Holding

The employee is not entitled to have his past service counted for pension because he failed to exercise the statutory option within the mandatory one‑year period and did not obtain the required consent of the previous employer.

Summary

Professor K.S. Misra worked at Benaras Hindu University (1960‑1979), then at the University of Yemen and Shillong University before joining Aligarh Muslim University (AMU) in 1987 and retiring in 1997. He sought to have his service at Benaras Hindu University counted for pension and other retiral benefits under AMU’s Statute 61(6). AMU denied the request; the Allahabad High Court allowed it, directing Misra to deposit his prior gratuity with interest. On appeal, the Supreme Court held that Statute 61(6)(iv) offers two mutually exclusive options – retain prior benefits (no past service counted) or deposit those benefits within one year of joining AMU to have past service counted. Misra neither exercised the option within the prescribed time nor obtained consent from his former employer, and his 28‑Jan‑1989 letter pertained only to a liberalised pension scheme, not to counting past service. The Court declared the one‑year deadline mandatory, not directory, and set aside the High Court order, dismissing Misra’s writ petition.

Issues considered

Whether an employee who has received retirement benefits from a previous employer is entitled to have that past service counted for pension under AMU Statute 61(6)(iv) without exercising the statutory option within one year.
Whether the one‑year time limit in Statute 61(6)(iv) is mandatory or merely directory.
Whether the letter dated 28‑Jan‑1989 constitutes an exercise of the option to count past service.
Whether Statute 61(6)(v) applies when there is no consent of the previous employer, i.e., when the employment is not a transfer.

Subjects

service lawpensionpast servicestatutory interpretationmandatory versus directory provisionuniversity statutesgratuityretirement benefits

Judgment

VISITOR AND ORS. A
v.
K.S.MISRA

SEPTEMBER 6, 2007

(G.P. MATHUR AND D.I(. JAIN, JJ.] B

Service Law:

Statute of Aligarh Muslim University-Statutes 61(6)(iv) and (v)-
Benefit of past service with another: employer-For grant of pensionary and C
other retiral benefits-To professor-Benefit denied by employer-University
since the employee had not applied through proper channel from the previous
employer-University-High Court permitting grant of such benefit subject to
refund of the retiral benefits from the previous employer-On appeal, held:
Employee is not entitled to the benefit of computation of past service for the D
purpose of retiral benefits-He had neither applied through proper channel,
nor had he gone for the option within prescribed time to take retiral benefits
on deposit of such benefits received from the previous employer-Compliance
of the dictate under the statute to opt for such benefit within prescribed time
was mandatory-Genera/ Rules and Regulation of the Council relating to
sanction for Payment of Pension and Gratuity-r. 6 A. E
Interpretation of Statutes-Brushing aside words in a statute as being
inapposite surplusage-Held: Is not a sound principle of Construction-
Courts always presume that legislature inserted every part thereof for a
purpose, legislative intent being that every part of statute should have effect. F
Respondent, after resigning from Benaras Hindu University in 1979,
joined University of Yemen. Working there for 7 years, he joined Shillong
University. After resigning from there, he joined Aligarh Muslim University
(AMU) on 14.04.1987. After his retirement, he requested for counting his
service in Benaras Hindu University for the purpose of payment of pension G
and other retiral benefits. The same was declined by AMU. He filed Writ
Petition. In rejoinder affidavit, respondent stated that he had exercised the
option regarding counting of his past service as required by the Statute of
AMU, by letter dated 28.01.1989. High Court, relying on the letter dated
28.01.1989, held that his services rendered in Benaras Hindu University shall
763 H
764 SUPREME COURT REPORTS [2007] 9 S.C.R

A be taken into consideration for the purpose of payment of pension and other
retiral benefits. The Court also directed the respondent to deposit the amount
of gratuity received from Benaras Hindu University with interest. Hence the
present appeal.

