Allahabad High Court
Hari Shanker Sahu And 3 Others vs State Of U.P. And 2 Others on 5 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 1581
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 5 1. Case :- WRIT - A No. - 25974 of 2018 Petitioner :- Hari Shanker Sahu And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shantanu Khare,Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.,Anil Kumar Singh,Satyaveer Singh 2. Case :- WRIT - A No. - 25006 of 2018 Petitioner :- Smt. Nanda Verma And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Vinay Kumar Srivastava,Santosh Kumar Singh Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav 3. Case :- WRIT - A No. - 3542 of 2019 Petitioner :- Smt. Poonam Respondent :- State of U.P. and Another Counsel for Petitioner :- Anubhav Chandra,Alok Sharma Counsel for Respondent :- C.S.C.,A.K.S.Parihar 4. Case :- WRIT - A No. - 5490 of 2019 Petitioner :- Manju Devi Respondent :- State of U.P. and Another Counsel for Petitioner :- Awadh Narain Rai,Satyadeo Shamra Counsel for Respondent :- C.S.C.,A.K.S.Parihar 5. Case :- WRIT - A No. - 6042 of 2019 Petitioner :- Jitendra Chauhan Respondent :- State of U.P. and Another Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C., A.K.S.Parihar Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Abhishek Sekhar Ojha and Sri Seemant Singh learned counsels for the petitioners, Sri A.K.S. Parihar and Sri Mritunjay Tiwari, learned standing counsel for the State-respondent Nos.1 and 2 and Sri Anil Singh learned counsel for respondent no.3 - U.P. Secondary Education Service Selection Board, Allahabad.
2. Briefly stated facts of the present case are that pursuant to Advertisement No.1/2013 inviting applications for recruitment of Trained Graduate Teachers in the subject "Silai". The petitioners and others submitted applications. They appeared in written examination and interview. According to the U.P. Secondary Education Service Selection Board, Allahabad (hereinafter referred to as the "Selection Board") all the petitioners do not possess qualification as provided in Appendix "A" in Chapter II of the U.P. Intermediate Education Act, 1921. For the aforesaid reasons the selection board found that none of the petitioners may be recommended for appointment on the post of Teacher (Silai). Accordingly order to this effect was passed on 31.10.2018 which is reproduced below:-
^^m0iz0 ek/;fed f'k{kk lsok p;u cksMZ] bykgkcknA foKfIr i=kad& 1410@004@¼2018½ p;u @2018&19 fnukad 31-10-2018 foKkiu la[;k&1@2013 ds ek/;e ls foKkfir izf'kf{kr Lukrd flykbZ fo"k; ds inksa ds izfr vfUre p;u ifj.kke rS;kj djrs le; vH;fFkZ;ksa dh 'kSf{kd ;ksX;rk@izf'k{k.k dh tkWp esas ;g ik;k x;k fd fdlh Hkh vH;FkhZ ds ikl b.VjehfM,V f'k{kk vf/kfu;e 1921 ds v/;k; &02 ds ifjf'k"V ^^d^^ esa mfYyf[kr flykbZ fo"k; gsrq vfuok;Z 'kSf{kd@izf'k{k.k ;ksX;rk /kkfjr ugha dh x;h gSA mDr ds lECkU/k esa p;u cksMZ us vius cSBd fnukad 26-10-2018 esas ;g fu.kZ; fy;k fd pwWfd dksbZ Hkh vH;FkhZ fu/kkZfjr vgZrk /kkfjr ugha djrs gS vr,o bl fo"k; ds lanHkZ esa fdlh vH;FkhZ dh laLrqfr djuk fu;ekuqdwy ugha gksxkA vRk% foKkiu la[;k&1@2013 ds flykbZ fo"k; ds p;u dk fujLr fd;s tkus dk fu.kZ; fy;k x;k gSA lfpo m0 iz0 ek/;fed f'k{kk lsok p;u cksMZ bykgkckn i`0la0%& @004@¼2018½@p;u@2018&19 rn~fnukad izfrfyfi& fuEufyf[kr vuqHkkxksa dks lqpukFkZA 1- vf/k;kpu vuqHkkx@okn vuqHkkxA 2-xkMZ i=koyh lfpo m0 iz0 ek/;fed f'k{kk lsok p;u cksMZ bykgkckn^^
3. Aggrieved with the aforesaid decision of the Selection Board, dated 31.10.2018 the petitioners have filed the present writ petition.
