http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

CASE NO.: Appeal (civil)  2527 of 2007

PETITIONER: S.B. Bhattacharjee

RESPONDENT: S.D. Majumdar & Ors.

DATE OF JUDGMENT: 15/05/2007

BENCH: S.B. Sinha & C.K. Thakker

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO. 2527  OF 2007  [Arising out of S.L.P. (Civil) No. 3413 of 2006] WITH CIVIL APPEAL NO. 2528-2529 OF 2007 [Arising out of S.L.P. (Civil) No. 12650-12651 of 2006]

S.B. SINHA,  J :

1.      Leave granted.

2.      Interpretation of an Office Memorandum dated 10.10.2002 providing  for the mode and manner for considering the suitability of candidates for  promotion from one post to the other, falls for consideration in these appeals  which arise out of a common judgment and order dated 27.01.2006 passed  by a Division Bench of the Gauhati High Court in Writ Appeal No. 5 of  2004 whereby and whereunder the appeal preferred by Respondent No.1  from a judgment and order 29.11.2004 passed by a learned Single Judge of  the said High Court in Writ Petition (Civil) No. 44 of 2004,  was allowed.

3.      A post of Executive Engineer was created on 01.02.2004.  For the  purpose of filling up the said post, the Departmental Promotion Committee  (for short, ’the DPC’) held a meeting on 16.03.2004.   The DPC indisputably  was, inter alia, to consider the Annual Confidential Reports (for short,  ’ACRs’) of the  candidates concerned.  Both the appellant and the first  respondent along with two others were eligible therefor.  Promotion to the  said post is governed by the Mizoram Engineering Service Rules, 2001 (for  short, ’the Rules).  Rule 20 of the said Rules, inter alia,  provides for   general procedure for promotion,  relevant clauses whereof are as under :

"20. (1) Whether any vacancy or vacancies arise(s) to be  filled up by promotion, the Controlling Authority shall  furnish to the Commission, the following documents and  information :

(d)     Annual Confidential Reports of eligible candidates  of preceding years as may be required, length of service,  duly reviewed and accepted by the authorities concerned.

(e)     Details about reservation for member of the  service in respect of graduate in Engineering and holders  of under graduate diploma in Engineering as provided  under sub-rules (3) and (4) of Rule 19.

(f)     Clearance from Vigilance Department separately  in respect of each, and

(g)     Any other documents and information as may be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

considered necessary by the Commission."

4.      State of Mizoram, however, issued an Office Memorandum dated  10.10.2002 laying down the procedures to be observed by the DPC, relevant  clauses whereof are as under :

"3.2    While merit has to be recognised and rewarded,  advancement in the officer’s career should not be  regarded as a matter of course but should be earned by  dint of hard work, good conduct and result oriented  performance as reflected in the annual confidential  reports and based on strict and rigorous selection process.

3.4     Confidential Rolls are the basic inputs on the basis  of which assessment is to be made by each DPC.  The  evaluation of CRs should be fair, just and non- discriminatory.   Hence,

(a)     The DPC should consider CRs for equal number of  years in respect of all Officers considered for  promotion subject to (c) below.

(b)     The DPC should assess the suitability of the  candidates for promotion on the basis of  the their  service records and with particular reference to the  CR for five preceding years, irrespective of the  qualifying service prescribed in the Service  Rules/Recruitment Rules.  (If more than one CR  has been written in a particular year all the CRs for  the relevant years shall be considered together as  the CR for one year).   

(c)     When ACR has not been written by the reporting  Officer despite submission of the self-appraisal to  the Reporting Officer by the Officers reported  upon during the relevant period, the DPC should  consider the CR of one preceding year beyond the  relevant period.                                 xxx                     xxx                     xxx (e)     The DPC should not be guided merely by the  overall grading, if any, that may be recorded in the  CRs, but should make its own assessment on the  basis of the entries in the CRs, because it has been  noticed that, some time, the overall grading in a  CR may be inconsistent with the grading under  various parameters or attributes.

