Rajasthan High Court - Jodhpur
Raghuveer Singh Saxena vs United India Insurance Co. Ltd. & Ors on 17 December, 2013
Author: P.K. Lohra
Bench: P.K. Lohra
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
::O R D E R::
Raghuveer Singh Saxena
Vs.
United India Insurance Co. Ltd. & Ors.
S.B. CIVIL WRIT PETITION NO. 10663/2011
Writ Petition under Article 226 of the Constitution of India
*****
DATE OF ORDER: December 17, 2013
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA
Mr. Sunil Bhandari, for the petitioner.
Mr. Jagdish Vyas, for respondent No.1 to 4.
None present for respondent No.5 to 9 despite service.
Reportable
BY THE COURT:
Petitioner has preferred this writ petition for challenging Annex.11, whereby the respondents published ranking list of employees for promotion to the cadre of Assistant, with the specific prayer to annul the same. Apart from the aforesaid prayer, the petitioner has also sought a declaration that Circular dated 26th of September 2011 (Annex.12) is not applicable vis-à-vis the facts of the instant case, and/or in the alternative the same may be quashed and set aside to the extent it debars the petitioner from being considered for promotion in [2] the cadre of Assistant. Some other ancillary reliefs are also incorporated in the prayer clause.
The facts, apposite for the purpose of this writ petition, are that at the inception of his service career, the petitioner was appointed as a subordinate staff with the respondent insurance Company in the month of September 1991 after acquiring qualification upto 8th standard. While serving the respondent, petitioner was keen to pursue his graduation course, and therefore, he made an endeavour to seek permission from the respondents by way of submitting an application in the year 1997. In his application, the petitioner has made it clear that he wants to pursue his graduation course from Indira Gandhi National Open University (IGNOU), and the permission sought for was granted to him. After due permission, petitioner undertook the entrance test known as Bachelor's Preparatory Programme (BPP), as the same is pre-requisite for those individuals who have not passed 10th and 12th standard at school level. On successful completion of BPP Entrance Examination in the year 1998, the petitioner started his degree course of Bachelor of Arts and completed it successfully in the year 2005. The IGNOU, thereupon, issued requisite marksheet and certificate to the petitioner.
The Insurance Company floated the Promotion Policy for Supervisory, Clerical and Subordinate Staff, 2008 (for short 'Policy of 2008') offering advancement in the service career to [3] the employees working in the cadres of supervisory, clerical and subordinate staff, which was duly approved by the Board of Directors of the respondent Company. In adherence of the Policy of 2008, taking into account eligibility of the petitioner, his name figured in the panel prepared for the purpose of promotion in the years 2008, 2009 and 2010, but his candidature did not find favour for promotion due to pendency of departmental enquiry. This enquiry ultimately resulted in indictment of the petitioner and he was awarded punishment of reduction in basic pay by three steps in the time scale by an order passed in March 2011. Being aggrieved of the said punishment, petitioner approached the appellate authority but so far the appeal remains inconclusive and nothing has turned out. The endeavour of the petitioner by referring to the panel for these three years is that his name was included in the panel amongst the candidates eligible for promotion in the cadre of Assistant. Apart from showing his eligibility for the purpose of promotion for all these three years, the petitioner has also placed on record the panel of all these three years in order to indicate that for all these three years in adherence of Para 17.2.1 of the Policy of 2008, he was granted 12 marks by treating him to be graduate. Yet again, in the year 2011, seven vacancies for unreserved category in the cadre of Assistant came into offing, and against these vacancies the petitioner offered his candidature. Considering the eligibility of the petitioner for promotion in the cadre of Assistant pursuant to the vacancies of the year 2011, he was allowed to appear in the computer proficiency and literacy test in pursuance of Para [4] 15(b) of the Policy of 2008 on 3rd of October 2011, and on qualifying the same, his name was included in the panel. The panel was declared vide notice dated 10th of October 2011 (Annex.8) and petitioner's name figured at Serial No.29. In the panel Annex.8, no marks were awarded to the petitioner for his qualifications. Ventilating his grievances against non-awarding of marks despite his qualification of graduation, the petitioner has averred in the writ petition that in terms of sub-para (b) of Para 15 of the Promotion Policy, the candidature of the petitioner ought to have been considered having qualification of graduation level, and that being so, in terms of Para 17.2.1 he should have been awarded 12 marks for his qualifications. According to the petitioner, not granting him 12 marks against his educational qualifications has downgraded his name in the panel, resulting in his lower ranking vis-à-vis the private respondents. Pointing out with clarity and precision, the petitioner has urged in the writ petition that despite his qualification of graduation, non-inclusion of 12 marks under the head "Qualifications" has seriously prejudiced his candidature, and the same has facilitated promotion in the cadre of Assistant to the private respondents. According to the petitioner, if 12 marks under the head "Qualifications" are added, then his rank shall automatically step up over and above all the private respondents. Categorizing this sort of decision of the respondents arbitrary and unreasonable, the petitioner has very specifically pleaded that the Circular dated 26th of September 2011 (Annex.12) issued by the respondents has not properly construed and interpreted the UGC [5] Regulations, 1985 regarding the Minimum Standards of Instructions for Grant of the First Degree through Non- formal/Distance Education [for short, 'UGC Regulations 1985 (non-formal)']. As per the petitioner, Circular Annex.12 has been issued on complete misreading of the UGC Regulations 1985 (non-formal). The petitioner's specific plea is that if the Circular is properly construed and interpreted meaningfully, its rigor cannot have any ill-effect on the candidature of the petitioner so as to deprive him from 12 marks for his qualifications. In the alternative, the petitioner has prayed for quashing the same by categorizing the same as arbitrary and unreasonable in clear negation of Article 14 & 16 of the Constitution of India.
