IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 8315 of 2008. Reserved on: 05.05.2011. Decided on: 13.05.2011. _________________________________________________ Jai Dev Chauhan. … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Raghu Nandan Chaudhary, Advocate vice Mr. Vinod Thakur, Advocate. For the Respondents : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. Rajiv Sharma, Judge. Petitioner joined the Indian Army on 9th June, 1966. He was discharged on 30th June, 1990. He was appointed against the post reserved for Ex-serviceman as J.B.T. Teacher and he joined as such on 30th September, 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 1993. He gave his option to provide him the benefit under the Demobilized Armed Forces Personnel (Reservation of Vacancies in H.P. State Non-Technical Service) Rules, 1972 (hereinafter referred to as “the Rules” for convenience sake) towards pay fixation and seniority. Same was granted to the petitioner towards pay fixation and seniority. He was given the benefit of approved military service of 21 years and 21 days and the deemed date of appointment as J.B.T. Teacher was 9th September, 1969. The State Government has taken a decision on Punjab pattern to grant higher pay scale to the J.B.T. Teachers who had acquired higher qualification between 13th December, 1958 to 27th September, 1979 vide Annexure A-6, dated 29th November, 1991. Petitioner made a representation seeking higher pay scale on the basis of improved educational qualification between 1958 to 1979, on 9th January, 1997. He sent reminder dated 4th June, 1997. Case of the petitioner was rejected on 29th July, 1997 vide Annexure A-9. 2. Mr. Raghu Nandan Chaudhary, Advocate appearing vice Mr. Vinod Thakur, learned counsel for the petitioner has vehemently argued that the petitioner was entitled to get the higher pay scale on the basis of improved educational qualification between 1958 to 1979. He then contended that the decision dated 29th July, 1997 was illegal, - 3 - arbitrary thus violative of Articles 14 and 16 of the Constitution of India. 4. Mr. Vikas Rathore, learned Deputy Advocate General has supported the rejection of the case of petition on 29th July, 1997. According to him, petitioner was required to acquire higher educational qualification upto 27th September, 1979. 5. I have heard the learned counsel for the parties and gone through the pleadings. 6. It is not in dispute that the petitioner is an Ex- serviceman and he has been appointed as J.B.T. Teacher against the post reserved for Ex-serviceman. He has been given the benefit of Demobilized Armed Forces Personnel (Reservation of Vacancies in H.P. State Non-Technical Service) Rules, 1972 by counting his approved military service with effect from 9th September, 1969. He has been given the benefit of approved military service of 21 years and 21 days. His pay has also been re-fixed under Rule 5 of the Demobilized Armed Forces Personnel (Reservation of Vacancies in H.P. State Non-Technical Service) Rules, 1972. Petitioner has improved his educational qualification while he was in Army by passing B.A. Examination in 1967 from Punjab University, M.A. from Agra University in the year 1980 and B.Ed. from University of Jammu in the year 1984. - 4 - 7. The petitioner has been given the benefit of approved military service with effect from 9th September, 1969 by creating a legal fiction as if the petitioner had joined as J.B.T. Teacher with effect from 9th September, 1969, though he has joined as J.B.T. Teacher on 30th September, 1993. This benefit has been given on the basis of Rule 5 of the Demobilized Armed Forces Personnel (Reservation of Vacancies in H.P. State Non-Technical Service) Rules, 1972. Petitioner’s deemed date of appointment being 9th September, 1969, he will be deemed to have acquired the higher educational qualification to entitle him to be placed in higher pay scale between 13th December, 1958 to 27th September, 1979. In view of this, the petitioner was entitled as per Annexure A-6, dated 29th November, 1991 to be placed in higher pay scale of ` 1640-2925. 8. Their Lordships of Apex Court in State of Bombay v. Pandurang Vinayak and others, AIR 1953 SC 244 have explained the deeming provisions as under (para 5):- “The order of acquittal was based on the ground that although the notification extended the scope of the ordinance to areas other than those which were mentioned specifically in the schedule thereto, it did not extend to those areas the provisions of the Act in spite of the application of the provisions of S.25, Bombay General Clauses Act. In our judgment, the construction placed by the High Court on the language of S.15 is erroneous and - 5 - full effect has not been given to its provision or to the provisions of S.25 of the Bombay General Clauses Act. We think on a true construction of S. 15 of the Act and S.25 of the Bombay General Clauses Act, the notification issued on 15-1-1948 under the ordinance continued in force under Act 31 of 1948 and that by it the provisions of the Act stood extended to other areas in the State to the extent indicated in the notification . Section 25, Bombay General Clauses Act, 1904, provides : "Where any enactment is after the commencement of this Act, repealed and re-enacted by a Bombay Act, with or without modification then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, bye-law or form made or issued under the repealed enactment shall, so far as it is not inconsistent with the Provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superseded by any