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2009 DIGILAW 3651 (ALL)

STATE OF U. P. v. ISHWAR CHANDRA SHARMA

2009-12-04

ANIL KUMAR, DEVI PRASAD SINGH

body2009
JUDGMENT By the Court.—Heard learned Standing Counsel and perused the record. In brief, the respondent No. 1, who was Commercial Tax Officer working in Trade Tax Department, Deoria, aggrieved by the adverse annual report dated 10.8.2004 had submitted a statutory representation dated 18th October, 2005. The petitioner kept the representation pending and rejected the same after inordinate delay by the impugned order dated 1st July,2008. 2. Feeling aggrieved by the impugned order dated 1st July, 2008, the claimant-respondent No. 1 has approached the U.P. Public Service Tribunal, Lucknow by filing Claim Petition No. 1312 of 2008. The Tribunal had allowed the claim petition and set aside the impugned adverse report dated 10.8.2004 on the ground that the representation was decided after the statutory period as provided under Rule 4 of the Uttar Pradesh Government Servants ( Disposal of Representation against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995 ( hereinafter referred to as ‘Rules’). 3. While assailing the impugned order, it has been submitted by the learned Standing Counsel that the provisions contained in sub-rule (5) read with Rule 4 of the said Rules speaks for the period during which the representation is pending before the competent authority and once the representation is decided even if beyond the statutory period it cannot be challenged on the ground of delay. It shall be appropriate that the provisions contained in sub-rule (4) (5) and (6) read with Rule 4 of the said Rules be reproduced, which is as under : “(4) The competent authority or the Accepting Authority, as the case may be, shall within a period of 120 days from the date of expiry of 45 days specified in sub-rule (3), consider the representation alongwith the comments of the Appropriate Authority, and if no comments have been received without waiting for the comments, and pass speaking order— (a) rejecting the representation; or (b) expunging the adverse report wholly or party as he considers proper.” (5) Where the Competent Authority due to any Administrative reasons, is unable to dispose of the representation within the period specified in sub-rule (4), he shall report in this regard to his Higher Authority, who shall pass such orders as he considers proper for ensuring disposal of the representation within the specified period.” (6) An order passed under sub-rule(4) shall be communicated in writing to the Government Servant concerned.” 4. According to sub-rule (4) read with Rule 4 of the said Rules, the representation should be decided within 165 days. Further in case the competent authority due to some administrative reasons, is unable to dispose of the representation within the period specified in sub-rule (4), he shall approach the higher authority, who shall pass such orders as he or she considers proper for ensuring disposal of the representation within the specified period. It shall be necessary for the competent authority to communicate the decision taken on the representation. 5. Rule 5 of the Rules further provides that except as provided in Fundamental Rule 56 of the Uttar Pradesh Financial Handbook Volume II Parts II to IV, where an adverse report is not communicated or a representation against an adverse report has not been disposed of in accordance with sub-rule (4), such report shall not be treated adverse for the purpose of promotion, crossing of Efficiency Bar and other service matters of the Government Servant concerned. For convenience Rule 5 of the said Rules is reproduced as under : “5. Report not to be treated adverse.—except as provided in Rule 56 of the Uttar Pradesh Fundamental Rules contained in Financial Handbook Volume II Parts II to IV, where an adverse report is not communicated or a representation against an adverse report has not been disposed of in accordance with Rule 4, such report shall not be treated adverse for the purpose of promotion, crossing of Efficiency Bar and other service matters of the Government Servant concerned.” 6. Reading of sub-rules (4) and (5) read with Rule 4 of the said Rules indicates that there shall be statutory obligation on the part of the competent authority to decide the representation within the period of 165 days. In case the representation is not decided, the appropriate authority shall communicate the administrative problem to the higher authority who in turn shall pass appropriate order keeping in view the facts and circumstances of the case. In case the representation is not decided, the appropriate authority shall communicate the administrative problem to the higher authority who in turn shall pass appropriate order keeping in view the facts and circumstances of the case. Meaning thereby, in case representation is not decided, the appropriate authority shall refer the matter to the Higher Authority, who in turn keeping in view the facts and circumstances of the particular case coupled with