Kantilal Tulsidas Poraniya vs Gujarat Public Service Commission & 5 on 14 March, 2016

[Cites 7, Cited by 0]

Gujarat High Court

Kantilal Tulsidas Poraniya vs Gujarat Public Service Commission & 5 on 14 March, 2016

HC-NIC Page 1 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT 1 By this writ application under Article 226 of the Constitution of India, the petitioner desirous of seeking appointment on the post of Director, Gujarat Education Service, Class - I (Administrative Branch) has prayed for the following reliefs:

"21(a) to issue notice for final disposal of the petition on an early returnable date, as the oral interview for the post of Director, Gujarat Educational Service ClassI, (Administrative Branch), pursuant to the Advertisement No.115/201314, is scheduled to be held on 1432016, Monday at 11.00 AM as per AnnexureH, and the petitioner has been wrongfully excluded from the same;

(b) to hold and declare and direct that the petitioner is entitled to be called for the oral interview for the post of Director, Gujarat Educational Service ClassI (Administrative Branch), pursuant to the Advertisement No.115201314 dtd. 1322014;

(c) to quash and set aside the impugned actions of the respondent GPSC in not holding the petitioner eligible for Oral Interview in the List published on 1822016 as per AnnexureG and in not issuing CallLetter to the petitioner for the oral interview for the post of Director, Gujarat Educational Service ClassI, (Administrative Branch), pursuant to the Advertisement No.115/201314, and the further pleased to direct the respondent - GPSC to issue Callletter to the petitioner for oral interview for the said post;

(d) Pending the hearing and final disposal of this petition, be pleased to direct the GPSC to hold the petitioner's oral interview along with the 2(two) other candidates for the post of Director, Gujarat Educational Service ClassI (Administrative Branch), pursuant to the Advertisement No.115/201314, scheduled to be held on 1432016, Monday at 11.00 AM, subject to further orders that may be passed in the present petition;

OR, IN THE ALTERNATIVE,

(e) Pending the hearing and final disposal of this petition be pleased, to stay the oral interview for the post of Director, Gujarat Educational Service, ClassI (Administrative Branch), pursuant to the Advertisement No.115/201314, scheduled to be held on 1432016, Monday at 11.00 AM;

(f) to grant any other appropriate and just relief/s;"

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2 The facts of this case may be summarized as under:

2.1 It is the case of the petitioner that he belongs to the Scheduled Caste. He has passed the M.A. and M. Ed. Examinations. He possesses the experience of teaching and administration of more than thirty years as a 'Primary Teacher' and 'Junior Lecturer' in the District Institute of Education and Training ('D.I.E.T.) and also as a 'Principal' of D.I.E.T. 2.2 The respondent No.1 - Gujarat Public Service Commission (for short, 'G.P.S.C.') issued an advertisement No.115/201314 dated 13th February, 2014 for four posts of the 'Director', Gujarat Education Service, Class - I (Administrative Branch) in the pay scale of Rs.37400 67000, Grade Pay of Rs.8900/.

2.3 Out of the four posts, three posts are unreserved, and one post is reserved for the Socially & Economically Backward Class.

2.4 It is the case of the petitioner that being eligible and qualified for the same, he applied for the said post.

2.5 The G.P.S.C. conducted the Preliminary Test / Elimination Test.

The petitioner appeared in the said Test. The G.P.S.C. published the first list of thirty four candidates found eligible for verification of the documents on 18th December, 2014, and declared that for the four posts of 'Director', total twenty candidates would be called for the oral interview.

2.6 Initially, the petitioner's seat number did not figure in the list referred to above. Later on, the petitioner received a call letter dated 22nd July, 2015 informing that in the second list of the candidates eligible for verification of the documents, the petitioner was included and was accordingly asked to submit the necessary documents.

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HC-NIC Page 3 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT 2.7 On 18th July, 2016, the G.P.S.C., again published the list of candidates eligible for the oral interview, and also the list of those not eligible for the oral interview.

2.8 The petitioner figured in the list of 293 candidates found not eligible for the oral interview as he was not fulfilling the requisite criteria prescribed in the advertisement.