(f)     If the Reviewing Authority or the Accepting  Authority, as the case may be, has overruled the  Reporting Officer, or the Reviewing Authority, as  the case may be, the remarks of the latter authority  should be taken as the final remarks for the  purpose of assessment, provided it is apparent  from the relevant entries that the higher authority  has come to a different assessment consciously  after due application of mind.  If the assessment of  the Reporting Officer, Reviewing Authority and  Accepting Authority are complimentary to each  other and one does not have the effect of  overruling the other, then the remarks should be  read together and the final assessment made by the  DPC.

(g)     ACRs of Officers which became available during

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

the year immediately preceding the vacancy/panel  year should be considered by the DPCs even if  DPCs are hold later than the year of vacancy.   In  other words, for the vacancy/panel year, 2001- 2002, ACRs upto the year ending 31st March, 2000  are required to be considered irrespective of the  date of convening of DPC.  However,, ACRs upto  the year ending 31st March, 2001 will be  considered  by the DPC if it sits after September   of that year even if the vacancy falls within 2001- 2002.                 xxx                     xxx                     xxx 3.5(ii)  In respect of all posts which are in the scale of  pay of Rs.12000-16500/- and above, the bench-mark  shall be "VERY GOOD" and for all the posts which are  in the scale of pay of Rs.8000-13500/- and above but less  than  Rs.12000-16500/- the bench-mark shall be  ’GOOD’.

       Further, overall grading of officers shall be made  in the following manner :

Outstanding     An Officer, who gets at least 3 (three)  outstanding reports out of 5 (five),  provided that the remaining 2(two)  reports should not be less than ’Very  Good’, will be categorised as  ’Outstanding’.

Very Good       An Officer, who gets at least 3 (three)  ’Very Good’ reports out of 5 (five),  provided that the remaining 2 (two)  reports should not be less than ’Good’  will be categorised as ’Very Good’.

Good    An Officer, who gets at least  3 (three)  ’Good’ reports out of 5 (five), will be  categorised as ’Average’.

Average                 An Officer, who gets at least 3 (three)  ’Good’ reports out of 5 (five), will be  categorised as ’Average’.

       An Officer who gets an overall grading of  Outstanding will en bloc supersede Officer who gets an  overall grading of ’Very Good’ regardless of seniority.   An Officer who gets an overall grading of ’Very Good’  will en bloc supersede Officer who gets an overall  grading of ’Good’ regardless of seniority.         xxx                     xxx                     xxx 3.8     For the purpose of evaluating the merit of the  Officers while preparing year-wise panels, scrutiny of the  record of service of the Officers should be limited to the  records that would have been available had the DPC met  at the appropriate time.  For instance, for preparing a  panel relating to the vacancies of 2001-2002 the latest  available records of service of the Officers up-to the  period ending March, 2000 as the case may be should be  taken into account and not the subsequent one.  However,  if on the date of the meeting of the DPC, Departmental  Proceedings are in progress and under the existing  instructions sealed cover procedure is to be followed,  such procedure should be observed even if Departmental  Proceeding were not in existence in the year to which the  vacancy related.  The Officer’s name should be kept in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

the sealed cover till the proceedings are finalized."       

5.      Before we embark upon the rival contentions of the parties, we may   notice the assessment of ACRs of the appellant and respondent no.1  respectively from 1997-98, which is  as under :   

" Sl. No. Name of  Officer 1997-98 98-99 99-00 00-01 01-02 02-03 Overall 1. S.D.  Majumdar    VG  VG  VG  VG  VG   VG Very Good 2.      \005     \005   \005   \005   \005   \005   \005     \005 3.      \005     \005   \005   \005    ...   \005    \005     \005 4. S.B.Bhattacharjee    VG  Os   VG VG   Os   Os Outstanding                                                                                                    "    6.      Indisputably, if the ACR for the year 1997-98 is taken into  consideration for the purpose of judging the suitability of the appellant and  respondent no. 1 and that of  the  year 2002-03 is excluded, Respondent No.  1 being senior, would be promoted to the post of Executive Engineer;  whereas in the event the ACR for the period 1997-98 is excluded and that of  the year 2002-03 is taken into consideration, as the appellant herein would  be given overall grading  ’outstanding’, the case of Respondent No.1 would  not be considered at all.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

