JUDGMENT : 1. Heard Sri A.K. Goyal, learned counsel for appellants and Sri Indra Raj Singh, learned counsel for respondents. 2. This intra-Court appeal, under Chapter-VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as 'Rules, 1952'), has arisen from judgment dated 16.11.2018 passed by learned Single Judge holding that as per Government Order dated 20.12.2001, requirement of selection grade is 10 years satisfactory service and 12 years satisfactory service for promotional selection grade. The relevant clause is as under :- ¼[k½ ek/;fed f'k{kk ¼1½ ek/;fed f'k{k.k laLFkkvks ds f'k{kdksa@izoDrkvksa dks lk/kkj.k osrueku esa 10 o"kZ larks"ktud lsok iw.kZ djus ij p;u osrueku Lohd`r fd;k tk;sxk RkFkk p;u osrueku esa 12 o"kZ dh larks"ktud lsok iw.kZ djus ij izksUufr osrueku Lohd`r fd;k tk;sxkA^^ “(b) Secondary Education (1) The teachers/lecturers of the Secondary Educational Institutions, on successful completion of 10 years of satisfactory service in ordinary pay-scale, shall be granted selection scale and after completion of 12 years of satisfactory service in the selection scale, shall be granted promotional scale.” (Translation by Court) 3. In fact, appellants have said that petitioner-respondents was regularized on 9.8.2016, therefore, for the purpose of 10 years satisfactory service for selection grade, time will commence from the date of regularization since only 10 years regular service will count. We find, however, that aforesaid Government Order, no where talks of 10 years 'regular service' or 'substantive service'. It talks of only 10 years satisfactory service. In fact, earlier Government Order dated 8 March 1995 clarifies Government Order dated 4 October 1989 and 5 March 1992 and specifically provide that it is only ten years 'continuous satisfactory' service, after the date of regularization, will count for the purpose of selection grade but Government Order dated 20 December 2001, Government knowingly and voluntarily mention only 10 years satisfactory service and do not provide 'regular service' or 'substantive service'. 4. Further, this aspect earlier came up before Court in Suman Bhatnagar v. State of U.P. And Others, 2014 ADJ (7) 19, and therein this has been examined with reference to provisions contained in the Government Order itself. A similar question was considered where Government Order says only 'continuous regular service' by Authority concerned wanted to read it as 'substantive service'. The view of authorities was negatived. No word can be or should be added or omitted. A casus omissus cannot be supplied by the Court.
A similar question was considered where Government Order says only 'continuous regular service' by Authority concerned wanted to read it as 'substantive service'. The view of authorities was negatived. No word can be or should be added or omitted. A casus omissus cannot be supplied by the Court. There is no presumption that a casus omissus exists and language permitting the Court should avoid creating a casus omissus where there is none. It would be appropriate to recollect the observations of Devlin, L.J. in Gladstone Vs. Bower, (1960) 3 All ER 353 (CA):- "The Court will always allow the intention of a statute to override the defects of working but the Court's ability to do so is limited by recognized canons of interpretation. The Court may, for example, prefer an alternative construction, which is less well fitted to the words but better fitted to the intention of the Act. But here, there is no alternative construction; it is simply a case of something being overlooked. We cannot legislate for casus omissus." 5. Court in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and others 1978 (36) FLR 266 (SC) quoted with approval the following observation of Lord Simonds in the case of Magor & St. Mellons R.D.C. Vs. Newport Corporation, (1951) 2 All ER 839 (841):- "The duty of the Court is to interpret the words that the Legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited." 6. It would be appropriate at this stage to remind another principle that though a Court cannot supply a real casus omissus, it is equally evident that it should not so interpret a statute as to create casus omissus when there is really none. Recently in Vemareddy Kumaraswamy Reddy and another Vs. State of Andhra Pradesh 2006 (2) SCC 670 Court reiterated that while interpreting a provision the Court only interprets the law and cannot legislate. If a provision of law is misused and subject to the abuse of process of law, it is for the legislature to amend, modify or repeal it if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process. 7.
If a provision of law is misused and subject to the abuse of process of law, it is for the legislature to amend, modify or repeal it if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process. 7. In our view, therefore, it may not be proper to read something which is otherwise not provided or has been provided in exhaustive manner as that would amount to legislation, which this Court should loathe to do. The relevant provision should be read as it is. 8. No other infirmity has been shown in the judgment and order passed by learned Single Judge. We, therefore, find no merit in this Appeal. 9. Dismissed accordingly.