Gujarat High Court
Yusufbhai Mamadbhai Dabawala vs Director Of Primary Education Gujarat ... on 5 July, 2016
Equivalent citations: AIR 2016 GUJARAT 146
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/10041/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10041 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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YUSUFBHAI MAMADBHAI DABAWALA....Petitioner(s)
Versus
DIRECTOR OF PRIMARY EDUCATION GUJARAT STATE, &
5....Respondent(s)
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Appearance:
MR PM LAKHANI, ADVOCATE for the Petitioner(s) No. 1
MRS R P LAKHANI, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
MR MB PARIKH, ADVOCATE for the Respondent(s) No. 4 - 5
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3 , 6
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 05/07/2016
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C/SCA/10041/2016 JUDGMENT
ORAL JUDGMENT
The child named Arman aspires to get admission in the first standard. His arman- aspiration is sought to be smothered on the ground that he has not completed five years of age, and Arman's age runs deficit by one day. The respondents press the Rule prescribes that child must have completed five years as on 01st June.
2. The petitioner grandfather and the guardian representing Arman is before this Court with the present writ petition.
3. Rule 3(1) in Chapter II under the caption "Right to Free and Compulsory Education" of Right of Children to Free and Compulsory Education Rules, 2010, which is applicable, reads as under.
"3.-Right to Free and Compulsory Education-(1) Admission of pupils: No Elementary School shall normally admit a child who has not completed 6th year of age on the date of admission. However if a child is desirous to be admitted on completion of 5 years of age he shall be admitted, provided he has completed 5 years of age as on 1st June of that year."
3.1 The Right of Children to Free and Compulsory Education Rules, 2010 (hereinafter mentioned as 'the Rules') are enacted by the State of Gujarat in exercise of powers conferred by Section 38 of the Right of Children to Free and Compulsory Education Act, 2009. Section 3 of the Right of Children to Free and Compulsory Education Act, 2009, dealing with such right of child provides in its sub-section (1) that every child of the age of six to fourteen years, shall have the right to free and compulsory education in a Page 2 of 11 HC-NIC Page 2 of 11 Created On Sat Jul 09 01:32:00 IST 2016 C/SCA/10041/2016 JUDGMENT neighbourhood school till completion of his or her elementary education. Sub-section (2) says that child shall not be liable to pay any kind of fee or charges which may prevent him from pursuing and completing the elementary education. Child is defined in Section 2(c) of the Act of the age six to fourteen years. This legislation is anchored on the footsteps of insertion of Article 21A by the Constitution (Eighty Sixth Amendment) Act, 2002 which provides for free and compulsory education for all the children as a fundamental right in such manner as the State may by law, determine. The objects with which the said statute was brought into force, was to provide every child full-time elementary education of satisfactory and equitable quality; with an idea to provide and ensure compulsory education to the children with such obligation on the government. The legislation has an intake philosophy of and ideal in Directive Principles of State policy enshrined in the Constitution, to achieve the goal of universal elementary education to the children.
3.2 Rule 128 of the Bombay Primary Education Rules, 1949 reads as under.
"128. Admission of pupils.-(1) No approved school shall admit-
(a) a child who has not completed the 5th year or age on the date of admission;
(b) ... ... ...
(c) ... ... ...
(2) A pupil shall pay the fees, if any, for the month in which he is admitted irrespective of the date of admission."Page 3 of 11
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4. Learned advocate Ms.R.P. Lakhani for the petitioner submitted that the interpretation of Rule 3(1) applied by the respondent is erroneous and misdirected. It was submitted that the child Arman is brilliant child who completed his pre-first standard education in the Kindergarten with flying colours and that he is mature enough to be admitted to the first standard class. It was submitted by learned advocate that child did complete five years of age by calculating the period as comprised of 365 days in one year.
4.1 It appears that a representation dated 10th June, 2016 was made by the father to the sixth respondent-school and it was submitted that the child had completed five years and one day on 31st May, 2016, thereby becoming eligible under the Rule. The sixth respondent-school sought opinion of the Primary Education Officer, Primary Education Committee by addressing a letter dated 13th June, 2016, who however did not budge.
4.2 Whereas learned advocate Mr.Prajapati for the respondent sticking to the Rule, submitted that cut-off date was necessary. He harped that as the petitioner's ward was not completing five years of age in the date indicated, denial of admission to him was proper.
5. Now, the child bears his date of birth to be 02nd June, 2011. The pedantic respondent states that on 01st June, 2016, he does not complete five years of Page 4 of 11 HC-NIC Page 4 of 11 Created On Sat Jul 09 01:32:00 IST 2016 C/SCA/10041/2016 JUDGMENT age, falling short by a day. On the other hand, the case put-forth on behalf of the petitioner is that without reckoning with reference to the dates, but calculating on the basis of total 365 days in a year, the child completes total number of days to make five years.
