Service Law – Grant of benefit of enhancement of retirement age – Unsustainability:
Held: Respondent No.1 was appointed as a Research Assistant by the appellant-Central Council for Research in Ayurvedic Sciences (CCRAS) and was functioning as a Researcher under the Research Council and his service conditions were also different compared to the AYUSH doctors serving with the Ministry of AYUSH – Appellant-Council is a registered autonomous body and is administratively controlled by the Ministry of AYUSH, Government of India – The recruitment rules, procedure and the service conditions of its employees are governed by the Bye-Laws and Memorandum of Association of the Council – High Court misdirected itself saying that the benefit of enhanced age of superannuation can also be granted if the duties performed are the same like AYUSH doctors – Governing body of the Council is not obliged to take a decision in tune with the decision of the Ministry of AYUSH regarding superannuation more particularly having made it clear that enhancement of retirement age is not applicable to an autonomous body like CCRAS – Age of superannuation is always governed by the statutory rules governing appointment on a particular post – Hence, even if it is averred that the nature of work involved in the two posts is similar, the same cannot be a ground to increase or alter the service conditions of an employee as each post is governed by its own set of rules – Impugned order not sustainable, set aside – Society Registration Act, 1860. [Paras 23, 34, 44 and 48]
Service Law – Interim relief for continuation in service granted – Impropriety:
Held: Court or the Tribunal should be slow and circumspect in granting interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated – But if he fails, he would have enjoyed undeserved benefit of extended service and caused injustice to his immediate junior – In the present case, High Court went to the extent of granting interim relief extending the period of service beyond 60 years till the disposal of the Original Petition by the CAT – By virtue of such interim order which the High Court ordinarily should not grant, the respondent No. 1 although was to retire in 2018 yet continued in service till 2021 – It is only when Supreme Court stayed the operation of the impugned order passed by the High Court while issuing notice that the service of the respondent No.1 came to an end. [Para 48]
Service Law – Memorandum of Association of the Central Council for Research in Ayurvedic Sciences – Bye-Laws – Clauses 25(b), 34, 35 and 47 – Plea of respondent No.1 was that the provisions of FR 56(bb) would apply to him in his capacity as an employee of the Council in view of Clause 35, Bye-Laws of the Council by which the provisions of the FR and SR would apply to the employees of the Council mutatis mutandis: Held: Clauses 25(b), 34, 35 and 47 of the Bye-Laws in the Memorandum of Association indicate that the employees are recruited through a selection committee of the Council – It further indicates that the Fundamental Rules, 1922 will have no direct application in cases where the governing body finalises the rules of superannuation – In terms of Clause 34 of the Bye-Laws, the governing body had decided the age of superannuation to be 60 years on 01.12.1998 – The said decision was ratified on 27.01.2000 - CAT rightly took the view that the plea canvassed on behalf of the respondent No.1 that the Council failed to consider the Clause 35 of the Bye-Laws which states that the FR, Supplementary Rule (SR) and General Financial Rules (GFR) as amended from time to time shall apply mutatis mutandis to employees of the Council, was without any merit and deserved to be rejected – CAT rightly rejected such argument because the applicability would be subject to the provision specific to the Clause 34 governing superannuation of the employees of the Council – There is nothing in Clause 35 of the Bye-Laws on the basis of which, it could be said that the same will have an overriding effect on Clause 34 as regards the age of retirement – Clause 47 of the ByeLaws makes it abundantly clear that for the matters not specifically provided in the Bye-Laws, the rules applicable to the government employees would apply – However, as there is a specific provision regarding superannuation in Clause 34, the rules governing the government services in respect of superannuation are not applicable to the employees of the Council unless it is in accordance with Clause 34 of the Bye-Laws – Fundamental Rules, 1922. [Paras 25, 28 and 29]
Words and Phrases – “or”, “and” – Interpretation – Plea of respondent No.1 that clause 34 of the Bye-Laws should be read in two parts- the first part states that the Rules governing the retirement of employees of the Government of India as amended from time to time would apply to the employees of the Central Council; the second part of Clause 34 which reads “or as desired by the governing body” is merely an enabling provision empowering the governing body to take a decision whether an employee deserves to be retained beyond the prescribed age of superannuation and that such power should not be read in a negative form to clothe the governing body with the power to prescribe lesser age of superannuation than what has been prescribed by the Central Government from time to time:
