Madhya Pradesh High Court
Jayant Pratap Singh vs Director, Technical Education And Ors. on 5 September, 2007
Equivalent citations: AIR2008MP119, 2007(4)MPHT417, AIR 2008 MADHYA PRADESH 119, 2008 (3) AKAR (NOC) 460 (MP) (2007) 4 MPHT 417, (2007) 4 MPHT 417
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. The present writ petition preferred under Article 226 of the Constitution of India was dealt with by the learned Single Judge of this Court who faced with the decision rendered in the case of Ankita Sinha v. Rajiv Gandhi Proudyogiki Vishwavidyalaya and Ors. 2006 (1) MPLJ 489 expressed his respectful disagreement with the view opined therein and thereafter proceeded to refer the following two questions of law to be determined by the Larger Bench:
(i) Under Rule 2.4.1.1 of the Rules (Annex.P/5), once the criteria has been fixed to pass the qualifying examination with main subjects Mathematics, Physics and Chemistry and the students who have been declared passed in the aforesaid examination by a recognized examination conducted by a recognized institution whether he may be declared as disqualified merely on the ground that individually the main subjects has not been cleared by him?
(ii) Whether the respondent who has granted recognition to an institution for the purpose of qualifying examination under Rules (P/5), whether the admission in B.E. Course can be denied merely on the ground that the candidate has passed the qualifying examination but still he is not qualified to get the admission in B.E. Course?
That is how the matter has been placed before us.
2. The facts in a nutshell are that the writ petitioner completed his XIIth Class Board Examination from Springer Public School Gorakhpur, Jabapur conducted by the Council for the Indian School Certificate Examination, New Delhi (hereinafter referred to as 'the ISCE'). As per the Rules of ISCE he was declared passed. He had not obtained minimum passing marks in the subject of Mathematics. He applied for admission in B.E. Course and appeared in Pre Engineering Pharmacy Test and Pre-Agriculture Test 2004 conducted by the Professional Examination Board, Bhopal on 12.6.2004. He was declared successful in the aforesaid examination and was given admission in the College of the respondent No. 5. He had deposited the requisite fee for the first semester and the examinations were scheduled to commence 05.2.2005. Before the date of examination the respondent No. 4, Chairman, Central Counselling Committee, Rajiv Gandhi Proudyogik Vishwa Vidyalaya, Bhopal issued a letter on 12.1.2005 by which the respondent No. 5College was informed that the admissin of the petitioner had been cancelled because he had not cleared the qualifying examination.
3. It was contended before the learned Single Judge that he was declared passed in the qualifying examination with main subjects, namely, Mathematics, Physics and Chemistry and, therefore, he was entitled to the admission in B.E. Course and such a qualification meets the criteria postulated under Rule 2.4.1.1 for admission in B.E. Course. It was putforth that he had passed with the main subjects, namely, Mathematics, Physics and Chemistry and it was not necessary that he should pass in each individual subject. The second plank of argument was that he had not concealed any material fact and the respondents, being well aware that he had cleared the qualifying examination with the main subjects had extended the benefit of admission and hence, there was no rhyme or reason to cancel the same.
4. The learned Single Judge referred to Rule 2.4.1.1 of Pre Engineering Pharmacy Test, Pre Agriculture Test-2004 Rules and was of the opinion that a candidate was required to pass the examination by opting the main subjects , namely, Mathematics, Physics and Chemistry and Class XIIth (10+2) from the Board of Secondary Education, M.P. or any other equivalent or higher education from other recognized Board or recognized University or examination conducted by any recognized Board or recognized University or who had passed the final examination of Diploma from Engineering Branch or Architecture from M.P. Technical Education Board, Bhopal (Rajiv Gandhi Proudyogiki Vishwavidyalaya, Bhopal). Being of this view he disagreed with the view taken in the case of Ankita Sinha (supra).
5. We have heard Mr. A.P. Singh, learned Counsel for the petitioner, Mr. Dipak Awasthy, learned Government Advocate for the respondent No. 1, Mr. Paritosh Gupta, learned Counsel for the respondents 3 and 4 and Mr. Alok Aradhe, learned senior counsel who was appointed as amicus curiae.
6. It is submitted by Mr.AP Singh, learned Counsel for the petitioner that the interpretation placed by the learned single Judge in the case of Ankita Sinha (supra) is neither correct nor sound and it requires reconsideration. It is urged by him that if Rule 2.4.1.1 is read in proper perspective it conveys that a candidate must have passed the examination with Physics, Chemistry and Mathematics as main subjects. It is canvassed by him that the aforesaid interpretation would be in consonance with the rule and if it is construed to mean that he has to pass in each and every main subject that would cause violence to the Rule.