7.      The fact that respondent no. 1 is senior to the appellant is not in  dispute.  As the DPC recommended the candidature of the appellant alone in  terms of the  extant rules, Respondent No. 1 herein filed a writ petition  before the Gauhati High Court on 04.06.2004.  During the pendency of the  said Writ Petition, the Government of Mizoram itself issued a clarification  on or about 13.09.2004, which reads as under :

       "In inviting a reference to this Department ’s O.M.  No. A.32012/1/81-APT./Loose dated 10.10.2002 on the  above subject, this is to clarify para 3.4 (g) of the said  O.M. that if the DPC sits after September of the year  2002, ACRs upto the year ending 31.3.2001 would be  taken into consideration  by the DPC while consideration  the vacancies that arose for the vacancy year 2001-2002."

8.      By a judgment and order dated 29.11.2004, a learned Single Judge of  the Gauhati High Court dismissed the said writ petition of Respondent No.  1, inter alia, opining that clause (g) of Paragraph 3.4 of the said Office  Memorandum must not only be applied having regard to the other provisions  thereof, but also the latest ACR i.e. the ACR for the year ending 31.03.2003  should not be excluded from consideration.  The clarificatory Office  Memorandum dated 10.10.2002, the learned Single Judge opined, should  receive such interpretation at the hands of the court which would advance  the cause of public service.   It was observed :

"6.     Before parting with the record, this court must deal  with the reliance placed on behalf of the petitioner on an  office Memorandum dated 13.9.2004 which office  Memorandum has been placed before the court at the  hearing.  The clarification issued in the office  Memorandum dated 30.9.2004 can only be logically and  reasonably understood if the year 2002 as recorded  therein is understood as the year 2001.  In any case as  this court has already interpreted and laid down the true  meaning of clause (g) of paragraph 3.4 of the office  Memorandum dated 10.10.2002, the clarification  contained in the office Memorandum dated 13.9.2004  would have little sequence in altering the conclusion  already reached."

9.      An intra-court appeal having been preferred thereagainst, a Division  Bench of the said High Court reversed the said finding of the learned Single  Judge, holding that the ACR for the year ending 31.03.2003 could not have  been taken into consideration on a plain reading of Clause (g) of paragraph  3.4.  Sustenance to the said finding was sought to be obtained from the  Office Memorandum dated 16.06.2000 issued by the Government of India,  the relevant portion whereof reads as under :

"G.I. Dept. of Per. & Trg. O.M. No. 22011/9/98-Estt. (D)  dated the 16th June, 2000

Relevant year upto which ACRs are to be considered.

1.      \005                    \005                    \005

2.      In regard to operation of the Model Calendar for  DPCs, a doubt has been raised by certain quarters  as the question of the relevant year upto which  ACRs are required to be considered by the DPCs.   In this connection, it is once again clarified that  only such ACRs should be considered which  became available during the year immediately  preceding the vacancy/panel years even if DPC are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

held later than the Schedule prescribed in the  Model Calendar.  In other words, for the  vacancy/panel year 2000-2001, ACRs upto the  year 1998-99 are required to be considered  irrespective of the date of convening DPC."

10.     Although the clarificatory Office Memorandum has been issued by  the State of Mizoram itself, apart from the candidate concerned, viz. Shri  S.B. Bhattacharjee, the State of Mizoram as also the Mizoram Public Service  Commission are before us.

11.     Mr. Sunil Gupta, learned Senior Counsel appearing on behalf of  the  State of  Mizoram, Mr. Ranjit Kumar, learned Senior Counsel appearing on  behalf of the Mizoram Public Service Commission and Mr. Manoj Goel,  learned counsel appearing on behalf of the private appellants in support of  the appeals, inter alia, submitted :           (i)     The Division Bench of the High Court committed a manifest error in  passing the impugned judgment insofar as it failed to take into consideration  the fact that the Office Memorandum dated 10.10.2002, if read in its  entirety, would lead to only one conclusion that the merit and merit alone  should be taken into consideration for promotion to the post of Executive  Engineer.   (ii)    The words ’preceding five years’ in clause  (b) of paragraph 3.4 of the  office memorandum dated 10.10.2002 would mean preceding five years  before the meeting takes place.