2.9 Hence this petition.

3 On 29th February, 2016, a notice was issued to the respondents for final disposal, making it returnable on 4th March, 2016.

4 The G.P.S.C. has appeared and filed an affidavitinreply inter alia stating as under:

"4. By way of the present petition, the petitioner has approached this Honourable Court with a prayer (i) to hold and declare and direct that the petitioner is entitled to call for the oral interview for the post of Director, Gujarat Educational Service ClassI (Administrative Branch), advertisement No.115/201314 dated 13/2/2014; (ii) to quash and set aside the actions in not holding the petitioner eligible for the oral interview in the list published on 18/2/2016 and in not issuing call letter to the petitioner for the oral interview for the post of Director, Gujarat Educational Service Class I (Administrative Branch) pursuant to the advertisement No.115/201314 dated 13/2/2014; and (iii) to direct the Commission to issue call letter to the petitioner for oral interview for the said post.

5. I state and submit that the Commission had published an advertisement No.115/201314 dated 13/2/2014 for recruitment to the 4 posts of Director, Gujarat Educational Service, ClassI (Administrative Branch). Out of the aforesaid 4 posts, 3 posts are unreserved and 1 post is reserved for socially and educationally backward class.

6. I state and submit that for the aforesaid post, Out of total 516 registered application, only 280 candidates had appeared for preliminary test.

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7. I state and submit that for the posts of Director, Gujarat Educational Service, Class I (Administrative Branch) and Joint Director, Gujarat Educational Service, ClassI (Administrative Branch), one common preliminary test was conducted on 15/6/2014. The main purpose behind conducting the preliminary test is to restrict the No. of candidates to be called for oral interview. The marks obtained by the candidate in the Preliminary Test were not to be considered at the time of final selection. Further, a candidate who has obtained less than 10% of the total marks were not entitled for personal interview.

8. I state and submit that for scrutiny of applications, the Commission published list of 34 candidates for the post of Director, ClassI on 18/12/2014.

I state and submit that it is not true and correct that Commission published list of 34 candidates eligible for verification of documents for the post of Director on 18/12/2014.

9 Considering the qualifying standards determined by the Commission, the petitioner's Roll No. was not figured in the list which was published for scrutiny of applications. After scrutiny of applications the Commission could not find sufficient No. of candidates as per the qualifying standard determined by Commission and therefore the Commission again published 2nd list of 212 candidates for scrutiny of applications on 9.7.2015. In the said list the petitioner's Roll No. was there.

10 At the time of scrutiny of the applications several aspects like experience, Educational qualifications etc are to be considered.

11 In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of all the rules, the State Government has framed Director in the Gujarat Education Service, ClassI, (Administrative Branch) Recruitment Rules, 2012. To be eligible for appointment to the post of Director by direct selection the following Educational qualifications and experience required are as under:

(1) not be more than 40 years of age:

Provided that the upper age limit may be relaxed in favour of a candidate who is already in the service of the Government of Gujarat in accordance with the provisions of Gujarat Civil Services Classification and Recruitment (General) Rules, 1967;

(2) possess, (A)(i) a Ph.D. degree from any of the Universities Page 5 of 19 HC-NIC Page 5 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT established or incorporated by or under the Central or State Act in India; or any other Educational institution recognized as such by the government or declared as deemed to be university under Section 3 of the University Grants Commission Act, 1956 (3 of 1956); or possess an equivalent qualification recognized by the government;

and

(ii) a Bachelor degree in Education obtained from any of the Universities established or incorporated by or under the Central or State Act in India or any other Educational institution recognized as such by the government or declared as deemed to be university under Section 3 of the University Grants Commission Act, 1956;

(a) have about seven years' experience of the post not below the rank of deputy director in the Gujarat Education Service, ClassI, (Administrative Branch), or

(b) have about seven years combined or separate experience in teaching and/or administration in the field of Education out of which about four years Administrative experience in the government or local bodies or Universities or private or public sector selffinanced organization or institution on the post which is equivalent to the post not below the rank of deputy director in the Gujarat Universities Service, ClassI (Administrative Branch) OR, (B) (i) a postgraduate degree with first class obtained from any of the Universities established or incorporated by or under the Central or State government act in India; or any other Educational institution recognized as such by the government declared as deemed to be University under section 3 of the University Grants Commission Act, 1956; and

