High Court of Punjab and HaryanaCWP/19409/2020dismissed

Shelly Vadhera And Others v. National Institute Of Technology Kurukshetra And Another

2023-09-22Mr. Justice Jagmohan Bansal18 pages

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% / D % : " " / '/ * $& F. No. Misc-14017/15/2015-Estt.(RR) Government of India Ministry of Personnel, P.G. & Pensions Department of Personnel & Training North Block, New Delhi *** Dated: 11.01.2016 OFFICE MEMORANDUM Subject:

Instructions regarding time limit for holding examinations/interviews from the date of advertisement for the post under direct recruitmentreg. The undersigned is directed to refer to the subject and to

say that it has come to notice of this Department that there are instances of a long time lag between the date of advertisement for the vacancy and date of examination or interview. This delay may deny the opportunity to fresh candidates who become eligible during that period, while creating an atmosphere of uncertainty to candidates who have applied.

All Ministries/Departments are, therefore, requested that while initiating the recruitment process to fill vacant posts (s) by the method of direct recruitment in their Ministries/Departments, it may be ensured that the entire recruitment process including and starting from advertisement, conducting written examination or holding of interview may be completed within six months. 3.

The administrative Ministries/Departments may issue similar instructions to autonomous bodies/ PSUs/ statutory bodies under their administrative control. / ; !

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"); ! Minute of the 39th meeting of the Board of Governors, National Institute of Technology, Kurukshetra, held on 5th April, 2016 at 11:00 a.m. in the Committee Room (new Building), Shri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeetha, Qutub International Area, New Delhi110016. "39.9 To consider the DoPT Office Memorandum dated 11.01.2016 regarding time limit for holding examinations/interviews from the date of advertisement for the post under direct recruitment.

The Board considered the DoPT Office Memorandum F. No.Misc-1407/15/2015-Estt.(RR) dated 11.01.2016 regarding time limit for holding examinations/interviews from the date of advertisement for the post under direct recruitment.

After the detailed discussion on the matter, the Board

decided that the above DoPT Memorandum be made applicable prospectively and the Institute be allowed to conduct recruitment process for the already advertised faculty and non-faculty posts prior to the date of DoPT Office Memorandum F.No.Misc-14017/15/2015-Estt.(RR) dated 11.01.2016."

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"23.

Keeping in view the various judgments referred to above, it needs to be examined whether the time limit of 14 years contemplated for the Officer to complete the quasi judicial proceedings can be said to be mandatory.

24.

Section 14-B (6) of the State Act contemplates for release of the goods and vehicle within 72 hours. The said provision has been enacted so as not to hinder the movement of the goods and the vehicle even if there is allegation of evasion of tax. Once there is a provision for release of the goods and the vehicle, the conclusion of enquiry proceedings within 15 days is to impose a duty on the enquiry officer to complete the proceedings expeditiously but it does not follow that any departure from it shall taint the proceedings with fatal blemish. The provision is more by way of procedure to achieve the object of speedy disposal of such disputes. It is an expression of desirability in strong terms. But it falls short of creating any kind of substantive right in favour of the petitioner so as resulting into adjudicating proceedings pertaining to evasion of tax as abated.

25.

The provisions of Section 14-B have been enacted for avoiding evasion of tax during the course of movement of goods from one State to another. For facility of movement, the provision of releasing of the goods and the vehicle ensures the release of the goods and the vehicle within 72 hours but the adjudication process of evasion of tax is dependent upon number of factors including cooperation of consignor or consignee, as the case may be. The principles of natural justice are also required to be complied with. The officer entrusted with the duty of adjudication may have certain limitations to decide such cases of evasion of tax within 14 days either on account of large number of cases or otherwise. Keeping in view the tests laid down in P.T. Rajan's (supra) and number of judgments referred above, the adjudication process is a public duty cast on a public officer for a public good. The purpose is to check evasion of tax. Failure to complete the adjudication process within 14 days will only give premium to the action of the tax evader.

26.

Therefore, we are of the opinion that the provisions of Section 14-B (7) (ii) and (iii) of the State Act are directory in nature and consequently failure to decide such

proceedings within the time prescribed will not result into abatement of proceedings."

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& $& "117. In Principles of Statutory Interpretation, 12th Edn., 2010, Justice G.P. Singh, at pp. 389-92 states as follows: "... As approved by the Supreme Court:

'The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.' 'For ascertaining the real intention of the legislature', points out Subbarao, J.

, 'the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the noncompliance with the provisions; the fact that the noncompliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered'.

If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas

if by holding it mandatory, serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. But all this does not mean that the language used is to be ignored but only that the prima facie inference of the intention of the legislature arising from the words used may be displaced by considering the nature of the enactment, its design and the consequences flowing from alternative constructions. Thus, the use of the words 'as nearly as may be' in contrast to the words 'at least' will prima facie indicate a directory requirement, negative words a mandatory requirement, 'may' a directory requirement and 'shall' a mandatory requirement."