Allowing the appeal, the Court
B
HELD: 1. Statute 61(6) (iv) of Statute of Aligarh Muslim University
provides option that the employee will have to deposit with the University the
retirement or terminal benefits received from the previous employer along
with interest with the Aligarh Muslim University and this has to be done within
C one year of joining the University. If this option is not exercised within
prescribed time viz. one year, the employee shall be deemed to have opted for
the first option viz. For retention of the benefits already received by him and
in such a case the past service rendered by him shall not be counted. Statute
61(6)(v) lays down that the provisions of Statute 61(6)(iv) will apply only where
the transfer of the employee from other organization to the University and
D vice- versa is with the consent of that organization including a case where
the individual had secured his employment on his own volition providing that
he had applied through proper channel with the permission of .the
administration/authority concerned. (Paras 6 and 13) (768-D, F; 772-F-G)

2. The factual position which emerges is that the respondent did not
E exercise his option at any point of time for counting his past service. Further,
he had resigned his service in Benaras Hindu University and had worked
thereafter for nearly seven years in Yemen University. He had not applied in
the University through proper channel or with the consent of the previous
employer. It is not at all a case of transfer of an employee. There is no question
F of consent of the organization (Benaras Hindu University). Therefore, the
provisions of Statute 61(6)(iv) can have no application and the respondent is
not entitled for counting of service rendered by him in Benaras Hindu
University for the purpose of grant of pensionary benefits in Aligarh Muslim
University. [Paras 8 and 13) [770-C; 772-H; 773-A)

G 3. The letter dated 28.1.1989 shows that the respondent had exercised
his option for Liberalized Pension Scheme including the benefit of the Family
Pension Scheme for Central Government Employees and it had nothing to do
with the option regarding counting of past service. Therefore, the option
exercised by him on 28.1.1989 has no relevance to the controversy in hand.
[Para 7) [769-B-H; 770-AJ
H
VISITOR v. K.S. MISRA 765
4. The view taken by the High Court that the time limit provided in A
Statute 61(6)(iv) is merely directory in nature and not mandatory is clearly
erroneous in law. Sub- clause (c) of Statute 61(6)(iv) lays down that the option
under this clause shall be exercised within a period of one year and if no
option is exercised within the prescribed limit, the employee shall be deemed
to have opted for retention of the benefits already received by him. This clause
provides for the consequences which will ensue in the event of non- exercise B
of option within the prescribed period of one year. Therefore, the provisions
of Statute 61(6)(iv) (b) and (c) should be treated as mandatory as it is a private
party who has to do a particular act within a specified time.
[Paras 9 and 10) (770-D-E; 771-C-D]

Ba/want Singh and Ors. v. Anand Kumar Sharma and Ors., (2003) 3
c
sec 433, referred to.
5. The provisions of sub-clause (c) of Statute 61(6)(iv) should be
interpreted in a manner which which makes the provision workable and not
redundant or otiose. It is, therefore, not possible to accept the view taken by E
the High Court that the provision is directory as in such a case this clause
will never come into operation if the employee exercises hi~ option at any
point of time before his retirement [Para 11) [771-H; 772-A]

6. It is well settled principle of interpretation of statute that it is
incumbent upon the Court to avoid a construction, if reasonably permissible D
on the language, which will render a part of the statute devoid of any meaning
or application. The Courts always presume that the Legislature inserted every
part thereof for a purpose and the legislative intent is that every part of the
statute should have effect The legislature is deemed not to waste its words or
to say anything in vain and a construction which attributes redundancy to the E
Legislature will not be accepted except for compelling reasons. It is not a
sound principle of construction to brush aside words in a statute as being
inapposite surplusage, if they can have appropriate application in
. circumstances conceivably within the contemplation of the statute.
[Para 11] [771-E-G)
F
Principles of Statutory Interpretation by Justice G.P. Singh Ninth
Edition, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4102 of2007.

From the Final Judgment and Order dated 10.02.2006 of the High Court G
766 SUPREME COURT REPORTS (2007] 9 S.C.R.

A of Judicature at Allahabad in Civil Misc. Writ Petition No. 9770 of 2002.
Parag P. Tripathi, Anish Dayal, Deepti Bhasin and Anitha Shenoy for
the Appellants.

Gaurav Agrawal and T. Momo Singh for the Respondent.
B
The Judgment of the Court was delivered by

G. P. MATHUR, J. l. Leave granted.
j
2. This appeal, by special leave, has been preferred against the judgment
C and order dated 10.2.2006 of Allahabad High Court, by which it was directed
that the past service rendered by the respondent K.S. Mis.ra in Benaras Hindu
University shall be counted for the purpose of payment of pension and other
retiral benefits.

