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CASE NO.: Appeal (civil)  4102 of 2007

PETITIONER: Visitor & Ors

RESPONDENT: K.S. Misra

DATE OF JUDGMENT: 06/09/2007

BENCH: G. P. Mathur & D.K. Jain

JUDGMENT: J U D G M E N T

G. P. MATHUR, J.

1.      Leave granted.

2.      This appeal, by special leave, has been preferred against the   judgment and order dated 10.2.2006 of Allahabad High Court, by  which it was directed that the past service rendered by the respondent  K.S. Misra in Benaras Hindu University shall be counted for the  purpose of payment of pension and other retiral benefits.   

3.      The respondent was appointed in the English Department of  Benaras Hindu University on 10.8.1960, where he worked till  20.10.1979.   He thereafter proceeded abroad and joined University of   Yemen.   After working there for nearly seven years, he came back to  India and joined Shillong University on contract basis from where he  resigned and joined Aligarh Muslim University on 14.4.1987.  He was  permanently absorbed on 1.6.1988 and finally retired from the  university on 31.7.1997.  His request for counting service rendered in  Benaras Hindu University for the purpose of payment of pension was  declined by Aligarh Muslim University.   The respondent then filed a  writ petition in Allahabad High Court, which was allowed by the  order under challenge and it was directed that on the respondent’s  depositing Rs.16,944.47, the amount of gratuity received from  Benaras Hindu University and the interest which may have become  due till date, the service rendered by him in Benaras Hindu University  shall be taken into consideration and shall be counted for the purpose  of payment of pension.    

4.      In order to appreciate the controversy involved, it is necessary  to take note of the relevant statute of the University dealing with the  subject viz. Statute 61(6)(iv), which is reproduced below :-

"Statute 61(6) (iv) & (v) iv.     The University employees who have already been  sanctioned or received pro-rata retirement benefits for  their past service from their previous employer  mentioned in sub-clause (i) and (ii) will have the option  either :

a.      to retain such benefits and in that event their past  service will not qualify for pension or other  retirement benefits in the University, or  

b.      to have the past service counted as qualifying  service for pension in the University in which case  the pro-rata retirement benefits or their terminal

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benefits if already received by them will have to be  deposited along with interest thereon (at such rate  and in such manner as may be prescribed by the  Executive Council) from the date of receipt of  those benefits till the date of deposit with the  University.  The right to count previous service  shall not revive until the whole amount has been  refunded.  In other cases where pro-rata retirement  benefits have not been drawn the previous  authority shall make the payment to the University.

c.      The option under this clause shall be exercised  within a period of one year.   If no option is  exercised by such employees within the prescribed  time limit they will be deemed to have opted for  retention of the benefits already received by them.    The option once exercised will be final.

d.      Where no terminal/retirement benefits have been  received, previous service will be counted as  qualifying service for retirement benefits under the  University rules only if the previous employer  accepts the pension liability for the service in  accordance with the principles laid down in this  clause.   In no case pension contribution/liability  shall be accepted from the employee concerned.   

v.      Provisions of the above amendments will be  applicable only where the transfer of the employees from  the other organization to the University and vice \026 versa  was/is with the consent of that organization including the  cases where the individual had secured employment  directly on his own volition provided he had applied  through proper channel with the permission of the  administration/authority concerned."     

5.      The Executive Council of the University amended Rule 6A of  the General Rules and Regulation of the Council relating to sanction  for payment of pension and gratuity on 29.3.1989 and the amended  provision reads as under : "Rule 6A \026 Condonation of interruption in service for  determining pensionary benefits :

a.      In the absence of a specific order of the appointing  authority to the contrary, an interruption between  two spells of service rendered by a University  employee, shall be treated as automatically  condoned, and pre-interruption service treated as  qualifying service;

b.      Nothing in Clause (a) shall apply to interruption  caused by dismissal or removal from service, or by  resignation from service;

c.      The period of interruption referred to in Clause (a)  shall not count as qualifying service."