(iii)   Illustration appended to clause (g) of paragraph 3.4 would clearly  suggest that in the event the meeting of the DPC is held after September, it is  incumbent upon it to take into consideration the ACRs  upto 31.03.2003. (iv)    The expression ’immediately preceding’ occurring in Clause (g) of  paragraph 3.4 must be given its due meaning, which would bring within its  purview the ACRs  upto 31.03.2003. (v)     The clarificatory Office Memorandum having been issued while the  writ petition was pending, the same being not available to the Public Service  Commission, it could not have been taken the same into consideration and in  that view of the matter, it cannot be given a retrospective effect and  retroactive operation. (vi)    As the clarification lacks precision in regard to the interpretation of  the term ’immediately preceding’, the same cannot be held to have  overridden the first part of clause (g) of paragraph 3.4.

(vii)   Illustration, it is trite, shall not give way to the main provision itself.   

(viii)  Whereas the learned Single Judge has considered the purport of entire  rule, the Division Bench failed to do so and, thus, its judgment cannot be  sustained. (ix)    The Office Memorandum issued by the Central Government was not  relevant.  Suitability of a candidate being the sole criteria, it was incumbent  upon the DPC to consider the latest ACR so as to arrive at its own  satisfaction and particularly when the chance of there being a negative report  and/or down gradation of the officer concerned cannot be ruled out.

12.     Mr. Shuvodeep Roy, learned Counsel appearing on behalf of  Respondent, on the other hand, urged : (i)     The term ’immediately preceding’ must be read with the words  accompanying the same, namely, ’became available during the preceding the  vacancy/panel year’. (ii)    An ACR becomes available for consideration not only when it is  written but also when  a representation is made in that behalf and reviewed  by the Reviewing Authority.   (iii)   As the clarificatory office memorandum dated 13.09.2004 is binding  on the State, the same would be retrospective in nature.                         (iv)    Illustration being in nature of the proviso, the effect thereof cannot be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

ignored.   (v)     The learned Single Judge committed a manifest error in substituting  one year for consideration of another year and, thus, the judgment of the   Division Bench of the High Court cannot be faulted with.   (vi)     The Rule itself takes care of a contingency if any departmental  proceeding or any criminal proceeding is initiated against the recommendee,  in which event, the State would not be powerless  to pass appropriate orders,  as would appear from  Rule 17 of the Rules.

13.     Although a person has no fundamental right of promotion in terms of  Article 16 of the Constitution of India, he has a fundamental right to be  considered therefor.  An effective and  meaningful consideration is  postulated thereby.  The terms and conditions of service of an employee  including his right to be considered for promotion indisputably are governed  by the rules framed under the proviso appended to Article 309 of the  Constitution of India.   

14.     Rule 20, as noticed hereinbefore, provides that if any vacancy or  vacancies arise(s) to be filled up by promotion, the Controlling Authority  would furnish to the Commission the documents enumerated therein  including ACRs of eligible candidates of preceding years, as may be  required, length of service, duly reviewed  and accepted by the authorities  concerned.  

15.     It has not been denied or disputed  before us that in a given case  ACRs of an eligible candidate may not be written and, thus, may not be  available.  If the same is available, a notice in that behalf must be given, in  the event, any exigency arises therefor to the affected officer and only upon  consideration of the representation made by him, if any, the decision taken  in that behalf by the Reviewing Authority shall be final.  The ACR by  immediate superior, thus, is not final or determinative,  as the same would be  subject to the decision of  the Reviewing Authority.

