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2015 DIGILAW 1355 (KAR)

Commissioner, Hubballi-Dharwad Municipal Corporation, Hubballi v. S. V. Budapanhalli S/O Virupaxappa

2015-12-16

P.S.DINESH KUMAR, S.ABDUL NAZEER

body2015
JUDGMENT : Municipal Corporation of Hubballi - Dharwad has presented this appeal challenging the order of learned single Judge dated 27.4.2015 in W.P. No. 111122/2014. 2. State Government passed an order on 13.10.2010 increasing pension under different slabs to the Government Servants who retired on or after 1.7.1993 and attained age of 80 and above. 3. Respondent born on 1.5.1935 and a retired Assistant Engineer sought the benefit of the said G.O. His request made on 10.10.2014 was rejected by the appellant vide order dated 28.10.2014 on the ground that he was ineligible for 20% additional pension till he attained the age of 80. He challenged the said order of rejection in the instant writ petition, which is allowed on the premise that both parties herein had submitted before the learned Single Judge that issue raised in this case stood covered by order dated 3.9.2014 in W.P.No. 105189/2014. Hence, this appeal. 4. We have heard Smt. Shashikala L. Desai, learned Counsel for the appellants and Sri Rajashekar R. Gunjalli, learned Counsel for respondent. 5. Learned Counsel for the appellants adverting to the G.O. dated 13.10.2010 contended that the benefit of said G.O. would enure only to such pensioners, who would have attained the age of 80 and above. He further contended that the G.O. has to be read in its entirety. The age mentioned in the tabular column as 80 to 85 is only a pointer or an indicator. The qualifying age at which the pensioner shall be entitled for the benefit of the G.O. is clearly highlighted in paragraph No.1 of the G.O. Thus, when the G.O. is read in its entirety, it is amply clear that only such pensioners who would have attained the age of 80 meaning who would have completed 80th year and entered the 81st year would be eligible to receive enhanced pension. Accordingly, he prays for allowing this appeal. 6. The sum and substance of appellants’ case is that a pensioner would be entitled to the benefit of 20% increase in pension in terms of the said G.O. upon completion of 80 years and not from the beginning of 80th year. 7. Per contra, learned Counsel for the respondent contended that column No.l in the tabular column in the G.O. refers to the age of pensioner and column No.2 refers to the percentage increase in pension. 7. Per contra, learned Counsel for the respondent contended that column No.l in the tabular column in the G.O. refers to the age of pensioner and column No.2 refers to the percentage increase in pension. The table makes it clear that pensioners aged between 80 and 85 shall be entitled for an increase of 20%. Therefore, a pensioner who completes 79 years and reaches 80th year shall be entitled for increase in pension. He submitted that the G.O. is self explanatory and therefore the interpretation sought to be given by the appellants is impermissible in law. Supporting the impugned order, he prayed for dismissal of this appeal. 8. Facts of this case are in a narrow compass and not in dispute. The issue which falls for our consideration is the interpretation of the G.O. with regard to the age at which a pensioner would be entitled for increased pension. From the point of view of pensioners, it affects a portion of income to esteemed octogenarian pensioners. From the point of view of the Government, it speaks dearly on it’s exchequer. 9. Therefore, we have carefully perused the G.O. dated 13.10.2010 and examined the relevant position of law on date in the matter. 10. The G.O. is issued by order and in the name of Governor of Karnataka. Therefore, it is an executive order issued under the rules of business of the State Government traceable to power vested under Article 162 of the Constitution of India, which can be safely considered synonymous with delegated legislation in order to apply the principles of interpretation of statute. 11. The G.O. deals with pension of State Government servants. Therefore, without any incoherence, we hold that the interpretation of the G.O. in question shall be consistent with service law jurisprudence. 12. The tabular column in the G.O. reads as follows:- VERNACULAR MATTER First column deals with the age and the second with the percentage increase in the pension. In this case, we are concerned only with the first row, which refers to pensioners aged between 80 and 85. Paragrpah No.1 of the G.O. reads as follows: VERNACULAR MATTER 13. The intention of the Government is unambiguous as discernable from the meaning of qualifying sentence contained in paragraph No.1. It spells out in no uncertain terms that pensioners who attain the age of 80 and above shall be entitled for met ease in pension. Paragrpah No.1 of the G.O. reads as follows: VERNACULAR MATTER 13. The intention of the Government is unambiguous as discernable from the meaning of qualifying sentence contained in paragraph No.1. It spells out in no uncertain terms that pensioners who attain the age of 80 and above shall be entitled for met ease in pension. It is no doubt true chat in first row in the tabular column, age of pensioner eligible for increment is mentioned as between 80 and 85. In our view, the tabular column is nothing more than an indicator or a pointer for a quick reference. The correct meaning and purport of the G.O. and the benefit accruing there from will have to be gathered from the detailed qualifying description and other terms and conditions contained therein. 14. The word ‘attain’ is attached an inviolable sanctity in service law jurisprudence. The 21st Century Chambers Dictionary defines ‘attained’ word as “to complete successfully; to accomplish; to achieve”. 15. While interpreting Rule 11-B of the Rajasthan State & Subordinate Service (Direct Recruitment by Competitive Examination) Rules, 1962, in the case of Prabhu Dayal Sesma v. State Of Rajasthan & Anr., reported in (1986) 4 SCC 59 , the Hon’ble Supreme Court has held as follows. 