7. Mr. Paritosh Gupta, learned Counsel for the respondents 3 and 4, in his turn, submitted that the interpretation placed in the case of Ankita Sinha(supra) is absolutely correct as the learned single Judge therein had dealt with the facet of intention of the rule makers and the concept of intendment has to be given due weightage in a case of this nature.
8. Mr. Alok Aradhe, learned Amicus Curiae submitted that the rule has to be read in the context in which it features inasmuch as under the Rule there has been contemplation as regards eligibility criteria for admission in BE Course. It is put forth by him that on a first flush it may appears that a candidate once has passed the examination with main subjects it should be held that he has the eligibility criteria and in that case it would remain in the realm of total literal interpretation which really does not subserve the purpose. Submission of the learned friend of the Court is that the rule in question has a purpose, for it provides the requisite eligibility criteria for being eligible to seek admission in BE course. It is propounded by him that a particular Board may have a rule or bylaw to declare a student to have passed despite the factum that he has not obtained the pass marks in the aforesaid three subjects by providing different yardsticks. Submission of Mr. Aradhe is that the passing of the examination with the main subjects would be in a different compartment and he may be declared to have passed that particular examination but when there is a mandate for qualifying for a admission to a technical course it has to be viewed differently inasmuch as the concept of purposive construction would come into play. Incrementing the aforesaid submission it is put forth by him that the import of the rule has to be understood when it postulates that it is imperative to have passed the relevant examination with Physics, Chemistry and Mathematics as main subjects. Learned senior counsel has commended us to the decisions rendered in Jugalkishore Saraf v. Raw Cotton Co. Ltd. AIR 1955 SC 376, Principal Patna College, Patna v. Kalyan Srinivas Raman , Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. , District Mining Officer v. Tata Iron and Steel Co. , D. Saibaba v. Bar Council of India and Anr. AIR 2003 SC 1502 and Modern School v. Union of India and Ors. .
9. To appreciate the rival submissions raised at the Bar it is necessitous to refer to Rule 2.4.1.1. Hindi version of the aforesaid rule is available on record. The English translation of the same reads as under:
2.4.1.1 For admission in BE course, the candidate must have passed any of the following examinations with Mathematics, Physics and Chemistry as main subjects.
1. Class XII examination from Board of Secondary Education, Bhopal
2. Any other equivalent or higher examination from any recognised Board or University. Or Those who have passed the final year examination of Diploma Course of MP Board of Technical Education, Bhopal (Rajive Gandhi Prodyogiki Vishwavidyalaya, Bhopal) from any branch Engineering or Architecture.
10. The singular question that emanates for consideration is what interpretation should be placed on the aforesaid Rule. Before we proceed to place the interpretation, it is apposite to refer to certain decisions that have been commended to us at the Bar.
11. In Jugalkishore Saraf (supra) it has been held as under:
The cardinal rule of construction of statutes is to read the statutes literally, that is by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternatively construction is possible, the Court must adopt the ordinary rule of literal interpretation.
12. In Peerless General Finance and Investment Co. Ltd, (supra) it has been ruled thus:
33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted.
13. In District Mining Officer (supra) the Apex Court expressed the opinion as under:
...A statute is an edict of the legislature and in construing a statute, it is necessary, to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the Court is to act upon the true intention of the legislature.
In the aforesaid case it has been further held as under:
Most fair and rational method for interpreting a statute is by exploring the intention of the legislature through the most natural and probable signs which are either the words, the context, the subject matter, the effects and consequences, or the spirit and reason of the law. In the Court of law what the legislature intended to be done or not to be done can only be legitimately ascertained from that what it has chosen to enact, either in express words or by reasonable and necessary implication. But the whole of what is enacted 'by necessary implication' can hardly be determined without keeping in mind the purpose or object of the statute. A bare mechanical interpretation of the words and application of legislative intent devoid of concept or purpose will reduce most of the remedial and beneficent legislation of futility. The Courts however, are always warned that they are not entitled to usurp legislative function under the disguise of interpretation and that they must avoid the danger of determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somehow fitted.
14. In D. Saibaba v. Bar Council of India and Anr. AIR 2003 SC 1502 it has been expressed thus:
A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart.
