S.B. Bhattacharjee v. S.D. Majumdar, (SC) BS132273
SUPREME COURT OF INDIA

Before:- S.B. Sinha and C.K. Thakker, JJ.

Civil Appeal No. 2527 of 2007 [Arising out of SLP(Civil) No. 3413 of 2006]. D/d. 15.5.2007.

S.B. Bhattacharjee - Appellant

Versus

S.D. Majumdar & Ors. - Respondents

WITH Civil Appeal No. 2528-2529 of 2007 [Arising out of SLP(Civil) No. 12650-12651 of 2006]

For the Appellant :- Sunil Gupta, Senior Advocate with C. Mukund, Ashok Jain, Pankaj Jain, Bijoy Kumar Jain, K.N. Madhusoodhanan, R. Sathish and Dr. Kailash Chand, Advocates.

For the Respondents :- Manoj Goel, Shoundeep Raj, Shrigopal and Brij Bhushan, Advocates.

A. Mizoram Engineering Service Rules, 2001, Rule 20 - Promotion to the post of Executive Engineer - Merit and suitability - Office memo dated 10.10.2002 - ACR considered - Respondent No. 1 Senior to Appellant - Candidature of appellant recommended - Where the State lays down the procedures as to how and in what manner the merit and suitability is to be judged, it was obligatory on the part of the Commission to follow the same in letter & spirit.

[Para 30]

B. Interpretation of Statutes - Doctrine of cotemporanea expositio - Illustration in an office memo - The Court can with a view to give effect to the intention of the legislature, may read the statute in a manner compatible therewith and which would not be reduced to a nullity by the draftsman's unskillfullness or ignorance of law.

[Para 24]

Cases Referred :-

Ajay Gandhi v. B. Singh, AIR 2004 Supreme Court 1391 : 2004(2) SCC 120.

Shambhu Nath Mehra v. State of Ajmer [AIR 1956 Supreme Court 404].

S.S. Grewal v. State of Punjab, 1993(3) SCT 503 : [(1993) Supp. (3) SCC 234].

Commissioner of Income-Tax, Bombay v. Podar Cement Pvt. Ltd. [(1997)5 SCC 482].

Allied Motors (P) Ltd. v. Commissioner of Income Tax, Delhi [(1997)3 SCC 472].

R.B. Jodha Mal Kuthiala v. Commissioner Income Tax, AIR 1972 Supreme Court 126.

Zile Singh v. State of Haryana, 2005(2) RCR (Civil) 744 : [(2004)8 SCC 1].

S. Sundaram Pillai v. V.R. Pattabiraman [(1985)1 SCC 591].

S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi, 1992(1) RCR (Criminal) 524 : 1992(2) RRR 381 : (1992) Supp. (2) SCC 304.

Hardev Motor Transport v. State of M.P., (2006)8 SCC 613.

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. Interpretation of an Office Memorandum dated 10.10.2002 providing for the mode and manner for considering the suitability of candidates for promotion from one post to the other, falls for consideration in these appeals which arise out of a common judgment and order dated 27.01.2006 passed by a Division Bench of the Gauhati High Court in Writ Appeal No. 5 of 2004 whereby and whereunder the appeal preferred by Respondent No. 1 from a judgment and order 29.11.2004 passed by a learned Single Judge of the said High Court in Writ Petition (Civil) No. 44 of 2004, was allowed.

3. A post of Executive Engineer was created on 01.02.2004. For the purpose of filling up the said post, the Departmental Promotion Committee (for short, 'the DPC') held a meeting on 16.03.2004. The DPC indisputably was, inter alia, to consider the Annual Confidential Reports (for short, 'ACRs') of the candidates concerned. Both the appellant and the first respondent along with two others were eligible therefor. Promotion to the said post is governed by the Mizoram Engineering Service Rules, 2001 (for short, 'the Rules'). Rule 20 of the said Rules, inter alia, provides for general procedure for promotion, relevant clauses whereof are as under :

4. State of Mizoram, however, issued an Office Memorandum dated 10.10.2002 laying down the procedures to be observed by the DPC, relevant clauses whereof are as under :

