Uttarakhand High Court
Rohitashav Kunwar vs State Of Uttarakhand & Others on 25 January, 2021 Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petiton No. 768 of 2020 (S/S)
(under Article 226 of the Constitution of India)
Rohitashav Kunwar
S/o Late Vials Rai,
R/o Shanti Vihar Colony,
Arya Nagar, Jawalapur,
Haridwar, District-Haridwar ……..petitioner
Versus
State of Uttarakhand & others …..Respondents
Mr. Vinay Kumar, Advocate for the petitioner.
Ms. Anjali Bhargava and Mr. P.C. Bisht, Addl. C.S.C. with Mr. N.P. Sah and Mr.
Sushil Vasishtha, Standing Counsel for the State.
Mr. Bhuwan Bhatt, Advocate for respondent no.4.
Mr. Vivek Shukla, Advocate for respondent no.5.
Hon’ble Lok Pal Singh, J.
By means of present writ petition, petitioner has
sought following reliefs :
(i) Issue a writ, order or direction in the nature
of certiorari calling for the record and
quashing the impugned communication/order
dated 27th May, 2020 issued by the Director,
Secondary Education, Uttarakhand,
Dehradun, whereby the claim of the
petitioner for grant of extension of two years
of service granted to the State Awardee has
been rejected.
(ii) Issue a writ, order or direction in the nature
of mandamus directing the respondents to
grant the benefit of extension of two years of
service to the petitioner being the State
Awardee of Shailesh Matiyani State Education
Award-2017 from 1st April 2020.”
2. Brief facts of the case are that the petitioner was
holding the charge of Principal in Inter College, Jwalapur,
District Haridwar. He retired from services on 30.04.2019
after attaining the age of superannuation. Thereafter, in
terms of the provisions of the Government Order dated
08.04.2011, 20.09.2011 and 01.06.2012, the Chief
Education Officer, Haridwar granted approval for extension
2
of the services of the petitioner for the period 01.05.2019
to 31.03.2020. Since, the petitioner was attaining the age
of superannuation on 30.04.2019 during the academic
session 2019-2020, therefore, in terms of the Govt. orders
providing for the extension of service to the
Teacher/Principals engaged in teaching work, the petitioner
was granted the extension of service vide order dated
30.03.2019. Thereafter, on 13.05.2019, the Chief
Education Officer, Haridwar has passed an order on
13.05.2019, whereby the concerned authority/Incharge
Officer was directed to grant the charge of the post of
Principal to the petitioner. It is contended that while the
petitioner was working as Lecturer (Hindi)/Officiating
Principal, he was conferred with the Sailesh Matiyani State
Education Award 2017 for his outstanding work and the
said award has given to him in the year 2019 during his
extension period and after extension of said period of one
year he has been retired on 31.03.2020. It is further
contended that as per Rules, the teacher who has been
awarded by Sailesh Matiyani State Education Award is
entitled for the benefit of two years extension in service. In
this regard, petitioner moved an application to the
Secretary Education, Government of Uttarakhand for
extension of service in view of the fact that he has been
conferred with the said award but no decision was taken
thereon and on 31.03.2020, petitioner retired from service.
On 27.05.2020, Director, Secondary Education
Government of Uttarakhand issued a communication to the
Chief Education Officer, Haridwar and after referring to the
communication issued by the Director General, Education
dated 18.05.2020, it was informed that in view of
provisions of paragraph-2 of the Government order dated
22.08.2007, it is not possible to grant extension of two
years of service on the ground that the petitioner has been
3
awarded the State Award. Feeling aggrieved, present writ
petition has been filed by the petitioner.
2. Heard learned counsel for the parties and
perused the material available on record.
3. A counter affidavit has been filed by the
respondent nos.2, 3 & 4 stating therein that the
petitioner’s superannuation date was 30.04.2019 and after
getting extension of service from Chief Education Officer
finally he has been retired on 31.03.2020. It is also stated
that according to G.O. dated 22.08.2007 extension of two
years service due to National/State award is permissible
only to those teachers who have received the award during
their service. It is also stated that the benefit of two years
extension is not permissible to those who have received
the award after their superannuation/retirement and as the
petitioner received the award after his
superannuation/retirement, thus the extension of two
years service is not permissible to the petitioner.
