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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

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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

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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

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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.

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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

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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

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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'.

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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.

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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

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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,

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( 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/-.