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Judgment
L. Narasiha Reddy, J.—The petitioner joined as Clerk in the Syndicate Bank-respondents in the year 1976. According to Syndicate Bank Officers'' Services Regulations, 1979 (for short ''the Regulations'') framed by the respondents, 75% of the vacancies in the Junior Management Grade Scale I cadre are to be filled by promotion of Clerks. This promotion is to be on the basis of performance at the written test and viva voce held for the purpose. The Regulations have also provided for awarding of fixed weightage marks for various items, such as, education qualifications, length of service, departmental tests, etc.
In the year 1980, the petitioner appeared in the examination held for the purpose of selecting the candidates for promotion to Officers'' cadre. On the basis of his performance and assessment by the Selection Committee, the petitioner was promoted as Assistant Manager through orders dated 8-12-1980 and was posted at Gaziabad branch in Uttar Pradesh. When he joined at Gaziabad and was working at that place, he was asked to report back to his previous place of work viz., Vidupanakal branch in Anantapur.
The petitioner was issued orders on 29-12-1980 wherein it was stated that during the course of selection to the Officers'' cadre, the petitioner was awarded 34 marks for the qualifications, whereas he was eligible to be awarded 24 marks only and on the basis of the actual marks, he will not be entitled to be promoted. In that view of the matter, he was directed to discharge his duties as Clerk. In effect, this was an order of reversion.
The petitioner filed WP. No. 6721/80 challenging the orders of reversion contending inter alia that the same was violative of principles of natural justice. Inasmuch it was not in dispute that the respondents did not issue any show cause notice to the petitioner before passing the order dated 29-12-1980, the writ petition was allowed through order dated 4-3-1982 and the order impugned therein was set aside. However, it was left open to the respondents to take appropriate steps, if they are so advised. The respondents carried the matter in appeal by filing WA.No. 369/ 1982. The writ appeal was dismissed on 19-4-1982.
After the dismissal of the writ appeal, the respondents issued a detailed show-cause notice dated 30-6-1982. In this show-cause notice, the respondents have referred to the Rule position as well as the qualifications held by the petitioner and have also stated as to how the petitioner was not entitled to be promoted. Accordingly, the petitioner was directed to show cause as to why he shall not be placed in the Clerical cadre. Exchange of letters took place between the petitioner and the respondents. Ultimately the petitioner submitted his explanation contradicting the version of the respondents. In that view of the matter, the respondents appointed an Enquiry Officer, who, in turn, conducted the enquiry on several dates duly giving opportunity tq the petitioner. He submitted his report dated 11-12-1989, holding that the proposed action of the respondents is justified. In view of the findings of the Enquiry Officer, the respondents passed orders dated 22-1-1990, withdrawing the promotion that was accorded to the petitioner in the year 1980. It was ordered that since the petitioner has performed the duties of the Officer till the date of the said order, the difference of wages shall not be recovered.
In the counter-affidavit, the respondents submit that the policy for promotion from Clerical cadre to the Officers'' cadre was formulated in the year 1972, providing for weightage of marks to educational qualifications, length of service, departmental tests, etc. According to them, on a wrong interpretation of the policy, the petitioner and other candidates were awarded 10 marks for Post Graduation and another 10 marks for Double Graduation, though such candidates were entitled for 10 marks alone. When this anomaly was noticed in the year 1980, the cases of all the 9 candidates were reviewed. It was found that out of the 9 candidates, 7 candidates were eligible to be promoted even without the additional 10 marks, whereas the petitioner and the other candidate byname Mohandas were not eligible to be promoted, if the 10 marks wrongly awarded to them were deducted. In that view of the matter, the promotions wrongly given to these two candidates were withdrawn. While Mr. Mohandas accepted the orders and worked in the lower post, the petitioner had challenged the proceedings at several stages. The respondents also contended that the petitioner cannot claim advantage on the basis of improper awarding of marks.
Sri P.M. Gopal Rao, learned Counsel for the petitioner, submits that the respondents have selected the petitioner to the Officers'' cadre on the basis of their understandings of the Regulations. When the respondents have not even alleged that the petitioner had misrepresented any facts and secured any benefit, it is not open to them to deny the promotion. It is his further case that even according to the respondents, the relevant provision in the policy was ambiguous and to clear that ambiguity clarifications were issued and such clarifications can operate only prospectively.
