Gurpreet
Singh Bhullar & Anr Vs. Union of India & Ors [2006] Insc 120 (8 March 2006)
H.K.
Sema & Dr. Ar Lakshmanan
(Arising
out of S.L.P. (C ) No. 904 of 2006) H.K.SEMA,J.
Leave
granted.
The
challenge in this petition is to the order dated 3.8.2005 passed by the High
Court of Punjab & Haryana at Chandigarh in C.W.P.No.15847-CAT of 2004.
The
background facts:
Respondent
No.5 Sukhmohinder Singh was appointed as Deputy Superintendent of Police on
27.10.1988 and was confirmed on the said post on 26.02.90. In December 1991, he
was made Superintendent of Police in his own rank and pay and thereafter
promoted as S.P. on adhoc basis in the year 1994.
A case
No.RC 2(S)/94 was registered against the respondent under Section 120-B,
342/365 IPC by the CBI and is pending before the Special CBI Court, Ambala. A chargesheet was filed on 1.7.2000. By a
letter dated 24.3.2001, the Government of India, Ministry of Home Affairs,
determined the year-wise vacancies - 4 for the year 1999, 3 for the year 2000,
and nil for the year 2001. The Selection Committee meeting was held on
25.1.2002 for preparation of the year-wise list for the year 1999-2000 for
promotion of the State Police Officers to IPS Cadre of Punjab. On 9.4.2002, a Notification was
issued by the Government of India in which the name of Respondent No.5 was
included in the select list of 1999 and 2000 at Serial Nos. 3 and 1
respectively with a condition that the name of Respondent No.5 has been
included in the list provisionally, subject to his clearance in Criminal Case
pending against him.
On
22.8.2004, respondent No.5 filed O.A. No.617/PB/2000 in the Central
Administrative Tribunal, Chandigarh Bench, challenging the Notification dated
9.4.2002 seeking inter alia for issuance of direction to the respondent to consider
the claim and to issue notification of appointment of the respondent to IPS on
the basis of his name being in the select list for the year 1999-2000. The
Central Administrative Tribunal by its order dated 15.9.2004 directed that
respondent No.5 herein be given benefit of being placed in the select panel of
the year 1999-2000 without taking consideration of the pendency of the criminal
case which was registered against him on 18.4.1994. It was further directed
that the promotion of respondent No.5 to IPS should remain subject to the
outcome of the result of criminal case pending against him. It was further
directed that the promotion so made on provisional basis could be cancelled in
the event he is convicted in the pending criminal case.
Being
aggrieved, the Union of India (respondent No.1 herein) filed a Civil Writ
Petition No.15847 of 2004 before the Punjab & Haryana High Court for
quashing the order of the Tribunal. The High Court by its order impugned
dismissed the Writ Petition. Hence, the present special leave petition.
In the
order impugned the High Court noticed that the criminal case was pending
against the respondent NO.5 under Sections 120B, 342/365 IPC. The High Court
also noticed that the challan was presented in the Court on 1.7.2000. The High
Court, however, in our view, committed the fundamental error by misinterpreting
the explanation 1 to Regulation 5(5) and Regulation 7(3) of Indian Police
Service (Appointment by Promotion) Regulations 1955 (in short the Regulation).
The High Court noticed that the chargesheet was filed in the court on 1.7.2000.
The High Court also noticed that Explanation 1 to Regulation 5(5) makes it
clear that the proceeding shall be treated as pending only after chargesheet
has actually been issued to the officer or filed in a court, as the case may
be. Having noticed that the chargesheet has been filed in the court on 1.7.2000
and Explanation 1 to Regulation 5(5), the High Court, has erroneously came to
the conclusion as under:
"We
are of the considered opinion that a bare perusal of the Explanation 1 to
Regulation 5(5) makes it abundantly clear that criminal proceedings could only
be held to be pending against the Officer if the charge has been framed by the
trial court. In the present case, undoubtedly, the charge has not been
framed." (emphasis supplied) On the aforesaid reasoning the High Court
dismissed the Writ Petition.
Mr. Soli
J. Sorabjee, learned senior counsel, rightly contended that the whole
controversy is with regard to the interpretation of Explanation 1 to Regulation
5(5) and Regulation 7(3). To appreciate the controversy in proper perspective,
Regulation 5(5) and Explanation 1 are quoted below:- "5. Preparation of a
list of Suitable Officers:- xxx xxxx xxxx xxx xxxx xxxx 5(5) The list shall be
prepared by including the required number of names first from amongst the
officers finally classified as "Outstanding" then from amongst those
similarly classified as "Very Good" and thereafter from amongst those
similarly classified as "Good" and the order of names inter-se within
each category shall be in the order of their seniority in the State Police
Service.
Provided
that the name of an officer so included in the list shall be treated as
provisional if the State Government withholds the integrity certificate in
respect of such an officer or any proceedings departmental or criminal are
pending against him or anything adverse against him which renders him
unsuitable for appointment to the service has come to the notice of the State
Government.
