B. Premanand & Ors vs Mohan Koikal & Ors

B.Premanand & Others ..Appellants

versus

Mohan Koikal & Others ..Respondents

O R D E R

Heard learned counsel for the parties.

This Appeal has been filed against the impugned

judgment/order of the Full Bench of the High Court of Kerala

at Ernakulam dated 24th May, 2006 passed in Writ Appeal No.

1774 of 2003. By that judgment the writ appeal filed by the

appellants against the judgment of a learned Single Judge

dated 24th September, 2003 has been dismissed.

The facts have been set out in the impugned judgment

and hence we are not repeating the same here except wherever

necessary.

The dispute in this appeal is about the inter se

seniority on the post of Block Development Officer between

the general category candidates (the respondent Nos.1 to 5

herein) and the Scheduled Caste/Scheduled Tribe candidates

(the appellants herein).

The rule relevant for this purpose is Rule 27(c) of

the Kerala State and Subordinate Services Rules, 1959 (for

short 'the Rules'), which states:

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"27(c) Notwithstanding anything contained in clauses (a) and (b) above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list."

A perusal of the above rule shows that seniority is

to be determined by the date of first effective advice made

by the Public Service Commission to the State Government for

appointment.

Admittedly, in the present case, the first effective

advice for the appellants was made by the Kerala Public

Service Commission on 8.7.1992, and they joined between

13.8.1992 and 22.10.1992 whereas the advice for the

respondent Nos. 1 to 5 was made on 6.4.1993, and they were

appointed as B.D.O. On 28.9.1993 and they joined between

6.10.1993 and 17.11.1993. Hence, it is obvious from Rule

27(c) of the Rules that the appellants are senior to the

private respondents. However, both the learned Single

Judge and Full Bench have held in favour of the

respondents.

We have carefully perused the judgments of the Full

Bench and the learned Single Judge, and we regret we cannot

agree with them.

The Full Bench and Single Judge have relied on

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equity, justice and good conscience, rather than law. We

are of the opinion that this approach is incorrect. When

there is a conflict between law and equity, it is the law

which is to prevail. Equity can only supplement the law

when there is a gap in it, but it cannot supplant the law.

In the present case, Rule 27(c) clearly makes the

appellants senior to the respondents as the advice for

their appointments were made prior to that for the

respondents.

Mr. V.Shekhar, learned senior counsel, appearing for

the private respondents, however, submitted that due to

certain obstructions for which the private respondents are

not to be blamed, their first effective advice was sent

later. Mr. Shekhar submitted that the rank list for the

respondents was prepared after due selection on 25.11.1987,

but the advice was not sent by the Public Service

Commission till 1993 because of a letter dated 30.11.1988

issued by the Chief Secretary, Kerala Government directing

the Commissioner of Rural Development to start applying the

ratio in respect of cadre strength instead of the practice

being followed. Since the respondents' rank list was

expiring on 24.11.1990, they apprehended that they would

not get appointment, and hence they filed writ petition No.

9161 of 1989 in the High Court. Ultimately, the writ

petition was allowed and the order of the Chief Secretary

set aside, but in the meantime, the State Government issued

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notification dated 5.12.1989 inviting applications from

SC/ST candidates for appointment as B.D.Os. under the

special recruitment as per Rule 17A of the Rules. The rank

list with regard to these SC/ST candidates was published on

20.6.1992, and hence they were appointed before the

candidates whose rank list was published in 1987 (the

respondents herein). However, under Rule 27(c) what has to

be seen for determining seniority is not the date when the

rank list was published but the date when the advice was

sent.

Mr. Shekhar has relied on the decision of this Court

in Dalilah Sojah vs. State of Kerala & Others, (1998) 9 SCC

641. That decision, in our opinion, is clearly

distinguishable as it makes no reference to Rule 27(c) of

the Rules. Moreover, the observation therein that "when

two vacancies arose on 6.10.72 the appellant had a right to

be appointed against one of the vacancies" is clearly

against the settled legal position that even a selected

candidate has no indefeasible right to be appointed vide

Constitution Bench decision in Shankarsan Dash vs. Union of

India, AIR 1991 SC 1612, and several decisions thereafter.

In our opinion, Rule 27(c) of the Rules is plain and

clear. Hence, the literal rule of interpretation will

apply to it. No doubt, equity may be in favour of the

respondents because they were selected earlier, but as

observed earlier, if there is a conflict between equity and

the law, it is the law which must prevail. The law, which

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is contained in Rule 27(c), is clearly in favour of the

appellants.

Hence, we cannot accept the submission of the

learned senior counsel for the private respondents. The

language of Rule 27(c) of the Rules is clear and hence we

have to follow that language.