administrative problem may permit the Competent Authority or Accepting Authority to take a decision on the representation of the employee beyond the statutory period as provided under sub-rule (4) read with Rule 4 of the aforesaid Rules.While doing so, the competent authority shall specify the reasons for extending the period for adjudication of the representation to meet out the requirement of Article 14 of the Constitution of India. The Competent Authority has to pass the reasoned order while extending the period for disposal of the representation. Keeping in view the mandate of Article 14 and the letter and spirit of the Rules it shall always be necessary for the competent authority to assign reason and communicate the decision to the officer or employees concerned with regard to extension of period for disposal of the representation. 7. In the present case there appears no material on record which may indicates that limitation as provided under sub-rule (4) of Rule 4 was extended by the Higher Authority. Sub-rule (4) Rule 4 is statutory in nature and caste statutory duty on the authority to decide the representation within the specified period. None compliance of provisions of sub-rule (4) coupled with sub-rule (5) of Rule 4 render the decision taken by the authorities in disposing of the representation illegal. 8. It has been argued by learned Standing Counsel for the petitioner that Rule 5 of the Rules covers only the period during which the representation is pending. The argument advanced by the learned counsel for the petitioner seems to be misconceived. Rule-5 does not suffer from any ambiguity. It is positive in nature and specifically provide that where a representation submitted against an adverse report is not decided within the stipulated period of Rule-4, such report shall not be treated adverse for the purpose of promotion, crossing of Efficiency Bar and other service matters of the Government Servant. 9. Rule-5 does not suffer from any ambiguity. It is positive in nature and specifically provide that where a representation submitted against an adverse report is not decided within the stipulated period of Rule-4, such report shall not be treated adverse for the purpose of promotion, crossing of Efficiency Bar and other service matters of the Government Servant. 9. It is settled law that while reading a statutory provision every word, every section or line should be given a meaning. The statutory provision should be read as a whole and not in piece meal. According to Maxwell on the Interpretation of statutes (12th edition page 36) any construction which may leave without effecting any part of the language of a statute should ordinarily be rejected. Relevant portion from Maxwell on the Interpretation of statutes (12th edition page 36) is reproduced as under : “ A construction which would leave without effect any part of the language of a statute will normally be rejected. Thus, where an Act plainly gave an appeal from one quarter sessions to another, it was observed that such a provision, though extraordinary and perhaps an oversight, could not be eliminated.” 10. Aforesaid principles has been followed by Hon’ble Supreme Court in the case reported in (2003) 3 SCC 410 , Easland Combines v. CCE where it has been held that where the language is clear, Court can not abstain from giving its effect merely because it would lead to some hardship. In the case of Delhi Financial Corporation v. Rajiv Anand, (2004) 11 SCC 625 , their Lordship of Hon’ble Supreme Court held that legislature is presumed to have made no mistake and that it intended to say what it said. Court is not supposed to correct. In (2004) 5 SCC 385 , Deepal Girish Bhai Soni v. United India Insurance Ltd., Hon’ble Supreme Court has held that statute to be read in entirety and purport and object of Act to be given its full effect. In the case of Deevan Singh v. Rajendra Pd. Ardevi, (2007) 10 SCC 528 , Hon’ble Supreme Court has held that while interpreting a statute the entire statute must be first read as a whole then section by section, clause by clause, phrase by phrase and word by word. The relevant provision of statute must be read harmoniously. 11. In the case of Deevan Singh v. Rajendra Pd. Ardevi, (2007) 10 SCC 528 , Hon’ble Supreme Court has held that while interpreting a statute the entire statute must be first read as a whole then section by section, clause by clause, phrase by phrase and word by word. The relevant provision of statute must be read harmoniously. 