The writ petition was contested on behalf of respondent No.1 to 4. Reply is submitted and in the return respondents has justified their action of not awarding 12 marks to the petitioner under the head "Qualification". As per the version of the respondents, the petitioner was not awarded marks for his educational qualifications in terms of Para 17.2.1 of the Policy of 2008 on the strength of his academic qualification upto 8th standard only. Refuting the averment contained in the writ petition that petitioner is having to his credit qualification of graduation, the respondents have taken a definite stand in the reply that degree of B.A. obtained by the petitioner from IGNOU is not a valid degree in terms of UGC Regulations 1985 (non- formal) framed under the University Grants Commission Act, 1956. Precisely, for questioning the qualification of the petitioner [6] as Graduate, the respondents have laid emphasis that degree of B.A. from IGNOU without passing 10th and 12th standard at school level, and without successfully completing 12 years schooling, cannot make the petitioner eligible for securing 12 marks on the basis of his qualification of graduation. In substantiating their stand, the respondents have pleaded in the reply that as per the verdict of Hon'ble Apex Court in case of Annamalai University represented by Registrar Vs. Secretary to Government Information and Tourism Department & Ors. (2009 AIR SCW 2087), the UGC Act shall prevail over the Open Universities Act, and as per the ratio decidendi of the said verdict, petitioner's qualification as Graduate cannot be considered as valid qualification for making him eligible to secure 12 marks under the head Educational Qualifications. Referring to the Circular dated 26th of September 2011, the respondents have submitted in the reply that the same has been issued after the judgment in Annamalai's case was rendered by the Apex Court, and as such, challenge thrown to the same cannot be sustained. The Circular refers to part of Regulation 2(1) of the UGC Regulations 1985 (non-formal), which reads as under:
"No student shall be eligible for admission to the 1st Degree Course through nonformal/distance education unless he has successfully completed 12 years schooling through an examination conducted by a Board/University..."
With this clear stand, the respondents have defended their action [7] of not promoting the petitioner in the cadre of Assistant. As per respondents, the list of the candidates was declared in terms of Para 15 of the Policy of 2008, and as such, there is no infirmity in the ranking list. Defending the Circular with full emphasis, the respondents have pleaded that the same has been issued by the competent authority and there is no conflict between the Policy of 2008 and the said Circular. Reiterating their stand that the petitioner has obtained B.A. degree without passing 10th and 12th standard at school level, and without completing 12 years of schooling, his degree of B.A. obtained through distance education cannot be construed as a degree of graduation for the purpose of promotion. The promotions accorded to the private respondents in terms of Policy of 2008 were also defended by the respondents as a legitimate action.
The petitioner, with a view to substantiate his grievances, submitted rejoinder to the reply of the respondents and reiterated the averments contained in the writ petition. In the rejoinder, the petitioner has emphasized the fact that he has cleared BPP, which was necessary for those candidates who have not passed 10th and 12th standard and those who do not have previous academic record, and as such, the same is in consonance with the UGC Regulations 1985 (non-formal). As per petitioner, the Registrar, IGNOU has also conveyed to the respondent Insurance Company that Bachelor's degree obtained by the petitioner is a valid degree. Joining the issue with the respondents on the decision of Hon'ble Apex Court in [8] Annamalai's case, the petitioner has urged in the rejoinder that the case is distinguishable in the background of facts of the instant case. Asserting with full emphasis, the petitioner has submitted in the rejoinder that he has been deprived of his 12 marks for his qualification of graduation without any justifiable reason. Categorizing the said act of the respondents as arbitrary and unreasonable, the petitioner has taken shelter of Article 14 & 16 of the Constitution of India in challenging the panel, which has ultimately culminated into promotion of the private respondents and other incumbents. Overall, in the rejoinder, the petitioner has tried to impress that he is better placed than the private respondents, and therefore, denial of promotion to him is unjust and improper.
An additional affidavit is also submitted on behalf of the petitioner showing that the State Government has also treated the degree awarded by IGNOU as equivalent to graduation. For that purpose, the petitioner has placed on record a letter dated 18th of October 2012 issued by the Chief Secretary, Government of Rajasthan.
Learned counsel for the petitioner, Mr. Sunil Bhandari, has argued that UGC Regulations 1985 (non-formal) have been misconstrued by the respondents, and as such, denial of 12 marks to the petitioner for his qualification of graduation is absolutely arbitrary and unreasonable. Mr. Bhandari has urged that while issuing Circular dated 26th of September 2011, the [9] respondents had deliberately not quoted the complete text of Regulation 2(1) of the UGC Regulations 1985 (non-formal) and have deliberately omitted the second part which squarely covers the case of the petitioner for grant of requisite marks for his qualifications. Elaborating his submissions in this behalf, Mr. Bhandari would contend that the second part of Regulation 2(1) of the UGC Regulations 1985 (non-formal) clearly postulates that in case an incumbent is not having previous academic record, he shall be eligible for admission subject to his passing entrance test conducted by the University with the further rider that he should not be below the age of 18/21 years as on first July of the year of admission.
Making scathing attack on the impugned Circular, Mr. Bhandari has argued that entire edifice of the Circular is based on complete misreading of the relevant part of the UGC Regulations 1985 (non-formal) and misinterpretation of the verdict of the Hon'ble Apex Court in Annamalai's case. Learned counsel for the petitioner has submitted that the qualification of graduation acquired by the petitioner was very well acknowledged by the respondents for three consecutive years, and he was awarded 12 marks for his educational qualification in adherence of Policy of 2008, then how and in what manner the said qualification of the petitioner can be set at naught for the promotion process which was activated for the year 2011. Categorizing the said decision of the respondents as arbitrary, fanciful and unreasonable, Mr. Bhandari would urge that such a [10] decision of the respondents is beyond comprehension of prudency, which cannot be sustained.