In M/s. Hiralal Ratanlal vs. STO, AIR 1973 SC 1034,

this Court observed:

"In construing a statutory provision the first and foremost rule of construction is the literaly construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear."

(emphasis supplied)

It may be mentioned in this connection that the

first and foremost principle of interpretation of a statute

in every system of interpretation is the literal rule of

interpretation. The other rules of interpretation e.g. the

mischief rule, purposive interpretation etc. can only be

resorted to when the plain words of a statute are ambiguous

or lead to no intelligible results or if read literally

would nullify the very object of the statute. Where the

words of a statute are absolutely clear and unambiguous,

recourse cannot be had to the principles of interpretation

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other than the literal rule, vide Swedish Match AB vs.

Securities and Exchange Board, India, AIR 2004 SC 4219. As

held in Prakash Nath Khanna vs. C.I.T. 2004 (9) SCC 686,

the language employed in a statute is the determinative

factor of the legislative intent. The legislature is

presumed to have made no mistake. The presumption is that

it intended to say what it has said. Assuming there is a

defect or an omission in the words used by the legislature,

the Court cannot correct or make up the deficiency, vide

Delhi Financial Corporation vs. Rajiv Anand 2004 (11) SCC

625. Where the legislative intent is clear from the

language, the Court should give effect to it, vide

Government of Andhra Pradesh vs. Road Rollers Owners

Welfare Association 2004(6) SCC 210, and the Court should

not seek to amend the law in the garb of interpretation.

As stated by Justice Frankfurter of the U.S. Supreme

Court (see 'Of Law & Men : Papers and Addresses of Felix

Frankfurter') :

"Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge

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must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction."

As observed by Lord Granworth in Grundy v. Pinniger,

(1852) 1 LJ Ch 405:

" 'To adhere as closely as possible to the literal meaning of the words used, is a cardinal

rule from which if we depart we launch into a sea of difficulties which it is not easy to fathom."

In other words, once we depart from the literal

rule, then any number of interpretations can be put to a

statutory provision, each Judge having a free play to put

his own interpretation as he likes. This would be

destructive of judicial discipline, and also the basic

principle in a democracy that it is not for the Judge to

legislate as that is the task of the elected

representatives of the people. Even if the literal

interpretation results in hardship or inconvenience, it has

to be followed (see G.P. Singh's Principles of Statutory

Interpretations, 9th Edn. pp 45-49). Hence departure from

the literal rule should only be done in very rare cases,

and ordinarily there should be judicial restraint in this

connection.

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As the Privy Council observed (per Viscount Simonds,

L.C.):

"Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used."(see Emperor v. Benoarilal Sarma, AIR 1945 PC 48, pg. 53).

As observed by this Court in CIT vs. Keshab Chandra

Mandal, AIR 1950 SC 265:

"Hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute".

Where the words are unequivocal, there is no scope

for importing any rule of interpretation vide Pandian

Chemicals Ltd. vs. C.I.T. 2003(5) SCC 590.

It is only where the provisions of a statute are

ambiguous that the Court can depart from a literal or

strict construction vide Narsiruddin vs. Sita Ram Agarwal

AIR 2003 SC 1543. Where the words of a statute are plain

and unambiguous effect must be given to them vide Bhaiji

vs. Sub-Divisional Officer, Thandla 2003(1) SCC 692.

No doubt in some exceptional cases departure can be

made from the literal rule of the interpretation, e.g. by

adopting a purposive construction, Heydon's mischief rule,

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etc. but that should only be done in very exceptional

cases. Ordinarily, it is not proper for the Court to

depart from the literal rule as that would really be

amending the law in the garb of interpretation, which is

not permissible vide J.P. Bansal vs. State of Rajasthan &

Anr. AIR 2003 SC 1405, State of Jharkhand & Anr. vs.

Govind Singh JT 2004(10) SC 349 etc.. It is for the

legislature to amend the law and not the Court vide State

of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349. In Jinia Keotin vs. K.S. Manjhi, 2003 (1) SCC 730, this

Court observed :

" The Court cannot legislate.....under the garb of interpretation.......".

Hence, there should be judicial restraint in this

connection, and the temptation to do judicial legislation

should be eschewed by the Courts. In fact, judicial

legislation is an oxymoron.

In Shiv Shakti Co-operative Housing Society vs.

Swaraj Developers AIR 2003 SC 2434, this Court observed:

"It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent."

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Where the language is clear, the intention of the

legislature has to be gathered from the language used vide

Grasim Industries Limited vs. Collector of Customs 2002 (4)

SCC 297 and Union of India vs. Hamsoli Devi 2002 (7) SCC

273.

