Parmanand vs The State of Jammu and Kashmir

S.M. Fazl Ali, J.—This is an application for an appropriate writ for quashing an order of premature retirement passed by the opposite party

on 10-2-1950. There is also a prayer for declaring that the Petitioner is entitled to a pension of Rs. 450/- P.M. and for a direction accordingly.

The Petitioner retired as Accountant General of the State of Jammu and Kashmir and was employed on the 1st of September, 1919. After

having worked in various capacities he was appointed as Accountant General in April 1944 and by Cabinet Order No. 159-C dated 10-2-1950

sanction was accorded to the premature retirement of the Petitioner. By an order dated 1-12-50 Rs. 400/- P.M. was sanctioned as pension

awarded to the Petitioner.

Mr. Sunder Lal appearing for the Petitioner has conceded that as the order of premature retirement was passed prior to the coming into effect

of the State Constitution as also of the Constitution (Application to Jammu and Kashmir) Order, 1954 the Petitioner cannot seek a remedy by way

of writ for quashing the order of premature retirement. In this view of the matter he has not pressed this point before us.

The next contention raised by Mr. Sunder Lal is that so far as the order sanctioning pension to the Petitioner is concerned it is continuing wrong

and, therefore, the fact that the order sanctioning pension was passed before the coming into force of the State Constitution as also of the

Constitution (Application to Jammu and Kashmir) Order, 1954, will not be a bar to his getting remedy by way of a writ. He has further contended

that the order sanctioning the pension of Rs. 400/- P.M. is clearly illegal and against the mandatory provisions of the rules and should be quashed. I

would first take up the question as to whether the order sanctioning Rs. 400/- P.M. as the pension of the Petitioner is justified by the Kashmir

Service Regulations. In this connection Mr. Sunder Lal drew our attention to certain Articles of the Kashmir Service Regulations. Article 233,

K.S.R. runs as follows:

The full pension admissible under these Rules is not given as a mutter of course, or unless the service rendered has been really approved.

From a perusal of this article it is clear to me that the pension admissible under the Rules can be granted not (sic)s a matter of course but according

to the rules framed under the Regulations. The only bar that has been imposed by Article 233 is that the pension will not be admissible unless the

service rendered has been approved. Another bar against the grant of pension is contained in Article 170 which runs as follows:

Pension may not be granted to an officer whom it is desired to remove for misconduct, insolvency, or inefficiency but to officers so removed

compassionate allowance may be granted by Government in special cases provided that the allowance granted to any officer shall not exceed two-

thirds of the pension which would have been admissible to him if he had retired on medical certificate.

It is, therefore, clear that if the service of an employee does not contain the bar imposed by this Article, he would be entitled to the pension

admissible under the Regulations. In the present case there is no allegation by the opposite party that the case of the Petitioner comes within the bar

laid down either by Article 170 or by Article 233. The next Article that has to be consider ed is Article 234. This Article does not impose a bar on

the grant of pension but imposes restrictions on the amount of pension admissible under the Regulations. Thus if an employee concerned can come

within the purview of this Article he will be entitled to a reduced amount of pension only. The condition imposed by this Article also is not

applicable to the Petitioner. The next Article that is of importance is Article 236 which runs as follows:

The amount of pension is regulated by the length of service as follows:

(a) After a service of less than 10 years a gratuity not exceeding one month's emoluments for each completed year of service. If the emoluments of

the officer have been reduced during the last three years of his service, otherwise than as a penalty, average emoluments at the discretion of the

Minister-in-charge (provided Finance Department has no objection) be substituted for emoluments.

(b) After a service of not less than 10 years a pension not exceeding the following amounts:

Maximum limit

Years of Scale of pension of pension.

completed of average _______________

service. emoluments. Per Per

annum. month

Rs. Rs.

