IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 30TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.2487 OF 2012 (S-R) BETWEEN:
1. OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL (A & E)INDIAN AUDIT AND ACCOUNTS DEPARTMENT, KARNATAKA, P B NO.5329/5369, PARK HOUSE ROAD BENGALURU-560 203.
2. THE CONTROLLER AND AUDITOR GENERAL GOVERNMENT OF INDIA PORT NO.9, DEEN DAYAL UPADHYAY MARG NEW DELHI-110 124.
3. GOVERNMENT OF INDIA MINISTRY OF LAW AND JUSTICE (DEPARTMENT OF JUSTICE) JAISALMER HOUSE, MANSINGH ROAD NEW DELHI-110 011.
…….APPELLANTS (BY SRI. M VASUDEVA RAO, ADVOCATE) AND 1. R. G. DESAI SON OF LATE G. G. DESAI RESIDING AT NO.3367/Q 13TH MAIN, H A L II STAGE INDIRANAGAR, BENGALURU-560 038.
SINCE DECEASED BY LEGAL REPRESENTATIVE SMT. KAMALA R. DESAI WIFE OF LATE R. G. DESAI AGED 79 YEARS RESIDING AT NO.3367/Q 13TH MAIN, H A L II STAGE INDIRANAGAR, BENGALURU-560 038.
2. STATE OF KARNATAKA BY ITS CHIEF SECRETARY VIDHANA SOUDHA BENGALURU-560 001.
…..RESPONDENTS (BY SRI. M H SAWKAR, ADVOCATE FOR R-1 SRI. LAKSHMINARAYAN, AGA FOR R-2) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.18753 OF 2011 (S-R) DATED 10/11.04.2012.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.10.2019, COMING ON FOR PRONOUNCEMENT THIS DAY, ASHOK S. KINAGI J, DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order passed by the learned Single Judge dated 10/11.04.2012 in Writ Petition No.18753 of 2011 whereby the writ petition was allowed and the petitioner therein was entitled for additional quantum of pension under Section 17B of the High Court and Supreme Court Judges (Salaries and Conditions of Service) Act, 1994 and the respondents/appellants were directed to extend the benefit of 20% additional quantum of pension together with 6% interest per annum, to the petitioner, the respondents therein have filed the present appeal.
2. Brief facts of the case are that, respondent No.1 herein was born on 01.01.1927 and retired as a judge of this court on 01.01.1989 and sought for the benefit of additional quantum of pension from 01.01.2006 instead of 01.01.2007. As per Act No.23 of 2009, there came to be an amendment by way of incorporating Section 17B to the High Court Judges (Salaries and Conditions of Service) Act, 1954 (‘the Act’ for short). The respondent requested the appellants to pay the additional quantum of pension as per Section 17B of the Act and requested to prepare the correct table and to pay him accordingly. The appellants issued an endorsement dated 12.3.2010, rejecting the request of the respondent inter alia contending that on completing the age of 80 years, the respondent is entitled for additional quantum of pension as per Section 17B of the Act. The respondent challenged the order of rejection in Writ Petition No.18753 of 2011, which was allowed vide order dated 10/11.04.2012, quashing the table dated 03.12.2009 at Annexure-B and the endorsement dated 12.03.2010 at Annexure-D and further held that the respondent is entitled for additional quantum of pension under Section 17B of the Act with effect from 01.01.2006 and further directed the appellants to extend the benefit of 20% additional quantum of pension as specified under Section 17B of the Act together with 6% interest per annum, forthwith to the respondent. Aggrieved by the said order, the appellants have filed the present writ appeal.
3. Heard learned counsels.
4. The learned counsel for the appellants relying on Section 17B of the Act contends that the benefit of the said section would ensure only to such pensioners who would have attained the age of 80 and above. He further contends that the said amended section has to be read in its entirety.
The age mentioned in the tabular column No.1 is 80 to 85. The qualifying age at which the pensioner shall be entitled for the benefit of Section 17B of the Act is clearly highlighted in the tabular column No.1. It is amply clear that any such pensioner who would have attained the age of 80, meaning who would have completed the 80th year and entered the 81st year, would be eligible to receive the enhanced pension and further he has also relied upon the judgment of the Division Bench of Dharwad Bench passed in Writ Appeal No.100481 of 2015 and accordingly, prayed to allow the appeal.
5. Per contra, learned counsel for the respondent No.1 contended that column No.1 in the tabular column in Section 17B of the Act refers to the age of the pensioner and column No.2 refers to the percentage increase in the pension. The table makes it clear that the pensioner aged between 80 to 85 shall be entitled for increase of 20%. Therefore, if a pensioner completes 79 years and enters the 80th year, then he shall be entitled to increase in the pension. Hence, he prayed for dismissal of the appeal.