Their Lordships further proceeded in to express the view in paragraph 18 as under:
18. Reading word for word and assigning a literal meaning to Section 48AA would lead to absurdity, futility and to such consequences as the Parliament could have never intended. The provision has an ambiguity and is capable of being read in more ways than one. We must, therefore, assign the provision a meaning -and so read it -as would give life to an otherwise lifeless letter and enable the power of review conferred thereby being meaningfully availed and effectively exercised.
15. In Modern School (supra) the majority speaking through Kapadia,J while interpreting Section 24(3) of the Delhi School Education Act and Rule 177 of Delhi School Education Rules, 1973 expressed the opinion as under:
26. To sum up, the interpretation we have placed on the provisions of the said 1973 Act is only to bring in transparency, accountability, expenditure management and utilization of savings for capital expenditure/investment without infringement of the autonomy of the institute in the matter of fee fixation. It is also to prevent commercialization of education to the extent possible.
16. In this context it is also apposite to refer to a three Judge Bench of the Apex Court rendered in the case of K. Sujatha v. Marathwada University and Ors. 1995 Supp (1) SCC 155 wherein the Apex Court while interpreting the ordinance No. 211(a) of the Marathwada University Ordiances expressed the view as under
3. It is not disputed that the appellant passed the qualifying examination in two attempts. Ordinance 211 (a) clearly lays down that acandidate for admission against the open seat to the medical course must have obtained not less than 50 per cent of the total marks in the four subjects taken together at one and the same attempt in the qualifying examination. Since the appellant did not pass the qualifying examination at one and the same attempt, she was not eligible in terms of Ordinance 211(a) of the University Ordinances.
17. Their Lordships in paragraph 5 observed that there cannot be a different eligibility rule for different candidates admitted from different sources.
18. We may hasten to add we have referred to the aforesaid decision as the same has been referred to in the body of the writ petition.
19. Learned single Judge in Ankita Sinha(supra) while interpreting the aforesaid Rule has held as under:
10. A perusal of the aforesaid rule indicates that a candidate is required to pass from any recognized Board as detailed therein the Class XII (10+2) examination with Mathematics, Physics and Chemistry as the main subjects. Even though there is no specific mention in the rule that a candidate should pass in each of the subjects separately, implication of the rule is that a candidate should have passed Class XII examination with Mathematics, Physics and Chemistry as the main subjects. Passing Class XII examination with the aforesaid three subjects as the main subjects would necessarily mean passing individually each of the subjects. This could be the only meaning of the rule because any other meaning would lead to a peculiar situation. For example; if a specific rule applicable in a particular Board or University provides that a candidate even though securing less than the pass marks in the subjects of Physics, Chemistry and Mathematics may still be declared as passed as per the provisions of rules applicable in that Board or University, a candidate may be declared as passed Class XII examination and on the ground that the candidate has passed Class XII examination, admissions could be granted to students even though he or she failed in all or any of the main subjects. This could never be the intention of the rule makers. It would also mean that a candidate should have passed Class XII examination and passing individually in each of the aforesaid three subjects is also necessary to be eligible for admission.
20. The learned single Judge while disagreeing with the same has observed as under:
(11) From the perusal of para 2.4.1.1, it is clear that eligibility criteria is of passing of the examination from any of the institutions as stated hereinabove with the main subjects Mathematics, Physics and Chemistry. The qualifying examination should be passed with aforesaid three subjects and passing of the examination, in Class XII is necessary. The aforesaid provision does not say that it is necessary to pass all the subjects Mathematics, Physics and Chemistry individually though it provides that the main subjects should have been opted in the qualifying examination. It is not in dispute that respondent has recognized the Indian School Certificate examination 2004 conducted by Council for Indian School Certificate Examinations, New Delhi. Before grant of recognition, the respondents must have examined the rules of the business and regulation of the aforesaid institution. While granting such a recognition, the respondents must have examined the Rules of the council who conducted the examination of the petitioner and has passed him in the Higher Secondary by Annexure P/2. As per certificate issued (Annex.P/2), the petitioner has passed the Indian School Certificate Examination 2004 which is equivalent to 10 + 2 = 12th class of Madhyamik Shiksha Mandal. The respondents must have considered the aforesaid provisions of the aforesaid council that the aforesaid council is having its rule to declare a student pass, who could not clear any of the main subjects, which he opted for the examination, and after knowing it well, the aforesaid examination must have been recognized by the respondents. Once after considering the entire rules and regulations of the aforesaid examination, the respondent has granted recognition to the aforesaid examinations, and the petitioner who has passed the equivalent examination whether he may be denied admission in BE course, because he has not cleared Mathematics subject individually though he has passed the qualifying examination? From