Shrikant S/O Shamrao Deo vs High Court Of Judicature Of Bombay ...
2005 Latest Caselaw 1130 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard. Rule. By consent, the rule is made returnable forthwith. Perused the records.

2. The petitioner by this petition seeks writ of mandamus for direction to the respondents to allow his application dated 7th June, 2002 and thereby for direction to give credit of 150 days earned leave in leave account of the petitioner as on 30th June, 2002 and to pay cash equivalent to leave salary of the earned leave (basic Pay + Dearness Allowance as on 30th June, 2002) while setting aside the orders passed by the respondents rejecting such claim of the petitioner. Essentially the petitioner seeks declaration that in view of the legal fiction created under Rule 66-A(1) of the Maharashtra Civil Services (Pension) Rules, 1982, hereinafter called as "the said Rules" to the effect of "deemed" increase of 5 years in the total qualifying service of the petitioner and therefore the petitioner would be entitled to get credit of 150 days earned leave and payment of cash equivalent to such earned leave on 30th June, 2002 on the day when the petitioner voluntarily retired from the services of the respondents.

3. Few facts relevant for the decision are that the petitioner joined the government service on 10th March, 1975 as Junior Clerk in irrigation Department and subsequently the petitioner was selected and appointed as Court Stenographer in the establishment of the respondent No. 1 in September, 1979. In the month of August, 1981, the petitioner was posted at Aurangabad Bench of the respondent No. 1. On 1st April, 2002, the petitioner decided to take voluntary retirement and accordingly gave the notice of voluntary retirement in terms of Rule 66(1) of the said Rules. The petitioner had completed the total service of 27 years, 3 months and 20 days as on 30th June, 2002. On 4th June, 2002, the Additional Registrar of the respondent No. 1 informed the petitioner that his request for voluntary retirement was accepted and he was allowed to retire with effect from 30th June, 2002 with pensionery benefits as admissible under the relevant rules, and accordingly, the order-cum-notification came to be issued on 7th June, 2002. On the very day, i.e. 7th June, 2002, the petitioner made a representation praying for credit of 120 days earned leave and encashment of pay + dearness allowance in lieu thereof on the ground that the petitioner had taken voluntary retirement. The petitioner, however, was sanctioned encashment of 43 days earned leave which was actually standing at the credit in the leave account of the petitioner as on 30th June, 2002, and accordingly, the petitioner was informed on 30th September, 2002 that his application dated 7th June, 2002 for getting 150 days earned leave was rejected. The petitioner thereupon filed Writ Petition No. 1464 of 2003 which came to be disposed of directing the respondents to afford an opportunity of being heard to the petitioner before any decision is arrived at on his application. Accordingly, the petitioner's application was reconsidered and disposed of by fresh order dated 7th October, 2004 thereby the application came to be rejected and was accordingly informed to the petitioner on 21st October, 2004. The petitioner thereupon on 22nd November, 2004 filed an Administrative Appeal to the Registrar (Personnel), High Court, Appellate Side, Mumbai, and prayed for personal hearing in the matter. Accordingly, the personal hearing was granted to the petitioner, and by the order dated 24th February, 2005, it was communicated to the petitioner on 3rd March, 2005, that the petitioner's administrative appeal had been dismissed. Hence, the present petition.

4. The learned advocate appearing for the petitioner while drawing attention to the Rule 66-A(1) of the said Rules and referring to the decision on the law of legal fiction propounded in East Enn Dwelling Co. Ltd. v. Finsbury Borough Council, (1951)2 All ER 587 submitted that the combined effect of legal fiction introduced by the provisions of Rule 66-A(I) of the said Rules and the interpretation of law on "legal fiction" propounded by Lord Asquith, which is equally applicable to the India, is that in terms of provisions of the Government Resolution dated 9th November, 1990, the petitioner, as a matter of legal right, is entitled to the credit of 150 days earned leave for the "deemed" increase/addition of 5 years of qualifying service at the rate of 30 days per year and it is so, because, credit of earned leave is the consequence and incident which flows from the deemed fact of 5 years increase in qualifying service. In other words, if the petitioner had in fact put in 5 years of service under the respondents, which he has deemed to have put in as per the Rule 66(1) of the said Rules, he would have been entitled to the credit of the said 150 days earned leave at the rate of 30 days per year in lieu of the Government Resolution dated 9th November, 1990 and as a consequence thereof would be entitled for the benefits of those 150 days, while calculating pensionery benefits to the petitioner.

5. Undoubtedly, the petitioner stood voluntarily retired with effect from 30th June, 2002. On the said date, he had at his credit the service of 27 years, 3 months and 20 days. In addition, he had at his credit 43 days of earned leave in his leave account. It is also not in dispute that Sub-rule (1) of Rule 66-A of the said Rules dealing with the subject of addition to qualifying service on voluntary retirement provides that "the qualifying service as on the date of intended retirement of a government servant retiring under, Sub-rule (5) of Rule 10, Clause (a) of the proviso to Sub-rule (1) of Rule 65 or, as the case may be, Sub-rule (1) of Rule 66 shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by the Government servant does not in any case exceed thirty-three years and it does not take him beyond the date of superannuation." Equally, it is true, Lord Asquith in Finsbury Borough Council's case, while dealing with the concept of legal fiction, held that :--

If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it. The Statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

6. Undoubtedly, therefore, in terms of the provisions of law comprised under Rule 66-A(1) of the said Rules, a legal fiction is created whereby deemed increase of 5 years of qualifying service as on the date of voluntary retirement of an employee is available.

