Sat Pal Bansal vs State of Punjab and Others

Permod Kohli, J.—This order will dispose of CWP Nos. 14617 & 19039 of 2008 as common questions of law and facts are involved in both the petitions.

"Public employment" opportunity is national wealth. In the words of Hon''ble Mr. Justice Chinnappa Reddy, in the case of State of Maharashtra Vs. Chandrabhan Tale, , Article 16 of the Constitution of India provides for equal opportunity to all the citizens of the country to seek public employment. Thus every citizen has a right to apply, compete and be considered for public employment of course, subject to the qualifications, eligibility and other such conditions as may be required and imposed by the State employer for any post or office. Re-employment in public service, however, cannot be construed and be considered as a part of the employment. Reemployment is a matter of convenience and need and no person after serving the tenure of service has a right of re-employment. It is mutual contract, convenience and need of the employer and the employee, if both are willing to serve each other, on considerations as may be agreed to. In the State of Punjab, a peculiar legislation came to be enacted. Initially, an Ordinance, namely, the Punjab School Teacher Reemployment Ordinance, 2006 (Punjab Ordinance No. 2 of 2006) was promulgated which was replaced by an Act of the State Legislature, the Punjab Teachers Re-employment Act, 2006 (hereinafter referred to as "the Re-employment Act"). The Re-employment Act was notified on 11th October, 2006 and by virtue of Sub-section (ii) of Section 1, it came into operation at once. Section 3 of the Re-employment Act. is the sole and body of the Legislation. The said Section reads as under:

''3. Notwithstanding anything contained in any law or service rules applicable to the teachers, all such teacher, who would have otherwise retired from service on completing fifty-eight years of normal age of superannuation on any day falling between the 1st day of April of a year and the last day of month of February of the succeeding year, shall, except in case of their otherwise voluntary option, continue in service, and shall be deemed to be re-employed after the date of superannuation up to the 31st day of the following month of March.

Provided that during the aforesaid period of reemployment, the teacher shall be paid the remuneration equivalent to the difference between their last day drawn and the pension admissible to them.

By virtue of the aforesaid provisions of the Act, the State Government seems to have extended the employment of teachers engaged in imparting education beyond 58 years, the age of superannuation of the teachers employed by the State Government. This re-employment/extension in employment was only in respect of such teachers whose superannuation falls between the 1st day of April of a year and the last day of month of February of the succeeding year because of the deeming provisions contained in the Re-employment Act.

The purpose and object for which such a law was enacted, is evident from the Preamble of the Re-employment Act which, inter alia, reads as under:

To prevant disruption of studies of students on account of retirement of teacher on attaining the age of superannuation in the midst of an academic session.

The object seems to be laudable and in the interest of the students undergoing studies in various Government Schools/Institutions. The Re-Employment Act was followed by some explanatory instructions issued,--vide Memo No. 1/39/05-1 Edu.7/27832, dated 17th October, 2006 (Annexure P-2). These instructions are noticed as under:

The subject cited Act provide for deemed reemployment of teachers teaching in the schools situated in the State of Punjab. As such only those, who are full time teachers are liable to be considered as deemed as re-employed. Principals or Headmasters will be eligible only, if they are teaching as much as a teacher does, and not otherwise. However, since there is a provision for deemed re-employment of teachers already in service in the schools of Punjab, it does not call for any other scrutiny of record etc. at that stage, because someone who is already in service despite whatever may be alleged against him. can continue for a few more months to save the students from disruption of studies during the middle of the academic session. It is further clarified that this provision of deemed reemployment is not available to those who not posted in the schools located in the State of Punjab and performing teaching duties on the date when the ordinance came into effect in Punjab. The deemed employment provision is not applicable to any one on deputation outside the State/Department or engaged on non-teaching duties.

The Petitioner in CWP No. 14617/2008 was a Lecturer in Chemistry in the Punjab Government, He retired on 30th April. 2008 on attaining the age of superannuation. At the time of his retirement, he was posted in the Government Girls Senior Secondary School, Sunam. Though Section 3 of the Re-employment Act speaks of reemployment, however, from the text of the language used therein, it is apparent that it permits the continuation in service for the specified period, without there being any break and without requiring the employee to do any other overtact. Although the said Section gives an option to a supernnuated employee to opt out. Thus where employee is unwilling to continue after superannuation, he has a right to refuse re-employment/continuation and where the employee does not opt out, he is to continue in service by virtue of deeming provisions of Reemployment Act. It clearly envisages that for seeking re-employment, an emloyee has not to apply or give an option. In view of the above provisions, the Petitioner was allowed to continue in service w.e.f. 1st May, 2008, the day succeeding his retirement. The Respondents issued order dated 6lh August, 2008 (Annexure P-5) whereby one post of Lecturer in Chemistry lying vacant in Government Girls Senior Secondary School. Sunam was shifted to Government Boys Senior Secondary School, Longowal. It is alleged that the post in which the Petitioner was working came to be declared surplus and shifted to Government Boys Senior Seconday School, Longowal whereas another post of Lecturer in Chemistry in Government Girls Senior Secondary School, Sunam was filled up by promoting a teacher as Lecturer,--vide order dated 23rd July, 2008. On account of shifting of the vacancy occupied by the Petitioner to another school, the Petitioner''s services have been dispensed with w.e.f. 31st October, 2008. The Petitioner has accordingly filed this petition (CWP No. 14617 of 2008) challenging the order dated 6th August, 2008 (Annexure P-5) shifting the post of Lecturer in Chemistry from Sunam (G) to Longowal (B) and a further direction in the nature of Mandamus for his continuance in service up to 31st March, 2009, in accordance with the provisions of Section 3 of the Re-employment Act noticed here-in-above.