Sri E, Madan Mohan Rao, the learned Standing Counsel for the respondents, submits that awarding of 10 marks for Double Graduation to the petitioner, when he was already awarded marks for Post Graduation, was on account of a mistake and that the petitioner cannot derive any benefit out of the said mistake. It is also his contention that the relevant provision always carried the same meaning and what was clarified at a later point of time cannot have an effect of amending that provision. He, therefore, submits that the question of retrospective operation of the clarification does not arise.
The respondents have formulated a policy for promoting Clerical staff to Officers'' cadre. This policy contemplates holding of a written test and viva voce test. Apart from this, it contemplates awarding of weightage marks for various items, such as, length of service, departmental tests, educational qualifications, etc., held by the candidates. The promotion was to be effected on the basis of the total marks secured by the Clerical staff in the written test, viva voce and the weightage marks awarded for service and qualifications. The fact that the petitioner appeared in the written test and viva voce and was awarded weightage marks is not in dispute. It was on the basis of the marks secured by the petitioner that he was promoted to the Officers'' cadre.
The only controversy, which gave rise to this litigation, is the interpretation or rather the understanding of the relevant provision relating to award of marks to qualifications. The break up of marks to be awarded for qualifications as contemplated under the policy is as under:-
Graduation and National Diploma in Commerce .. 14 marks
Part I CAIIB .. 7 marks
Part II CAIIB .. 14 marks
Post/Double Graduation .. 10 marks
Even out of these four heads, there is no controversy about the first three. As regards the fourth item, the bank understood that a Post Graduate who incidentally secures another graduation qualification is entitled to be awarded separate marks, i.e., 10 marks for Post Graduation and 10 marks for Double Graduation. The petitioner passed B.Sc. (Maths) .and M.Sc. (Maths). In addition to them, he has also passed B.Ed. Treating Post Graduation (M.Sc.,), on one hand, and Double Graduation (B.Sc. and B.Ed.), on the other, not as alternatives, but as separate heads, the petitioner was awarded the following marks towards educational qualifications:
Graduation � 14 marks
PartlCAIIB � Nil
Part II CA1IB � Nil
Post/Double Graduation � 10 + 10 marks
With this, the score of the petitioner stood as under:-
Written Test � 126 marks
Viva Voce � 33 marks
Service � 21 marks
Qualifications � 34 marks
Total 214 marks
It appears, on the basis of certain representations from the Union, the respondents realised that award of 10 marks for Post Graduation and 10 marks for Double Graduation was not concurrent and a candidate shall not be entitled for both at a time. It was in this context that the petitioner was reverted without issuing any show cause notice. Thereafter, after the first round of litigation, the impugned proceedings are issued after issuance of show cause notice.
From the above facts, it is evident that the petitioner was awarded 10 marks for Post Graduation and another 10 marks for Double Graduation i.e., B.Ed. degree. It is not the case of the respondents that such an awarding of marks was on the basis of any misrepresentation or suppression on the part of the petitioner. In fact that was the understanding of the provision by the respondents themselves and have operated that provision for the selection. The respondents claimed to realise when they received a representation from the Union. Out of the 9 candidates, who were found to have extended the double benefits, 7 were found to be eligible to be promoted even without the additional 10 marks, whereas the petitioner and another officer were found to be not eligible. While the other candidate accepted the reversion, the petitioner has been agitating the matter ever since the date of his reversion.
It cannot be said that awarding of marks for Post Graduation and Double Graduation separately is on account of any mistake. The terms ''Post'' and ''Double'' are separated by a stroke. The stroke can convey disjunctive as well as conjunctive meanings, in other words, it can be treated as substitute for the words "and" or "or". There is no hard and fast rule that when two words are separated by a stroke, one is the alternative for the other. The word so separated can be cumulative also. Instances are not lacking where one was taken for the other. It all depends how the rule making authority intends to use the expression or the implementing authority understands it.
Crawford in his treatise "Statutory Constructions" says:
"In ordinary use the word "or" is a disjunctive that makes an alternative which generally correspondents to the word "either". In face of this meaning, however, the word "or" and the word "and" are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the Court, through construction, may change one to the other. This cannot be done if the statute''s meaning is clear, or if, the alteration operates to change the meaning of the law........