8. Rule 11-B of the Rules provides: "11-B. Age. Notwithstanding anything contained regarding age limit in any of the service Rules governing through the agency of the Commission to the posts in the State Service and in the Subordinate Service mentioned in Schedule I and in Schedule II respectively, a candidate for direct recruitment to the posts to be filled in by combined competitive examinations conducted by the Commission under these Rules must have attained the age of 21 years and must not have attained the age of 28 years on the first day of January next following the last date fixed for receipt of application. " 9. It is plain upon the language of Rule 11-B that a candidate 'must have attained the age of 21 years and must not have attained the age of 28 years on the first day of January next following the last date fixed for receipt of application. Last day fixed for receipt of application in this case, was January 1, 1983. First day of January next following that day would be January 1, 1984. Last day fixed for receipt of application in this case, was January 1, 1983. First day of January next following that day would be January 1, 1984. The object and intent in making r. 11-B was to prescribe the age limits upon which the eligibility of a candidate for direct recruitment to the Rajasthan Administrative Service and other allied services is governed. At first impression, it may seem that a person born on January 2, 1956 would attain 28 years of age only on January 2, 1984 and not on January 1, 1984. But this is not quite accurate. In calculating a person’s age, the day of his birth must be counted as a whole day and he attains the specified age on the day preceding, the anniversary of his birth day. We have to apply well accepted rules for computation of time. One such rule is that fractions of a day will be omitted in computing a period of time in years or months in the sense that a fraction of a day will be treated as a. full day. A legal day commences at 12 o'clock midnight and continues until the same hour the following night. There is a popular misconception that, a person does attain a particular age unless and until he has completed a given number of years. In the absence of any express provision, it is well-settled that any specified age in law is to be computed as having been attained on the day preceding the anniversary of the birth day. 10. In Halsbury's Laws of England. 3rd edn., vol. 37, para 178 at p. 100, the law was stated thus: "In computing a period of time, at any rate, when counted in years or months, no regard is generally paid to fractions of a day, in the sense that the period is regarded as complete although it is short to the extent of a fraction of a day Similarly, in calculating a person's age the day of his birth counts as a whole day; and he attains a specified age on the day next before the anniversary of his birth day." 11. We have come across two English decisions on the point. In Rex v. Scoffin, the question was whether the accused had or had not completed 21 years of age. We have come across two English decisions on the point. In Rex v. Scoffin, the question was whether the accused had or had not completed 21 years of age. Section 10(1) of the Criminal Justice Administration Act, 1914 provides that a person might be sent to Borstal if it appears to the court that he is not more than 21 years of age. The accused was born on February 17, 1909. Lord Hewart, CJ held that the accused completed. 21 years of age on February 16,1930 and that he was one day more than 21 years of age on February 17, 1930 which was the Commission day of Manchester Assizes.. 12. In Re. Shurey. Savory v. Shurey, the question that arose for decision was this: Does a person attain, a specified age in law on the anniversary of his or her birthday, or on the day preceding that anniversary? After reviewing the earlier decisions, Sargant, J. said that law does not take cognizance of part of a day and the consequence is that person attains the age of twenty-one years or of twenty-five years, or any specified age, on the day preceding the anniversary of his twenty-first or twenty- fifth birthday or other birthday, as the case may be. 13. From Halsbury's Laws of England, 4th edn., vol 45, para 1143 at p. 550 it appears that section 9 of the Family Law Reforms Act, 1969 has abrogated the old common law rule stated, in Re. Shurey, Savory v. Shurey. 14. It is in recognition of the difference between how a person's age is legally construed and how it is understood in common parlance. The Legislature has expressly provided in Section 4 of the Indian Majority Act, 1875 that how the age of majority is to be computed. It reads: "4. Shurey, Savory v. Shurey. 14. It is in recognition of the difference between how a person's age is legally construed and how it is understood in common parlance. The Legislature has expressly provided in Section 4 of the Indian Majority Act, 1875 that how the age of majority is to be computed. It reads: "4. Age of majority how computed- In computing the age of any person, the day on which he was born is to be included as a whole day, and he shall be deemed to hove attained majority, if he falls within the first paragraph of Section 3, at the beginning of the twenty-first anniversary of that day, and if he falls within the second paragraph of Section 3, at the beginning of the 18th anniversary of that day." The Section embodies that in computing the age of any person, the day on which he was born is to be included as a whole day and he must be deemed to have attained majority at the beginning of the eighteenth anniversary of that day. As already stated, a legal day commences at 12 o'clock midnight and continues until the same hour the following night. It would therefore appear that the appellant having been born on January 2, 1956, he had not only attained the age of 28 years but also completed the same at 12 o'clock on the midnight of January 1, 1984. On the next day i.e. On January 2, 1984, the appellant would be one day more than 28 years. The learned Judges were therefore