Provided
further while preparing yearwise select list for more than one year pursuant to
the 2nd proviso to sub regulation (1), the officer included provisionally in
any of the select list so prepared shall be considered for inclusion on the
select list of subsequent year in addition to the normal consideration zone and
incase he is found fit for inclusion in the suitability list for that year on a
provisional basis such inclusion shall be in addition to the normal size of the
select list determined by the Central Government for such year.
EXPLANATION
1:
The
proceedings shall be treated as pending only if a charge-sheet has actually
been issued to the Officer or filed in a Court as the case may be."
(emphasis supplied) Explanation 1 as quoted above will make it crystal clear
that the proceedings shall be treated as pending only if a chargesheet has
actually been issued to the officer or filed in a Court. The language employed
in the statute is unambiguous.
The
Explanation nowhere states about charges having been framed by the Trial Court.
The High Court, in our view, erroneously read something to the Explanation,
which is not provided by the Regulation. There is no concept of charge being
framed by the Trial Court in the context of Explanation 1 of the Regulation.
Explanation
1 to Regulation 5(5) is further clarified in Regulation 7(3). Regulation 7
speaks of select list.
Regulation
7(3) reads as under:
"(3).
The list as finally approved by the Commission shall from the Select List of
the members of the State Police Service.
Provided
that if an officer whose name is included in the Select List is, after such
inclusion, issued with a charge-sheet or a charge-sheet is filed against him in
a Court of Law, his name in the Select List shall be deemed to be
provisional." A conjoint reading of explanation 1 to Regulation 5(5) and
proviso to Regulation 7(3) speaks about the chargesheet being filed against an
officer in a court of law. There is no concept of charges being framed under
the Regulation. In Prakash Kumar vs. State of Gujarat, (2005) 2 SCC 409, the Constitution Bench of this Court
observed in paragraph 20 at SCC p.423 thus:
-
"Before we proceed to consider the rigours of Sections 15 and 12 we may at this
stage point out that it is a trite law that the jurisdiction of the Court to
interpret a statute can be invoked only in case of ambiguity. The Court cannot
enlarge the scope of legislation or intention when the language of the statute
is plain and unambiguous. Narrow and pedantic construction may not always be given
effect to.
Courts
should avoid a construction which would reduce the legislation to futility. It
is also well settled that every statute is to be interpreted without any
violence to its language. It is also trite that when an expression is capable
of more than one meaning, the court would attempt to resolve the ambiguity in a
manner consistent with the purpose of the provision, having regard to the
consequences of the alternative constructions." In Nasiruddin v. Sita Ram Agarwal
(2003) 2 SCC 577, the three judge-Bench of this Court pointed out in paragraphs
35 and 37 ( SCC p. 588) and (SCC p. 589) as under:-
-
"In
a case where the statutory provision is plain and unambiguous, the court shall
not interpret the same in a different manner, only because of harsh
consequences arising therefrom."
-
"The Court's jurisdiction to interpret a statue can be invoked when the same is
ambiguous. It is well known that in a given case the court can iron out the
fabric but it cannot change the texture of the fabric. It cannot enlarge the
scope of legislation or intention when the language of the provision is plain
and unambiguous. It cannot add or subtract words to a statue or read something
into it which is not there. It cannot rewrite or recast legislation. It is also
necessary to determine that there exists a presumption that the legislature has
not used any superfluous words. It is well settled that the real intention of
the legislation must be gathered from the language used. It may be true that
use of the expression "shall or may" is not decisive for arriving at
a finding as to whether the statue is directory or mandatory. But the intention
of the legislature must be found out from the scheme of the Act. It is also
equally well settled that when negative words are used the courts will presume
that the intention of the legislature was that the provisions are mandatory in
character." (See also Mohan Kumar Singhania v. Union of India 1992 Supp
(l) SCC 594 at SCC p.624, para 67) In the case of Balram Kumawat v. Union of
India (2003) 7 SCC 628 the three-Judge Bench of this Court pointed out in
paragraph 23 at SCC p. 635 as under:- "Furthermore, even in relation to a
penal statute any narrow and pedantic, literal and lexical construction may not
always be given effect to. The law would have to be interpreted having regard
to the subject-matter of the offence and the object of the law it seeks to
achieve. The purpose of the law is not to allow the offender to sneak out of
the meshes of law. Criminal jurisprudence does not say so." and further in
paragraph 30 at SCC pp.638-39 it was pointed out as under:-
-
"Yet again in Supdt. And Remembrancer of Legal Affiars to Govt. of W.B. v. Abani
Maity (1979) 4 SCC 85, the law is stated in the following terms:
(SCC
p.90, para 18) "19{18}. Exposition ex visceribus actus is a long-recognised
rule of construction.