Arguing with full emphasis, learned counsel Mr. Bhandari has contended that Regulation 2(1) of the UGC Regulations 1985 (non-formal) is to be read as a whole, and its one part cannot be read in isolation to other part solely with intent to deprive the petitioner of his legitimate right to earn requisite marks for his educational qualifications. Describing this sort of interpretation as an absurd interpretation, Mr. Bhandari has submitted that if such interpretation is to be accepted then it will render the whole statute otios. Once again reiterating his contention against the impugned circular, Mr. Bhandari has submitted that the impugned circular is dehors the UGC Regulations 1985 (non-formal) and as such the same cannot be sustained on the touchstone of Article 14 of the Constitution of India. Laying stress on Para 17.2.1 of the Policy of 2008, Mr. Bhandari has contended that by virtue of said para the petitioner is entitled for 12 marks for his educational qualification, which was denied to him without any rhyme or reason on the strength of the impugned circular, which has facilitated the promotion of the private respondent although they were lower in merit than him. According to Mr. Bhandari, if 12 marks are added then petitioner's position automatically steps up and his ranking ipso facto becomes higher than all the private respondents for making him eligible for promotion in the cadre of Assistant, but the same has been denied to him on wholly nonest grounds in an [11] absolutely arbitrary manner, for which redressal is desirable from this Court. In support of his contentions, learned counsel for the petitioner has referred to the UGC Regulations of 1985 regarding the Minimum Standards of Instruction for the Grant of First Degree through Formal Education, wherein it is insisted that an incumbent shall be eligible for admission to first degree course after he completes successfully 12 years' schooling through an examination conducted by Board/University. The purpose of the aforesaid Regulations for formal education is to differentiate Regulation 2 of the UGC Regulations 1985 (non-formal) and Formal Education. The learned counsel has also placed reliance on a letter dated 14th of October 2013 issued by the Director (Admn.), University Grants Commission, recognizing inter-alia degree awarded by open and distance learning institutions at par with conventional University/institutions. Referring to judgment in Annamalai's case, the learned counsel has submitted that in the said judgment the controversy was with respect to Post- Graduate degree obtained by an incumbent without possessing basic graduation degree and in that context the Hon'ble Apex Court has held that such post-graduation degree is invalid in law. The Hon'ble Apex Court in the said verdict has formulated the issue involved in the matter in Para 3 of the verdict, which is as under:
3. The Tribunal, by its judgment and order dated 14.8.2000, directed the State to consider the objections of Gabriel having regard to the qualifications prescribed for the said post vis-a-vis those possessed by Ramesh. The challenge to the qualification of Ramesh was that he did not possess a basic graduation degree and, thus, the post-[12]
graduation degree conferred on him by appellant - University is invalid in law. At that stage, the State appointed one Mr. K. Loganathan, which was challenged by Ramesh by way of O.A. No. 2085 of 2003 before the Tribunal. Said application was dismissed by the Tribunal by reason of an order dated 5.1.2004. Ramesh challenged the said order of the Tribunal by filing a writ petition marked as Writ Petition No. 841 of 2004, which had become infructuous as after retirement of said Mr. K. Loganathan, Ramesh was appointed as the Principal by order dated 6.12.2004.
Gabriel challenged the said appointment of Ramesh by filing Writ Petition No. 36307 of 2004.
In Para 8 of the verdict, the Hon'ble Court has clarified that the said degree was not recognized by the Division Bench of the High Court as equivalent to Post-Graduation, which reads as under:
8. The Division Bench of the High Court by reason of the impugned judgment allowed the writ petition and disposed of the writ appeals pending before it holding that Ramesh was not eligible to be considered for the post of Principal as the M.A. Degree obtained by him through OUS, without there being a first (Bachelor's) degree, was not a valid one.
Consequently, the State was directed to take steps to fill up the post of Principal in accordance with law.
Examining the lis involved in the matter, the Hon'ble Apex Court made following observations in Para 19 & 20 of the verdict:
19. Indisputably, appellant-University established a separate Directorate for Distance Education Programme offering different courses of studies. It, however, started functioning in the year 1991. Offering courses of studies under the OUS is said to be in line with the one followed by the IGNOU in terms whereof anyone who had completed Plus Two [13] (+2) or undergone the preparatory course and passed the written test become eligible to join the undergraduate programme of his or her choice. Similarly, those who had undergone the preparatory course and written test and was of 21 years of age and above became eligible for undertaking the postgraduate course. The said programme is said to have been introduced on an experimental basis.
Similar programmes offering courses of undergraduate and post-graduate levels through the OUS were also adopted and followed by various other Universities in India. It is stated that UGC was being apprised of the activities of the appellant-University in regard to instructions/courses offered by it through the non-formal/distance education including the OUS in terms of Regulation 6 of the 1985 Regulations. The Government of Tamil Nadu allegedly at the request of the appellant-
University and on the basis of the recommendations made by a Committee constituted by them for the aforementioned purpose directed that the bachelor and postgraduate degrees and diplomas awarded by the Open Universities be treated on par with those awarded under regular stream for any appointment to the post in public service.
20. Indisputably, the fact that the appellant-University had been granting post- graduate degrees to the candidates concerned although they had not completed three years' course in violation of the Regulation 2 of the 1985 Regulations came to the notice of the UGC as also IGNOU officials. A meeting was held in March 2004. It was agreed in the said meeting that the admission to the Master's Degree Programme under the OUS without requiring the three years graduate degree qualification be discontinued with effect from July, 2004 as would appear from a letter issued by the IGNOU to the Vice-Chancellor of the appellant-University, the relevant portion whereof reads as under :
"In the meeting, both the undersigned as Chairman DEC and Chairman UGC had emphasized the need to discontinue the Master's Degree Programme without requiring 3 years graduate degree qualification under Open education stream, which is in practice in some Universities of Tamil Nadu.[14]
We drew your kind attention to the UGC regulation 1985 regarding the minimum standard of instructions for the grant of the first degree through non-formal/distance education dated 25th November, 1985 according to which no student shall be eligible to seek admission to the Master's Degree Programme who has not completed first degree course of three years duration. This clearly stipulates that the practice of admitting students of Master's Degree Programme who have not undergone 3 years undergraduate programme successfully is against the provisions of the above regulation. In view of this, it was agreed in the meeting of March 11, 2004 that new admission to the Master's Degree Programme under open education scheme as prevailing in some Universities in Tamil Nadu should be discontinued with effect from the forthcoming session starting from July 2004. I would feel grateful to receive your confirmation on this matter."