5. Before we embark upon the rival contentions of the parties, we may notice the assessment of ACRs of the appellant and respondent no. 1 respectively from 1997-98, which is as under :

"Sl. No. Name of Officer 1997-98 98-99 99-00 00-01 01-02 02-03 Overall
1. S.D. Majumdar VG VG VG VG VG VG
2. ... ... ... ... ... ... ... ...
3. ... ... ... ... ... ... ... ...
4. S.B. Bhattacharjee VG Os VG VG Os Os Outstanding"

6. Indisputably, if the ACR for the year 1997-98 is taken into consideration for the purpose of judging the suitability of the appellant and respondent no. 1 and that of the year 2002-03 is excluded, Respondent No. 1 being senior, would be promoted to the post of Executive Engineer; whereas in the event the ACR for the period 1997-98 is excluded and that of the year 2002-03 is taken into consideration, as the appellant herein would be given overall grading 'outstanding', the case of Respondent No. 1 would not be considered at all.

7. The fact that respondent No. 1 is senior to the appellant is not in dispute. As the DPC recommended the candidature of the appellant alone in terms of the extant rules, Respondent No. 1 herein filed a writ petition before the Gauhati High Court on 04.06.2004. During the pendency of the said Writ Petition, the Government of Mizoram itself issued a clarification on or about 13.09.2004, which reads as under :

8. By a judgment and order dated 29.11.2004, a learned Single Judge of the Gauhati High Court dismissed the said writ petition of Respondent No. 1, inter alia, opining that clause (g) of Paragraph 3.4 of the said Office Memorandum must not only be applied having regard to the other provisions thereof, but also the latest ACR i.e. the ACR for the year ending 31.03.2003 should not be excluded from consideration. The clarificatory Office Memorandum dated 10.10.2002, the learned Single Judge opined, should receive such interpretation at the hands of the court which would advance the cause of public service. It was observed :

9. An intra-court appeal having been preferred thereagainst, a Division Bench of the said High Court reversed the said finding of the learned Single Judge, holding that the ACR for the year ending 31.03.2003 could not have been taken into consideration on a plain reading of Clause (g) of paragraph 3.4. Sustenance to the said finding was sought to be obtained from the Office Memorandum dated 16.06.2000 issued by the Government of India, the relevant portion whereof reads as under :

10. Although the clarificatory Office Memorandum has been issued by the State of Mizoram itself, apart from the candidate concerned, viz. Shri S.B. Bhattacharjee, the State of Mizoram as also the Mizoram Public Service Commission are before us.

11. Mr. Sunil Gupta, learned Senior Counsel appearing on behalf of the State of Mizoram, Mr. Ranjit Kumar, learned Senior Counsel appearing on behalf of the Mizoram Public Service Commission and Mr. Manoj Goel, learned counsel appearing on behalf of the private appellants in support of the appeals, inter alia, submitted :

12. Mr. Shuvodeep Roy, learned Counsel appearing on behalf of Respondent, on the other hand, urged :

13. Although a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor. An effective and meaningful consideration is postulated thereby. The terms and conditions of service of an employee including his right to be considered for promotion indisputably are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India.

14. Rule 20, as noticed hereinbefore, provides that if any vacancy or vacancies arise(s) to be filled up by promotion, the Controlling Authority would furnish to the Commission the documents enumerated therein including ACRs of eligible candidates of preceding years, as may be required, length of service, duly reviewed and accepted by the authorities concerned.

15. It has not been denied or disputed before us that in a given case ACRs of an eligible candidate may not be written and, thus, may not be available. If the same is available, a notice in that behalf must be given, in the event, any exigency arises therefor to the affected officer and only upon consideration of the representation made by him, if any, the decision taken in that behalf by the Reviewing Authority shall be final. The ACR by immediate superior, thus, is not final or determinative, as the same would be subject to the decision of the Reviewing Authority.

16. The validity or otherwise of the said Office Memorandum dated 10.10.2002 is not in question. With a view to give effect to the statutory rules governing the field, the State of Mizoram has issued the said Office Memorandum directing that the procedure laid down therein shall be observed by the DPC. Indisputably, merit and suitability of the candidates concerned are the primary consideration for promotion to a selection post, wherefor the necessary ingredients as envisaged in clause 3.4 of the said Office Memorandum would fall for consideration of the DPC, but it must be borne in mind that clause 3.4 provides for the mode and manner in which the DPC shall consider the same.