16.     The validity or otherwise of the said Office Memorandum dated  10.10.2002 is not in question.  With a view to give effect to the statutory  rules governing the field, the State of Mizoram has issued the said Office  Memorandum directing that the procedure laid down therein shall be  observed by the DPC.  Indisputably, merit and suitability of the candidates  concerned are the primary consideration for promotion to a selection post,  wherefor  the necessary ingredients as envisaged in clause 3.4 of the said  Office Memorandum would fall for consideration of the DPC, but it must be  borne in mind that clause 3.4  provides for the mode and manner in which  the DPC shall consider the same.

17.     DPC is required to consider the service records, with particular  reference to the ACRs for five preceding years.  The ACRs for ’five  preceding years’  must, therefore, be held to mean ’five preceding years’ of   ACRs which have attained finality.  It, however, does not define how the  said ’five preceding years’ is to be calculated.  Calculation and/or  reckoning  of ’five preceding years’ is provided for in clause (g) of paragraph 3.4.   

18.     Before, however, we embark upon the construction of clause (g) of  paragraph 3.4 of the said Office Memorandum, we may notice that in terms  of clause (e) thereof, a minute grading of the ACRs and not overall grading  alone would be subject-matter of consideration of the DPC; as it has been  stated therein,  ’it had been noticed that some time the overall grading in  ACR may be inconsistent with the grading under various parameters or  attributes’.  Each of the parameters or attributes on the basis whereof the  ACRs are written and gradation is given would, thus, have to be considered.            19.     The Rules indisputably envisage that a person having an overall  grading of  ’outstanding’ shall alone be considered vis-‘-vis who do not  come within the purview of the gradation of outstanding despite the fact that  their service career they might have received overall grading of ’Very  Good’.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

20.     We at this stage may also notice paragraph 3.8 of the said Office  Memorandum, which proceeds on the basis that for the purpose of  evaluating the merit of the officers, scrutiny of the records of the officers  should be limited  to the records that would have been available, had the  DPC met at the appropriate time.  Even in relation thereto, an illustration had  been given stating that if a vacancy arises in 2001-02, only the latest records  of service of the Officers upto the period ending March 2000, namely, 1999- 2000 shall be taken into consideration.  

       It categorically uses both positive language as also a negative  language stating that what would be taken into consideration is only the  records ending upto March 2000 and not the subsequent ones.

21.     In the aforementioned backdrop of events,   interpretation of clause  (g) of paragraph 3.4 should be resorted to.   The words ’immediately  preceding’, as noticed hereinbefore, are preceded by the words ’ACRs of the  officers which became available during the year’.  This constitutes the first  part.  The words ’vacancy/panel year’ following the words ’the year  immediately preceding’ must also be duly taken into consideration.   

       A DPC may be held during the year in which the vacancy arises or  later than the year of the vacancy.  The Rules intentionally provided for one  year gap.   

       It is only in a case where a controversy may arise in regard to the  number of ACRs which would be available, the illustration and/or proviso  has been appended to clause 3.4.

22.     The Office Memorandum, if read in the context of the rules,  takes  into consideration the necessity of considering the case of the eligible  candidates during the year where vacancy arose.  The DPC is expected to  meet each year.  Only when it is not possible to hold a meeting of the DPC  within that year, the illustration would be applicable.  

       A vacancy must arise in a particular year.  If it arose as in the present  case in 2003-04 following the illustration contained in clause (g) of  paragraph 3.4,  ACRs upto the year 31.03.2002 i.e. vacancy year/panel year  2001-02 are required to be taken into consideration irrespective of the date  of convening of the DPC.  Only when ACRs upto 31.03.2003 were required  to be taken into consideration if it sits after September of that year even if  the vacancy arose within the year 2001-02.   

23.     If the opinion of the learned Single Judge is given effect to, then  31.03.2003 becomes 31.03.2004.  Indisputably, necessity was felt for a  further clarification.  It was in the aforementioned premise that a further  clarification was issued by the State so as to direct that if the DPC sits after  September of the year concerned (in this case  2004), the ACRs upto the  year ending 31.03.2003 could be taken into consideration while considering  the vacancies which arose in 2003-04.  The Division Bench of the High  Court, in our opinion, cannot, thus,  be held to have committed any error in  this behalf.