118. Maxwell, in Chapter 13 of his 12th Edn. of The Interpretation of Statutes, used the word "imperative" as synonymous with "mandatory" and drew a distinction between imperative and directory enactments, at pp. 31415, as follows: "Passing from the interpretation of the language of statutes, it remains to consider what intentions are to be attributed to the legislature on questions necessarily arising out of its enactments and on which it has remained silent.

The first such question is: when a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of noncompliance, is the requirement to be regarded as imperative (or mandatory) or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it, and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment. 'An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or

fulfilled substantially'.

It is impossible to lay down any general rule for determining whether a provision is imperative or directory. 'No universal rule,' said Lord Campbell, L.C. 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.'

And Lord Penzance said:

'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.

119. In a recent judgment of this Court, May George v. Tahsildar (2010) 13 SCC 98, the Court stated the precepts, which can be summed up and usefully applied by this Court, as follows:

(a) While determining whether a provision is mandatory or directory, somewhat on similar lines as aforenoticed, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve;

(b) To find out the intent of the legislature, it may also be necessary to examine serious general inconveniences or injustices which may be caused to persons affected by the application of such provision;

(c) Whether the provisions are enabling the State to do some things and/or whether they prescribe the methodology or formalities for doing certain things;

(d) As a factor to determine legislative intent, the court may also consider, inter alia, the nature and design of the statute and the consequences which would flow from construing it, one way or the other;

(e) It is also permissible to examine the impact of other provisions in the same statute and the consequences of non-compliance with such provisions;

(f) Phraseology of the provisions is not by itself a determinative factor. The use of the word "shall" or "may", respectively would ordinarily indicate imperative or directory character, but not always. (g) The test to be applied is whether noncompliance with the provision would render the entire proceedings invalid or not.

(h) The court has to give due weightage to whether the interpretation intended to be given by the court would further the purpose of law or if this purpose could be defeated by terming it mandatory or otherwise.

120. Reference can be made to the following paragraphs of May George (2010) 13 SCC 98: (SCC pp. 103-05, paras 16-17 & 22-23) "16. In Dattatraya Moreshwar v. State of Bombay AIR 1952 SC 181 this Court observed that law which creates public duties is directory but if it confers private rights, it is mandatory. Relevant passage from this judgment is quoted below: (AIR p. 185, para 7) '7. ... It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the

same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.'

17. A Constitution Bench of this Court in State of U.P. v. Babu Ram Upadhya AIR 1961 SC 751 decided the issue observing: (AIR p. 765, para 29) '29. ... For ascertaining the real intention of the legislature the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the noncompliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.'

11 11

22. In B.S. Khurana v. MCD (2000) 7 SCC 679 this Court considered the provisions of the Delhi Municipal Corporation Act, 1957, particularly those dealing with transfer of immovable property owned by the Municipal Corporation. After considering the scheme of the Act for the purpose of transferring the property belonging to the Corporation, the Court held that the Commissioner could alienate the property only on obtaining the prior sanction of the Corporation and this condition was held to be mandatory for the reason that the effect of nonobservance of the statutory prescription would vitiate the transfer though no specific power had been conferred upon the Corporation to transfer the property.

23. In State of Haryana v. Raghubir Dayal (1995) 1 SCC 133 this Court has observed as under: (SCC pp. 135-36, para 5) '5. The use of the word "shall" is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand. Normally, the word "shall" prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word "shall", therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve.

The meaning has to be ascribed to the word "shall" as mandatory or as directory, accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory.'

111 111

129. Statutes which encroach upon rights, whether as regards person or property, are subject to strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights and if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted. (See Maxwell on The Interpretation of Statutes, 12th Edn. by P. St. J. Langan.)

xx xx xx

131. If I analyse the above principles and the various judgments of this Court, it is clear that it may not be possible to lay down any straitjacket formula, which could unanimously be applied to all cases, irrespective of considering the facts, legislation in question, object of such legislation, intendment of the legislature and substance of the enactment. In my view, it will always depend upon all these factors as stated by me above. Still, these precepts are not exhaustive and are merely indicative. There could be cases where the word "shall" has been used to indicate the legislative intent that the provisions should be mandatory, but when examined in light of the scheme of the Act, language of the provisions, legislative intendment and the objects sought to be achieved, such an interpretation may defeat the very purpose of the Act and, thus, such interpretation may not be acceptable in law and in public interest."

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" $& "While issuing notice of motion, specific notice regarding stay was also issued. Notwithstanding, neither any return has been filed nor anything otherwise has been placed on record to controvert the averments qua interim relief sought by the petitioner.

In the premise, respondents are directed not to finalize the selection to the posts advertised vide impugned advertisement No.29/2019 (Annexure P-9). It is, however, made clear that the respondents shall be at liberty to proceed with the selection process."

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