "include" them. The word "include" is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word "include" is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to "mean and include", and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions." 15. Yet in another decision, P. Kasilingam vs. P.S.G. College of Technology, 1995 Supp (2) SCC 348, it has been expressed thus: "While enumerating the various types of colleges in Rule 2 (b) the rule-making authority has deliberately refrained from including professional and technical colleges in the said definition. Yet in another decision, P. Kasilingam vs. P.S.G. College of Technology, 1995 Supp (2) SCC 348, it has been expressed thus: "While enumerating the various types of colleges in Rule 2 (b) the rule-making authority has deliberately refrained from including professional and technical colleges in the said definition. It has been urged that in Rule 2 (b) the expression "means and includes" has been used which indicates that the definition is inclusive in nature and also covers categories which are not expressly mentioned therein. We are unable to agree. A particular expression is often defined by the Legislature by using the word 'means' or the word 'includes'. Sometimes the words 'means and includes' are used. The use of the word 'means' indicates that "definition is a hard-and-fast definition, and no other meaning can be assigned to the expression than is put down in definition". (Seed: Gough vs. Gough; Punjab Land Development and Reclamation Corpn. Ltd. vs. Presiding Officer, Labour Court.) The word 'includes' when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words "means and includes", on the other hand indicate "an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions". (Seed: Dilworth vs. Commissioner of Stamps (Lord Watson); Mahalakshmi Oil Mills vs. State of A.P.). The use of the words "means and includes" in Rule 2 (b) would, therefore, suggest that the definition of' college' is intended to be exhaustive and not extensive and would cover only the educational institutions falling in the categories specified in Rule 2 (b) and other educational institutions are not comprehended." 16. In J. Yashoda vs. K. Shobha Rani, (2007) 5 SCC 730 , the Apex Court ruled thus: "8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence." 17. Yet in another decision in Hamdard (Wakf) Laboratories vs. Dy. Labour Commr., (2007) 5 SCC 281 , it has been opined thus: "33. The definition in Section 63 is exhaustive as the section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence." 17. Yet in another decision in Hamdard (Wakf) Laboratories vs. Dy. Labour Commr., (2007) 5 SCC 281 , it has been opined thus: "33. When an interpretation clause uses the word "includes", it is prima facie extensive. When it uses the word "means and includes", it will afford an exhaustive explanation to the meaning which for the purposes of the Act must invariably be attached to the word or expression. (See G.P. Singh's Principles of Statutory Interpretation, 10th Edn., pp. 173 and 175.) " 34. Recently, in N.D.P. Namboodripad vs. Union of India this Court held: (SCCp. 510para 10) "20 [17]. If the words 'and includes' were intended to rope in certain items which would not be part of the meaning, but for the definition, then Rule 62 would have specified only 'dearness pay' as the item to be included but not 'pay'. If pay, dearness allowance and other allowances were already included in 'emolument' with reference to its general or normal meaning, as contended by the appellant, there was no reason to specifically again include 'pay' in Rule 62. . Inclusion of' pay' and 'dearness pay' and non-inclusion of' dearness allowance or other allowances' in the definition of' emolument' is significant. The definition in Rule 62 is intended to clarify that only pay and dearness pay would be considered as 'emolument' for purposes of calculating pension. The words 'and includes' have been used in Rule 62, as meaning 'comprises' or 'consists of." 18. In N.D.P. Namboodripad vs. Union of India, (2007) 4 SCC 502 , their Lordships Jiave held as follows: "18. The word "includes" has different meanings in different contexts. Standard dictionaries assign more than one meaning to the word "include". Webster's Dictionary defines the word "include" as synonymous with "comprise" or "contain". Illustrated Oxford Dictionary defines the word 'include" as: (i) comprise or reckon in as a part of a whole; (ii) treat or regard as so included. The word "includes" has different meanings in different contexts. Standard dictionaries assign more than one meaning to the word "include". Webster's Dictionary defines the word "include" as synonymous with "comprise" or "contain". Illustrated Oxford Dictionary defines the word 'include" as: (i) comprise or reckon in as a part of a whole; (ii) treat or regard as so included. Collins Dictionary of English Language defines the word "includes" as: (i) to have as contents or pan of the contents; be made up of or contain; (ii) to add as part of something else; put in as part of a set, group or a category; (Hi) to contain as a secondary or minor ingredient or element. It is no doubt true that generally when the word "include" is used in a definition clause, it is used as a word of enlargement, that is to make the definition extensive and not restrictive. But the word "includes" is also used to connote a specific meaning, that is, as "means and includes" or "comprises" or "consists of". 19. Justice G.P. Singh in his treatise Principles of Statutory Interpretation (10th Edn., 2006), has noticed that where a word defined is declared to "include" such and such, the definition is prima facie extensive, but the word "include" when used while denning a word or expression, may also be construed as equivalent to "mean and include" in which event, it will afford an exhaustive explanation of the meaning which for the purposes of the Act must invariably be attached to the word or expression [vide pp. 173 and 175 referring to and relying on the decisions of this Court in Municipal Council, Raipur vs. State of M.P, South Gujarat Roofing Tiles Manufacturers Assn. vs. State of Gujarat, Hindustan Aluminum Corpn. vs. State of U.P. 8 and Reserve Bank of India vs. Peerless General Finance & Investment Co. Ltd.] It is, therefore, evident that the word "includes" can be used in interpretation clauses either generally in order to enlarge the meaning of any word or phrase occurring in the body of a statute, or in the normal standard sense, to mean "comprises" or "consists of" or "means and includes" depending on the context." 19. Ltd.] It is, therefore, evident that the word "includes" can be used in interpretation clauses either generally in order to enlarge the meaning of any word or phrase occurring in the body of a statute, or in the normal standard sense, to mean "comprises" or "consists of" or "means and includes" depending on the context." 