7. The contention on behalf of the petitioner is that by virtue of the provisions of law comprised under Rule 66-A(1) of the said rules, a legal fiction is created to the effect that the employee voluntarily retiring is deemed to have served for increased or added period of 5 years and thereby would entitle for addition to the actually qualifying service rendered by such employee while calculating the pensionary benefits. In other words, it is the contention on behalf of the petitioner that the legal fiction created under the said Rules is to treat the petitioner to be entitled to all the benefits therefrom including his claim for credit of 150 days earned leave on account of addition of 5 years of service. The claim for credit of 150 days earned leave is entirely based on assumption that legal fiction created for additional benefit of 5 years itself would entitle the employee to claim accumulation of 150 days earned leave in his leave account. In other words, it is the case of the petitioner that the legal fiction created under Rule 66-A(1) regarding entitlement for addition of 5 years qualifying service would give rise to another legal fiction that such employee would be entitled for the claim of 150 days earned leave in relation to such addition of 5 years of qualifying service.

8. Undoubtedly, the law in relation to the legal fiction as propounded by Lord Asquith in Finsbury Borough Council's case is followed in India. However, at the same time, the Apex Court had, time and again, occasion to deal with the concept of deeming provision in the statutes. In State of Bombay v. Pandurang Vinayak and Ors., , the Apex Court had held that "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."

9. In Mancheri Puthusseri Ahmed and Ors. v. Kuthiravattam Estate Receiver, reported in AIR 1997 SC 208, The Apex Court while dealing with the concept of legal fiction and interpretation thereof held that in interpreting a provision creating a legal fiction the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But at the same time, it was observed that in so construing the fiction, it is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created and it cannot be extended by importing another fiction. The Apex Court also reiterated its earlier decisions in Commissioner of Income Tax, Bombay City II v. Shakuntala, , wherein a three-Judge Bench of the Apex Court had held that "the question here is one of interpretation only and that interpretation must be based on the terms of the section. The fiction enacted by the Legislature must be restricted by the plain terms of the statute", and in Commissioner of Income-tax (Central), Calcutta v. Moon Mills Ltd., , wherein another three-Judge Bench of the Apex Court had held that "the fiction is an indivisible one. It cannot be enlarged by importing another fiction." It was specifically ruled that "such a fiction cannot be extended by the Court on analogy or by addition or deleting words not contemplated by the legislature."

10. In State of Maharashtra v. Laljit Rajshi Shah and Ors., , while reiterating its earlier decision that it is a well known principle of construction that in interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created, the Apex Court held that "a legal fiction in terms enacted for the purposes of one Act is normally restricted to that Act and cannot be extended to cover another Act."

11. In Union of India v. Rajiv Kumar, , the Apex Court had clearly observed that the Court cannot read anything into a statutory provision or rewrite a provision which is plain and unambiguous, and while interpreting, the Court only interpret the law and cannot legislate it. If the provision of law misused and subjected to abuse, it is for the legislature to amend or modify, if deem necessary. It was also held that the intention of the maker is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said, and as a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided.

12. In Commissioner of Commercial Taxes, Ranchi and Anr. v. Swarn Rekha Cokes and Coals (P) Ltd. and Ors., , the Apex Court had held that "it is well settled that in interpreting a provision creating a legal fiction, the Court must ascertain the purpose for which the fiction is created and having done so, to assume all those facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. When the law required that an imaginary state of affairs should be treated as real, then unless prohibited from doing so, one must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it."

13. Bearing in mind the law laid down on the point of interpretation of the Provision of law creating legal fiction, if one peruses Sub-rule (1) of Rule 66-A(1) which deals with right of the employee voluntary retiring to have addition of five years to his qualifying service, it is apparent that such a provision is made for the purpose of calculation of pensionary benefits. It however specifically provides that the increase of the period of five years is to the qualifying service for the purpose of calculation of pensionary benefits, it does not relate to any other benefit to be acquired by the person voluntarily retiring. In other words, the benefit in the nature of increase in the qualifying service of five years which is made available by virtue of legal fiction created under the said provision of law is essentially for the purpose of calculation of pensionary benefits and is not related to any other benefit to such employee voluntarily retiring. The legal fiction which has been created under the Sub-rule (1) of Rule 66-A(1) therefore is restricted to the benefit of addition of five years of service for the purpose of calculation of pensionary benefits and not beyond thereto. If the contention of the petitioner is accepted, it would virtually amount to creation of another legal fiction which is not provided in Sub-rule (1) of Rule 66-A(1) of the said Rules. The proposition canvassed by the petitioner refers to the legal fiction having been created under Sub-rule (1) of Rule 66-A(1) in the nature of benefit of addition to the account of earned leave on account of creation of legal fiction in the nature of addition of five years of qualifying service to the voluntarily retired employee. Certainly, bearing in mind the law laid down by the Apex Court on the point of interpretation of statutory provision creating legal fiction does not permit to presume legal fiction other than the one which is created under the said rule.

14. Reference was sought to be made to Government Resolution dated 15th January, 2001 to claim such benefits. The said G. R. rather than supporting the contention of the petitioner fortifies the view that we are taking in the matter. The Clause (3) of the G. R. specifically provides that a government employee retiring on tendering resignation or leaving the service, he is entitled to claim credit to the extent of 150 days towards earned leave subject to availability of the said leave in his leave account. In other words, there must be earned leave available in his leave account, only then credit can be given to such leave available in the leave account of such employee and not otherwise. The purpose behind the deemed fiction created by the said Rules is relating to pensionary benefit and not relating to encashment of leave benefits.

15. As no other point is canvassed, for the reasons stated above, we do not find any substance in the case of the petitioner, and the same is hereby dismissed. Rule discharged, with no order as to costs.