appointment, notification; order, scheme, rule, by-law or form made or issued under the provisions so re-enacted." It cannot be contended that the notification was inconsistent with the provisions of Act 31 of 1948. It is clearly in accordance with its scheme and purpose. The High Court did not combat the proposition that in view of the provisions of S.25, Bombay General Clauses Act, the notification continued in force after the coming into force of the Act. It, however, held that even if the notification was taken as having been issued under Act 31 of 1948, the notification merely extended the ordinance to these areas and not the Act. In the opinion of the High Court, the word "Act" instead of "Ordinance" - 6 - could not be read in the words of the notification by the force of S.25, Bombay General Clauses Act. And the notification literally construed, only extended the ordinance to those areas. It was considered that if the intention was to extend the Act to these areas, such as intention could only be carried out by enacting in Act 31 of 1948 a proviso like the one enacted in the Cotton Cloth and Yarn (Control) Order, 1945 or by use of language similar to the one used in S.9, Bombay General Clauses Act, 1904. The proviso in the Cotton Cloth and Yarn (Control) Order is in these terms : ''Provided further any reference in any order issued under the Defence of India Rules or in any notification issued thereunder to any provision of the Cotton Cloth and Yarn (Control) Order, 1943, shall, unless a different intention appears be construed as reference to the corresponding provision of this order." We do not find it possible to support this line of reasoning. It appears to us that the attention of the learned Judges was not pointedly drawn to the concluding words of S.15(1) of the Act. It is specifically provided therein that the provisions of Ss.7 and 25, Bombay General Clauses Act shall apply to the repeal as if the ordinance were an enactment. The Ordinance by use of those words given the status of an enactment and therefore the word "ordinance" occurring in the notification has to be read accordingly and as extending the Act to those areas, and unless that is done, full effect cannot be given to the concluding words used in S.15 (1) of the Act. The concluding words of S.15 (1) of the Act achieve the purpose that was achieved in the Cotton Cloth and Yarn (Control) Order by the - 7 - "proviso." By reason of the deeming provisions of S.15, the language used in the notification extending the ordinance to those areas as a necessary consequence has the effect of extending the operation of the Act to those areas. When a statute enacts that something shall deemed to have been done, which in fact truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. [Vide Lord Justice James in Ex parte Walton; In re Levy, (1881, 17 Ch. D. 746 at P. 756 (A) ]. If the purpose of the statutory fiction mentioned in S. 15 is kept in view, then it follows that the purpose of that fiction would be completely defeated if the notification was construed in the literal manner in which it has been construed by the High Court. In East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) A.C. 109 (B), Lord Asquith while dealing with the provisions of the Town and Country. Planning Act, 1947 made reference to the same principle and observed as follows : "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. …….... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." The corollary thus of declaring the provisions of S.25, Bombay General Clauses Act, applicable to the - 8 - repeal of the ordinance and of deeming that ordinance an enactment is that wherever the word "ordinance" occurs in the notification, that word has to be read as an enactment.” 9. It is settled law by now that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate as per law laid down by their Lordships of Hon’ble Supreme Court in Commissioner of Income-tax, Delhi v. S. Teja Singh, AIR 1959 SC 352. Their Lordships have held as under (para 6):- “It is in the light of this distinction that the effect of the legal fiction enacted in S. 18A(9)(b) that when a person fails to send an estimate of tax on his income under S.18A(3) he shall be deemed to have failed to furnish return of his income, will have to be judged. The respondent contends that its effect is only to place the estimate to be sent under S.18A(3) on the same footing as the return under S. 22 for the purposes of S. 28, and that that does not abrogate the other conditions laid down in that section on which alone action could be taken thereunder and penalty imposed, and one of those conditions is the issue of notice under S. 22(1) or S. 22(2). But it must be noted that S.18A (9)(b) does not merely say that an estimate under S.18A(3) shall be deemed to be a return. It enacts that the failure to send an estimate in accordance with S.18A(3) is to be deemed to be a failure to make a return. Now, there can be no failure to make a return, unless notice had been issued under S. 22(1) or S. 22(2) and there has been a default in complying with that notice. Therefore, the fiction that the failure to send - 9 - an estimate is to be deemed to be a failure to send a return necessarily involves the fiction that notice had been issued under S. 22, and that had not been complied with. It is a rule of interpretation well settled that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate. The following oft-quoted observations of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council 1952 AC 109 at p.132 may appropriately be referred to : "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, it the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries at that state of affairs." The fiction under S. 18A(9)(b) therefore that failure to send an estimate under S.18A(3) is to be deemed to be a failure to send a return must mean that all those facts on which alone there could be a failure to send the return must be deemed to exist, and it must accordingly be taken that by reason of this fiction, the notices required to be given under S. 22 must be deemed to have been given, and in that view, S. 28 would apply on its own terms.” 