1997 Supreme(SC) 1294

1997(9) Supreme 166
SUPREME COURT OF INDIA
(From CAT, New Delhi)
G.N. Ray and G.B. Pattanaik, JJ.
Union of India -Appellant
versus
B.S. Agarwal and Anr. etc. -Respondents
Civil Appeal No. 6713 of 1997
(Arising out of SLP (C) No. 25014 of 1996)
With
Civil Appeal No. 6714 of 1997
(Arising out of SLP (C) No. 24361 of 1996)
With
Civil Appeal No. 6715 of 1997
(Arising out of SLP (C) No. 9068 of 1997)
Decided on 29.9.1997
Counsel for the Parties :
For the Appellant : T.R. Andhyarujuna, Solicitor General, Rajiv Dutta, Vipin Nair, S. Birla, Arvind Kumar Sharma, Advocates.
For the Respondents in C.A. Nos. 6713/97 & 6714/97 : Mrs. Shyamala Pappu, Sr. Advocate, M.R. Krishnamurthi, Pramod Sharma, J.D. Jain, Rajesh, B.S. Mainee, Advocates.
For the Respondents in C.A. No. 6715 & Intervenor in C.A. No. 6713/97 : D.N. Diwivedi, Sr. Advocate, Naresh Kaushik, Shankar Divate, L.C. Pandey, Mrs. Lalitha Kaushik, Advocates.

Headnote:(i) SERVICE LAW - Railways -Resolution No. E(O) III-84/PM6/136 dated 16.7.1986 as amended vide Resolutions dated 30.1.1987 and 26.2.1988-Para 7.3-Interpretation of-Scheme for making appointments to posts of General Managers-Guidelines for selection of officers from various railway services-Para 7.3 refers to residual service of at least two years on higher post of General manager-Determination of residuary length of service-Para 7.3 of the Scheme must be given fair and reasonable interpretation with reference to a fixed point of time-It must be held to be referable to date of accrual of vacancy to ensure fairness and transparency-Intended purpose of reasonable length of service in post of General Manager and equivalent should not be defeated by delaying actual appointment for long.

       Held that in para 7.3 the residual service for at least two years has been indicated in contradistinction to the language appearing in the matter of appointment as Member, Railway Board, but in our view, such expression of residual service for at least two years as contained in para 7.3 does not stand in the way of giving a fair and reasonable interpretation. In our view, para 7.3 must be held to be referable to the date of accrual of vacancy in order to ensure fairness and transparency in the matter of appointment as General Manager or equivalent. The date of accrual of vacancy is a fixed one and even if any manipulation is made about the date of accrual of vacancy, the actual date of accrual of vacancy can always be ascertained by a closer scrutiny. We, therefore, do not find any merit in the contention that accrual of vacancy is not a certain event and be easily subjected to manipulation. In our considered view, determination of residuary length of service with reference to accrual of vacancy will not be consistent with the language of para 7.3 but such interpretation will also not frustrate the purpose for which residuary length of service is intended in para 7.3 of the Scheme. The court should lean in favour of such interpretation of a statute which conforms justice and fair paly and prevents potentiality to injustice by liberally construing the provision without intrinsically violating the language of the statute and the purpose intended to be achieved. We may indicate here that although the residual tenure is referable to the date of accrual of vacancy, the intended purpose of reasonable length of service in the post of General Manager and equivalent should not be permitted to be defeated by delaying the actual appointment from the date of accrual of vacancy for long. It will only be proper if the concerned authorities remain alive to the urgency in taking prompt action in making actual appointment, so that such appointment is made at least within three months from the date of accrual of vacancy. (Para 15)

       Further held that in all these appeals, no appointment has been made to any empanelled officer whose residual tenure was less than two years from the date of accrual of vacancy. Sri B.S. Agarwal and Shri Kamal Raj were included in 1994-95 panel of the eligible officers for appointment to the posts of General Managers and equivalent. The officers who had two years of service from the date of accrual of vacancy had been appointed because Shri Agarwal and Shri Kamal Raj had not such residual service with reference to the date of accrual of vacancy. Therefore, the question of ignoring a senior officer by relaxing the requirement of para 7.3 of the Scheme in favour of some of junior officers did not arise. So far as Shri S.A.A. Zaidi is concerned, he was included in the panel of eligible officers for 1995-96. Out of the said panel, 17 appointments to the posts of General Manager and equivalent were made. Shri Zaidi was not appointed because he had not two years of residual service from the date of accrual of vacancy falling in his turn. Therefore, the question of any hostile discrimination against Shri Zaidi did not arise in the facts of the case. (Para 16)

       (ii) SERVICE LAW-Appointment and promotion-Guarantee enshrined under Articles 14 and 16 of Constitution cannot be violated-Panel of eligible officers-Each of such empanelled officers must be held to have been found suitable for appointment of such post. (Para 10)