Held: Such argument cannot be accepted – The word “or” is normally disjunctive and the word “and” is normally conjunctive – Both of them can be read as vice-versa, but that interpretation is adopted only where the intention of the legislature is manifest – In the present case, the language of Clause 34 is very clear. What is important to note while reading the Clause
34 is the word “or” – Thereafter, there is a proviso which says that an employee can be retained in service after prescribed age of superannuation if he continues to be physically fit and efficient and it is in the interest of the Central Counsel to retain him in the service – The expression “the rules governing the retirement of employees of Government of India as amended from time to time” is separated from the rest of the part of the Bye-Law by the word “or” which is disjunctive and giving natural meaning to the said word separates the rules that may be framed by the Government of India and the rules that the Council may desire to frame as regards the age of retirement of the employees of the Council – Interpretation of Statutes. [Paras 30-32] Service Law – Age of retirement vis-à-vis service conditions relating to pay and allowances and revision of pay – Respondent No.1 contended that as the terms and conditions of the services of the employees of the Council on all other aspects like the Provident Fund/GPF, Pension, Gratuity, Leave Rules, Scales of Pay, Conduct Rules and other conditions of services are the same as applicable to the employees of the Central Government as set out in Clauses 31, 32, 33, 42, 44 and
47 respectively of the Bye-Laws, the matter of age of superannuation of the respondent No. 1 should not be treated differently: Held: What should be the age of superannuation is a matter of policy – It is not within the domain of the court to legislate – It is only if a policy decision or a notification is arbitrary it may invite the frowns of Article 14 of the Constitution – The question of age of retirement stands on a different footing from the service conditions relating to pay and allowances and revision of pay. [Para 35]
Service Law – Claim of respondent No.1-Research Assistant that his age of superannuation be at par with the AYUSH Doctors – Infringement of Article 14 alleged:
Held: It is too late in the day for the respondent No.1 to raise all such issues including infringement of Article 14 on the ground of artificial distinction between the Research Assistant and AYUSH Doctors – Respondent No.1 knew from the date of his appointment that he was being appointed as a Research Assistant – His service conditions and mode of recruitment are different compared to the AYUSH Doctors – It is a different thing that he might have treated the patients but that by itself would not entitle him to claim that his age of superannuation should be at par with the AYUSH Doctors – Present case is not one of discrimination – Article 14 has no application having regard to the facts of the present case – Constitution of India – Article 14. [Paras 37 and 39]
Constitution of India – Article 226 – Extraordinary jurisdiction – Principles of law governing – Issue of Writ of certiorari – Discussed. LIST OF CITATIONS AND OTHER REFERENCES
North Delhi Municipal Corporation v. Dr. Ram Naresh Sharma and Others 2021 SCC Online SC 540 – held not applicable. Central Council for Research in Unani Medicine v. Dr. Salma Khatoon and Others 2020 SCC OnLine SC 1332; V.M. Gadre v. M.G. Diwan and Others (1996) 3 SCC 454 : [1996] 3 SCR 480; Census Commissioner and Others v. R. Krishnamurthy (2015) 2 SCC 796 : [2014] 11 SCR 463; State of Himachal Pradesh and Others v. Rajesh Chander Sood and Others (2016)
10 SCC 77 : [2016] 6 SCR 851; T.M. Sampath and Others v. Secretary Ministry of Water Resources and Others (2015) 5 SCC 333 : [2015] 1 SCR 748; State of Maharashtra and Another v. Bhagwan and Others (2022)
4 SCC 193; Tamil Nadu Education Department Ministerial and General Subordinate Services Association and Others v. State of Tamil Nadu and Others (1980) 3 SCC 97 : [1980] 1 SCR 1026; State of Bihar and Another v. Teachers’ Association of Govt. Engineering College and Others (2000)
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334 – referred to.
Justice G.P. Singh in the Principles of Statutory Interpretation (Thirteenth Edition 2012) page 485 – referred to.
Anisminic Ltd. v. Foreign Compensation Commission and Another (1969) 2 AC 147; King v. Nat Bell Liquors Ltd. (1922) 2 AC 128 (PC); Colonial Bank of Australasia v. Willan (1874) LR 5 PC 417; R. v. Brighton and Area Rent Tribunal (1950) 1 All England Reporter 946 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
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