the perusal of Rule 2.4.1.1, it is apparent that the candidate should have passed the qualifying examination with the main subjects Mathematics, Physics and Chemistry. The respondents while framing this rule, were having the knowledge or must be aware that one among the recognized institution is having such rule that students may be declared passed, though he has not cleared one of the main subjects individually. Considering aforesaid, respondents have provided provision that he must have cleared the qualifying examination with the aforesaid main subjects. Even from the perusal of the entire rule, passing of the qualifying examination with the aforesaid subjects is necessary. If a student has passed the qualifying examination as per Rules and Regulations of the recognized Board, though he could not clear individually one main subject whether he may be denied admission in BE course? If the aforesaid analogy is adopted, the student on one hand has passed the qualifying examination and on the other hand, he will be denied admission on the ground that he has not passed the qualifying examination, as he has not passed individually one main subject. If this was the intention of the framers of the aforesaid Rules, they ought to have couched the Rules in a manner that the candidate should have passed the qualifying examination and main subjects also. The qualification must specify that he should pass all the main subjects individually also. In absence of this, when the petitioner has passed the qualifying examination with main subjects, he cannot be denied with the admission by the respondents. The main criteria for admission in B.E. Course is to pass the qualifying examination and once the petitioner has passed the qualifying examination with the aforesaid main subjects, he cannot be denied admission in the BE Course by interpreting the Rules of recognized institution otherwise. This ought to have been taken into consideration by the respondents while granting recognition to the aforesaid examination conducted by the Council."
21. In our considered opinion the concept of purposive construction has to be made applicable to the Rule at hand. In the case of Ankita Sinha (supra) the candidate had failed in Chemistry theory paper having obtained 11 marks but the result was declared declaring her to have passed by applying a particular rule of the Central Board of Secondary Education. In the present case the candidate has been declared to have been passed by the Council for the Indian School Certificate Examination, New Delhi despite the fact he has failed in Mathematics having secured 17 marks. Thus, it is seen that various Boards have different criteria. Therefore the rule prescribing the eligibility criteria has to be read with the intendment framed by the State Government. The Rule therefore, should be understood to mean that the candidate must have passed the examination with Physics, Chemistry and Mathematics. If the construction is placed, a candidate would become eligible even if he fails in the main subjects that would nullify the Rule and also make the Rule nugatory. In fact, it would frustrate the purpose of the Rule. Thus, the interpretation has to be based on the context in which it has been used. 'Passing of examination' and 'with the main subjects' cannot be read in isolation. They have to be read in a composite and adjunctive manner to give a purposeful meaning to the said Rule. Though the Rule does not specifically state that a candidate should have passed in each subject yet the intention is clear as day that it is incumbent on the candidate to have passed in all the main subjects. If a candidate becomes eligible failing in one of the main subjects but has passed the examination that would not make him eligible to take admission in a technical course. The word 'uttirn' has to have nexus with the main subjects as well as with the examination and not singularly and exclusively with the examination. To elaborate: there may be some Boards which would not give laxity to the candidates to declare them passed if they fail in any of the subjects and there may be Boards which would allow such benefits. The disharmoney and discrimination are required to be avoided. The purposive and contextual reading of the rule would lead to only one solitary conclusion that the candidate seeking admission in BE course must have passed in all the main subjects. The said interpretation flows from the Rule. We are disposed to think that is the legitimate ascertainment of the Rule and if any other interpretation is placed that would create anomaly making Rule lifeless. Therefore, we conclude and hold that the decision rendered in the case of Ankita Sinha (supra) has been correctly decided.
22. In view of the aforesaid analysis we answer the two questions framed by the learned single Judge in the following manner:
(a) Under the Rule 2.4.1.1 of the of Pre Engineering Pharmacy Test, Pre Agriculture Test-2004 Rules even if a candidate has been declared to have passed the examination with the main subjects, namely, Mathematics, Physics and Chemistry by a recognised institute yet the candidate can be declared as disqualified on the foundation that he has not passed individually in the main subjects.
(b) Though recognition has been granted to an institute for the purpose of qualifying examination which has nexus with passing of the examination would not ipso facto or per se make a candidate qualified for admission in B.E. Course if he has not secured passing marks in all the main subjects. To elaborate: even though he has passed the basic qualifying examination yet he has not qualified in the subjects of Mathematics, Physics and Chemistry as postulated under Rule 2.4.1.1 of the Pre Engineering Pharmacy Test, Pre Agriculture Test-2004 Rules, he will not be qualified to get the admission in B.E. Course.
23. The reference is answered accordingly.
24. Registry is directed to place the matter before the appropriate single Bench