In CWP No. 19039 of 2008, the Petitioner was working as S.S. Mistress at Government Girls Sr. Secondary School, Dhuri at the time of her retirement and retired from service on 30th April, 2008 on attaining the age of superannuation. She did not opt for relieving on retirement and was allowed to continue, in view of the provisions of the Re-employment Act referred to here-in-above. The Petitioner was allowed to continue in service on re-employment/extension in service upto 6th August, 2008 and thereafter she was not permitted to perform duty. The Petitioner, after making a representation and serving legal notice, filed CWP No. 15023 of 2008 which was disposed of with a direction to the Respondents to take decision on the legal notice of the Petitioner,--vide order of the Court dated 26th August, 2008. The Petitioner claims that she applied under the RTI Act for the supply of grounds of her removal from service and the Respondents have sent communication dated 1st August, 2008 whereby it was conveyed to the Principal of the School where the Petitioner was posted that there are excess and surplus posts in the school and the Principal was asked to relieve the teachers named therein. Petitioner''s name also finds mentioned in this letter.

Though separate disclaims have been filed in both the writ petitions, however, the sum and substance of both the replies is common. The stand of the State is that at the time of granting extension/re-employment to the Petitioners, they were asked to give an option for the employment in the form of an affidavit which they filed. The affidavits filed by the Petitioners clearly contain stipulation that in the event their re-employment is not approved by the authorities, the employees will not claim any benefit. The another stand of the Respondent-State is that the State of Punjab formulated a rationalisation policy,-- vide its order, dated 12th June, 2008. It is stated that need to shift/ transfer the surplus posts of teachers/lecturcrs/Masters/Mistresses and other such cadres was felt. This was based upon the strength of students and the availability of teachers i.e. teachers-students ratio. On that basis, the surplus posts were shifted to such schools where there is need and necessity for the teachers for a particular subject. This was primarily based on the ratio of 1: 40 for 6th to 10th Classes and for the students of 10+1 and 10+2, the ratio would be 1:60. A copy of this policy letter has also been placed on record as Annexure R-2 in CWP No. 19039 of 2008. The Respondents have also placed on record copies of affidavits filed by the Petitioners undertaking not to claim any benefit in the event their re-employment is not approved by the competent authorities.

The moot point requiring thoughtful consideration is whether on account of the deeming provisions contained in Section 3 of the Reemployment Act, the continuance in service for the period specified therein is imperative irrespective of the need of a teacher in a particular school or the State has the option to decline re-employment if there is no requirement of a teacher of a particular subject or in a particular school either on account of non-availability of the students or any other valid ground.

It has been strenuously argued on behalf of the Petitioners that the provisions of Section 3 of the Re-employment Act are clear in terms. The re-employment is automatic even without an application or option to be exercised by the Petitioners. It is only the wish of the teacher if he does not want to continue, he has to exercise the option, otherwise it is deemed that his re-employment is certain and the State has no option, but to continue him on re-employment up to 31st March of the year i.e. on completion of the academic session. The thrust of the argument is on the word "shall" in Section 3 as a mandate to continue the employee in service after the date of superannuation up to the 31st day of the following month of March, except where employee opts out. The Petitioners relied upon a Division Bench judgment of this Court rendered in the case of Sudha Suri v. Union of India, (P & H) (DB) 2002 (2) S.C.T. 63 and another judgment of the Hon''ble Supreme Court in the case of Ex. Capt. K. Balasubramanian v. The State of Tamil Nadu and Anr. 1992 (3) S.L.R. 112

To the contrary, the argument of the State is that the reemployment is need-based and in the event, the State finds there is no necessity of the retired teacher as other regularly appointed teacher is available, State is not bound to continue such teacher or compulsorily re-employ him. Refuge is also taken under the affidavits obtained from the Petitioners wherein they undertook not to claim any benefit in the event their continuation is not approved by the competent authority.

