Samiran Das vs State of Assam and Others

R.S. Mongia, C.J.—The core question that calls for our answer is as to whether under the Assam Factories Rules, 1990 as amended by notification dated 7th October, 1996, the post of Chemical Inspector of Factories was amalgamated in the post of Inspector of Factories, or it came to form a separate cadre in itself? The aforesaid question arises in the following facts and circumstances.

Nine writ Petitioners, out of whom only one is the Appellant, were appointed as Inspector of Factories between November 1986 to 1992, by direct recruitment. Their service conditions are governed by the Rules, known as Assam Factories Rules, 1990 (hereinafter referred to as ''the Rules''). Prior to the notification dated 7.10.1996, as per Rule 3 of the Rules, the service consisted of the following four categories:

(1) Chief Inspector of Factories,

(2) Joint Chief Inspector of Factories,

(3) Senior Inspector of Factories, and

(4) Inspector of Factories.

It may be observed herein that under Rule 3 of the Rules, the Governor is empowered to determine the number of posts of each category of service and such other posts as may be found necessary from time to time.

It is apparent from the reading of Rule 3 that at the time of commencement of these Rules, the post of Chemical Inspector of Factories was not a part and parcel of the service under the Rules. Respondent, Shri Shyam Purkayastha was appointed as Chemical Inspector of Factories on 21.11.86. As observed above, this post was not a part of the service and was, rather, an ex-cadre post. It may be further observed that this post was a single isolated ex-cadre post. By a notification issued on 7th July, 1993, by deeming definition, the post of Chemical Inspector of Factories was sought to be included in the post of Inspector of Factories. The notification dated 7th July, 1993 reads as under:

No. GIR25/81/139: In accordance with provision of Schedule-II of the Assam Factory Service Rules, 1990, and pending amendment to the A.P.S.C., 1990 to the extent necessary, the Governor of Assam is pleased to define that the Inspector of Factories means and includes Chemical Inspector of Factories under the Inspectorate of Factories, Assam.

Vide notification dated 7th October, 1996, the 1990 Rules were amended. The amendment to the rules may be noticed hereunder:

No. GIR (RC 25/81/162: In exercise of the powers conferred by the proviso to Articles 309 of the Constitution of India the Governor of Assume is hereby pleased to make the following Rules further to amend the Assam Factories Rules, 1990 hereinafter referred to as the principal rules, namely:-Short title and commencement -1.1. These rules may be called the Assam Factories Service (Amendment) Rules, 1996. 2. They shall come into force on the date of their publication in the Official Gazette.

Amendment of Rule -3 - 2. In the principal rules, in Rule 3, after Clause (IV) the following shall be inserted as Clause (V) namely: "(V) Chemical Inspector of Factories".

Amendment of Rule-5 - 3. In the Principal rules, in Rule 5, in Clause (i) after the words, ''Inspector of Factories the following shall be inserted, namely:-"and Chemical Inspector of Factories".

Amendment of Rule-6 - 4. In the principal rules, in Rule 6, in Sub-rule (i) in the first paragraph after the words, "Inspector of Factories", the words "and Chemical Inspector of Factories," shall be inserted. Amendment of Rule-7 - 5. In the principal rules, in Rule 7, after the words "Inspector of Factories", the words "and Chemical Inspector of Factories," shall be inserted. Amendment of Rule-10 - 6. In the principal rules, in Rule 10, after the words, "Inspector of Factories", the words "Inspector of Factories" the words, or Chemical Inspector of Factories," shall be inserted. Amendment of Rule-11 - 7. In the principal rules, in

i. Rule 11, in Sub-rule (2) in Clause (c) after the words, "Inspector of Factories", the words or Chemical Inspector of Factories," shall be inserted.

ii in Sub-rule (3) in Clause (c) after the words, "Inspector of Factories" the words "or Chemical Inspector of Factories" shall be inserted.