(ii) a Bachelor degree in Education obtained from any of the Universities established or incorporated or under the Central or State Act in India; or any other Educational institution recognized as such by the government or declared as to be University under Section 3 of the University Grants Commission Act, 1956; and

(a) have about nine years' experience of the post not below the deputy director in the Gujarat Education Service ClassI, (Administrative Branch); or

(b) have about nine years combined or separate Page 6 of 19 HC-NIC Page 6 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT experience in teaching and/or administration in the field of Education out of which about five years Administrative experience in the government or local bodies or private/ public sector, selffinanced organization or institution on the post which is not below the rank of deputy director in the Gujarat Universities Service, ClassI (Administrative Branch) recognized as such by the government, (3) possess the basic knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (Gujarat) Rules, 1967 and (4) Have adequate knowledge of Gujarati or Hindi or both.

12. I state and submit that the Educational Qualification of the petitioner is as under:

(i) M.A. with Second Class, (ii) B. Ed. with First Class, and (iii) M. Ed.

with First Class.

The Recruitment Rules for the said post prescribed have two different types of Educational Qualification: (i) a Ph. D. Degree or P.G. Degree with first class and (ii) a Bachelor Degree in Education i.e. B. Ed.

Thus two types of Degree are considered as essential qualification and the Degree pertaining to Education is required separately in addition to P.G. Degree of any other discipline. Hence the M. Ed. Degree is considered as the Degree in Education, it is not considered as P.G. Degree of the other discipline.

Petitioner is possessing M. Ed. with First Class but as mentioned above it is Degree in Education and therefore cannot be considered as P.G. Degree of the other discipline. As petitioner is possessing M.A. i.e. P.G. Degree with Second Class - means the petitioner is not possessing First Class P.G. Degree at Master in other discipline, he is not found eligible for personal interview for the post of Director. A Xerox copy of the Degree in Master of Arts of the petitioner is enclosed and marked as Annexure I. 13 It is denied that petitioner has been wrongfully excluded from the oral interview. I state and submit that there is no violation of principle of natural justice since there is no question of affording any opportunity hearing to the petitioner before holding that he is not eligible for oral interview. It is denied that the commission has acted in most highhanded, arbitrary and nontransparent manner, it is also not true and correct that merely because the petitioner belongs to schedule caste, the commission is acting with a prejudice against him.

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HC-NIC Page 7 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT 14 I state and submit that it is not true and correct that the commission has kept grudge against the petitioner at the time of oral interview because of malice. There are no malafide and extraneous considerations."

5 The petitioner has filed a short rejoinder to the reply of the G.P.S.C. stating as under:

"2. That on the core issue of the petitioner being held ineligible and not qualified for being called for oral interview for the post of Director the respondent no.2 - GPSC has admitted that the "petitioner is possessing M. Ed. with First Class", but it has falsely contended that the Degree pertaining to Education is required separately in addition to P.G. Of any other discipline. It is respectfully submitted that no such words as "P.G. Degree of any other discipline" are there in the Recruitment Rules or in the Advertisement. As stated in the English version of the advertisement (page 26 of the paperbook), the candidate is required to possess a postgraduate degree with first class and a Bachelor degree in education, and it is nowhere stated that the postgraduate degree with first class must not be in education but it must be in any other discipline. The respondent no.2 - GPSC therefore cannot add words which do not exist in the advertisement or in the Recruitment Rules.

Admittedly, the petitioner is possessing a Bachelor's degree in Education, that is, B. Ed. and he is also possessing a postgraduate degree with first class, that is, M.Ed. and therefore the petitioner is fully satisfying the requirements of the advertisement and the Recruitment Rules.

However, only with a view to deliberately throwing out of the petitioner from the fray the respondent no.2 - GPSC is referring to the irrelevant fact that the petitioner is possessing M.A. with second class.