I have heard learned Counsel for the parties and perused the paper-books. It is evident from the provisions of Section 3 of the Re-employment Act that by virtue of the deeming provisions contained therein, all teachers are considered to be continued in service on reemployment, even after their superannuation, if it comes between first day of April and the end of February of the succeeding year up to 31st March of such succeeding year. Apparently, the deeming provision does create such a situation. Even the non-obstantee Clause in Section 3 which gives it an over-riding effect to other laws and service rules do create such an impression. The deeming provision in a statute is in fact a legal fiction. It envisages a situation which may not exist in reality and by virtue of the legal fiction that reality is to be assumed. However, every deeming provision is to be construed for the purpose for which such a fiction is created and requires to ascertain the purpose and the object for creation of such a fiction. The only potential source to ascertain the purpose of such a fiction is the preamble of the Act. This Act consists of only for Sections and Section 3 is the only substantive section dealing with the question. The Preamble noticed hereinabove clearly and unequivocally provides for the purpose of creating such a fiction i.e. to prevent "disruption of studies of children on account of retirement of teachers on attaining the age of superannuation in the midst of an academic session". The emphasis of the aforesaid provision is the studies of the students. Its natural corollary is the requirement of a teacher for imparting education. Thus, the teachers-students'' bond is must. The explanatory instructions issued by the State following the enactment on 20th October, 2006 further clarifies the intention of the State in enacting such a law. The clarificatory instructions indicate that only such teachers who are engaged in teaching job are to be reemployed and in case of Principals or Headmasters or Headmistresses or teachers who are not teaching the students, but engaged in administrative works or such teachers who are posted on non-teaching jobs, cannot be re-employed under the provisions of the Re-employment Act. It is settled law that administrative instructions cannot nullify or over-ride a statutory provisions, but the administrative instructions which supplement any law and are in consonance with its spirit cannot be ignored. The object of Re-employment Act and the classificatory instructions is common. The clarificatory instructions are in consonance with Section 3 of the Re-employment Act. These do not supplant the Section, rather supplement and facilitate in construing the provisions of Section 3 in effective and meaningful manner. The purpose of the Re-employment Act is that studies of the students should not suffer for want of teachers. This does not mean that State is bound to re-employ every teacher not engaged in teaching or where the students of a particular discipline are not available or where an alternative teacher is in position. In the judgment relied by the Petitioners in the case of Sudha Suri (supra) this Court held that where the statute, rule or regulation provides methodology for doing a particular act, then such act must be done in the manner and way prescribed alone and in no other way. The prescribed authority cannot assume such power merely for the reason that it considers it appropriate to do so. There is no dispute in so far as the proposition of law is concerned, but this proposition of law has no application to the issue involved in the present case. The other judgment of the Hon''ble Supreme Court relied upon by the Petitioners in the case of Ex. Capt. K. Balasubramanian (supra) inter alia laid down that the administrative instructions inconsistent with the rules are invalid, has also no application to the issue involved in these petitions.

It is the duty of the Court to interpret the statutory provisions in a meaningful and purposive manner. It is settled principle of interpretation of statute that the statute is to be read in its entirety. The purport and object of the Act is to be given full effect. The doctrine of "purposive construction" has to be applied to understand the true meaning, scope, object and the application of the statutory provisions. In the case of S. Gopal Reddy Vs. State of Andhra Pradesh, , the Hon''ble Supreme Court observed as under:

It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary.

In the case of Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. and Others, , the Hon''ble Supreme Court has observed as under:

Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both arc important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the section clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to any as to fit into the scheme of the entire Act......

In the case of District Mining Officer and Others Vs. Tata Iron and Steel Co. and Another, , the Hon''ble Supreme Court has observed as under:

A statute is an edict of the legislature and in construing a statute, it is necessary, to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the court is to act upon the true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the true intention of the legislature. This task very often raises difficulties because of various reasons, in as much as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one''s thought or that the assembly of legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully in the varied situations arising in future in which the application of the legislation in hand may be called for and words chosen to communicate such indefinite referents are bound to be in many cases, lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed.

The question how the deeming provision is to be construed in statute also came up for consideration before Hon''ble Apex Court in the case of The State of Bombay Vs. Pandurang Vinayak Chaphalkar and Others, wherein it has been observed as under:

...When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.

In view of the ratio of various judgments of the Hon''ble Supreme Court, it is the duty of the Court to ascertain the purpose of deeming provision and no interpretation which may expand the meaning of the purpose or is beyond its scope can be or should be adopted. The object under the Re-employment Act is to ensure the proper studies of the students during the academic session and nothing beyond that.

The object and purpose of the Re-employment Act is not to provide re-employment. If in any school, a teacher of the same subject is available and there is no necessity of another teacher who has retired from service after completing his innings is not required to be reemployed. It is not a mode of giving him job even after retirement. Reemployment is after all a burden on state revenue. It is a public money which cannot be distributed even by the State merely because the State wittingly or unwittingly makes some provisions for re-employment without any clear terms contained in the Act. Where the provision is ambiguous, its uncertainty cannot be exploited for a purpose other than sought to be achieved by any legislation. In view of the object and purpose of the Re-employment Act, I am of the considered opinion that the Act is not to provide re-employment, irrespective of the requirement of the teacher after retirement. It is to be need-based and where the alternative arrangement is available, and the State has declined reemployment even in presence of the deeming provision, it is not in violation of Section 3. In view of the above, I find no merit in both the writ petitions which are accordingly dismissed.

Let a copy of this judgment be placed on record on each concerned file.