3. The respondent was appointed in the English Department ofBenaras
D Hindu University on 10.8.1960, where he worked till 20.10.1979. He thereafter
proceeded abroad and joined University of Yemen. After working there for
nearly seven years, he came back to India and join~d Shillong University on
contract basis from where he resigned and joined Aligarh Muslim University
· on 14.4.1987. He was permanently absorbed on l.6.1988 and finally retired
E from the university on 31.7.1997. His request for counting service rendered
in Benaras Hindu University for the purpose of payment of pension was
declined by Aligarh Muslim University. The respondent then filed a writ
petition in Allahabad High Court, which was allowed by the order under
challenge and it was directed that on the respondent's depositing Rs.16,944.47,
the amount of gratuity received from Benaras Hindu University and the
F interest which may have become due till date, the service rendered by him in
Benaras Hindu University shall be taken into consideration and shall be
counted for the purpose of payment of pension. ·

4. In order to appreciate the controversy involved, it is necessary to
take note of the relevant statute of the University dealing with the subject
G viz. Statute 61(6)(iv), which is reproduced below:-

"Statute 61(6) (iv) & (v)

iv. The University employees who have already been sanctioned or
received pro-rata retirement benefits for their past service from their
H previous employer mentioned in sub-clause (i) and (ii) will have the
}

)'

VISITORv.K.S.MISRA[G.P.MATHUR,J.] 767
option either : A
.t..
a. to retain such benefits and in that event their past service will
not qualify for pension or other retirement benefits in the
University, or

b. to have the past service counted as qualifying service for pension
in the University in which case the pro-rata retirement benefits
B
or their terminal benefits if already received by them will have
to be deposited along with interest thereon (at such rate and in
such manner as may be prescribed by the Executive Council)
~ from the date of receipt of those benefits tiil the date of deposit
with the University. The right to count previous service shall not c
revive until the whole amount has been refunded. In other cases
where pro-rata retirement benefits have not been drawn the
previous authority shall make the payment to the University.

c. The option under this clause shall be exercised within a period
of one year. If no option is exercised by such employees within D
the prescribed time limit they will be deemed to have opted for
retention of the benefits already received by them. The option
once exercised will be final. fir

d. Where no terminal/retirement benefits have been received,
previous service will be counted as qualifying service for E
retirement benefitc; under the University rules only if the previous
employer accepts the pension liability for the service in
accordance with the principles laid down in this clause. In no
case pension contribution/liability shall be accepted from the
employee concerned.
F
v. Provisions of the above amendments will be applicable only where
the transfer of the employees from the other organization to the
University and vice-versa was/is with the consent of that organization
including the cases where the individual had secured employment
directly on his own volition provided he had applied through proper
channel with the permission of the administration/authority concerned." G

5. The Executive Council of the University amended Rule 6A of the
General Rules and Regulation of the Council relating to sanction for payment
-'-
.of pension and gratuity on 29.3.1989 and the amended provision reads as
under:
H
.,
768 -SUPREME COURT REPORTS [2007] 9 S.C.R

A "Rule 6A - Condonation of interruption in service for determining
pensionary benefits :

a. In the absence of a specific order of the appointing authority to
the contrary, an interruption between two spells of service
rendered by a University employee, shall be treated as
B automatically condoned, and pre-interruption service treated as
qualifying service;
b. Nothing in Clause (a) shall apply to interruption caused by
dismissal or removal from service, or by resignation from service;
c. The period of interruption referred to in Clause (a) shall not
c count as qualifying service."

6. A perusal of Statute 61(6)(iv) would show that two options are open
to an employee of the University who has rendered service in some other
institution or university pi:ior to joining the Aligarh Muslim University. The
D first option is that the employee who has already received retirement benefits
for his past service from his previous employer may retain such benefits and
in that event his past service shall not qualify for pension and other retirement
benefits in the Aligarh Muslim University. The second option is that the
employee will have to deposit with the University the retirement or terminal
benefits along with interest with the Aligarh Muslim University and this has
E to be done within one year of joining the University. If the second option is
not exercised within prescribed time viz. one year, the employee shall be
deemed to have opted for the first option viz. for retention of the benefits
already received by him and in such a case the past service rendered by him
shall not be counted. Statute 61(6)(v) lays down that the aforesaid provision
will be applicable only where the transfer of the employee from other
F organization to the Aligarh Muslim University or vice-versa is with the consent
of that organization including a case where the employee has secured
employment on his own volition provided he has applied through proper
channel and with the permission of the administration/authority concerned.
Rule 6A of the General Rules and Regulations of the Council relating to
G sanction of payment of pension and gratuity indicates that in absence of a
specific order of the appointing authority to the contrary, an interruption
between two spells of service rendered by a University employee shall be
treated as automatically condoned and past service shall be treated as qualifying
service. However, this clause will not apply in case of resignation from
service.
H
VISITORv.K.S.MISRA[G.P.MATHUR.J.) 769
7. In the rejoinder affidavit which was filed by the respondent in the A
High Court, a plea was taken for the first time that on 21.8.1989 he had
exercised his option for counting the service rendered by him in Benaras
Hindu University and had also offered to deposit the retirement benefits
along with interest with the Aligarh Muslim University. Since this plea was
taken in the rejoinder affidavit, the appellant herein got no opportunity to B
rebut the same. This plea seems to have been accepted by the High Court.
Learned counsel for the appellant has placed before us a copy of the option
exercised by the respondent on 28.1.1989 and it reads as under :-