Words
in a statue often take their meaning from the context of the statute as a
whole. They are therefore, not to be construed in isolation. For instance, the
use of the word 'may' would normally indicate that the provision was not
mandatory. But in the context of a particular statute, this word may connote a
legislative imperative, particularly when its construction in a permissive
sense would relegate it to the unenviable position, as it were, 'of an in
effectual angel beating its wings in a luminous void in vain'. 'If the choice
is between two interpretations', said Viscount Simon, L.C. In Nokes v. Doncaster
Amalgamated Collieries, Ltd. 1940 AC 1014 at AC p.1022) 'the narrower of which
would fail to achieve the manifest purpose of the legislation, we should avoid
a construction which would reduce the legislation to futility and should rather
accept the bolder construction based on the view that Parliament would
legislate only for the purpose of bringing about an effective result'".
The interpretation of the statute assigned by the Division Bench of the High
Court as sought to be done in the present case, if accepted, would negate the
intendment of the Legislature and frustrate the statute itself. In fact, there
is no ambiguity in the statute, which would require interpretation negating the
intendment of the Legislature as sought to be done by the High Court.
Filing
of chargesheet is preceded by an indepth investigation. Charges are filed in
Court when the prima facie case is established in course of the investigation.
The intendment of the Legislature is that a person who is charged with a
criminal offence in which charge is filed in court and the case being pending
for trial, that too against a police officer, the inclusion of such officer in
the list shall be treated as provisional. The dangerous interpretation assigned
to the statute by the High Court would negate the intendment of the
Legislature. In our view, the High Court has committed grave fundamental error
of law and the same is unsustainable in law.
Mr. L.Nageshwar
Rao, learned senior counsel, in his usual fairness submitted that he is not
persuaded to join in issue on the interpretation of regulations. He, however, challenged
the locus standi of the appellants herein.
According
to him, the appellants are not aggrieved parties and the Special Leave Petition
is not maintainable. It is his say, that in the vacancies considered there were
four vacancies in 1999 and three vacancies in 2000 and the zone of
consideration is one to three in each vacancy. The appellant No.1 being in
Sl.No.53 of the seniority list and appellant No.2 in serial No.27 of the
seniority list, they do not possess any right to be considered for promotion to
the post occupied by the respondent No.5 and as such they are not aggrieved
parties. He relied on the decision of this Court rendered in the case of Gopabandhu
Biswal vs. Krishna Chandra Mohanty (1998) 4 SCC 447 where this Court in
paragraphs 13 and 14 at SCC pp.454-455 held that only aggrieved party has locus
standi to challenge the decision. He also referred to the decision of this
Court in the case of Dr.Duryodhan Sahu vs. Jitendra Kumar Mishra (1998) 7 SCC
273, and the decision of this Court rendered in the case of Dattaraj Nathuji Thaware
vs. State of Maharashtra (2005) 1 SCC 590, where this Court held that the PIL
is not maintainable in service matters.
This
contention need not detain us any longer. Because, permission to file SLP has
already been granted by this Court on 6.1.2006. Be that as it may, in this case
both the Union Public Service Commission and Union of India have filed counter
in support of the appellants. Union Public Service Commission- respondent No. 4
has in paragraph 5(d) and 5(e) supported the contentions of the appellants that
the Writ Petition filed by the Commission was dismissed inter alia on the wrong
interpretation of the Regulations by the High Court. Union of India respondent
No.1, also filed counter in support of the appellants. It is contended inter alia
in the counter that the Union of India and the Union Public Service Commission
were also intended to file Special Leave Petition before this Court and because
of that reason the appointment of Respondent No.5 was made subject to the right
of the Government and that of Union Public Service Commission to file the
Petition before this Court. However, since the petitioners have filed Special
Leave Petition, they, instead of filing separate Special Leave Petitions filed
counter in support of the petitioners.
On the
assertion that the appellants are not aggrieved parties and the Special Leave
Petition is not maintainable, counsel for the appellants, contended that in
fact vacancies in 1999-2000 were carried forward to 2002. In 2002, 8 vacancies
were considered and the seniority of appellant No.1 was in serial No.24 and the
appellant No.2 was in serial No.12. It is further contended that had one
vacancy in favour of respondent No.5 was not wrongly considered both the
appellant nos. 1 and 2 could have been well within the zone of consideration.
Their rights to be considered has been deprived and, therefore, they are the
aggrieved parties.
Counsel
also referred to the counter filed by the Special Secretary, Government of
Punjab, Department of Home Affairs and Justice, on behalf of the respondents
No.2 and 3. It is stated that both the appellants are direct recruit DSP's of
1990-91 batch. They have more than eight years of service and were eligible for
consideration during the selection committee meeting held on 25.1.2002 for
preparation of select list for the year 1999-2000. In view of the categorical
stand taken by the Government of Punjab in its counter it cannot be said that
the appellants are not within the zone of consideration and that they are not
the aggrieved parties.
In the
view we have taken, the impugned order of the High Court is not legally
sustainable. It is, accordingly, quashed and set aside. Consequently, the
Notification dated 30.9.2005 is also quashed. The appeal is allowed with no
order as to costs.
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