It is in that background, while examining the UGC Act and the IGNOU Act, the Hon'ble Apex Court has observed that there is no conflict between the two enactments, and as such, the UGC Regulations are binding on the Open University. The Hon'ble Apex Court held that for acquiring post-graduation degree, it is necessary for an incumbent to acquire first degree.
How a precedent is to be applied in a given case is a proposition, which is canvassed by the learned counsel for the petitioner more particularly while referring to Annamalai's case (supra), and for that reliance is placed on a decision of Hon'ble Apex Court in case of Govt. of Karnataka v. Gowramma (AIR 2008 SC 863), wherein the Apex Court made following observations in Para 9 to 13:
9. Reliance on the decision without looking [15] into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features.
It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent.(See: State of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC
647) and Union of India and Ors. v. Dhanwanti Devi and Ors. (1996 (6) SCC 44). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn v. Leathem (1901) AC 495 (H.L.). Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.
10. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclids theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy [16] discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed :
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge."
11. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkins speech.....is not to be treated as if it was a statute definition. It will require qualification in new circumstances. Megarry, J in (1971) 1 WLR 1062 observed: One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament". And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
12. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
13. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."[17]
"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
Learned counsel for the petitioner has also argued that Bachelor of Arts Preparatory Course prescribed by the Kota Open University, which is akin to that of BPP for IGNOU, has been treated as equivalent to Senior Secondary of the Board of Secondary Education, Rajasthan, by the Division Bench of this Court in case of State of Rajasthan & Ors. Vs. Lachcha Ram [2012(1) WLC (Raj.) 339]. The Division Bench made following observations in Para 15 & 16:
15. The first part of the qualification prescribed for the post of Prabodhak is that one must possess Senior Secondary School certificate or intermediate or its equivalent, with Diploma or certificate in basic teachers training of a duration of not less than two years of Diploma or certificate in elementary teachers training of a duration of not less than two years. It is not in dispute that the respondent-petitioners are possessing the qualification of BSTC course of two years. Dispute is only that whether the respondent-petitioners who after passing Secondary Examination have undertaken BAP course from Kota Open University can be treated as having qualification equivalent to Senior Secondary Examination. The Director, Elementary Education Rajasthan, Bikaner has issued a circular dated 9.5.2002 on the basis of order of State Government dated 3.5.2002, wherein it is clearly provided in para 3 that the para teachers who have passed 10th class examination and thereafter have passed BAP from Kota Open University are eligible for BSTC training course of two years duration. The respondents petitioners have not only undertaken BAP course which is a preparatory course for admission to graduation course, but also have completed graduation from Kota Open University. It is apparent from the aforesaid decision of the [18] appellants that they have treated the candidates 10th pass and undertaken BAP course from Kota Open University eligible for admission to BSTC course, meaning thereby the State Government has treated BAP course from Kota Open University equivalent to Senior Secondary Examination certificate for the purpose of admission to BSTC course. It is admitted that the Director of Elementary Education Rajasthan, Bikaner has issued instructions vide circular dated 9.5.2002 in terms of the State Government's order dated 3.5.2002 and admittedly the said circular dated 9.5.2002 has not been withdrawn by the State Government. Hence, the State Government is bound by the aforesaid decision.
Thus, in our considered opinion, it was not open to the State Government to contend that such incumbents, who have completed BSTC course after passing 10th class and BAP course from Kota Open University and are graduate also, are not eligible for appointment to the post of Prabodhak. We also find that for admission to graduation course in Kota Open University, Senior Secondary is eligibility criteria and the students who have passed 10th class examination and have undertaken BAP course are treated as eligible for admission to graduation course. It is apparent that Kota Open University is treating BAP course as equivalent to Senior Secondary and that is why admissions are given to graduation course, certificate to the contrary is of no avail to the State. It is not in dispute that at the relevant time, admission to graduation course in Kota Open University could not have been given to a person without possessing Senior Secondary Examination certificate or its equivalent, thus, for all purposes, the incumbents who have been given admission to graduation course after passing BAP course were treated as having qualification equivalent to Senior Secondary or intermediate. The same is also reflected in the State Government's circular dated 3.5.2002/9.5.2002. Thus, in our considered opinion, there is no infirmity in the view taken by Hon'ble Prakash Tatia, J. in the orders which have been impugned by the State. We accordingly affirm the same and set aside the view of the Single Bench based on the decision in the case of Suja Ram (supra), Jamant Singh (supra) and Civil Writ Petition No. 5951/2008 (Smt. Priti Dixit vs. State of Rajasthan & Ors.) inasmuch as dealing with aforesaid question as rest of the questions are not before us for adjudication in these appeals and hold that the view taken in Suja Ram's case and in other orders based [19] thereupon, does not lay down correct law as sufficient material to form correct opinion was not placed before the Single Bench deciding Suja Ram's case, which has been simpliciter followed in other cases.
16. The respondent-petitioners are having the qualification of graduation and BSTC course after passing 10th class and BAP course, thus, they are having much higher qualification than Senior Secondary Examination, thus, they cannot be treated as ineligible for appointment to the post of Prabodhak.