It is suggested, however, that a substitution should not be made where it would aggravate the offence or increase the punishment. The Court should be extremely reluctant in a criminal statute to substitute disjunctive words for conjunctive words, and vice versa, if such action adversely affects the accused."
Maxwell on Interpretation of Statutes; observed as under:
"In ordinary usage, ''and'' is conjunctive and ''or'' disjunctive. But to carry out the intention of the legislature, it may be necessary to read ''and'' in place of the conjunction ''or'', and vice versa."
In M. Satyanarayana Vs. State of Karnataka and Another, , the Hon''ble Supreme Court explained the connotation of these two words as under:--
"The expression ''and'' has generally a cumulative effect, requiring the fulfilment of all the conditions that it joins together and it is the antithesis of ''or''.
A consideration of the authorities on the subject indicates that reading one word for the other should be avoided as far as possible, if it is going to result in absurd or anomalous situation. In the present case, awarding of separate marks for Post Graduation and Double Graduation cannot be said to have led to any absurd or anomalous situation. The provisions referred to above indicate that the respondents have allocated separate marks to graduation under Head 1 and Post Graduation under Head 4; though graduation is astage for Post Graduation and one cannot become Post Graduate without studying the correspondence Graduation course. In this view of the matter, the respondents can never be said to have been averse to awarding separate marks to Double Graduation. At any rate, that was how they understood it and promoted the petitioner.
In this case, the respondents have awarded 34 marks to the petitioner for qualifications under the relevant provision. Once the provision is operated in a particular manner, the authority cannot turn round and say that it ought to have operated in a different manner. Valuable rights accrue to the individuals when they get the benefit on account of operating the provision in a particular manner. Such a benefit cannot be lightly taken away.
The respondents themselves were not sure and clear about the meaning that the provision in question conveys. Having realised the ambiguity of the said provision, the respondents, through their Circular issued in the year 1981, added a note to the provision relating to award of marks for educational qualifications as under:
"NOTE:- If a candidate has completed M.Com., he will be awarded 24 marks in all i.e., 14 marks for graduation and 10 marks for post graduation. Similarly, if a candidate has done M.A.LL.B., he too will be awarded 24 marks i.e., 14 marks for graduation and 10 marks for post/double graduation. Further, if a candidate has completed CAIIB Part I in addition to M.Com.,LLB., he will be awarded 31 marks i.e., 14 marks for graduation, 7 marks for CAIIB Part I and 10 marks for Post/Double graduation."
This clearly demonstrates that the ambiguity was sought to be removed. The learned Standing Counsel for the respondents submits that the Note referred to above is only a clarification and the relevant provision should be deemed to have conveyed the same meaning since its inception. The learned Counsel for the petitioner, on the other hand, submits that the Note conveys a definite meaning and different from the one, which the respondents have understood, and, as such, it amounts to amendment. According to him, such amendment can be prospective in operation and it cannot be pressed into service to take away the rights, which have already accrued, to the petitioner. According to Craies,
"a statute is retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed." (See Craies on Statute Law 6th Edition, page 386)
Retrospectivity can be attached to such statutes, if only the intention, to the effect referred to above, is clear from that concerned statute itself. Inasmuch as vested and acquired rights are to be affected, the retrospectivity cannot be inferred or implied. If the Note appended to the policy is examined on the basis of this principle, it is evident that it is not intended to take away the accrued rights. Therefore, its operation has to be treated as prospective. Inasmuch as the respondents themselves have understood the words in question as having been separated by conjunctive and extended the relief to the petitioner and several others, and since they have not intended to take away such benefits, it is too difficult to accept the contention of the learned Counsel for the respondents that relevant provision should be deemed to have conveyed the meaning since its inception.
It is not as if the petitioner has secured any undue advantage on account of the promotion accorded to him or that he did not possess the requisite educational qualifications or length of service for being promoted. The petitioner has been discharging the managerial functions. That was the reason why even under the impugned order, the respondents had not proposed to recover any amount. As observed earlier, the petitioner cannot be held responsible for the present state of affairs.
Under these circumstances, the impugned order dated 22-1-1990 is set aside and the writ petition is allowed. There shall be no order as to costs.