17. DPC is required to consider the service records, with particular reference to the ACRs for five preceding years. The ACRs for 'five preceding years' must, therefore, be held to mean 'five preceding years' of ACRs which have attained finality. It, however, does not define how the said 'five preceding years' is to be calculated. Calculation and/or reckoning of 'five preceding years' is provided for in clause (g) of paragraph 3.4.

18. Before, however, we embark upon the construction of clause (g) of paragraph 3.4 of the said Office Memorandum, we may notice that in terms of clause (e) thereof, a minute grading of the ACRs and not overall grading alone would be subject-matter of consideration of the DPC; as it has been stated therein, 'it had been noticed that some time the overall grading in ACR may be inconsistent with the grading under various parameters or attributes'. Each of the parameters or attributes on the basis whereof the ACRs are written and gradation is given would, thus, have to be considered.

19. The Rules indisputably envisage that a person having an overall grading of 'outstanding' shall alone be considered vis-a-vis who do not come within the purview of the gradation of outstanding despite the fact that their service career they might have received overall grading of 'Very Good'.

20. We at this stage may also notice paragraph 3.8 of the said Office Memorandum, which proceeds on the basis that for the purpose of evaluating the merit of the officers, scrutiny of the records of the officers should be limited to the records that would have been available, had the DPC met at the appropriate time. Even in relation thereto, an illustration had been given stating that if a vacancy arises in 2001-02, only the latest records of service of the Officers upto the period ending March 2000, namely, 1999-2000 shall be taken into consideration.

It categorically uses both positive language as also a negative language stating that what would be taken into consideration is only the records ending upto March 2000 and not the subsequent ones.

21. In the aforementioned backdrop of events, interpretation of clause (g) of paragraph 3.4 should be resorted to. The words 'immediately preceding', as noticed hereinbefore, are preceded by the words 'ACRs of the officers which became available during the year'. This constitutes the first part. The words 'vacancy/panel year' following the words 'the year immediately preceding' must also be duly taken into consideration.

A DPC may be held during the year in which the vacancy arises or later than the year of the vacancy. The Rules intentionally provided for one year gap.

It is only in a case where a controversy may arise in regard to the number of ACRs which would be available, the illustration and/or proviso has been appended to clause 3.4.

22. The Office Memorandum, if read in the context of the rules, takes into consideration the necessity of considering the case of the eligible candidates during the year where vacancy arose. The DPC is expected to meet each year. Only when it is not possible to hold a meeting of the DPC within that year, the illustration would be applicable.

A vacancy must arise in a particular year. If it arose as in the present case in 2003-04 following the illustration contained in clause (g) of paragraph 3.4, ACRs upto the year 31.03.2002 i.e. vacancy year/panel year 2001-02 are required to be taken into consideration irrespective of the date of convening of the DPC. Only when ACRs upto 31.03.2003 were required to be taken into consideration if it sits after September of that year even if the vacancy arose within the year 2001-02.

23. If the opinion of the learned Single Judge is given effect to, then 31.03.2003 becomes 31.03.2004. Indisputably, necessity was felt for a further clarification. It was in the aforementioned premise that a further clarification was issued by the State so as to direct that if the DPC sits after September of the year concerned (in this case 2004), the ACRs upto the year ending 31.03.2003 could be taken into consideration while considering the vacancies which arose in 2003-04. The Division Bench of the High Court, in our opinion, cannot, thus, be held to have committed any error in this behalf.

24. It may be that in a given case, the court can with a view to give effect to the intention of the legislature, may read the statute in a manner compatible therewith, and which would not be reduced to a nullity by the draftsman's unskilfulness or ignorance of law. But, however, it is also necessary for us to bear in mind the illustration given by the executive while construing an executive direction and office memorandum by way of executive construction cannot be lost sight of. It is in that sense the doctrine of cotemporanea expositio may have to be taken recourse to in appropriate cases, although the same may not be relevant for construction of a model statute passed by a legislature.