24.     It may be that in a given case, the court can with a view to give effect  to the intention of the legislature, may read the statute in a manner  compatible therewith, and which would not be reduced to a nullity by the  draftsman’s unskilfulness or ignorance of law.  But, however, it is also  necessary for us to bear in mind the illustration given by the executive while  construing an executive direction and office memorandum by way of  executive construction cannot be lost sight of.  It is in that sense the doctrine  of cotemporanea expositio may have to be taken recourse to in appropriate  cases, although the same may not be relevant for construction of a model  statute passed by a legislature.         

       In  G.P. Singh’s ’Principles of Statutory Interpretation,  10th Edn. at p.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

319,  it is stated :

       "But a uniform and consistent departmental practice  arising out of construction placed upon an ambiguous  statute by the highest executive officers at or near the time  of its enactment and continuing for a long period of time is  an admissible aid to the proper construction of the statute  by the Court and would not be disregarded except for  cogent reasons.  The controlling effect of this aid which is  known as ’executive construction’ would depend upon  various factors such as the length of time for which it is  followed, the nature of rights and property affected by it,  the injustice result from its departure and the approval that  it has received in judicial decisions or in legislation.

       Relying upon this principle, the Supreme Court in  Ajay Gandhi v. B. Singh having regard to the fact that the  President of the Income Tax Appellate Tribunal had been  from its inception in 1941 exercising the power of transfer  of the members of the Tribunal to the places where  Benches of the Tribunal were functioning, held construing  sections 251(1) and 255(5) of the Income Tax  Act that the  President under these provisions has the requisite power of  transfer and posting of its members.  The court observed :  "For construction of a statute, it is trite, the actual practice  may be taken into consideration."

       Contemporary official statements throwing light on  the construction of a statute and statutory instruments  made under it have been used as contemporanea expositio  to interpret not only ancient but even recent statute both in  England and India."   

25.     Clarification was issued by the State of Mizoram not only in the light  of the express provisions contained in paragraph 3.8 of the Office  Memorandum but also in the light of a similar clarification issued by the  Central Government.  The Division Bench of the High Court has noticed that  the clarificatory memorandum was issued considering the Central  Government clarificatory Office Memorandum as a model.          Reliance placed by Mr. Ranjit Kumar, learned Senior Counsel  appearing on behalf of the appellant  on a decision of this Court in Shambhu  Nath Mehra v. The State of Ajmer [AIR 1956 SC 404], in our opinion, is not  apposite.  This Court therein was considering interpretation of the word  ’especially’ contained in Section 106 of the Indian Evidence Act, 1872,   which was an exception to Section 101 thereof, vis-‘-vis Sections 112 and  113 of the Railways Act.  It is in that context this Court observed :         "13. We recognise that an illustration does not  exhaust the full content of the section which it illustrates  but equally it can neither curtail nor expand its ambit;  and if knowledge of certain facts is as much available to  the prosecution, should it choose to exercise due  diligence, as to the accused, the facts cannot be said to be  "especially" within the knowledge of the accused. "

       If the first part of the statement of law in Shambhu Nath. (supra), in  our opinion, is applicable, the illustration in question does not curtail nor  extend the ambit.  It merely clarifies what otherwise might have been  obvious. It introduces the rule by abundant caution although it might not  have been necessary keeping in view the purport and object which Rule 20  and paragraph 3.8 seeks to achieve.

26.     The clarification issued by the State is not in the teeth of the  illustration given in clause (g) of paragraph 3.4 of the Office Memorandum.   The clarification having been issued, the same should be taken into

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

consideration by this Court irrespective of the fact as to whether it was  available to the Public Service Commission  on 16.03.2004 when the DPC  held its  meeting which, in our opinion, was not of much significance.

       The clarification being explanatory and/or clarificatory, in our  opinion, will have a retrospective effect.