6.      A perusal of Statute 61(6)(iv) would show that two options are  open to an employee of the University who has rendered service in  some other institution or university prior to joining the Aligarh  Muslim University. The first option is that the employee who has  already received retirement benefits for his past service from his  previous employer may retain such benefits and in that event his past

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service shall not qualify for pension and other retirement benefits in  the Aligarh Muslim University. The second option is that the  employee will have to deposit with the University the retirement or  terminal benefits along with interest with the Aligarh Muslim  University and this has to be done within one year of joining the  University.  If the second option is not exercised within prescribed  time viz. one year, the employee shall be deemed to have opted for the  first option viz. for retention of the benefits already received by him  and in such a case the past service rendered by him shall not be  counted.  Statute 61(6)(v) lays down that the aforesaid provision will  be applicable only where the transfer of the employee from other  organization to the Aligarh Muslim University or vice-versa is with  the consent of that organization including a case where the employee  has secured employment on his own volition provided he has applied  through proper channel and with the permission of the  administration/authority concerned.  Rule 6A of the General Rules  and Regulations of the Council relating to sanction of payment of  pension and gratuity indicates that in absence of a specific order of the  appointing authority to the contrary, an interruption between two  spells of service rendered by a University employee shall be treated as  automatically condoned and past service shall be treated as qualifying  service.  However, this clause will not apply in case of resignation  from service.   

7.      In the rejoinder affidavit which was filed by the respondent in  the High Court, a plea was taken for the first time that on 21.8.1989  he had exercised his option for counting the service rendered by him  in Benaras Hindu University and had also offered to deposit the  retirement benefits along with interest with the Aligarh Muslim  University.   Since this plea was taken in the rejoinder affidavit, the  appellant herein got no opportunity to rebut the same.  This plea  seems to have been accepted by the High Court.  Learned counsel for  the appellant has placed before us a copy of the option exercised by  the respondent on 28.1.1989 and it reads as under :- "                                               28.1.1989

The Asstt. Finance Officer (Provident Fund Section) AMU, Aligarh

Dear Sir,

       I am sending herewith my option-for-pension form  duly completed for your record and necessary action.

                                               Yours truly,  

                                                    Sd/-                                                ( Dr. K.S. Misra )                                              Professor in English

OPTION

       Having understood the comparative advantages  and disadvantages of pensionary and Provident Fund  benefits as applicable in my case :

(i)     I opt for the Liberalised Pension Rules including  the benefit of the Family Pension Scheme for Central  Government Employees, 1964 introduced vide the  Ministry of Finance Office Memo No.F.9(16)-EV (A)/63  dated the 31st December, 1963 on the terms and  conditions laid down in that Ministry’s O.M. No.F.2(14)- EV(B)/63 dated the 14th January, 1964."

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       The aforesaid document shows that the respondent had  exercised his option for Liberalized Pension Scheme including the  benefit of the Family Pension Scheme for Central Government  Employees by his letter dated 28.1.1989 and it had nothing to do with  the option regarding counting of past service.  Therefore, the option  exercised by him on 28.1.1989 has no relevance to the controversy in  hand.  

8.      On 5.8.1993 the respondent made an application to the  University for giving him benefit of the past service rendered in  Benaras Hindu University.  The University gave a reply on  11.10.1993 that he had not applied to the University through proper  channel or with the consent of the previous employers and his case  was not covered by relevant provisions of the Statute and  consequently his past service could not be counted.  The factual  position which emerges is that the respondent did not exercise his  option at any point of time for counting his past service.  Further, he  had resigned his service in Benaras Hindu University and had worked  thereafter for nearly seven years in Yemen University.  He had not  applied in the University through proper channel or with the consent  of the previous employer.   

9.      The High Court in the impugned order has held that the time  limit provided in Statute 61(6)(iv) is merely directory in nature and  not mandatory and after holding so has granted relief to the  respondent.  In our opinion the view taken by the High Court is  clearly erroneous in law.   Sub-clause (c) of Statute 61(6)(iv) lays  down that the option under this clause shall be exercised within a  period of one year and if no option is exercised within the prescribed  limit, the employee shall be deemed to have opted for retention of the  benefits already received by him.   This clause provides for the  consequences which will ensue in the event of non-exercise of option  within the prescribed period of one year.   

10.     A Three-Judge Bench in Balwant Singh & Ors. v. Anand  Kumar Sharma & Ors. (2003) 3 SCC 433 has explained in what  circumstances the duty cast upon a private party can be said to be  mandatory and para 7 of the report reads as under : 7.      Yet there is another aspect of the matter which  cannot be lost sight of. It is a well settled principle that if  a thing is required to be done by a private person within a  specified time, the same would ordinarily be mandatory  but when a public functionary is required to perform a  public function within a time-frame, the same will be  held to be directory unless the consequences therefor are  specified. In Sutherland, Statutory Construction, 3rd  edition, Vol. 3 at p. 107, it is pointed out that a statutory  direction to private individuals should generally be  considered as mandatory and that the rule is just the  opposite to that which obtains with respect to public  officers. Again, at p. 109, it is pointed out that often the  question as to whether a mandatory or directory  construction should be given to a statutory provision may  be determined by an expression in the statute itself of the  result that shall follow non-compliance with the  provision. At page 111 it is stated as follows:

"As a corollary of the rule outlined above, the fact  that no consequences of non-compliance are stated  in the statute, has been considered as a factor  tending towards a directory construction. But this  is only an element to be considered, and is by no  means conclusive."