19. If the anatomy of the Explanation is appositely understood, we have no shadow of doubt that the usage of the terms "mean" and thereafter "including" and "also include" in the context would make the provision exhaustive and definitive. It does not expand the scope. We are inclined to interpret the same that a teacher must be appointed for he purpose or teaching in government educational institution including technical or medical education and the teacher who has been appointed on an administrative post by promotion or otherwise. The posts which are administrative in nature have to bear nexus with the teaching experience and founded on teaching. It cannot be totally alien to the field of teaching as we have already indicated earlier whether he holds the post by promotion or otherwise. 20. In the case at hand the appellant had gone on deputation to the Woman and Child Development Department as a Project Officer under the Integrated Child Development Scheme. Thereafter, she was absorbed as a Project Officer. Nothing has been asserted in the petition that she had anything to do with teaching or was promoted on an administrative post by promotion solely because she was a teacher. Thus, the stand and stance that once a person is appointed as a teacher, he/she would be entitled to continue in services upto to the age of 62 years is sans substratum. To buttress the said submission, inspiration has been drawn from All M.K. and others (supra). In the said case, the Apex Court was considering the scope, contents and ambit of the Kerala State and Subordinate Services Rules, 1958, especially Part II of the said Rules. The appellants therein and the non-official respondents to the said lis were originally appointed in the Rural Development Department on different posts. Subsequently, the respondents joined the services of the Cooperative Department. The appellants therein and the non-official respondents to the said lis were originally appointed in the Rural Development Department on different posts. Subsequently, the respondents joined the services of the Cooperative Department. Rule 8 of the said Rules came for consideration before the Full Bench of the Kerala High Court and the Full Bench accepted the contention of the non-official respondents that the said Rule was not applicable to them and their lien continued in the former services. The Full Bench has receded a categorical finding that the non-official respondents therein had not been confirmed in the Cooperative Department and therefore, they had lien in the former services. Their Lordships scanned the Rule and the deeming effect of the Rule and eventually approved with the decision rendered by the Full Bench. In that context, their Lordships expressed as follows: "17. The Full Bench as a matter of fact found that Note I applies because the appointments of the non-official respondents in the Cooperative Department were made in pursuance of applications invited, sponsored and recommended by the Government. In view of this factual finding the conclusions are in order." 21. In the aforesaid case, a contention was raised that the non-official respondents had already been confirmed and therefore, they had lost lien in the former Department. Dealing with the same, the Apex Court ruled thus: "18. A faint attempt was made to submit that the non-official respondents had lost their lien as they were appointed to posts of substantive nature. Reference was made to Rule 28 to submit that on completion of probation and in case of promotion, it is to be presumed that there was substantive appointment. The Full Bench has recorded a factual finding that the non-official respondents have not been confirmed in the posts in the Cooperative Department. It has been specifically recorded that no material was placed to show that any order has been passed by the Cooperative Department confirming the employees concerned in their posts. With reference to Rule 24 it was noted that mere completion of probation does not result in automatic confirmation. It is a settled position in law that a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier." 22. With reference to Rule 24 it was noted that mere completion of probation does not result in automatic confirmation. It is a settled position in law that a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier." 22. In this context, we may refer with profit to the decision rendered in Devdutta and others vs. State of M.P. and Others, 1991 Supp (2) SCC 553 wherein it has been held as under: "8. Now coming to the question of seniority, the term "absorbed" in Service Jurisprudence with reference to a post in the very nature of things implies that an employee who has not been holding a particular post in his own right by virtue of either recruitment of promotion to that post but is holding a different post in a different department is brought to that post either on deputation or by transfer and is subsequently absorbed in that post where after he becomes a holder of that post in his instant one was a case of the absorbed Sales Tax Inspectors being initially sent on deputation from the post of Block Level Extension Officer to the post of Sales Tax Inspector and being subsequently absorbed in that post. Consequently, when as pointed out by the High Court, it was not disputed that the surplus Block Level Extension Officers had been absorbed in the post of Sales Tax Inspectors it is obvious that it was a case of absorption by transfer. In this connection it would be useful to recapitulate that the minutes of the meeting referred to above held on September 30, 1965 laying down the principles of procedure for absorbing the surplus personnel specifically stated that the surplus staff which was to be "absorbed" should be treated as having been transferred from one post to another so that there may be no break in their service." 23. In view of the aforesaid enunciation of law, it can irrefragably be concluded that the appellants have not retained in lien in the former post. The submission of Mr. Dixit and Mr. Ganguli is that though the appellant has been absorbed yet she has not been confirmed. However, nothing has been brought on record as to what is the Rule relating to confirmation. The submission of Mr. Dixit and Mr. Ganguli is that though the appellant has been absorbed yet she has not been confirmed. However, nothing has been brought on record as to what is the Rule relating to confirmation. As we perceive, they were sent on deputation as Project Officers to the Department of Woman and Child Development under the Integrated Child Development Scheme and were absorbed as Project Officers on 6.8.94. Once absorption takes place and nothing has been brought on record that there is lien in the former service of that of a teacher, we are of the considered opinion that the decision rendered in AH M.K. and others (supra) does not remotely render any assistance to the appellants on the contrary, the decision rendered in Devdutta (supra) is applicable on all fours to the case at hand. 24. In view of the aforesaid analysis, we do not perceive any merit in these appeals and they are accordingly dismissed without any order as to costs.