Admittedly, the petitioner is M. Ed. with first class, and the fact that M.Ed. is a postgraduate degree is borne out from the documents on record from page45 to 71 of the paperbook, over and above the fact that even the Hon'ble Supreme Court has held in Juthika vs. State of M.P. AIR 1976 SC 2534 that B.T. Or the LL.B. are not considered to be postgraduate degrees though those degrees can be taken only after graduation, but M. Ed. or the LL.M. are postgraduate degrees. Copy of the said judgment is at AnnexureI.

3. That after announcing the interview Programme of oral interview of 2 (two) candidates on 1822016 to the effect that the interview would be held on 1432016 at 11.00 AM GPSC has now arbitrarily changed the time interview as 10.15 AM in the programme announced on 2422016 as per AnnexureII.

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HC-NIC Page 8 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT Moreover, after filing of the present petition GPSC has disclosed vague reasons for holding 293 candidates as ineligible, including the present petitioner, as per AnnexureIII. The petitioner's Seat No.101000194 is appearing at Sr. No.112 in the said list, wherein it is stated that "not possessing the prescribed educational qualification"

without saying as to how and why the petitioner is not possessing the prescribed qualification.

Moreover, GPSC has deliberately not provided to the petitioner the correct and complete copy of its affidavitinreply dated 532016 and in the zerox copy provided to the petitioner, it appears that from every page two lines at the bottom have been taken out. GPSC is therefore called upon to apologize and to provide correct and complete copy of its replyaffidavit to the petitioner.

From the aforesaid facts it becomes crystal clear that GPSC has been acting in a very nontransparent and arbitrary manner."

6 Thus, the stance of the G.P.S.C. is that although the petitioner holds a Postgraduate Degree i.e. the Master of Arts (M.A.), yet not with First Class, as required according to the rules.

7 Mr. Pujara, the learned counsel appearing for the petitioner submitted that his client may not be holding a Postgraduate Degree of M.A. with First Class, yet his client holds the Master of Degree of Education (M. Ed.) with First Class, which is also a Postgraduate Degree.

8 Mr. Pujara submitted that in the rules, nowhere it has been specified that the Degree in Education would not be construed as a Postgraduate Degree. He submitted that even in the advertisement, there is no reference that the qualification required is of a good academic record with First Class Master's Degree in any subject.

9 Mr. Pujara submitted that the assertion on the part of the G.P.S.C. that a Master's Degree, like the M. Ed. is not a Postgraduate Degree, is not correct.

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HC-NIC Page 9 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT 10 According to Mr. Pujara, his client has been wrongly disqualified for being considered for the post in question.

11 On the other hand, this writ application has been vehemently opposed by Mr. Premal Joshi, the learned counsel appearing for the G.P.S.C. He submitted that the rules governing the appointment make it very clear that a candidate should possess a Postgraduate Degree with First Class and also a Bachelor's Degree in Education obtained from any of the Universities. His submission is that if the Degree of M. Ed. is to be construed as a Postgraduate Degree, then there was no requirement in the rules to also insist for the Bachelor's Degree in Education.

12 According to Mr. Joshi, the rules make it clear that the M.Ed. Degree would not be construed as a Postgraduate Degree. In such circumstances referred to above, Mr. Joshi prayed that there being no merit in this writ application, the same be rejected.

13 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioner possesses the requisite qualifications according to the rules for the appointment on the post of Director, Gujarat Education Service, Class - I (Administrative Branch).

14 Before adverting to the rival submissions canvassed on either sides, let me have a look at the rules governing the appointment.

15 The State Government in exercise of powers conferred by the proviso to Article 309 of the Constitution of India framed rules by way of a Notification dated 9th May 2012 called "the Director in the Gujarat Education Service, Class I, (Administrative Branch) Recruitment Rules, 2012". I may quote only the relevant part of the rules as under:

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HC-NIC Page 10 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT "4. To be eligible for appointment by direct selection to the post mentioned in rule 3, a candidate shall, (1) not be more than 40 years of age:

Provided that the upper age limit may be relaxed in favour of a candidate who is already in the service of the Government of Gujarat in accordance with the provisions of Gujarat Civil Services Classification and Recruitment (General) Rules, 1967;