Per contra, Mr. Jagdish Vyas, learned counsel for the respondents has stoutly defended the impugned Circular and submitted that while applying the said Circular appropriately the petitioner's graduation degree has not been treated as a valid degree for the purpose of awarding him marks in terms of Para 17.2.1 of the Policy of 2008. Mr. Vyas has argued that the impugned Circular dated 26th of September 2011 has been issued by the respondent Company in adherence of the observations made by the Hon'ble Apex Court in Annamalai's case, and as such, vis-à-vis the petitioner his degree of graduation which he has obtained in the form of non- formal/distance education from IGNOU has been rightly not treated as a degree of graduation. Mr. Vyas, for substantiating this argument has canvassed that the second part of Regulation 2(1) of the UGC Regulations 1985 (non-formal) is not attracted in the case of petitioner because he is not an incumbent who falls within the ambit of second part. According to Mr. Vyas, while entering in the services of respondent Insurance Company [20] the petitioner has shown his educational qualification upto 8th standard, and that being so, considering his eligibility he was appointed as subordinate staff, cannot be treated as an incumbent having no academic record within the four corners of the second part of Regulation 2(1) of the UGC Regulations 1985 (non-formal). The sum and substance of the submission of Mr. Vyas that vis-à-vis the petitioner first part of Regulation 2(1) of the UGC Regulations 1985 (non-formal) shall apply and in terms of first part of Regulation 2(1) of the UGC Regulations 1985 (non-formal) he has not successfully completed 12 years schooling through an examination conducted by Board/University, his graduation degree has been rightly not construed as valid for awarding him 12 marks.
Emphasizing the words "no previous academic record", learned counsel for the respondents would urge that petitioner himself has admitted that he has passed his 8th class examination from Government School, Sri Ganganagar, therefore, it cannot be said that he had no previous academic record so as to attract second part of Regulation 2 of the UGC Regulations 1985 (non-formal). Placing heavy reliance on Annamalai's case (supra), the learned counsel for the respondents has argued that said verdict squarely covers the case of the petitioner, and as such, he is not entitled for any relief. Mr. Vyas, learned counsel for the respondents, has also placed reliance on a Division Bench decision of Madras High [21] Court in T.L. Muthukumar & Ors. Vs. The Registrar General, High Court Madras (Writ Petition No.18729 of 2010, decided on 10.02.2011), reported in MANU/TN/ 0835/2011 :(2011) 2 MLJ 1785), wherein while relying on Annamalai's case, the Madras High Court has held that B.A./B.B.A. degree from an Open University obtained by a candidate without having the basic + 2 qualification cannot claim promotion on that basis. The Madras High Court formulated the propositions to be adjudicated in Para 9 & 10 of the verdict, which reads as under:
9. The short question that falls for consideration in this case is as to "Whether a candidate, who obtained B.A./B.Sc./B.Com. Degree without successfully completing 12 years schooling can be a ground for promotion to the higher post on the basis of having qualification of graduation degree, that too through correspondence course."
10. As noticed above, UGC, in exercise of power conferred by Clause (f) of Sub-section (1) of Section 26 of the University Grants Commission Act, 1956, framed the 1985 Regulations. Clause 2 of the Regulation referred to in the instant case reads as under:
2. Admission/Students:
1. No student shall be eligible for admission to the 1st Degree Course through non-
formal/distance education unless he has successfully completed 12 years schooling through an examination conducted by a Board/University. In case there is no previous academic record, he shall be eligible for admission if he has passed an entrance test conducted by the University provided that he is not below the age of 21 years on July 1 of the year of admission.
2. No student shall be eligible for the award of the first degree unless he has successfully completed a three year course; this degree may be called the B.A./B.Sc./B.Com. (General Honours/Special) degree as the case may be. Provided that no student shall be eligible to seek admission to the Master's Course in these faculties, who has not successfully pursued the [22] first Degree Course of three years duration. Provided further that, as a transitory measure where the universities are unable to change over to a three year degree course, they may award a B.A./B.Sc./B.Com. (Pass) degree on successful completion of two year course, but that no student of this stream shall be eligible for admission to the Master's course unless he has undergone a further one year bridge course and passed the same. The three year degree course after 10+2 stage should in no case be termed as B.A./B.Sc./B.Com. (Pass) degree.
The question which required consideration in the matter vis-à-vis the qualifications prescribed under the High Court Rules was further elaborated in Para 11 of the verdict, which reads as under:
11. On the other hand, the qualification prescribed under the High Court Rules framed under Article 229 of the Constitution of India has specifically provides that for promotion to certain posts, including Assistants, a candidate must hold B.A./B.Sc./B.Com/B.A. (Hons.)/ B.Sc. (Hons.)/ B.Com. (Hons.) degree of the Madras University or equivalent thereof of a recognized University.
The Madras High Court, while considering that the provisions of UGC Act are binding on all Universities, whether conventional or open, proceeded to examine the ratio decidendi of the Hon'ble Apex Court in Annamalai's case in the light of the qualifications prescribed by the High Court under the Rules, which were framed in exercise of powers conferred by Article 229 of the Constitution of India, and has made following observations in Para 14 to 16 of the verdict:
14. From a perusal of Clause 2 of the 1985 Regulations and the ratio decided by the Supreme Court as quoted hereinbefore, it is manifest that [23] for the purpose of obtaining a Post Graduate Degree a candidate has to satisfy and comply the mandatory requirements provided therein.
According to the rule, no candidate shall be eligible for award of first degree unless he has successfully completed 12 years schooling. Similarly, no student shall be eligible to seek admission to the Master's course in any faculty, who has not successfully pursued the first degree course of three years duration.
15. In the instant case, the question is as to whether a candidate after obtaining such a degree from an Open University without completing 12 years schooling can claim, as a matter of right, promotion to the higher post, ignoring the service conditions prescribed under the service rules.