right in holding that the appellant was disqualified for direct recruitment to the Rajasthan Administrative Service and as such was not entitled to appear at the examination held by the Rajasthan Public Service Commission in 1983. We affirm the view taken by the learned Judges as also the decisions in G. Vatsala Rani's case” (underlining is by us) 16. The firmness with which the Hon’ble Supreme Court has dealt with the meaning of ‘attained’ leaves no scope for any liberal construction. The inalienable and sacrosanct position accorded by the Hon’ble Supreme Court to the strict interpretation of this word is manifest by the following concluding passage of the said judgment. The firmness with which the Hon’ble Supreme Court has dealt with the meaning of ‘attained’ leaves no scope for any liberal construction. The inalienable and sacrosanct position accorded by the Hon’ble Supreme Court to the strict interpretation of this word is manifest by the following concluding passage of the said judgment. “It is rather unfortunate that the appellant should upon the construction placed on Rule 11-B of the Rajasthan State and Subordinate Services (Direct Recruitment by Competitive Examination) Rules, 1962 fail to secure entry into the Rajasthan Administrative Service and allied services of the Government of Rajasthan merely because he exceeds the upper age limit just by one day. The Government ought to consider the question of relaxing the upper age limit in the case of the appellant in order to mitigate the hardship, if otherwise permissible. There is need for a provision like the proviso to Rule 4 of the Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955, conferring the power of relaxation on the State Government under certain conditions without which a deserving candidate would be rendered ineligible for appointment.” 17. Further, in cases where, there appears some ambiguity leading to oscillation in affirming a definite connotation, interpretation must depend on the text and the context. We may usefully refer to the judgment of the Hon’ble Supreme Court in the case of RBI v. Peerless General Finance & Investment Co. Ltd. Reported in (1987) 1 SCC 424 at page 450 wherein it is held as follows: 33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. If a statute is looked at, in the context of its enactment with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that even; word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression "Prize Chit" in Srinivasa [ (1980) 4 SCC 507 : (1981) 1 SCR 801 : 51 Com Cas 464] and we find no reason to depart from the Court's construction. (underlining is by us) 18. We have adverted to above decision of the Hon’ble Apex Court in Peerless case because, the age as indicated in the tabular column reads as 80 to 85. But in the qualifying paragraph, eligibility criteria has been defined as attainment of age of 80 and above. 19. There is one another dimension to look at the G.O. That is by applying the principle of ‘Contemporanea Expositio’. The Hon’ble Supreme Court in the case of Shiba Shankar Mohapatra v. State of Orissa, reported in (2010) 12 SCC 471 has stated as follows while considering a case by applying the said doctrine: “13. In Desh Dandhu Gupta & Co. v. Delhi Stock Exchange Assn. Ltd. and State of T.N. v. Mahi Traders this Court observed that the principle of contemporanea expositio i.e. interpreting a document by reference to the exposition it has received from the competent authority can be invoked though the same will not always be decisive of the question of construction. The administrative construction i.e. the contemporaneous construction placed by administrative or executive officers responsible for execution of the Act/Rules, etc. generally should be clearly wrong before it is overturned. The administrative construction i.e. the contemporaneous construction placed by administrative or executive officers responsible for execution of the Act/Rules, etc. generally should be clearly wrong before it is overturned. Such a construction commonly referred to as practical construction although not controlling, is nevertheless entitled to considerable weight and is highly persuasive. However, it may be disregarded for cogent reasons. The executive interpretation placed, by those who are charged with executing the statute, though not binding, is nevertheless entitled to considerable weight as highly persuasive. However, the application of the doctrine in respect of modem statutes has been doubted by this Court (vide Punjab Traders v. State of Punjab and Oswal Agro Mills Ltd. v. CCE). (underlining is by us) 20. It is relevant to take note of the fact that, certain additional benefits are extended to the pensioners of a particular group by the Government in place fit relevant point of time in furtherance of their policies. G.O. is an enforceable document and shall have direct bearing on the State ex-chequer. Viewed from this angle, contemporaneous construction placed by administrative or executive officers responsible for execution of the G.O. gains significance and outweighs the doctrine of liberal interpretation. 21. Thus, when the G.O. is tested on the touchstone of both rules of interpretation, namely contextual and contemporaneous construction, it yields only one result without any exception that a pensioner ought to have completed 80 years of age to qualify himself for the benefit of the G.O. 22. In the premise, after analysing the G.O. in it’s entirety, in the backdrop of judgments of the Hon’ble Supreme Court referred herein, we hold that a pensioner shall be eligible to claim ‘increased pension’ only upon attaining the age of 80 years, which means from the 1st day of 81st year. Any other interpretation, in our considered view, would be incongruous. 23. Resultantly, the appeal must succeed and is accordingly allowed. The order passed by the learned single Judge dated 27.4.2015 in W.P.No. 111122/2014 is set aside and the writ petition is dismissed. No costs. Writ Appeal allowed. Order of single Judge in Writ Petition was set aside and Writ Petition dismissed.