(2) possess, (A)(i) a Ph.D. degree from any of the Universities established or incorporated by or under the Central or State Act in India; or any other Educational institution recognized as such by the government or declared as deemed to be university under Section 3 of the University Grants Commission Act, 1956 (3 of 1956); or possess an equivalent qualification recognized by the government;

and

(a) have about seven years' experience of the post not below the rank of deputy director in the Gujarat Education Service, ClassI, (Administrative Branch), or

(ii) a Bachelor degree in Education obtained from any of the Universities established or incorporated or under the Central or State Act Page 11 of 19 HC-NIC Page 11 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT in India; or any other Educational institution recognized as such by the government or declared as to be University under Section 3 of the University Grants Commission Act, 1956; and

(a) have about nine years' experience of the post not below the deputy director in the Gujarat Education Service ClassI, (Administrative Branch); or

(b) have about nine years combined or separate experience in teaching and/or administration in the field of Education out of which about five years Administrative experience in the government or local bodies or private/ public sector, selffinanced organization or institution on the post which is not below the rank of deputy director in the Gujarat Universities Service, ClassI (Administrative Branch) recognized as such by the government, (5) possess the basic knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (Gujarat) Rules, 1967 and (6) Have adequate knowledge of Gujarati or Hindi or both."

16 The academic record of the petitioner is as follows:

                  '(1)    B.A.                         Second Class
                  '(2)    M.A.                         Second Class
                  '(3)    B. Ed.                         First Class
                  '(4)    M. Ed.                         First Class


         17     The   principle   argument   of   Mr.   Pujara   is   that   a   Postgraduate

Degree with First Class would include the M. Ed. Degree. In a First impression, it is attractive because the rules referred to above simply speak of "a Postgraduate Degree". Ordinarily, the Degree like M. Ed. is construed as a Postgraduate Degree, but if the rules are read closely, then the argument of Mr. Pujara should fail because the requirement is otherwise. The Degree of Master of Arts i.e. M.A. is an academic qualification. Whereas, the Degree of Master of Education is a professional qualification. To a certain extent, I am at one with Mr. Page 12 of 19 HC-NIC Page 12 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT Pujara that the required qualification is not of good academic record, and therefore, the Court should not read a Postgraduate Degree as prescribed in the rules only as an academic qualification, but would also include a professional qualification.

18 However, it is difficult for the petitioner to get out of the second part of the rules where the requirement is of a Bachelor Degree in Education. I am of the view that, if the expression a Postgraduate Degree was to include even the Master's Degree in Education (M. Ed.), there was no necessity of prescribing the second requirement of a "Degree in Education". The above is suggestive of the fact that over and above a Degree in Education, the requirement is of a Postgraduate Degree, like Bachelor of Arts (B.A.), Bachelor of Commerce (B. Com), Bachelor of Science (B. Sc.).

19 Let me look into the decision of the Supreme Court in the case of Dr. Prit Singh v. S.K. Mangal and others [1993 Suppl (1) SCC 714]. In the said case, the High Court quashed the appointment of the appellant as the Principal of a college on the ground that on the date of appointment, he did not possess the requisite qualifications. The issue before the Supreme Court was whether the "Master's Degree" would include even the Master's Degree in Education (M. Ed.). The argument before the Supreme Court was that the appellant had secured 60% marks at the examination for Master's of Education (M. Ed.), and therefore, it could be said that he was holding the Master's Degree in Education having secured more than 55% marks. According to the qualification prescribed, the candidate was required to secure either first/high second class (55% marks) at the Master's Degree examination. The appellant in that case had secured only 47.1% marks in the Master of Arts Examination. Whereas, the requirement was as under:

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HC-NIC Page 13 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT "(i) A consistently good academic record; (ii) with first or high second class (55% marks/grade B in the seven point scale) Master's Degree in any subject and (iii) a Degree in Education of an Indian University or equivalent degree of foreign University."

19.1 The Supreme Court, while dismissing the appeal, held as under:

"8. The basic fault which has been found by the High Court in respect of the appellant is that in the Master of Arts Examination the appellant had secured only 47.1 % marks, whereas according to the qualifications prescribed the candidate was required to secure either first or high second class (55%) marks at the Master's Degree Examination.