10 10 Sixtieth 1920 160

11 11 "" 2112 176

12 12 "" 2304 192

13 13 "" 2496 208

14 14 "" 2688 224

15 15 "" 2880 240

16 16 "" 3072 256

17 17 "" 3264 272

18 18 "" 3466 288

19 19 "" 3648 304

20 20 "" 3840 320

21 21 "" 4032 336

22 22 "" 4224 352

23 23 "" 4416 368

24 24 "" 4608 384

25 and above 30 "" 4800 400

Note I. In the case of officers, whose average emoluments on retirement are not less than Rs. 1000/- per mensem the maximum pension for a

service of 25 years and over may be raised upto Rs. 450/- per mensem.

Note II. For the precise meaning of 'Average emoluments' Articles 241 and 243 should be referred to.

Note III. For the rules and scale of pension and gratuities admissible to the Ministers of the State, see Appendix XX.

Note IV. For the rules and scales of pension admissible to the Judges of the High Court see Appendix XX(A).

A perusal of the article clearly discloses that the Government by virtue of this Article intended to create separate categories of Government

servants to whom pension would be admissible. One of the categories would consist of those persons who would be governed by the chart

mentioned above. An analysis of the chart would show that Government servants getting a salary of Rs. 800/- or below have to be granted pension

according to the amount mentioned in the Chart. By virtue of Note I a separate category of public servants has been carved out and in this case

two conditions have been laid down namely that the officer concerned must at the time of retirement be getting a salary of not less than Rs. 1,000/-

P.M. and that he should have served for a period of 25 years or more. In this case it is not disputed that the Petitioner fulfills both these conditions.

The Advocate-General, however, submits that the words 'may be raised upto Rs. 450/ - per mensem' have been used in the ordinary permissive

sense leaving a discretion to the Government to grant the amount mentioned therein. Mr. Sunder Lal has, on the other hand, contended that the

word 'may' has been used in a mandatory or compulsory sense. It is well settled that ordinarily the word 'may' is always used in a permissive sense,

but there may be circumstances where this word will have to be construed as having been used in a mandatory or compulsory sense. In other

words, where the word 'may' has been used as implying a requisite condition to be fulfilled the Court will and ought to exercise the powers which it

should and in such a case the word 'may' will have a compulsory force. In the present case the rules have carved out a specific category wherein

pension will be admissible to certain class of officers and have laid down the conditions in which such a pension will be admissible. Once these

conditions are fulfilled, the rules in terms confer a power which in the circumstances may be such as to create a duty. Craies on Statute Law at

page 264 has observed as follows:

'May' sometimes equivalent to 'shall.' It is however, a well-recognized canon of construction as Lord Cairns said in Julius v. Bishop of Oxford

(1880) 5 AC 214, that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are

specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for

its exercise, that power ought to be exercised and the court will require it to be exercised'. And Lord Blackburn said 'The enabling words are

construed as compulsory whenever the object of the power is to effectuate a legal right'.

Similar observations are to be found in Maxwell on the Interpretation of Statutes (1937 Edition) at page 211:

'In enacting that they 'may' or 'shall' if they think fit' or 'shall have power' or that 'it shall be lawful' for them to do such acts, a statute appears to use

the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expression may have--to

say the least--a compulsory force (e), and so would seem to be modified by judicial exposition. On the other hand, in some cases, the authorised

person is invested with a discretion, and then those expressions seem divested of that compulsory force, and probably that is the prima facie

meaning.

I am fully supported in my view by two Division Bench decisions one of the Patna High Court in the case Harnandan Rai and Others Vs. Baliram

Prasad and Others, and the other of the Bombay High Court in the case Tulsi Lalji Vs. Omkar Huna, . Having regard to these facts it cannot be

doubted for a moment that once the conditions mentioned in the Note are fulfilled, the power to grant pension is to be exercised as a matter of duty

and not as a matter of discretion. Moreover, in the Note quoted above the authority which has to exercise the power has not been mentioned and

this clearly shows that the intention was that once the conditions laid down in the Note are fulfilled pension will have to be granted as a matter of

right. The Advocate General, however, relied on a decision of the Calcutta High Court in the case Dr. Sailendra Nath Sinha and Another Vs. State

and Another, in support of his contention that the word 'may' has been used in a permissive sense.