6. The issue which falls for our consideration is, interpretation of Section 17B of the Act with regard to the age at which the pensioner would be entitled to pension. Therefore, we have carefully perused Section 17B of the Act and the tabular column of Section 17B which reads as follows:
AGE RELATED ENHANCED PENSION /FAMILY PENSION Retired Judges of High Courts and Supreme Court and their family pensioners, as the case may be, who have attained the age of 80 years or more, are also entitled to an additional quantum of pension of family pension with reference to their age, as tabulated below:
Age of pensioner or family pensioner From eighty years to less than eighty-five years Additional quantum of pension or family pension Twenty percent of basic pension or family pension From eighty-five years to less than ninety years From ninety years to less than ninety-five years Thirty percent of basic pension or family pension Forty percent of basic pension or family pension From ninety-five years to less than hundred years Fifty percent of basic pension or family pension From hundred years or more Hundred percent of basic pension or family pension 7. As per Section 17B of the Act, if the retired judges of the High Courts and Supreme Court and their family pensioners, as the case may be, who have attained the age of 80 years or more, are entitled to an additional quantum of pension or family pension with reference to their age. We are concerned only with the first row which refers to the pensioner aged about eighty years to less than eighty-five years. It spells out that in no uncertain terms, if the pensioner who attains the age of 80 years and above, shall be entitled for additional quantum of pension. It is nodoubt true that in the first row in the tabular column, the age of the pensioner eligible for additional quantum of pension is mentioned as between 80 and 85. In our view, the tabular column is nothing more than an indicator or a pointer of Section 17B and the benefit accruing therefrom, will have to be gathered from the detailed qualifying description and other terms and conditions therein.
8. The word ‘attain’ is attached an enviable sanctity in the service law of jurisprudence. The 21st century Chambers Dictionary defines ‘attain’ word as ‘to complete successfully, to accomplish, to achieve’.
9. While interpreting Rule 11-B of the Rajasthan State and Subordinate Service (Direct Recruitment by Competitive Examination) Rules, 1962, in the case of PRABHU DAYAL SESMA VS. STATE OF RAJASTHAN AND ANOTHER, reported in (1986) 4 SCC 59, the Hon'ble Supreme Court held as follows:
“8. Rule 11-B of the Rules provides:
11-B. Age. Notwithstanding anything contained regarding age limit in any of the service Rules governing through the A agency of the Commission to the posts in the State Service and in the Subordinate Service mentioned in Schedule I and in Schedule II respectively, a candidate for direct recruitment to the posts to be filled in by combined competitive examinations conducted by the Commission under these Rules must have attained the age of 21 years and must not have attained the age of 28 years on the first day of January next following the last date fixed for receipt of application.
9. It is plain upon the language of Rule 11-B that a candidate 'must have attained the age of 21 years and must not have attained the age of 21 years on the first day of January next following the last date fixed for receipt of application'. Last day fixed for receipt of application in this case, was January 1, 1983. First day of January next following that day would be January 1, 1984. The object and intent in making r. 11-B was to prescribe the age limits upon which the eligibility of a candidate for direct recruitment to the Rajasthan Administrative Service and other allied services is governed. At first impression, it may seem that a person born on January 2, 1956 would attain 28 years of age only on January 2, 1984 and not on January 1, 1984. But this is not quite accurate. In calculating a person's age, the day of his birth must be counted as a whole day and he attains the specified age on the day preceding, the anniversary of his birth day. We have to apply well accepted rules for computation of time. One such rule is that fractions of a day will be omitted in computing a period of time in years or months in the sense that a fraction of a day will be treated as a full day. A legal day commences at 12 o'clock midnight and continues until the same hour the following night. There is a popular misconception that a person does attain a particular age unless and until he has completed a given number of years. In the absence of any express provision, it is well- settled that any specified age in law is to be computed as having been attained on the day preceding the anniversary of the birth day.
10. In Halsbury's Laws of England. 3rd edn., vol. 37, para 178 at p.100, the law was stated thus:
‘In computing a period of time, at any rate, when counted in years or months, no regard is generally paid to fractions of a day, in the sense that the period is regarded as complete although it is short to the extent of a fraction of a day…… Similarly, in calculating a person's age the day of his birth counts as a whole day; and he attains a specified age R on the day next before the anniversary of his birth day.’ 11. We have come across two English decisions on the point. In Rex v. Scoffin, LR [1930] 1 KB 741 the question was whether the accused had or had not completed 21 years of age.