Substitution of Schedule 8 - In the principal rules for the existing Schedule I, the following schedules shall be substituted, namely:

Schedule-I

Strength of each cadre of the Service

(Rules 4 and 23)

No. of posts ------------------------------------------------------------------ Categories Time scale of pay Perma- Temp- Total of post rent orary ------------------------------------------------------------------- 1. Chief 3375-100-3575- 4 - 1 Inspector 125-4325-EB-125- of Factories 4450-150-5200

Joint Chief 2975-100-3575- 2 1 3 Inspector of 125-3825-EB-125- Factories 4450-150-4750

Senior 2555-80-2875- - 4 4 Inspector of 100-3275-EB-100- Factories 3575-125-4550- 150-4600

Inspector of 1835-50-2035-60- 8 13 21 Factories 2935-80-2555-EB- induding 80-2875-100-3575- Chemical 125-4325 Inspector of Factories.

The Appellant with eight other writ Petitioners challenged the validity of the notification dated 7th October, 1996, amending the Rules of 1990. The grievance was that the Chemical Inspector of Factories, if at all, could be encadered in the ''service'' constituted under 1990 Rules and they would be deemed to be member of the ''service'' from 7th October, 1996 for all purposes, including seniority, experience etc. The apprehension was that the Respondent No. 4 who had joined as Chemical Inspector of Factories prior to the Appellant and other writ Petitioners, would be made senior to them for the purposes of next promotion. Though at the time when the writ petition was filed no seniority as such had been framed, but during the pendency of the writ petition and the appeal, in fact, the Respondent No. 4 had been promoted to the next higher rank of Senior Inspector of Factories prior to the Appellant and other writ Petitioners. In other words, the Respondent No. 4 was treated as senior to the Appellant and other writ Petitioners in the rank of Inspector of Factories. The learned Single Judge held the amendment to the Rules to be valid as, according to him, it was a piece of legislation under Article 309 of the Constitution of India and there was no infirmity in including the post of Chemical Inspector of Factories in the ''service'' under 1990 Rules.

The learned Counsel appearing for the Appellant argued that assuming for the sake of argument the amendment to the rules brought about on 7th October, 1996 is valid, the same being prospective in nature, all benefits to the Chemical Inspector of Factories would flow from 7.10.96. The learned Counsel argued that it was for the first time on 7.10.96 that the Chemical Inspector of Factories was brought in the service as a separate category No. V in the Rule.

There were four categories on the date which already existed, which have been mentioned above. The fifth category was brought in the Rules only 7.10.1996. Rule 20 of the Rules dealing with seniority does not envisage any intermingled or joint seniority of Category No. IV and Category No. V. After amendment, five categories are supposed to have separate seniority categorywise. Rule 20 of the Rules is in the following terms:

Seniority. (1) The seniority of a member in a cadre appointed by direct recruitment or by promotion shall be determined according to the order of preference in the respective list recommended by the Commission/Board under Rule 6 and Rule 12 and also in the respective list finally approved by the Appointing Authority under Sub-rule (6)(b) of Rule 12 if he joins the appointment within 15 days from the date of receipt of the order or within extended period as mentioned in Rule 17.

(2) If a member fails to join the appointment within initial 15 days of receipt of the order or within the extended period, as mentioned in Rule 17, but joins later, seniority shall be determined in accordance with the date of joining.

(3) A member appointed by promotion in a year shall be senior to a member appointed by direct recruitment in the year.

It was further submitted that the Respondent No. 4 for the first time became a member of the service on 7.10.96 on the basis of amendment to the rules. It is from that day he should be allowed to count his service for the purpose of seniority and qualifying experience in the cadre for the purpose of next promotion, and not from the original date of his appointment as Chemical Inspector of Factories. By the amendment of 7.10.1996, in all the Rules, Chemical Inspector of Factories has been treated as a separate post other than Inspector of Factories.

On the other hand, the learned Counsel for the private Respondent and other Respondents, argued that the amendment to the Rules have not been happily worded. In fact, the post of Chemical Inspector of Factories was sought or intended to be amalgamated or merged with the post of Inspector of Factories and, in fact, the post of Chemical Inspector of Factories was intended to be included in Category No. IV itself. According to the learned Counsel, the intention of the amendment could be gathered from the notification issued by the Governor dated 7th July, 1993 (supra), whereby, by deeming definition, the post of "Chemical Inspector of Factories" was sought to be made a part and parcel and included in the post of "Inspector of Factories'' Further, the learned Counsel drew our attention to Schedule I, amended by the Amendment Rules of 1996. Schedule-I gives the strength of posts of each cadre. The same has already been reproduced in the earlier part of the judgment. While giving the strength of Inspector of Factories and Chemical Inspector of Factories, it has been mentioned as under:

No. of posts ------------------------------------------------------------------ Categories Time scale of pay Perma- Temp- Total of post nent orary ------------------------------------------------------------------ 4. Inspector of 1835-50-2035-60- 8 13 21 Factories 2935-80-2555-EB- induding 80-2875-100-3575- Chemical 125-4325 Inspector of Factories.