"28.1.1989 c
The Asstt. Finance Officer
(Provident Fund Section)
AMU, Aligarh
Dear Sir, D
I am sending herewith my option-for-pension form duly completed for
your record and necessary action.

Yours truly,
Sd/- E
( Dr. K.S. Misra )
Professor in English
OPTION

Having understood the comparative advantages and disadvantages F
of pensionary and Provident Fund benefits as applicable in my case

(i) I opt for the Liberal!sed Pension Rules including the benefit of the
Family Pension Scheme for Central Government Employees, 1964
introduced vide the Ministry ofFinance Office Memo No.F.9(16)-EV
(A)/63 dated the 31st December, 1963 on the terms and conditions laid G
down in that Ministry's O.M. No.F.2(14)-EV(B)/63 dated the 14th
January, 1964."

The aforesaid document shows that the respondent had exercised his
option for Liberalized Pension Scheme including the benefit of the Family
Pension Scheme for Central Government Employees by his letter dated 28.1.1989 H
770 SUPREME COURT REPORTS [2007] 9 S.C.R.

A and it had nothing to do with the option regarding counting of past service.
Therefore, the option exercised by him on 28.1. l 989 has no relevance to the
controversy in hand.

8. On 5.8.1993 the respondent made an application to the University for
giving him benefit of the past service rendered in Benaras Hindu University.
B The University gave a reply on 11.10.1993 that he had not applied to the
University through proper channel or with the consent of the previous
employers and his case was not covered by relevant provisions of the Statute
and consequently his past service could not be counted. The factual position
which emerges is that the respondent did not exercise his option at any point
C of time for counting his past service. Further, he had resigned his service in
Benaras Hindu University and had worked thereafter for nearly seven years
in Yemen University. He had not applied in the University through proper
channel or with the consent of the previous employer.

9. The High Court in the impugned order has held that the time limit
D provided in Statute 61(6)(iv) is merely directory in nature and not mandatory
and after holding so has granted relief to the respondent. In our opinion the
view taken by the High Court is clearly erroneous in law. Sub-clause (c) c;>f
Statute 61(6)(iv) lays down that the option under this clause shall be exercised
within a period of one year and if no option is exercised within the prescribed
limit, the employee shall be deemed to have opted for retention of the benefits
E already received by him. This clause provides for the consequences which
will ensue in the event of non-exercise of option within the prescribed period
of one year.

10. A Three-Judge Bench in Ba/want Singh & Ors. v. Anand Kumar
F Sharma & Ors., [2003) 3 sec 433 has explained in what circumstances the
duty cast upon a private party can be said to be mandatory and para 7 of
the report reads as under :

7. Yet there is another aspect of the matter which cannot be lost sight
of. It is a well settled principle that if a thing is required to be done
G by a private person within a specified time, the same. would ordinarily
be mandatory but when a public functionary is required to perform a
public function within a time-frame, the same will be held to be directory
unless the consequences therefor are specified. In Sutherland, Statutory
Construction, 3rd edition, Vol. 3 at p. 107, it is pointed out that a
statutory direction to private individuals should generally be
H
VISITOR v. K.S. MISRA [G.P. MATHUR,J.] 771

considered as mandatory and that the rule is just the opposite to that A
which obtains with respect to public officers. Again, at p. 109, it is
pointed out that often the question as to whether a mandatory or
directory construction should be given to a statutory provision may
be detennined by an expression in the statute itself of the result that
shall follow non-compliance with the provision. At page 111 it is B
stated as follows:
"As a corollary of the rule outlined above, the fact that no
consequences of non-compliance are stated in the statute, has
been considered as a factor tending towards a directory
construction. But this is only an element to be considered, and C
is by no means conclusive."