16. As stated above, in exercise of powers conferred by Article 229 of the Constitution of India, the High Court framed the rules providing service conditions of its employees, including the condition for promotion. It is well settled that the object of Article 229 is to secure the independence of the High Court and all powers vested in the Chief Justice and the High Court to run the High Court administration.
Finally, while non-suiting the petitioners, the Court has held that the qualification of graduation obtained by the correspondence course without having +2 basic qualification, cannot supersede the service rules framed by the High Court for the purpose of considering their candidature for promotion on the strength of said qualification. The Court, ultimately, made following observations in Para 18 & 19 of the verdict:
18. As discussed above, the rule framed by the High Court inter alia clearly lays down the qualification for the purpose of promotion from Categories 7, 8 and 9 to Category 6. It is clearly mentioned that for the purpose of promotion, a person must possess and hold the B.A./B.Sc./B.Com or other Bachelor's degree of the Madras University or of a recognized University.
The rule does not recognize B.A. or B.B.A. degree from an Open University obtained by a candidate [24] without having the basic +2 qualification. The condition contained in the High Court Service Rules, therefore, cannot in any way be superseded by other law not applicable to the employees of the High Court.
19. Admittedly, the Petitioners, although, obtained the first degree by correspondence course without having the basic +2 qualification. Such degree having not been recognized under the Rules framed by the High Court in exercise of powers conferred under Article 229 of the Constitution of India, the Petitioners cannot claim promotion on that basis.
Lastly, the learned counsel for the respondents has argued that the present case is not a case of recognition or de- recognition of a degree by the respondents. According to Mr. Vyas, it is a case of prescribing qualification for appointment/ promotion, and for which the sole discretion lies with the employer. For this proposition, learned counsel Mr. Vyas has placed reliance on a decision of Hon'ble Apex Court, namely, V.K. Sood Vs Secretary, Civil Aviation and Ors. (AIR 1993 SC 2285), wherein in Para 6 the Hon'ble Apex Court made following observations:
6. Thus it would be clear that, in the exercise of the rule making power, the President or authorised person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to an office or a post under the State.
The rules thus having been made in exercise of the power under proviso to Article 309 of the Constitution, being statutory, cannot be impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal. Suffice to state that it is settled law that no motives [25] can be attributed to the Legislature in making the law. The rules prescribed qualifications for eligibility and the suitability of the appellant would be tested by the Union Public Service Commission.
Mr. Vyas has also placed reliance on a full Bench decision of this Court in case of Shanker Lal Verma Vs. Rajasthan State Electricity Board [1999 (1) WLC (Raj.) 1]. In this verdict, the Full Bench on the issue of prescription of qualifications for appointment/promotion, made following observations in Para 32 & 33 of the verdict:
32. It is also to be noted that these are not thecases of the derecognition of a degree, diploma or certificate issued by a particular institution because of some fault on the part of the institution awarding the same. The cases of derecognition of particular institutions and consequently derecognition of the degrees, diplomas and certificates issued by such institutions have to be distinguished from service matters in which certain qualifications are deleted from the rules. Removing or deleting a qualification from eligibility criteria cannot be said to be derecognition of that qualification or a degree, diploma or certificate. It only means that the degree, diploma or certificate has ceased to be the eligibility qualification for a particular post.
It does not take away from the candidate, the degree, diploma or certificate conferred by the institutions. For example, if the eligibility qualification for a particular post was earlier 'Graduate' and by amendment, it is raised to 'Post graduate', it does not mean that degree possessed by the candidates are derecognised. What it simply means is that the eligibility qualifications are enhanced and a higher qualification is now required. It is also to be taken into account that purpose behind amendment to the rule was not to derecognise any degree, diploma or certificate, it was only to delete certain qualifications from the eligibility criteria. This may be because of the changed situation in which the employer may find that candidates who have passed the Secondary School Examination from the Statutory Boards and Universities are [26] available in sufficient numbers and it was not necessary to consider the candidates having equivalent qualifications. The respondents cannot be forced to accept equivalence of certain qualifications and to accept such equivalence for all times to come.
33. In the result, we conclude that there is no force in the contention of the petitioners that the amended qualifications shall not apply to them because they had acquired the equivalent qualifications prior to the amendment of the rules. In, our opinion, the amended rule and the qualifications will apply even to the candidates who have obtained the equivalent qualifications prior to the date of enforcement of amended rule. However, the amended qualifications shall not be applicable to the vacancies which had occurred prior to the date of enforcement of the amended rule and such vacancies shall be filled in in accordance with the qualifications prescribed as on the date of occurrence of vacancies. We, therefore, answer the reference accordingly. The petitions shall now be listed before appropriate Bench for decision in accordance with law in the light of this decision.
Heard learned counsel for the petitioners and perused the materials on record.
The short question, on which the entire lis involved in the matter hinges, is the qualification of graduation acquired by the petitioner through non-formal/distance education. On the strength of the grievances ventilated by the petitioner and a stiff resistance put forth by the respondents, a question is also cropped up as to whether the impugned circular dated 26th of September 2011 issued by the respondent insurance Company can outwit the UGC Regulations 1985 (non-formal), requiring [27] adjudication. The said Regulations were promulgated on 25th of November 1985 in exercise of powers conferred by clause (f) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956. For appreciating the controversy involved in the matter, Regulation 2(1) of the UGC Regulations 1985 (non-formal) is relevant under the caption "Admission/Students". The complete text of Regulation 2(1), with emphasis on its second part, reads as under:
"2. Admission/Students:
(1) No student shall be eligible for admission to the 1st Degree Course through non-
formal/distance education unless he has successfully completed 12 years schooling through an examination conducted by a Board/University. In case there is no previous academic record, he shall be eligible for admission if he has passed an entrance test conducted by the University provided that he is not below the age of 21 years on July 1 of the year of admission."