In G.P. Singh's 'Principles of Statutory Interpretation, 10th Edn. at p. 319, it is stated :

Relying upon this principle, the Supreme Court in Ajay Gandhi v. B. Singh, AIR 2004 Supreme Court 1391 : 2004(2) SCC 120 having regard to the fact that the President of the Income Tax Appellate Tribunal had been from its inception in 1941 exercising the power of transfer of the members of the Tribunal to the places where Benches of the Tribunal were functioning, held construing Sections 251(1) and 255(5) of the Income Tax Act that the President under these provisions has the requisite power of transfer and posting of its members. The court observed :

25. Clarification was issued by the State of Mizoram not only in the light of the express provisions contained in paragraph 3.8 of the Office Memorandum but also in the light of a similar clarification issued by the Central Government. The Division Bench of the High Court has noticed that the clarificatory memorandum was issued considering the Central Government clarificatory Office Memorandum as a model.

Reliance placed by Mr. Ranjit Kumar, learned Senior Counsel appearing on behalf of the appellant on a decision of this Court in Shambhu Nath Mehra v. The State of Ajmer [AIR 1956 Supreme Court 404], in our opinion, is not apposite. This Court therein was considering interpretation of the word 'especially' contained in Section 106 of the Indian Evidence Act, 1872, which was an exception to Section 101 thereof, vis-a-vis Sections 112 and 113 of the Railways Act. It is in that context this Court observed :

If the first part of the statement of law in Shambhu Nath. (supra), in our opinion, is applicable, the illustration in question does not curtail nor extend the ambit. It merely clarifies what otherwise might have been obvious. It introduces the rule by abundant caution although it might not have been necessary keeping in view the purport and object which Rule 20 and paragraph 3.8 seeks to achieve.

26. The clarification issued by the State is not in the teeth of the illustration given in clause (g) of paragraph 3.4 of the Office Memorandum. The clarification having been issued, the same should be taken into consideration by this Court irrespective of the fact as to whether it was available to the Public Service Commission on 16.03.2004 when the DPC held its meeting which, in our opinion, was not of much significance.

The clarification being explanatory and/or clarificatory, in our opinion, will have a retrospective effect.

27. In S.S. Grewal v. State of Punjab and Others, 1993(3) SCT 503 : [(1993) Supp. (3) SCC 234], this Court stated the law thus :

28.. Yet again in Commissioner of Income-Tax, Bombay and Others v. Podar Cement Pvt. Ltd. and Others [(1997)5 SCC 482], this Court referring to a large number of authorities including that of G.P. Singh's Principles of Statutory Interpretation', observed :

29. This Court in Allied Motors (P) Ltd. v. Commissioner of Income Tax, Delhi [(1997)3 SCC 472], observed :

[See also Zile Singh v. State of Haryana and Others, 2005(2) RCR (Civil) 744 : [(2004)8 SCC 1]

30. We should not, however, fail to notice that in S. Sundaram Pillai and Others etc. v. V.R. Pattabiraman and Others etc. [(1985)1 SCC 591], this Court held :

[See also S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and Others, 1992(1) RCR (Criminal) 524 : 1992(2) RRR 381 : (1992) Supp. (2) SCC 304 and Hardev Motor Transport v. State of M.P. and Others, (2006)8 SCC 613]

In a given case, and in absence of rule, the court might have been justified to hold that the DPC must take into consideration the merit and merit only. However, in a case of this nature, where the State lays down the procedures as to how and in what manner the merit and suitability is to be judged, it was obligatory on the part of the commission to follow the same in its letter and spirit. The case at hands shows that it can in a situation of this nature prove to be disastrous to an employee, if any other construction is given.

31. Respondent No. 1 is senior to the appellant by 16 years. A post was created. It for one reason or the other was sought to be filled up immediately. If the interpretation as accepted by the learned Single Judge is to be given effect to, the case of Respondent No.1 was not to be considered at all by the DPC. The Division Bench of the High Court, therefore, in our opinion, cannot be said to have committed any error warranting interference by this Court. The appeals are, therefore, dismissed. Counsel's fee is quantified at Rs. 10,000/-.

Appeals dismissed.