       Therefore, in accordance with the law laid down in the above

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authority, the provisions of Statute 61(6)(iv) (b) and (c) should be  treated as mandatory as it is a private party who has to do a particular  act within a specified time.  

11.     The problem can be looked from another angle.   If the view  taken by the High Court that the provision is directory is accepted as  correct, it would in effect amount to making the provisions of sub- clause (c) of Statute 61(6)(iv) otiose.   In such a case the consequences  provided therein that if no option is exercised within the prescribed  time limit, the employee shall be deemed to have opted for the  retention of the benefits already received by him would never come  into play.   It is well settled principle of interpretation of statute that it  is incumbent upon the Court to avoid a construction, if reasonably  permissible on the language, which will render a part of the statute  devoid of any meaning or application.   The Courts always presume  that the Legislature inserted every part thereof for a purpose and the  legislative intent is that every part of the statute should have effect.    The legislature is deemed not to waste its words or to say anything in  vain and a construction which attributes redundancy to the Legislature  will not be accepted except for compelling reasons.   It is not a sound  principle of construction to brush aside words in a statute as being  inapposite surplusage, if they can have appropriate application in  circumstances conceivably within the contemplation of the staute.   (See Principles of Statutory Interpretation by Justice G.P. Singh Ninth  Edition page 68).    

       The provisions of sub-clause (c) of Statute 61(6)(iv) should be  interpreted in a manner which makes the provision workable and not  redundant or otiose.   It is, therefore, not possible to accept the view  taken by the High Court that the provision is directory as in such a  case this clause will never come into operation if the employee  exercises his option at any point of time before his retirement.   

12.     The High Court has also relied upon a decision rendered by  another Division Bench of the same Court in a writ petition filed by  Dr. Rameshwar Tandon against Aligarh Muslim University.  Dr.  Tandon was permanent Lecturer in Economics in Institute for Social  and Economic Change, Bangalore and he was appointed as Reader of   Economics in Aligarh Muslim University on 31.5.1991.  His  representation for counting his past service was rejected on the ground  that he had not exercised the option within the prescribed time and  had failed to deposit the gratuity amount.  Dr. Tandon soon after  joining the University on 31.5.1991 had written a letter to the Institute  on 29.9.1991 requesting them to send the provident fund account  directly to the University and had sent a copy of the letter to the  University.   The provident fund was received by the University, but  was delayed by two years and the University demanded interest.  The  Institute sent the interest also which was deposited with the  University.   It was on these facts that the High Court took the view  that Dr. Tandon had done everything under his command for  complying with the provision of the Statute and the University after  accepting the provident fund amount and the interest was estopped  from raising the plea that he had not exercised his option within time.   In our opinion, Dr. Tandon’s case is entirely distinguishable on facts.  Within four months of joining the University, Dr. Tandon had written  to the Institute to send his provident fund account directly to the  University and intimation in this regard was also given to the  University.  The provident fund was sent by the Institute to the  University and the interest amount was also sent.  The respondent can  get no advantage from this case as he never exercised his option at all  and never deposited the amount which he had received from Benaras  Hindu University.   

13.     There is another point which deserves consideration.  Statute  61(6)(v) lays down that the provisions of Statute 61(6)(iv) will apply

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only where the transfer of the employee from other organization to the  University and vice-versa is with the consent of that organization  including a case where the individual had secured his employment on  his own volition provided that he had applied through proper channel  with the permission of the administration/authority concerned.  There  is no dispute that the respondent after proceeding to Yemen had  resigned from Benaras Hindu University.  There is a long gap between  the time he left Benaras Hindu University and when he joined Aligarh  Muslim University.   It is not at all a case of transfer of an employee.   There is no question of consent of the organization (Benaras Hindu  University).  Therefore, the provisions of Statute 61(6)(iv) can have  no application and the respondent is not entitled for counting of  service rendered by him in Benaras Hindu University for the purpose  of grant of pensionary benefits in Aligarh Muslim University.   

14.     For the reasons discussed above, the appeal is allowed.  The  judgment and order of the High Court dated 10.2.2006 is set aside and  the writ petition filed by the respondent is dismissed.  No order as to  costs.