In the light of aforesaid Regulation 2(1) of the UGC Regulations 1985 (non-formal) vis-à-vis the impugned circular issued by the respondent insurance Company dated 26th of September 2011, if the aforesaid Circular is examined then it will ipso facto reveal that the Circular has quoted first part of Regulation 2(1) of these Regulations while omitting the second part of the Regulation, which is highlighted supra.
As a matter of fact, there cannot be two opinions that a student cannot become eligible for admission to first [28] degree course unless he has successfully completed 12 years schooling through an examination conducted by a Board/University. However, while interpreting the second part of Regulation 2(1) of the UGC Regulations 1985 (non-formal), this Court has doubts that how and in what manner second part of Regulation 2(1) is not applicable in the instant case, or the said part of Regulation 2(1) cannot come to the rescue of the petitioner.
The UGC has formulated different Regulations for non-formal/distance education and the formal education. In case of UGC Regulations of 1985 regarding the Minimum Standards of Instruction for the Grant of First Degree through Formal Education, the relevant Regulation 2(1) under the caption "admission/students" reads as under:
"2. Admission/Students:
(1) No student shall be eligible for admission to the 1st Degree Course in these faculties unless he has successfully completed 12 years schooling through an examination conducted by a Board/University. The admission shall be made on merit on the basis of criteria notified by the institutions after taking into account the reservation order issued by the government from time to time."
The minimum standards vis-à-vis formal education cannot be pressed into service with respect to first degree obtained by an individual through non-formal/distance education because these two disciplines are separate and distinct and that [29] is why UGC has also differentiated them and issued separate Regulations governing the minimum standards. Precisely, the object of non-formal/distance education is to impart education amongst poor and have-nots of the society, who are not in a position to pursue their normal academic activities. The intention of introducing non-formal/distance education is to encourage those students who are belonging to low have-nots of the society or lower echelon of the society to acquire higher educational qualifications and not to get dissuaded in their academic pursuits for lack of resources and means. In the present era, the non-formal/distance education is duly recognized, and there are many universities throughout the Country, involved in imparting education through non- formal/distance education. The issuance of Regulations in this regard by the UGC further reinforces the importance of non- formal/distance education. The object of non-formal/distance education is to ameliorate the mass illiteracy in our Country, and to solve poverty and unemployment problems. It has laudable objects inasmuch as it can play a pivotal role to solve the social problems, for the promotion of culture, social values and heritages. Non-formal education is need of the hour because it can meet overgrowing demand for education; give education to out of school children, adults, youths etc. In a way it helps to perfect human resources, minimize the wastage and stagnation in education by direct means and enhance values skill competency in the vocation and productivity. [30]
On examining the judgment of Hon'ble Apex Court in Annamalai's case, in my considered opinion, the core issue, which is subject matter of judicial scrutiny in the present petition, cannot be resolved. As a matter of fact, the question involved in that matter hovers around the eligibility of an individual to seek admission to the Master's Degree Programme, who has not completed first degree of three years duration. From a bare reading of the judgment in Annamalai's case, indisputably, an incumbent, who has undergone the preparatory course and passed the written test, becomes eligible to join the under-graduate programme of his or her choice. While discussing the Regulations of 1985 vis-à-vis Formal and Non- Formal/distance education, the Hon'ble Apex Court has held that there is no conflict between them as they are covering two different spheres. On thorough examination of the ratio decidendi of the aforesaid judgment of the Hon'ble Apex Court, prima facie, this Court feels that the judgment has dilated on the UGC Regulations of 1985 pertaining to Formal Education and in the verdict obviously there is no observation/finding that second part of Regulation 2(1) of the UGC Regulations 1985 (non- formal) is declared as invalid. That apart, from the verdict of Hon'ble Apex Court, it cannot be inferred that an incumbent, who has obtained his first degree course without previous academic record after passing entrance test conducted by the University with the pre-condition that he is below 18/21 years of age, has been held not entitled to claim the degree of graduation to his credit.
[31]
Adverting to the decision of the Division Bench of Madras High Court in T.L. Muthukumar's case (supra), suffice it to say that the said judgment is obviously not of much significance inasmuch as in the said verdict Madras High Court has examined the educational qualifications prescribed under the Rules framed by the High Court in exercise of powers under Article 229 of the Constitution of India, and in that background the Madras High Court has held that insistence under the service rules that an incumbent can be treated as graduate, provided he had schooling upto +2, in that context, the Madras High Court has found that the incumbent who has not passed +2 examination before obtaining his first degree course, cannot be treated as eligible for promotion. Therefore, the said case is clearly distinguishable.
The judgment in V.K. Sood's case (supra), on which the learned counsel for the respondents has placed heavy reliance, is essentially with respect to powers of the appointing authority for prescribing qualification for a particular post. There is no quarrel that prescribing qualification is the sole prerogative and repository of the legislature, or the appointing authority, and as such, qualification cannot be impeached by imputing motive against the legislature. On the face of it, in the instant case, there is no statutory provision enacted by the respondent insurance Company for prescribing the qualifications of graduation or first degree, that is to say, that the respondent [32] insurance Company has not enacted any legislative provision creating an embargo that degree of graduation obtained by an individual through non-formal/distance education would not be treated at par with the graduation degree.
A critical analysis of the impugned Circular makes it amply clear that the Circular in question has deliberately omitted second part of Regulation 2(1) of the UGC Regulations 1985 (non-formal) and has simply mentioned first part of the said Regulation. True it is that in the Circular the judgment rendered by Hon'ble Apex Court in Annamalai's case has been referred, but no endeavour has been made by the insurance Company to ascertain and elucidate the true purport and ratio decidendi of the judgment of the Hon'ble Apex Court. The judgment of Hon'ble Court, in Gowramma's case (supra), dilating on the issue that how ratio decidendi of a precedent is to be relied upon, deserves due credence and therefore reliance can be profitably made on that judgment for this proposition.