27.     In S.S. Grewal v. State of Punjab and Others [(1993) Supp. (3) SCC  234], this Court stated the law thus : "\005In this context it may be stated that according to the  principles of statutory construction a statute which is  explanatory or clarificatory of the earlier enactment is  usually held to be retrospective. (See: Craies on Statute  Law , 7th Edn., p. 58) It must, therefore, be held that all  appointments against vacancies reserved for Scheduled  Castes made after May 5, 1975 (after May 14, 1977  insofar as the Service is concerned), have to be made in  accordance with the instructions as contained in the letter  dated May 5, 1975 as clarified by letter dated April 8,  1980\005"  

28..    Yet again in Commissioner of Income-Tax, Bombay and Others v.  Podar Cement Pvt. Ltd. and Others  [(1997) 5 SCC 482], this Court referring  to a large number of authorities including that of G.P. Singh’s Principles of  Statutory Interpretation’, observed : "\005An amending Act may be purely clarificatory to clear  a meaning of a provision of the principal Act which was  already implicit. A clarificatory amendment of this nature  will have retrospective effect and, therefore, if the  principal Act was existing law when the Constitution  came into force, the amending Act also will be part of the  existing law."  

29.     This Court  in Allied Motors (P) Ltd. v. Commissioner of Income  Tax, Delhi [(1997) 3 SCC 472], observed :   "13. Therefore, in the well-known words of Judge  Learned Hand, one cannot make a fortress out of the  dictionary; and should remember that statutes have some  purpose and object to accomplish whose sympathetic and  imaginative discovery is the surest guide to their  meaning. In the case of R.B. Jodha Mal Kuthiala v. CIT ,  this Court said that one should apply the rule of  reasonable interpretation. A proviso which is inserted to  remedy unintended consequences and to make the  provision workable, a proviso which supplies an obvious  omission in the section and is required to be read into the  section to give the section a reasonable interpretation,  requires to be treated as retrospective in operation so that  a reasonable interpretation can be given to the section as  a whole."  

[See also Zile Singh v. State of Haryana and Others  [(2004) 8 SCC 1]

30.     We should not, however, fail to notice that in S. Sundaram Pillai and  Others etc. v. V.R. Pattabiraman and Others etc. [(1985) 1 SCC 591], this  Court held : "53 . Thus, from a conspectus of the authorities referred  to above, it is manifest that the object of an Explanation  to a statutory provision is\027  "( a ) to explain the meaning and intendment of the Act  itself,   ( b ) where there is any obscurity or vagueness in the  main enactment, to clarify the same so as to make it  consistent with the dominant object which it seems to  subserve,  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

( c ) to provide an additional support to the dominant  object of the Act in order to make it meaningful and  purposeful,   ( d ) an Explanation cannot in any way interfere with or  change the enactment or any part thereof but where some  gap is left which is relevant for the purpose of the  Explanation, in order to suppress the mischief and  advance the object of the Act it can help or assist the  Court in interpreting the true purport and intendment of  the enactment, and ( e ) it cannot, however, take away a  statutory right with which any person under a statute has  been clothed or set at naught the working of an Act by  becoming an hindrance in the interpretation of the same."  

[See also S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and  Others (1992) Supp. (2 ) SCC 304 and  Hardev Motor Transport v. State of  M.P. and Others (2006) 8 SCC 613]  

       In a given case, and in absence of rule, the court might have been  justified to hold that the DPC must take into consideration the merit and  merit only.  However,  in a case of this nature, where the State lays down the  procedures as to how and in what manner the merit and suitability is to be  judged, it was obligatory on the part of the commission to follow the same in  its letter and spirit.  The case at hands shows that it can in a situation of this  nature prove to be disastrous to an employee, if any other construction is  given.

31.     Respondent No. 1 is senior to the appellant by 16 years.  A post was  created.  It  for one reason or the other was sought to be filled up  immediately.  If the interpretation as accepted by the learned Single Judge is  to be given effect to, the case of Respondent No.1 was not to be considered  at all by the DPC.   The Division Bench of the High Court, therefore, in our  opinion, cannot be said to have committed any error warranting interference  by this Court.  The appeals are, therefore, dismissed.  Counsel’s fee is  quantified at Rs.10,000/-.