10. Similarly, their Lordships of Hon’ble Supreme Court in American Home Products Corporation Versus Mac - 10 - Laboratories Pvt. Ltd. and another, (1986) 1 SCC 465 have held that the deeming provisions should be extended to the consequences and incidents which would inevitably follow if full effect is given to the deeming provision and it is carried to its logical conclusion. Their Lordships of Hon’ble Supreme Court have held as under (paras 56, 57 and 58):- “In a celebrated passage Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council said (at page 132): "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it." In the State of Bombay v. Pandurang Vinayak Chaphalkar this Court held (at page 778) while approving the above passage of Lord Asquith: "When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion." The purposes for which the said fiction has been enacted are set out in Section 48(2). These purposes are the purposes of Section 46 or for any other purpose for which such use is material under the 1958 Act or any other law. To confine the purpose only to a part of Section 46 would be to - 11 - substantially cut down the operation of the legal fiction. The purpose for which the legal fiction is to be resorted to is to deem the permitted use of a trade mark, which means the use of the trade mark by a registered user thereof, to be the use by the proprietor of that trade mark. Having regard to the purposes for which the fiction in Section 48(2) was created and the persons between whom it is to be resorted to, namely, the proprietor of the trade mark and the registered user thereof, and giving to such fiction its full effect and carrying it to its logical conclusion, no other interpretation can be placed upon the relevant portions of Section 18(1) and of Clause (a) of Section 46(1) than the one which we have given.” 11. Same principles have been reiterated by their Lordships of Hon’ble Supreme Court in Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others v. K. Devi and others, AIR 1996 SC 1963 as under (paras 78 and 79): “When an Act of Parliament or a State Legislature provides that something shall be deemed to exist or some status shall be deemed to have been acquired, which would not have been so acquired or in existence but for the enactment, the Court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operate, so that full effect may be given to the intention of the Legislature and the purpose may be carried to its logical conclusion. (See : M/s. J. K. Cotton Spg. and Wvg. Mills Ltd. v. Union of India, AIR 1988 SC 191 ; American Home Products Corporation v. Mac Laboratories (1986) 1 SCC 465 : AIR 1986 SC 137). - 12 - Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council. (1952) AC 109 B : (1951) 2 All ER 587, observed that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which inevitably have flowed from it – one must not permit his 'imagination to boggle' when it comes to the inevitable corollaries of that state of affairs. (See also : M. Venugopal v. Divisional Manager, LIC, (1994) 2 SCC 323 : (1994 AIR SCW 778). In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.” 12. Thus, on the basis of definitive law laid down by their Lordships of Hon’ble Supreme Court, the deemed date of appointment given to the petitioner with effect from 9th September, 1969 is to be taken to its logical end and the facts are to be assumed and consequences have to ensue by treating the petitioner to have been appointed as J.B.T. Teacher with effect from 9th September, 1969 for all intents and purposes including higher pay scale on the basis of acquiring higher educational qualification between 13th December, 1958 to 27th September, 1979. The letter dated 27th February, 1997 does not prohibit in any manner, as - 13 - argued by Mr. Vikas Rathore, learned Deputy Advocate General to give the benefit to the petitioner under notification issued on 29th November, 1991 vide Annexure A-6 since the deemed date of the petitioner will be 9th September, 1969 and he has improved his educational qualifications between 1958 to 1979. Moreover, the persons, who have already acquired the higher qualifications, cannot be put to disadvantage vis-à- vis those persons who are permitted to improve their qualifications after their appointment. The merit cannot be treated as de-merit. The persons, who acquire higher educational qualifications before and after their appointment, constitute a homogenous class for the purpose of grant of higher pay scale. 13. Accordingly, in view of the observations and discussion made hereinabove, the petition is allowed. Annexure A-9 dated 29th July, 1997 is quashed and set aside. Respondents are directed to grant the petitioner the pay scale of `1640-2925 with effect from 30th September, 1993 with interest at the rate of 7% per annum, within a period of eight weeks after the production of certified copy of this judgment. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. May 13, 2011. (sck).