Therefore, in accordance with the law laid down in the above authority,
the provisions of Statute 61(6)(iv) (b) and (c) should be treated as mandatory
as it is a private party who ha5 to do a particular act within a specified time.

11. The problem can be looked from another angle. If the view taken by D
the High Court that the provision is directory is accepted as correct, it would
in effect amount to making the provisions of sub-clause (c) of Statute 61(6)(iv)
otiose. In such a case the consequences provided therein that if no option
is exercised within the prescribed time limit, the employee shall be deemed to
have opted for the retention of the benefits already received by him would E
never come into play. It is well settled principle of interpretation of statute that
it is incumb~nt upon the Court to avoid a construction, if reasonably pennissible
on the language, which will render a part of the statute devoid of any meaning
or application. The Courts always presume that the Legislature inserted every
part thereof for a purpose and the legislative intent is that every part of the
statute should have effect. The legislature is deemed not to waste its words F
or to say anything in vain and a construction which attributes redundancy
to the Legislature will not be accepted except for compelling reasons. It is not
a sound principle of construction to brush aside words in a statute as being
inapposite surplusage, if they can have appropriate application in circumstances
conceivably within the contemplation of the staute. (See Principles ofStatutory G
Interpretation by Justice G.P. Singh Ninth Edition page 68).

The provisions of sub-clause (c) of Statute 61(6)(iv) should be interpreted
in a manner which makes the provision workable and not redundant or otiose;
It is, therefore, not possible to accept the view taken by the High Court that
the provision is directory as in such a case this clause will never come into H
SUPREME COURT REPORTS [2007] 9 S.C.R

A operation if the employee exercises his option at any point of time before his
retirement.

12. The High Court has also relied upon a decision rendered by another
Division Bench of the same Court in a writ petition filed by Dr. Rameshwar
Tandon against Aligarh Muslim University. Dr. Tandon was permanent Lecturer
B in Economics in Institute for Social and Economic Change, Bangalore and he
was appointed as Reader of Economics in Aligarh Muslim University on
31.5.1991. His representation for counting his past service was rejected on the
ground that he had not exercised the option within the prescribed time and
had failed to deposit the gratuity amount. Dr. Tandon soon after joining the
C University on 31.5.1991 had written a letter to the Institute on 29.9.1991
requesting them to send the provident fund account directly to the University
and had sent a copy of the letter to the University. The provident fund was
received by the University, but was delayed by !\VO years and the University
demanded interest. The Institute sent the interest also which was deposited
with the University. It was on these facts that the High Court took the view
D that Dr. Tandon had done everything under his command for complying with
the provision of the Statute and the University after accepting the provident '>-
fund amount and the interest was estopped from raising the plea that he bad
not exercised his option within time. In our opinion, Dr. Tandon's case is
entirely distinguishable on facts. Within four months of joining the University,
E Dr. Tandon had written to the Institute to send his provident fund account
directly to the University and intimation in this regard was also given to the
University. The provident fund was sent by the Institute to the University
and the interest amount was also sent. The respondent can get no advantage
from this case as he never exercised his option at all and never deposited the
amount which he had received from Benaras Hindu University.
F
13. There is another point which deserves consideration. Statute 61(6)(v)
lays down that the provisions of Statute 6l(6)(iv) will apply only where the
transfer of the employee from other organization to the University and vice-
versa is with the consent of that organization including a case where the
individual had secured his employment on his own volition provided that he
G had applied through proper channel with the permission of the admi!Jistration/
authority concerned. There is no dispute that the respondent after proceeding
to Yemen had resigned from Benaras Hindu University. There is a long gap
between the time he left Benaras Hindu University and when he joined
Aligarh Muslim University. It is not at all a case of transfer of an employee.
H There is no question of consent of the organization (Benaras Hindu University).
VISITOR v. K.S. MISRA [G.P. MA THUR.,J.] 773
Therefore, the provisions of Statute 61(6)(iv) can have no application and the A
respondent is not entitled for counting of service rendered by him in Benaras
Hindu University for the purpose of grant of pensionary benefits in Aligarh
Muslim University.

14. For the reasons diseussed above, the appeal is allowed. The judgment
and order of the High Court dated l 0.2.2006 is set aside and the writ petition B
filed by the respondent is dismissed. No order as to costs.

K.K.T. Appeal allowed.