5.1 How to apply Rule 3(1) of the Rules? What should be the interpretational cannon? Indeed, interpretation has to be cultivating exercise to being home the justice and feed to the concept of substantive justice. The process of interpretation is not reading a provision dead. It is a live process. It is art of judicial interpretation which helps to cross the barrier to travel from the realm of justice- according-to-law, to the arena of what is cherished as substantive justice.
5.2 The methodology of interpretation of statute is perceived with two ways of approach. One is called maxwell principles of interpretation whereas the other method is Mimansa rules of interpretation. It is complained that Mimansa principles have been forgotten to be applied in the judicial dispensation by the Constitutional Courts. The maxwell method of interpretation can be said to be a search-bound, whereas the Mimansa principles are solution oriented.
5.3 One of the Mimansa Principle is Gunapradhan Axiom, wherein "Guna" means subordinate or accessory while "Pradhan" means principal. The Gunapradhan Axiom states as quoted by the Supreme Court in Ispat Industries Limited Vs Commissioner of Customs, Mumbai Page 5 of 11 HC-NIC Page 5 of 11 Created On Sat Jul 09 01:32:00 IST 2016 C/SCA/10041/2016 JUDGMENT [(2006) 12 SCC 583] as well as further in Gujarat Urja Vikas Nigam Limited Vs Essar Power Limited [(2008) 4 SCC 755], thus "If a word or sentence purporting to express a subordinate idea clashes with the principal idea, the former must be adjusted to the later or must be disregarded altogether."
5.4 The maxim is known also by principle that the main object would gulp the subordinate things or aspects, and only principal consideration would govern. As per Jaimini-the exponent of Mimansa theory, acts are of two kinds, principal and subordinate. The Apex Court explaining the principle elaborated thus in Gujarat Urja Vikas Nigam Limited (supra), "Commenting on Jaimini 3:3:9 Kumarila Bhatta says:
"The Siddhanta (principle) laid down by this Sutra is that in a case where there is one qualification pertaining to the Accessory by itself and another pertaining to it through the Primary, the former qualification is always to be taken as set aside by the latter. This is because the proper fulfillment of the Primary is the business of the Accessory also as the latter operates solely for the sake of the former. Consequently if, in consideration of its own qualification it were to deprive the Primary of its natural accomplishment then there would be a disruption of that action (the Primary) for the sake of which it was meant to operate. Though in such a case the proper fulfillment of the Primary with all its accompaniments would mean the deprival of the Accessory of its own natural accompaniment, yet, as the fact of the Accessory being equipped with all its accompaniments is not so very necessary (as that of the primary), there would be nothing incongruous in the said deprival".
See Ganganath Jha's English translation of the Tantravartika, Vol.3 page 1141." (Para 50) 5.5 The above was reiterated in Ispat Industries Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat Jul 09 01:32:00 IST 2016 C/SCA/10041/2016 JUDGMENT (supra), from which paragraph 36 may be extracted to clarify the principle further.
"The Gunapradhan Axiom can also be deducted from Jaimini 6 : 3 : 9 which states:
"When there is a conflict between the purpose and the material, the purpose is to prevail, because in the absence of the prescribed material a substitute can be used, for the material is subordinate to the purpose. To give an example, the prescribed Yupa (sacrificial post for tying the sacrificial animal) must be made of Khadir wood. However, Khadir wood is weak while the animal tied may be restive. Hence, the Yupa can be made of Kadar wood which is strong. Now this substitution is being made despite the fact that the prescribed wood is Khadir, but this prescription is only subordinate or accessory to the performance of the ceremony, which is the main object. Hence if it comes in the way of the ceremony being performed, it can be modified or substituted." (para 36) 5.6 The maxim is that the characteristics of the accessory, which in this case is the date prescribed, is determined by the primary, namely the concept of year and the total period comprised in years. The accessory has to operate subservient to the purpose of the primary. Reverting to Rule 3(1), it emphasizes completion of certain number of years-five years. By necessary implication the object of the Rule making authority is that, a child to be imparted education at the completion of age, that should be mature enough to go to the school, thus to be admitted to the school. The prescription of the date of 1st June is provided a kind of yardstick to be applied for considering the completion of five years.