9. According to the learned Counsel appearing for the appellant, "Master's Degree" shall include even Master's Degree in Education (M.Ed.) and as the appellant had secured 60% marks at the examination for Master of Education (M.Ed.), it will be deemed that he was holding Master's Degree in Education, having secured more than 55% of marks. In this connection, our attention was drawn to the Degree of Master of Education awarded to the appellant from the Kurukshetra University certifying that the appellant had obtained "Degree of Master of Education".

10. As a first impression this argument is attractive especially because the qualifications aforesaid simply speak "Master's Degree"; they do not say Master of Arts Degree. It is well known that after B.A. Examination a person has to pursue studies for two years for obtaining Master's Degree in Arts (M.A.) whereas after passing B.A. Examination any person interested in professional side of the education, may become B.Ed, after completing the course for one year. Similarly for M.Ed. (Master of Education Degree) the course is of one year only. In this background the question which has to be answered is as to whether when the aforesaid qualification required for the post of Principal is "Master's Degree", whether it shall include Master of Education Degree also.

11. It need not be pointed out that the Degree of Master of Arts is an academic qualification, whereas Degree of Master of Education is a professional qualification. According to us, when the qualifications required "a consistently good academic record with first or high second class (55% marks/grade B in the seven point scale) Master's Degree in any subject"; (emphasis added) it shall mean an academic qualification like Master of Articles The said requirement was prescribed with "a consistently Page 14 of 19 HC-NIC Page 14 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT good academic record". That Master's Degree shall mean Degree of Master of Arts in any subject.is apparent also from the fact that apart from that degree the candidate was required to possess also "Degree in Education"

which will mean B.Ed, or M.Ed. Normally if the expression 'Master's Degree" was to include even the Master's Degree in Education (M.Ed.) there was no necessity of prescribing the third requirement of a "Degree in Education".

12. If the claim of the appellant that "Master's Degree" shall include a Degree of Master of Education, is accepted, it will lead to an anomalous position. A person having secured third division in M.A. who cannot be considered by any University even for the post of Lecturer, will become qualified for being appointed as a Principal of any College, if later he secures a high second class marks in M.Ed. Examination by completing a course of one year. It need not be pointed out that the sole object of prescribing qualification that the candidate must have a consistently good academic record with first or high second class Master's Degree for appointment to the post of a Principal, is to select a most suitable person in order to maintain excellence and standard of teaching in the institution apart from administration. In the present case there is no dispute that in the Master of Arts Examination, the appellant secured only 47.1 % marks which is not even the second division. We were informed that in the concerned University, second division is 50% and above. The appellant had not secured even second class marks in his Master of Arts Examination whereas the requirement was first or high second class (55%). The irresistible conclusion is that on the relevant date the appellant did not possess the requisite qualifications."

20 My view is fortified by the aforesaid decision of the Supreme Court.

21 Let me look into the decision relied upon by Mr. Pujara to fortify his submissions. In Smt. Juthika Bhattacharya v. State of Madhya Pradesh [AIR 1976 SC 2534], the Supreme Court observed as under:

"7. As regards the second limb of the argument that since the appellant holds the qualification of B.A.B.T., she ought to be considered as holding a "postgraduate degree", regard must again be had to the context in which the particular expression occurs and the purpose of the prescription. It is not inconceivable that the expression "postgraduate degree" may in a broad and general sense mean in a given context any degree obtained after graduation and which a graduate alone can obtain. But that is not the sense in which the Memorandum uses the particular expression. By "post Page 15 of 19 HC-NIC Page 15 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT graduate degree" is meant a Master's degree like the M.A. or M.Sc. and not a Bachelor's degree like the B.T. In other words, the expression connotes the successful completion of a course of studies at a higher level in any speciality, after the acquisition of a basic qualification at the graduate level. The B.T. course of studies, we are informed, is open only to graduates and in dictionary manner of speaking, the degree of "Bachelor of Teaching" may be said to be a "post"graduate degree in the sense that the degree is obtainable only "after" graduation. That is the sense in which the word "post" is used in expressions like "postnuptial", "postprandial","post operative", "postmortem" and so forth. In these expressions, "post" means simply "after", the emphasis being on the happening of an event after a certain point of time, But the expression "postgraduate degree" has acquired in the educational world a special significance, a technical content. A Bachelor's degree like the B.T., or the LL.B is not considered to be a postgraduate degree even though those degrees can be taken only after graduation. In the refined and elegant world of education, it is the holder of a Master's degree like the M.Ed. or the LL.M. who earns ,recognition as the holder of a postgraduate degree. That is the sense in which the expression is used in the Memorandum. Mr. Sen says that in some foreign universities even a Bachelor's degree, obtainable only after graduation, is considered as a postgraduate qualification. We are concerned with the interpretation of an indigenous instrument and must have regard for local parlance and understanding. Such awareness and understanding compel the construction for which we have indicated our preference. Indeed, everyone concerned understood the rule in the same sense as is evident from the permission sought by the appellant herself to appear for the M.A. examination. She asked for that permission in order to qualify for the Principal's post."