It was argued that the post of Inspector of Factories and the post of Chemical Inspector of Factories have been clubbed without indicating as to how many posts are there of the Inspector of Factories or of Chemical Inspector of Factories. In other words, according to the learned Counsel, both the posts of Inspector of Factories and Chemical Inspector of Factories, for all purposes under the Rules, would be considered as one and the same.

We have heard the learned Counsel for the parties. We are of the view that if the Rules, after the amendments, are to be read in the manner suggested by Mr. A. Roy, learned Counsel for the Appellant, then the appeal must succeed. There is no doubt that reading the amendments to Rules, 3, 5, 6, 7, 10 and 11 of the Rules, which suggested that "Chemical Inspector of Factories" was being inserted as a separate category distinct from "Inspector of Factories". In each of the aforesaid Rules, the words "Chemical Inspector of Factories" were added after the words "Inspector of Factories". In Rule 3, a separate category (V) of "Chemical Inspector of Factories" was added to the already existing four categories, one of them being "Inspector of Factories", category (IV). There is further no indication in the amendment of the Rules that there would be a joint seniority of "Inspector of Factories" (category (IV) in Rule 3) and "Chemical Inspector of Factories" (category (V) in Rule 3).

However, we are of the view that by reading of the Rules as above, violence would be done to the intention and object of the amendment which was brought about in 1996. The intention was to encadre the isolated post of "Chemical Inspector of Factories" in the Rules and merge the same with the post of "Inspector of Factories". The post of "Chemical Inspector of Factories", which was a single isolated post, had no further avenues of promotion. The intention of the rule-making authority which brought about the amendment, can be gathered from the notification of the Governor, dated 7.7.93 (supra), which indicates that by deeming definition, the Chemical Inspector of Factories was being included in the category of Inspector of Factories. The further indication that the post of Inspector of Factories and Chemical Inspector of Factories was to be considered under one and the same category is clear from the amendment of the Schedule I, as amended, which gives the strength of the posts of different cadres. Thus shows that Inspector of Factories includes the Chemical Inspector of Factories. No separate strength has been given for Inspector of Factories or Chemical Inspector of Factories, rather, a combined strength has been given. In fact, the amendment was to bring about the aforesaid intention. If for some reason the drafter of the amendment had not been able to bring about the intention, should this Court sit with folded hands and show its helplessness? To our mind, the intention of the rule-making authority was very clear, but it could not put the same in black and white and in letter and spirit. It will be opposite to quote Lord Denning, L.J. (as he then was) in Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155:

(W)hen a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament.... and then he must supplement the written word so as to give "force and life" to the intention of the legislature... A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.

The aforesaid rule of construction has been quoted with approval by the Apex Court in various judgments, like, in M. Pentiah and Others Vs. Muddala Veeramallappa and Others, , Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, , Hameedia Hardware Stores, represented by its partner S. Peer Mohammed Vs. B. Mohan Lal Sowcar, , and Madan Singh Shekhawat Vs. Union of India and Others, Applying the aforesaid principle, we interpret the Rules to mean that the post of "Chemical Inspector of Factories", by the amendment to the Rules, was made a part and parcel of the "Inspector of Factories", and the seniority of the "Chemical Inspector of Factories" would be counted from their date of appointment as such and not from the date they were made part and parcel of the 1990 Rules, vide notification dated 7.10.96. If we do not hold it like that, it will be doing violence to the Rules and the very object and intention of amending the Rules in 1996 would be frustrated.

For the foregoing reasons, we do not find any merit in this appeal. We uphold the judgment of the learned single Judge, though on different grounds, and dismiss the appeal.