5.7 The above Rule thus could be construed with reference to the Gunapradhan Axiom. The requirement of completion of years is the primary element and the Page 7 of 11 HC-NIC Page 7 of 11 Created On Sat Jul 09 01:32:00 IST 2016 C/SCA/10041/2016 JUDGMENT outer date or cut-off date provided to determine the completion of total number of required five years is accessory. It is called "Guna" namely the subordinate aspect or in the nature of accessory, while "pradhan"
or principal is the completion of years. Guna cannot be elevated to Pradhana. Years therefore could be viewed as time period comprising of total number of 365 days, and if that requirement is fulfilled, a day's deficit has to be ignored. Rule 3(1) of the Rules as well as Rule 128 of the Bombay Primary Education Rules both could be properly construed and applied as per the above principles for understanding the "five years of age".
5.8 The proper context to be supplied for applying the aforesaid Rule of eligibility is the completion of years. The two dates, namely the date of birth of a child and the outer date of 1st June, contemplated in the Rule are incidental to the main object of completion of five years. Once five years span in terms of total days in the year in the age of the child is satisfied, the child has to be considered fit in terms of age and maturity to be entitled to admission to elementary education and for that purpose to Elementary School.
6. In attaching the above interpretation to the word "year" or "five years of age", it was entirely possible to completely observe and follow the following principle of interpretation, as stated by Justice Frankfurter of the U.S. Supreme Court.
"As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute Page 8 of 11 HC-NIC Page 8 of 11 Created On Sat Jul 09 01:32:00 IST 2016 C/SCA/10041/2016 JUDGMENT is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great Judges have constantly ad monished their brethren of the need for discipline in observing the limitation. A Judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction."
7. In the present case, it is possible to evolve and apply yet another principle of interpretation by adverting to alternative interpretation. When any word or group of words in the statute are capable of being supplied two alternative interpretation, essentially leading to the same meaning, and when, without doing violence to the words or without deviating from the object, rather in order to endear the object of the word in the statute or the object of the statute or rule in general, it is possible to accord alternative meaning, such alternative meaning should be applied to make the provision of law or rule purposive.
7.1 Having regard to the above principles of interpretation, it is eminently possible to construe "five years of age" by attaching the meaning to the word "years" as aggregation of days of an year which is comprised in 365 days. When Rule 3(1) of the Rules provides that the child should have completed five years of age as on 1st June of that year, the emphasis and leaning is on the completion of years, and the mathematical exactitude for understanding the word "age" is not warranted, especially when it is one Page 9 of 11 HC-NIC Page 9 of 11 Created On Sat Jul 09 01:32:00 IST 2016 C/SCA/10041/2016 JUDGMENT day's difference applied to attach inability on the child to be admitted to the elementary school. In such circumstances, a virtuous interpretation would be to count the five years in terms of total days in year by attaching such meaning to the word "year" and considering the age of the child in that way, rather than reckoning the age with reference to date. Accordingly and in this view, child must be held to be completing five years of age as on 1st June of that year.
8. A child admitted to the school and introduced to education is invigoration of Article 21 read with Article 21A of the Constitution. From the societal standpoint, introducing a child to elementary, primary and education at all levels is to lay a reinforcing stone in the foundations of civilized society, to contribute to make the democracy vibrant and worthy with educated citizenry. No stone should be left unturned to ensure that one and all gets education. Right to education and right to free and compulsory education to a child being fundamental rights, it can be best accorded in company of the principles flowing from Article 14. Article 14 always strikes at unreasonableness. It seeks to weed out all elements of arbitrariness in application of any law or rule.
8.1 Denying a child admission to a school for want of an illusory deficit of one day in completion of five years, which in fact does not exist, would not be countenanced by the Constitutional Court when it is Page 10 of 11 HC-NIC Page 10 of 11 Created On Sat Jul 09 01:32:00 IST 2016 C/SCA/10041/2016 JUDGMENT eminently possible to construe the Rule without supplying thereto any additions and doing any variation or violence to the language of the Rule.
9. It is declared that the petitioner is entitled to get admission in the first standard. He shall be treated as fulfilling the requirement of completion of five years of age for the purpose of Rule 3 of the Rules. The sixth respondent shall grant admission to the petitioner, while respondent Nos.2, 3, 4 and 5 shall ensure on their part that petitioner is allowed admission by the sixth respondent. The respondent educational authority shall help to complete the necessary procedure for admitting the petitioner expeditiously and in any case within one week from the date of receipt of the order. For the purpose of presence, the time elapsed because of pendency of this petition so far, shall be condonable.
10. The petition is allowed for the reasons recorded hereinabove.
11. Direct service is permitted.
(N.V.ANJARIA, J.) Anup Page 11 of 11 HC-NIC Page 11 of 11 Created On Sat Jul 09 01:32:00 IST 2016