The Division Bench judgment of this Court, on which the learned counsel for the petitioner has placed reliance, i.e. in Lachcha Ram's case, the Division Bench has treated Bachelor of Arts Preparatory Course as equivalent to Senior Secondly Course of Board of Secondary Education, Rajasthan, and the said Preparatory Course is almost akin to Bachelor's Preparatory Programme (BPP), which the petitioner has successfully undergone. Therefore, to that extent, the said judgment can be [33] applied to treat the BPP Course undertaken by the petitioner to be at par with the Senior Secondary Examination of the Board of Secondary Education, Rajasthan.
On churning out the controversy threadbare, still a question needs to be addressed is the true purport and meaning of the words "no previous academic record". As the learned counsel for the respondents has very vociferously canvassed on this issue in the backdrop of facts and circumstances of the instant case, it has become imperative for this Court to thrash out the same for arriving out at a logical conclusion. The rival contentions on this issue are divergent and poles apart. As per the petitioner's argument, qualification upto 8th standard cannot be categorized as a term "previous academic record", and therefore, the case of the petitioner is squarely covered by second part of Regulation 2(1) of the UGC Regulations 1985 (non-formal). Conversely, the contention of the learned counsel for the respondents is that the petitioner having disclosed his qualification upto 8th standard at the time of his entry in the services cannot be permitted to disown the same, and as such, he is not the incumbent who can fall within the ambit of second part of Regulation 2(1) of the UGC Regulations 1985 (non- formal), or to say an incumbent with no previous academic record. The issue, on the face of it, appears to be contentious, but the fact of the matter is that petitioner has acquired the qualification of graduation through non-formal/distance education and he has been issued degree by IGNOU, which is [34] duly recognized by the UGC. Moreover, the respondent insurance Company has also given due weightage to the said degree, while considering his candidature for the purpose of promotion to the post of Assistant, on three previous occasions i.e. in 2008, 2009 and 2010, and for all these three years considering his qualifications to be graduate, he has been awarded 12 marks under the head "Qualifications".
The rules of statutory interpretation are required to be romped in for resolving the contentious issue concerning Regulation 2(1) of the UGC Regulations 1985 (non-formal). It is trite that statutes are to be read as a whole to ascertain the intent of the legislature, and any provisions that are apparently inconsistent are interpreted to produce a harmonized whole, if reasonably possible. Every word of a statute should be read to give it meaning, and so the Court must avoid interpretations that render words unnecessary or meaningless. Unclear statutory language would be construed so as to avoid absurd results, injustice and prejudice to public interest.
It is a well known rule of construction that provisions of a statute must be construed so as to give them a sensible meaning. The legislature expects the Courts to observe the maxim ut res magis valeat quam pereat, which means it is better for a thing to have effect than to be made void. If a statute gives rise to obstacles in implementation, it is obviously desirable from the Court to do its best to find ways of overcoming those [35] obstacles so as to avoid absurd results. It is a well settled principle of interpretation of statutes that a construction should not be put on a statutory provision, which would lead to manifest absurdity, futility, palpable injustice and absurd inconvenience, or anomaly. Elaborating the purpose of interpretation with full emphasis, this Court feels that precisely the purpose of interpretation is to give effect to the intention underlying the statute, and therefore, unless the grammatical construction leads to absurdity, it is safe to give words their natural meaning, because the framer has presumed to use the language which conveys the intention.
Applying the cardinal principles of interpretation of statutes, I am afraid, the interpretation, as suggested by the learned counsel for the respondents with respect to second part of Regulation 2(1) of the UGC Regulations 1985 (non-formal) cannot be accepted because that may lead to absurdity, futility and palpable injustice. If the interpretation as put-forth is to be accepted that the petitioner has studied upto 8th standard, he has academic record and therefore he cannot take shelter of the second part of the aforesaid sub-regulation (1) of Regulation 2 of the UGC Regulations 1985 (non-formal), the whole purpose of this Regulation will be frustrated and its obvious effect is that it may lead to inconsistency or unreasonableness, which eventually may render the said part of sub-regulation (1) of Regulation 2 of the UGC Regulations 1985 (non-formal) meaningless, or unconstitutional.
[36]
There is one more important aspect, which deserves to be addressed is that the degree of graduation obtained by the petitioner which is duly recognized by the UGC, and learned counsel for the respondents has not been able to point out any statutory provision governing the service conditions of the employees of the insurance Company, which puts an embargo that a graduation degree obtained by an individual through non- formal/distance education after qualifying BPP cannot be treated as qualification of graduation. Therefore, in this view of the matter, in my considered opinion, on meaningful construction of the impugned circular dated 26.09.2011, the same cannot come in the way of the petitioner so as to claim 12 marks under the head "Qualifications" for the purpose of promotion in the cadre of Assistant within the four corners of Para 17.2.1 of the Policy of 2008. For any other reason, if the said circular is coming in the way of the petitioner for claiming marks under the head "Qualifications", then the same is liable to be ignored for the purpose of considering the qualifications of the petitioner as equivalent to graduation or the same may be treated as redundant.
The net result of the above discussion is that the present writ petition is allowed, the respondents are directed to reexamine and reassess the candidature of the petitioner for promotion by considering his qualifications as graduate, and in terms of Para 17.2.1 of the Policy of 2008 he is declared entitled [37] for the requisite marks under the Qualifications head. The respondents are directed to undertake this exercise afresh, and if the petitioner is found suitable for promotion after reassessment of his merit and suitability, then requisite consequential orders be issued in this behalf after making room for him by demoting the incumbent lowest in the ranking list to maintain cadre strength. In case the petitioner is found suitable for promotion, then he shall be entitled for all consequential benefits from the date the incumbents lower in ranking list were promoted in the cadre of Assistant. The respondents are directed to make compliance of the directions as early as possible, preferably within a period of three months from the date of passing of this order.
No order as to costs.
(P.K. LOHRA), J.
arora/