B.PREMANAND & Ors. v. MOHAN KOIKAL & Ors.

V. Shekhar, S. Ganesh (for V. Sivasubramanian), G. Prakash and Vipin Nair (for Temple Law Firm) for the Respondent. The following Order of the Court was delivered ORDER Heard learned counsel for the parties. This Appeal has been filed against the impugned B c D E F G H 936 SUPREME COURT REPORTS [2011] 3 S.C.R. A judgment/order of the Full Bench of the High Court of Kerala at Ernakulam dated 24th May, 2006 passed in Writ Appeal No. 1774 of 2003. By that judgment the writ appeal filed by the appellants against the judgment of a learned Single Judge dated 24th September, 2003 has been dismissed. B , The facts have been set out in the impugned judgment and hence we are not repeating the same here except wherever necessary. The dispute in this appeal is about the inter se seniority C on the post of Block Development Officer between the general category candidates {the respondent Nos.1 to 5 herein) and the Scheduled Caste/Scheduled Tribe candidates {the appellants herein). D The rule relevant for this purpose is Rule 27{c) of the Kerala State and Subordinate Services Rules, 1959 {for short 'the Rules'), which states: · E F "27{c) Notwithstanding anything contained in clauses {a) and {b) above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list.• A perusal of the above rule shows that seniority is to be G determined by the date of first effective advice made by the Public Service Commission to the State Government for appointment. Admittedly, in the present case, the first effective advice for the appellants was made by the Kerala Public Service H B.PREMANAND & ORS. v. MOHAN KOIKAL & ORS. 937 Commission on 8.7.1992, and they joined between 13.8.1992 A and 22.10.1992 whereas the advice for the respondent Nos. 1 to 5 was made on 6.4.1993, and they were appointed as B.D.O. On 28.9,1993 and they joined between 6.10. 1993 and 17.11.1993. Hence, it is obvious from Rule 27(c) of the Rules that the appellants are senior to the private respondents. B However, both the learned Single Judge and Full Bench have held in favour of the respondents. We have carefully perused the judgments of the Full Bench and the learned Single Judge, and we regret we cannot agree C with them. The Full Bench and Single Judge have relied on equity, justice and good conscience, rather than law. We are of the · opinion that this approach is incorrect. When there is a conflict betwe!3n law and equity, it is the law which is to prevail. Equity D can only supplement the lawwhen there is a gap in it, but it cannot supplant the law. In the present case, .Rule 27(c) clearly makes the appellants senior to the respondents as the advice for their E appointments were made prior to. that for the respondents. Mr. V.Shekhar, learned senior counsel, appearing for the private respondents, however, submitted that due to certain obstructions for which the private respondents are not to be · blamed, their first effective advice was sent later. Mr. Shekhar F submitted that the rank list for the respondents was prepared after due selection on 25.11.1987, but the advice was not sent by the Public Service Commission till 1993 because of a letter dated 30.11.1988 issued by the Chief Secretary, Kerala Government directing the Commissioner of Rural Development G to start applying the ratio in respect of cadre strength instead of the practice being followed. Since the respondents' rank list was expiring on 24.11.1990, they apprehended that they would not get appointment, and hence they filed writ petition No. 9161 ·of 1989 in the High Court. Ultimately, the writ petition was H 938 SUPREME COURT REPORTS [2011] 3 S.C.R. A allowed and the order of the Chief Secretary set aside, but in the meantime, the State Government issued notification dated 5.12.1989 ir.viting applications from SC/ ST candidates for appointment as B.D.Os. under the special recruitment as per Rule 17A of the Rules. The rank list with regard to these SC/ B ST candidates was published on 20.6.1992, and hence they were appointed before the candidates whose rank list was published in 1987 (the respondents herein). However, under Rule 27(c) what has to be seen for determining seniority is not the date when the rank list was published but the date when c the advice was sent. Mr. Shekhar has relied on the decision of this Court in Dali/ah Sojah vs. State of Kera/a & Others, (1998) 9 SCC 641. That decision, in our opinion, is clearly distinguishable as it makes no reference to Rule 27(c) of the Rules. Moreover, the D observation therein that "when two vacancies arose on 6.10. 