5. A counter affidavit has also been filed on behalf
of respondent no.5 stating therein that the announcement
of Shailesh Matiyani State Award-2017 took place in the
year 2017 but the same was given to the petitioner on
29.01.2020 and by that time the petitioner had already
taken benefit of mid session. It is further stated that the
petitioner has already taken benefit of retirement in the
mid session and he got this benefit in the manner which
ought not to have been given because after his retirement
in the mid session on 30.04.2019, he continued as
Principal till the end of benefit of retirement during mid
sessions i.e. 01.05.2019 to 31.03.2020. However, it is
noteworthy that after the retirement of the petitioner on
4
30.04.2019 he could have taken benefit of mid sessions
retirement as a Lecturer of subject Hindi till 31.03.2020. It
is further stated that that policy of Uttarakhand
Government for extension of service is very consistent in
this regard that the teachers or principal of Inter College
who have once taken the benefit of mid session, they are
not entitled for getting their services further extended on
getting any national award or Shailsh Matiyani Uttarakhand
State Award. It is further stated that since petitioner
received the said award on 29.01.2020 while he was
already taking the benefit of mid session, therefore, he is
not entitled for further extension of his service pursuant to
aforesaid award.
6. A rejoinder affidavit has been filed stating
therein that the office memorandum dated 20.10.2009
prescribed the norms for selection for the award and as per
the norms prescribed the Teacher who has completed 15
years of service on 31st December of the last calendar year
will be eligible to be considered for the award. It is further
stated that the retired/re-appointed teacher/principal will
not be eligible for Shailesh Matiyani State Education
Award. It is further stated that the Government issued a
Govt. Order on 22.08.2007 which clarify that the benefit of
additional two years of service available to the State
Teacher Awardee will be admissible only to such Teachers
who have been conferred the award during the service. It
is further stated that the benefit of additional two years of
services will not be admissible to the Teacher who has
retired or has been conferred the award after the end of
sessions benefit. It is further stated that the petitioner
retired on attaining the age of superannuation on
10.05.2019 and was granted the session benefit upto
31.03.2020. It is further stated that the Shailesh Matiyani
5
State Teacher Award 2017 was conferred on the petitioner
on 20.01.2020 i.e. during the period when the petitioner
was working on extended session benefit. It is further
stated that as per Govt. order dated 22.08.2007 the
benefit of extended service will not be granted to those
teachers who have been granted the award after
retirement/session benefit but the award has been
conferred to the petitioner in the month of January, 2020,
whereas the academic session of the petitioner was to
complete on 31.03.2020. It is further stated that the
petitioner has been conferred the said award prior to
completion of the end of benefit of academic session,
therefore, he is entitled for grant of additional two years
extension in service as per the norms of the said award.
7. Perusal of the record would reveal that the
Hon’ble Governor has granted the approval for conferment
of State Teacher Award to such teachers who have done
outstanding work for upgradation and qualitative
improvement of education in the State. The teachers who
have received the award after their retirement/session
benefit would not be entitled for such benefit of extension
of service. In the instant case, the petitioner after attaining
the age of superannuation, retired from service on
30.04.2019. However, as he was being retired during mid
academic sessions 2019-20 by order dated 30.03.2019, he
was granted session benefit and his and his service were
extended for the period 10.05.2019 to 31.03.2020 in view
of Government Order dated 08.04.2011, which provides
the guidelines for granting approval for extension of
services till the end of the academic session. During the
extension period, he was nominated for Shailesh Matiyani
State Award-2017 on 23.10.2019 and on 20.01.2020, he
received the said award. Thereafter, on 28.03.2020, the
6
petitioner moved application for extension of service in
view of Government Order dated 22.08.2007, however, no
heed was paid by the respondents at that relevant point of
time and on 31.03.2020, the petitioner retired.