In Union of India and another vs. Hansoli Devi and

others 2002(7)SCC (vide para 9), this Court observed :

"It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the grounds that such construction is more consistent with the alleged object and policy of the Act."

The function of the Court is only to expound the law

and not to legislate vide District Mining Officer vs. Tata

Iron and Steel Company 2002 (7) SCC 358. If we accept the

interpretation canvassed by the learned counsel for the

private respondents, we will really be legislating because

in the guise of interpretation we will be really amending

Rule 27(c) of the Rules.

In Gurudevdatta VKSSS Maryadit vs. State of

Maharashtra AIR 2001 SC 1980, this Court observed :

"It is a cardinal principle of interpretation of

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statute that the words of a statute must be understood in their natural, ordinary or popular

sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts are adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute".

The same view has been taken by this Court in S.

Mehta vs. State of Maharashtra 2001 (8) SCC 257 (vide para

34) and Patangrao Kaddam vs. Prithviraj Sajirao Yadav

Deshmugh AIR 2001 SC 1121.

The literal rule of interpretation really means that

there should be no interpretation. In other words, we

should read the statute as it is, without distorting or

twisting its language.

We may mention here that the literal rule of

interpretation is not only followed by Judges and lawyers,

but it is also followed by the lay man in his ordinary

life. To give an illustration, if a person says "this is a

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pencil", then he means that it is a pencil; and it is not

that when he says that the object is a pencil, he means

that it is a horse, donkey or an elephant. In other words,

the literal rule of interpretation simply means that we

mean what we say and we say what we mean. If we do not

follow the literal rule of interpretation, social life will

become impossible, and we will not understand each other.

If we say that a certain object is a book, then we mean it

is a book. If we say it is a book, but we mean it is a

horse, table or an elephant, then we will not be able to

communicate with each other. Life will become impossible.

Hence, the meaning of the literal rule of interpretation is

simply that we mean what we say and we say what we mean.

In this connection, we may also refer to the Mimansa

Rules of Interpretation which were our traditional

principles of interpretation used for thousand of years by

our jurists. It is deeply regrettable that in our law

courts today these principles are not cited. Today, our so

called educated people are largely ignorant about the great

intellectual achievements of our ancestors, and the

intellectual treasury which they have bequeathed to us.

The Mimansa Rules of Interpretation are one of these great

achievements, but regrettably they are hardly ever used in

our law courts.

It may be mentioned that it is not stated anywhere

in the Constitution of India that only Maxwell's Principles

of Interpretation can be utilised. We can utilise any

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system of interpretation which can help to resolve a

difficulty. Principles of interpretation are not

principles of law but are only a methodology for explaining

the meaning of words used in a text. There is no reason

why we should not use Mimansa Principles of Interpretation

in appropriate occasions.

In Mimansa, the literal rule of interpretation is

known as the 'Shruti' or Abhida' Principle. This is

illustrated by the Garhapatya nyaya (In Mimansa Maxims are

known as nyayas). There is the vedic verse: "Aindrya

garhapatyam upatishthate", which means "By the Mantra

addressed to Indra establish the household fire." This

verse can possibly have several meanings viz. (1) worship

Indra (2) worship Garhapatya (the household fire) (3)

worship both, or (4) worship either.

However, since the word 'Garhapatyam' is in the

objective case, the verse has only one meaning, that is,

'worship Garhapatya'. The word 'Aindrya' means 'by Indra',

and hence the verse means that by verses dedicated to Indra

one should worship Garhapatya. The word 'Aindrya' in this

verse is a Linga, (in Mimansa Linga means the suggestive

power of a word), while the words 'Garhapatyam

Upatishthate' are the Shruti. According to the Mimansa

principles, the Shruti (literal meaning) will prevail over

the Linga (suggestive power).

It is not necessary to go into details, but

reference can be made to the Book 'Mimansa Rules of

Interpretation' by K.L.Sarkar which is a collection of

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Tagore Law Lectures delivered by him in 1909. According to

the Mimansa Principles, the Sruti Principle or literal rule

of interpretation will prevail over all other principles,

e.g., Linga, Vakya, Prakarana, Sthana, Samakhya etc.

As a result of the above discussion, this appeal is

allowed and the impugned judgment of the Full Bench of the

High Court as also the judgment of the learned Single Judge

are set aside and the writ petition filed by the private

respondents before the High Court is dismissed. No costs.

...........................J. [MARKANDEY KATJU]

NEW DELHI; ...........................J. MARCH 16, 2011 [GYAN SUDHA MISRA]