22 Relying on the aforesaid observations, the argument of Mr. Pujara is that the Master of Education Degree (i.e. M. Ed. Degree) should be considered as a Postgraduate Degree. As observed earlier, for the time being, I may accept so. However, I should not overlook the rules, which also insists for a Bachelor Degree in Education (B. Ed.). At the cost of repetition, I state that, if the Master's Degree was to include even the Master's Degree in Education i.e. M. Ed., the rule would not have prescribed the requirement of a "Degree in Education".

23 The rules are not in challenge before me. There is no ambiguity in the rules as such. In such circumstances, the Court should read the rules Page 16 of 19 HC-NIC Page 16 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT as they are, without "reading in" or "reading down" anything.

24 In Lf. Col. Prithi Pal Singh Bedi v. Union of India [(1982) 3 SCC 140] at pages 404 405, it was observed as follows: (See : SCC page 150 para 8):

"The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity, in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. The first question to be posed is whether there is any ambiguity in the language used in. Rule 40. If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else to discover the intention or meaning. If the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. This necessitates, examination of the broad features of the Act."

25 Thus, the doctrine of "reading down" or "reading in" can be applied in limited situations. It is essentially used, first, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. Secondly, where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when a rule is cast in a definite and unambiguous language and its intention is clear, it is not permissible Page 17 of 19 HC-NIC Page 17 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT either to mend or bend it even if such recasting is in accord with good reason and conscience.

26 The another significant factor which leans towards the interpretation put forward by the G.P.S.C. of the rules is the stance of the State, which militates against the views canvassed on behalf of the petitioner. The Government being the author of the rules, its view is entitled to great weight and the burden of the petitioner to lift that weight, an uphill task by all means, has remained unfulfilled [See : Ajeet Singh Singhvi v. State of Rajasthan (1991) Supl (1) SCC 343].

27 In view of the above, this petition fails and is hereby rejected. Notice is discharged.

(J.B.PARDIWALA, J.) FURTHER ORDER After the judgment is pronounced, Mr. Pujara, the learned counsel appearing for the petitioner made a request that his client may be protected for few days in the sense that the G.P.S.C. may be restrained from holding the oral interviews on 16th March, 2016, as scheduled. Mr. Pujara submits that his client would like to challenge the judgment by filing the Letters Patent Appeal. He further submits that he would file the Letters Patent Appeal by tomorrow. I may only say that the oral interviews as such were scheduled to be held on 14th March, 2016 i.e. today. On the request made by this Court, the same was postponed for two days and are now to be held on 16th March, 2016. The request made by Mr. Pujara is opposed by Mr. Joshi, the learned counsel appearing for the G.P.S.C. The prayer of restraining the G.P.S.C. from conducting the oral interviews on 16th March, 2016 is rejected. However, the Registry shall see to it that a copy of this judgment is provided to the learned counsel today before 5.00 p.m. Page 18 of 19 HC-NIC Page 18 of 19 Created On Wed Mar 16 00:54:45 IST 2016 C/SCA/3333/2016 CAV JUDGMENT (J.B.PARDIWALA, J.) chandresh Page 19 of 19 HC-NIC Page 19 of 19 Created On Wed Mar 16 00:54:45 IST 2016

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