S. l0(I) of the Criminal Justice Administration Act, 1914 provides that a person might be sent to Borstal if it appears to the court that he is not more than 21 years of age. The
accused completed 21 years of age on February 16,1930 and that he was one day more than 21 years of age on February 17, 1930 which was the Commission day of Manchester Assizes.
12. In Re. Shurey, Savory v. Shurey, LR [1918] I Ch. 263 the question that arose for decision was this: Does a person attain a specified age in law on the aniversary of his or her birthday, or on the day preceding that anniversary? After reviewing the earlier decisions, Sargant, J. said that law does not take cognizance of part of a day and the consequence is that person attains the age of twenty-one years or of twenty-five years, or any specified age, on the day preceding the anniversary of his twenty-first or twenty- fifth birthday or other birthday, as the case may be.
13. From Halsbury's Laws of England, 4th edn., vol 45, para 1143 at p. 550 it appears that s. 9 of the Family Law Reforms Act, 1969 has abrogated the old common law rule stated in Re. Shurey, Savory v. Shurey.
14. It is in recognition of the difference between how a person's age is legally construed how it is understood in common parlance. The Legislature has expressly provided in s. 4 of the Indian Majority Act, 1875 that how the age of majority is to be computed. It reads:
‘4. Age of majority how computed- In computing the age of any person, the day on which he was born is to be included as a whole day, and he shall be deemed to have attained majority, if he falls within the first paragraph of Section 3, at the beginning of the twenty-first anniversary of that day, and if he falls within the second A paragraph of Section 3, at the beginning of the 18th anniversary of that day.’ The Section embodies that in computing the age of any person, the day on which he was born is to be included as a whole day and he must be deemed to have attained majority at the beginning of the eighteenth anniversary of that day. As already stated, a legal day commences at 12 o'clock midnight and continues untill the same hour the following night. It would therefore appear that the appellant having been born on January 2, 1956, he had not only attained the age of 28 years but also completed the same at 12 o'clock on the midnight of January 1, 1984. On the next day i.e. On January 2, 1984, the appellant would be one day more than 28 years. The learned Judges were therefore right in holding that the appellant was disqualified for direct recruitment to the Rajasthan Administrative Service and as such was not entitled to appear at the examination held by the Rajasthan Public Service Commission in 1983. We affirm the view taken by the learned Judges as also the decisions in G. Vatsala Rani's case.”
‘attained’ leaves no scope for any liberal construction. The inalienable and sacrosanct position accorded by the Hon'ble Supreme Court to the strict interpretation of this word is manifest by following concluding passage of the said judgment which reads thus:
“It is rather unfortunate that the appellant should upon the construction placed on Rule 11-B of the Rajasthan State and Subordinate Services (Direct Recruitment by Competitive Examination) Rules, 1962 fail to secure entry into the Rajasthan Administrative Service and allied services of the Government of Rajasthan merely because he exceeds the upper age limit just by one day. The Government ought to consider the question of relaxing the upper age limit in the case of the appellant in order to mitigate the hardship, if otherwise permissible. There is need for a provision like the proviso to Rule 4 of the Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955, conferring the power of relaxation on the State Government under certain conditions without which a deserving candidate would be rendered ineligible for appointment.”
11. Further in cases where there appears some ambiguity leading to oscillation in affirming a definite connotation, interpretation must depend on the text and the context. We may usefully refer to the judgment of the Hon'ble Supreme Court in case of RBI VS. PEERLESS GENERAL FINANCE AND INVESTMENT CO. LTD., reported in (1987) 1 SCC 424, wherein it is held as under:
“33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are 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 as 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 sections, 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 say as to fit into the scheme of the entireAct. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression 'Prize Chit' in Srinivasa [(1980) 4 SCC 507; (1981) 1 SCR 801;
51 Com Cas 464] and we find no reason to depart from the Court's construction.”
12. We have adverted to the above decision of the Hon'ble Supreme Court in Peerless case. The age as indicated in the tabular column reads as 80 to 85. But in the qualifying paragraph, eligibility criteria has been defined as attainment of age of 80 and above.
13. The Division Bench of Dharwad Bench in Writ Appeal No.100481 of 2015 has considered the same aspect with regard to the attainment of age of 80 and held that the pensioners shall be eligible to claim increased pension only upon attaining the age of 80 years. The said reason squarely applies to the facts of this case.
14. In the result, the appeal must succeed and is accordingly allowed. The order passed by the learned Single Judge dated 10/11.04.2012 in Writ Petition No.18753 of 2011 is set aside. The writ petition is dismissed.
Sd/- Sd/-
JUDGE JUDGE RD