11. In the present case, legislature to their wisdom has used the words “other service matters” coupled with the matter relating to promotion, crossing of Efficiency Bar etc. The provisions contained in Rule 5 is comprehensive in nature and it seems to include not only only the period during which period the representation is pending but entire period of service in case the pending representation is not decided within the stipulated time provided under the rules. In case the provisions contained in Rule 5 is given different meaning then it shall frustrate the very object and purpose. The Legislature to their wisdom had provided safe guard to the government employees from suffering from abuse of power by the authority for extraneous reason for promotion to higher post, cadre or grade is not affected because of arbitrary use of power Rule -5 of the said Rules also ensures the finality of a controversy and safe the employee from possible abuse of power or manipulation in the matter of promotion. It check the influence of persons having vested interest in delaying the disposal of the representation with regard to adverse entry with ulterior motive. Virtually, Rule-5 nullifies an adverse entry in case representation is not decided within the statutory period by friction of law. It has seems to be incorporated as a matter of public policy. 12. It was observed by Exparte Walten, In Re Levy, (1881) 17 CHD 746 that when a statute enacts that some thing shall be deemed to have been done, which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to. In East and Dwellings Co. Ltd. v. Finsbury Borough Council, (1951)2 All. In East and Dwellings Co. Ltd. v. Finsbury Borough Council, (1951)2 All. E.R. 587, Lord Asquith, J. 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 consequences 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.” 13. In State of Bombay v. Pandurang Vinayak, AIR 1953 SC 244 , Hon’ble Supreme Court held that when a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The principle enunciated in Pandurang Vinayak’s case (supra) has been followed in the cases reported in AIR 1955 SC 661 , Bengal Immunity Co. Limited v. State of Bihar, AIR 1959 SC 352 , CIT v. S. Teja Singh. 14. In AIR 1966 SC 719 , CIT v. Shakuntala, Hon’ble Supreme Court again proceeded to observe that legal fiction must be carried to its logical conclusion and for that Courts shall not to travel beyond the terms of the section or give the expression a meaning which it does not obviously bear (para 6). 15. In a case reported in AIR 1975 SC 164 , Boucher Pierre Andre v. Supdt. Central Jail, their Lordships of Hon’ble Supreme Court held that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion (para 3). 16. In (1997)1 SCC 650 , Gajraj Singh and others v. State Transport Appellate Tribunal and others, after considering a number of earlier cases, Hon’ble Supreme Court observed as under : “22........................Legal fiction is one which is not an actual reality and which the law recognises and the Court accepts as a reality. 16. In (1997)1 SCC 650 , Gajraj Singh and others v. State Transport Appellate Tribunal and others, after considering a number of earlier cases, Hon’ble Supreme Court observed as under : “22........................Legal fiction is one which is not an actual reality and which the law recognises and the Court accepts as a reality. Therefore, in case of legal fiction the Court believes something to exist which in reality does not exist. It is nothing but a presumption of the existence of the state of affairs which in actuality is non-existent. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under the circumstances.” Aforesaid proposition of law has been affirmed by the Hon’ble Supreme Court in the cases reported in (2004)6 SCC 59 , State of West Bengal v. Sadan K. Bormal; (2005)3 SCC 161 , State of A.P. v. Pensioner’s Association; (2000)2 SCC 699 , State of Maharashtra v. Laljit Rajshi Shah; (2008) 5 SCC 257 , UCO Bank v. Rajinder Lal Kapoor. 17. Rule 4 and 5 of the Service Rules does not suffer from any ambiguity. In case the arguments of the learned Standing Counsel is accepted, it shall amount to reading down a provision which does not exist in the statute and shall also amount to supply of casus omissus. Hon’ble Supreme Court by a Catina of judgment held that cosus omisus/ principle of reading down of a provision should not be invoked during judicial review unless statutory provisions are vague or suffers from defect of draftsmanship and result in gross in justice. Court cannot read anything into a statutory provisions or rewrite a provisions which is plain and unambiguous vide 2003(6) SCC 516 , Union of India v. Rajiv Kumar (para18). The same principle has been reiterated in the cases report in 2006(2) SCC 670 , Vemareddy Kumaraswamy Reddy and another v. State of A.P.; (2004) 11 SCC 625 , Delhi Financial Corporation and others v. Rejeev Anand and others; AIR 1953 SC 148 , Nalinakhya Bysacik v. Shyam Sunder Halder and 2001 (8) SCC 61 , Dental Council of India v. Hari Prakash. 18. Since there is no ambiguity in the Rules, the arguments advanced by the Learned Counsel for the petitioner seems to be not sustainable. 18. Since there is no ambiguity in the Rules, the arguments advanced by the Learned Counsel for the petitioner seems to be not sustainable. Though the Tribunal had not dealt with matter by appreciating by law on the point, the judgment and order 16.3.2009 passed by the U.P. Public Services Tribunal, Lucknow does not suffer from any illegality or perversity for the reasons discussed herein above. 19. In view of above, the writ petition devoid of merits and is dismissed in limine. ————