72 the appellant had a right to be appointed against one of the vacancies" is clearly against the settled legal position that even a selected candidate has no indefeasible right to be appointed vide Constitution Bench decision in Shankarsan Dash vs. E Union of India, AIR 1991 SC 1612, and several decisions thereafter. In our opinion, Rule 27(c) of the Rules is plain and clear. Hence, the literal rule of interpretation will apply to it. No doubt, F equity may be in favour of the respondents because they were selected earlier, but as observed earlier, if there is a conflict between equity and the law, it is the law which must prevail. The law, which is contained in Rule 27(c), is clearly in favour of the appellants. Hence, we cannot accept the submission of the learned senior counsel for the private respondents. The language of Rule 27(c) of the Rules is clear and hence we have to follow that language. G H B.PREMANAND & ORS. v. MOHAN KOIKAL & ORS. 939 In Ml$. Hirata/ Ratanlal vs. STO, AIR 1973 SC 1034, this A Court observed: "In construing a statutory provision the first and foremost rule of construction is the literaly construction. All that the Court has to see at the very outset is what does the 8 . provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear." c (emphasis supplied) It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other D rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, E recourse cannot be had to the principles of interpretation other than the literal rule, v:.:le Swedish Match AB vs. Securities and Exchange Board, India, AIR 2004 SC 4219. As held in · Prakash Nath Khanna vs. C.I. T. 2004 (9) SCC 686, .the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made F no mistake. The presumption is that it intended to say what it has said. Assuming there is· a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, vide Delhi Financial Corporation vs. Rajiv Anand 2004 (11) SCC 625. Where the legislative intent is clear G from the language, the Court should give effect to it, vide Government of Andhra Pradesh vs. Road Rollers Owners Welfare Association 2004(6) SCC 210, and the Court should not seek to amend the law in the garb of interpretation. H 940 SUPREME COURT REPORTS [2011) 3 S.C.R. A As stated by Justice Frankfurter of the U.S. Supreme Court (see 'Of Law & Men : Papers and Addresses of Felix Frankfurter') : B c D E F "Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction." As observed by Lord Granworth in Grundy v. Pinniger, (1852) 1 LJ Ch 405: " 'To adhere as closely as possible to the literal meaning of the words used, is a cardinal rule from which if we depart we launch into a sea of difficulties which it is not easy to fathom." In other words, once we depart from the literal rule, then G any number of interpretations can be put to a statutory provision, each Judge having a free play to put his own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is not for the Judge to legislate as that is the task of the elected representatives of H the people. Even if the literal interpretation results in hardship

8.PREMANAND & ORS. v. MOHAN KOIKAL & ORS. 941 · or inconvenience, it has to be followed (see G.P. Singh's A Principles of Statutory Interpretations, 9th Edn. pp 45-49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there·should be judicial restraint in this connection. As the Privy Council observed (per Viscount Simonds, 8 LC.): . "Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, C which may follow from giving effect to the language used."(see Emperor v. Benoari/al Sarma, AIR 1945 PC 48, pg. 53). As observed by this Court in CIT vs. Keshab Chandra 0 Manda/, AIR 1950 SC 265: . "Hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute". E Where the words are unequivocal, there is no scope for importing any rule of interpretation vide Pandian Chemicals Ltd. vs. c.1. r. 2003(5) sec 590. It is only where the provisions of a statute are ambiguous F that the Court can depart from a literal or strict construction vide Narsiruddin vs. Sita Ram Agarwal AIR 2003 SC 1543. Where the words of a statute are plain and unambiguous effect must be given to them vide Bhaiji vs. Sub-Divisional Officer, Thandf;. 2003(1) sec 692. G No dow. .. t in some exceptional cases departure can be made from the ln~ral rule of the interpretation, e.g. by adopting a purposive construction, Heydon's mischief rule, etc. but that should only be done in very exceptional cases. Ordinarily, it is not proper for the Court to depart from tti"' literal rule as that H .. ~ 942 SUPREME COURT REPORTS [2011) 3 S.C.R. A w<>uld really be amending the law in the garb of interpretation, which is not permissible vide J.P. Bansal vs. State of Rajasthan & Anr. AIR 2003 SC 1405, State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349 etc .. It is for the legislature to amend the law and not the Court vide State of 8 Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349. In Jinia Keotin vs. K.S. Manjhi, 2003 (1) SCC 730, this Court observed: c 0 E " The Court cannot legislate ..... under the garb of interpretation ....... ". Hence, there should be judicial restraint in this connection, and the temptation to do judicial legislation should be e~.;hewed by the Courts. !n fact, judicial legislation is an oxymoron. In Shiv Shakti Co-operative Housing Society vs. Swaraj Developers AIR 2003 SC 2434, this Court observed: "It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent." Where the language is clear, the intention of the legislature F