Subsequently, on 27.05.2020, the petitioner’s
representation was rejected by the respondent on the
ground that the petitioner has received the said Award
after his retirement, therefore, he is not entitled for two
years extension of service. A perusal of Government Order
dated 22.08.2007 would reveal that teachers who have
received the award after retirement/sessions benefit are
not entitled for two years’ extension of service. In the said
G.O., it is nowhere stated that the teachers, who have
already been granted sessions benefit, is not entitled for
two years’ extension of service. It is well settled that a
provision is required to be read in whole and not in part
and in isolation to other parts of the provisions. The entire
provision is required to be read out harmoniously.
8. It is a cardinal rule of construction that when
there are in a statute two provisions in conflict with each
other such that both of them cannot stand together, they
should possibly be so interpreted that effect can be given
to both and that a construction either of them inoperative
and useless should not be adopted except in the last is
what is known as a rule of harmonious construction. The
authority should avoid “a head on clash”, in the words of
the Apex Court, between the different parts of an
enactment and conflict between the various provisions
should be sought to be harmonized. The normal
presumption should be consistency and it should not be
assumed that what is given with one hand by the
legislature is sought to be taken away by the other. The
rule of harmonious construction has been tersely explained
7
by the Supreme Court thus, “When there are, in an
enactment two provisions which cannot be reconciled with
each other, they should be so interpreted, that if possible,
effect should be given to both”. A construction which
makes one portion of the enactment a dead letter should
be avoided since harmonization is not equivalent to
destruction. The provisions of one section of the statute
cannot be used to defeat those of another unless it is
impossible to effect reconciliation between them. Thus a
construction that reduces one of the provisions to a
“useless lumber’ or ‘dead letter’ is not a harmonised
construction. To harmonise is not to destroy. It is a
cardinal principle of construction of a statute that effort
should be made in construing its provisions by avoiding a
conflict and adopting a harmonious construction. The
statute or rules made thereunder should be read as a
whole and one provision should be construed with
reference to the other provision to make the provision
consistent with the object sought to be achieved.
9. The Supreme Court in Surjit Singh Kalra vs.
Union of India reported in (1991) 2 SCC 87 in
paragraph no.19 has held as under:
“19. True it is not permissible to read words in a statute
which are not there, but “where the alternative lies
between either supplying by implication words which
appear to have been accidentally omitted, or adopting a
construction which deprives certain existing words of all
meanings, it is permissible to supply the words” (Craies
Statute Law, 7th Edition, p. 109). Similar are the
observations in Hameedia Hardware Stores v. B. Mohan
Lal Sowcar, [ 1988] 2 SCC 513 at 524-25 where it was
observed that the court construing a provision should not
easily read into it words which have not been expressly
enacted but having regard to the context in which a
8
provision appears and the object of the statute in which
the said provision is enacted the court should construe it
in a harmonious way to make it meaningful. An attempt
must always be made so to reconcile the relevant
provisions as to advance the remedy intended by the
statute. (See: Sirajul Haq Khan & Ors. v. The Sunni
Central Board of Waqf, [ 1959] SCR 1287 at 1299)”
10. In Sultana Begum Vs. Prem Chand Jain,
Hon’ble Supreme Court held that the Rule of interpretation
requires that while interpreting two inconsistent or
obviously repugnant provisions of an Act, the Courts
should make an effort to so interpret the provisions as to
harmonise them so that the purpose of the Act may be
given effect to and both the provisions may be allowed to
operate without rendering either of them otiose.
11. Thus, as per the Government Order dated
22.08.2007, as the petitioner has been conferred with the
award during the period of session benefit, he is very much
eligible for extension of service, which has wrongly been
denied to him by the impugned order dated 27.05.2020.
The same is liable to be quashed.
12. By relying upon the aforementioned judgment
and by applying the rule of harmonious construction, this
Court is of the considered opinion that the petitioner is
entitled for the benefit of two years of service.
13. Accordingly, the writ petition is allowed.
Impugned order dated 27.05.2020 is hereby quashed.
Mandamus is issued to the respondent authority to grant
the benefit of extension of two years of service to the
petitioner being the State Awardee of Shailesh Matiyani
9
State Education Award-2017 within a period of one month
from the date of production of certified copy of this order.
14. No order as to costs.
(Lok Pal Singh, J.)
Mamta
Dated: 25.01.2021
Comments