I have carefully gone through the facts of that case and I find that it is clearly distinguishable from the facts of the present case. In that case their

Lordships were construing certain provisions of the Companies Act and it was pointed out that the word 'may' was used in certain sections in

contradistinction to the word 'shall' which was used in other provisions of the Act. Having regard to these circumstances it was held by their

Lordships that the word 'may' in Section 237(i) of the Companies Act was used in a permissive sense. This case, therefore, is of no assistance to

the Advocate General.

For the reasons given above I am inclined to hold that the word 'may' in the Note quoted above has been used in a mandatory sense and has a

compulsory force and must be construed as 'must' or 'shall'. In this view of the matter I find myself in complete agreement with the argument of the

counsel for the Petitioner that the Petitioner in this case was entitled to a pension of Rs. 450/- per mensem under the rules.

But in my opinion the Petitioner is not entitled to succeed in this application, because of a formidable obstacle in his way. The Advocate General

has pointed out that the order granting pension of Rs. 400/- per mensem to the Petitioner was passed on 1-12-1950. The order was made before

the coming into effect of the State Constitution as also the Constitution (Application to Jammu and Kashmir) Order, 1954. Unless the order is set

aside the pension which is being paid to the Petitioner cannot be modified. Reliance was placed by the Advocate General on a decision of the

Supreme Court in the case State of U.P. v. Mohammad Nooh reported in AIR 1958 SC 86. In that case their Lordships of the Supreme Court

while deciding that no writ can be issued in respect of pre-Constitution matters made the following observations:

It is not disputed that our Constitution is prospective in its application and has no retrospective operation except where the contrary has been

expressly provided for. It has been held in a series of decisions of the High Courts, some of which are referred to in the judgment under appeal,

that Article 226 and Article 227 have no retrospective operation and transactions which are past and closed and the rights and liabilities which

have accrued and vested would remain unaffected. ""...That order of dismissal having been passed before the Constitution and rights having accrued

to the Appellant State and liabilities having attached to the Respondent before the Constitution came into force, the subsequent conferment of

jurisdiction and powers on the High Court can have no retrospective operation on such rights and liabilities. Even if the order of dismissal of the

Respondent was a nullity on the ground that it was passed by disregarding the rules of natural justice, the High Court could not properly be asked

to exercise its newly acquired jurisdiction and powers under Article 226 to correct errors, irregularities or illegalities committed by the inferior

departmental tribunal before the commencement of the Constitution, for then there will be no limit to its going backward and that will certainly

amount to giving the provisions of Article 226 retrospective operation.

Mr. Sunder Lal tried his best to distinguish this authority of the Supreme Court but in my opinion it cannot be distinguished at all. In order to

succeed in this application the Petitioner must show that there was a breach of a legal or statutory duty, for only in that case a writ of mandamus

will lie. The breach of legal duty can arise only by virtue of the order dated 1-12-1950 and neither before nor after that. As this order, however, as

pointed out above, is of a date prior to the coming into effect of the State Constitution as also the Constitution Application Order, 1954, the

application for writ is clearly not maintainable in view of the decision of the Supreme Court.

Another ground on which the application of the Petitioner must fail is that the Petitioner has an equally efficacious remedy by way of a civil suit to

realise the pension claimed by him open to him. Where this is so, the Court will not exercise its extraordinary jurisdiction of issuing a prerogative

writ. In this connection I am fortified by the following observations of the Supreme Court in the case Union of India (UOI) Vs. T.R. Varma, :

It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not

invoke the special jurisdiction of the High Court to issue a prerogative writ...and where such a remedy exists, it will be sound exercise of discretion

to refuse to interfere in a petition under Article 226, unless there are good grounds therefor.

Having regard to these circumstances in my opinion there is no merit in this application which is accordingly dismissed but in the circumstances

of the case without any order as to cost.

J.N. Wazir, C.J.

I agree.