4. The educational qualification for the post of Trained Graduate Teacher (Silai) is provided in Appendix "A" at Serial No.44 under Chapter II of the Act, 1921 (Hindi version and English version both) which is reproduced below :-
Hindi version ''44- flykbZ v/;kid bUVjehfM,V ¼d½ flykbZ ds lkFk b.VjehfM,V lh0Vh0 ¼d{kk 11&12½ds fy, ¼[k½ b.VjehfM,V RkFkk lykbZ esa ¼1½ izse egkfo?kky;] o`nkou ls fMIyksek fo'ks"k vFkok ;ksX;rk ¼2½vk;Z lekt Vsyfjax bULVhV~;wV] y[kuÅ ls fMIyksek RkFkk gkbZLdwy d{kkvksa esa fo"k; ds 3 o"kZ ds v/;kiu dk vuqHko] vFkok ¼3½ ljdkj ls ekU;rk izkIr fdlh Hkh laLFkk ls nks o"kZ ds ikB~;dze ds i'pkr fn;k tkus okyk flykbZ dk fMIyksekA gkbZLdwy¼d{kk 9&10½ ¼d½ ¼1½ bUVjehfM,V lh0Vh0 ¼bUVjehfM,V esa flykbZ ds fy, jfgr vFkok lh0Vh0 esas flykbZ esa fo'ks"k ;ksX;rk½ ¼[k½ gkbZLdwy RkFkk ¼1½ izse egkfo|ky;] o`nkou ls fMIyksek vFkok ¼2½ vk;Z lekt Vsyfjax bULVhV~;wV]vk;Z lekt jksM] y[kuÅ ls fMIyksekA vFkok ¼3½ ljdkj ls ekU;rk izkIr fdlh Hkh la[;k ls nks Ok"kZ ds ikB~;dze ds i'pkr fn;k tkus okyk flykbZ dk fMIyksek fVIi.kh& ¼[k½ ds vUrxZr ;ksX;rk;sa j[kus okys v/;kidksa dk LFkk;h fu;qfDr ls iwoZ f'k{kk funs'kd }kjk lapkfyr vFkok Lohd`r v/;kiu foKku lEcU/kh izf'k{k.k lkekU;r% iw.kZ djuk pkfg,A lqik=ksa dks bl v/;kiu foKku lEcU/kh izf'k{k.k ls NwV nh tk ldrh gSA^^ English version
44.Tailoring teacher for intermediate (a) Intermediate with tailoring C.T., specialisation (class 11-12) in tailoring
(b) Intermediate and (1) Diploma from Prem Vidyalaya, Vrindavan or (2) Diploma from Arya Samaj Tailoring Institute, Lucknow, and 3 years teaching experience of the subject in High School Classes.
Or (3) Tailoring Diploma awarded by any Govt.
recognised institution after two years course.
For High School (a)(1) Intermediate C.T.(Intermediate with tailoring (class9-10) or specialisation in tailoring in C.T.)
(b) High School and (1) Diploma from Prem Mahavidyalay, Vrindavan or (2) Diploma from Arya Samaj Tailoring Institute Arya Samaj Road, Lucknow or (3) Diploma of Tailoring awarded by any Govt.recognised institution awarded after two years course.
Note- Teacher possessing qualification under clause (b) should normally complete training relating to pedagogical science run or approved by Director of Education Suitable candidates can be exempted form training relating to pedagogical science."
5. All the petitioners have applied for Teacher in Silai subject for High School (Class 9 -10). The sole controversy involved in the present writ petitions is :-
"Whether for appointment as teacher (Silai subject) for High School (Class 9 - 10), a candidate should possess qualification as provide in the aforequoted Clause (a) OR Clause (b) OR both ?"
Submissions
6. Learned counsels for the petitioners submit that the qualification as provided in Clause (a) is Intermediate C.T. (Intermediate with tailoring or specialisation in tailoring in C.T.). The qualification provided in Clause (b) is High School and diploma from certain institute in Silai. The qualification provided in Clause (a) is higher qualification. Those who are merely High School have also been made eligible in Clause (b) provided they have diploma in Silai. Therefore, a candidate is required to possess qualification either in Clause (a) or in Clause (b).
7. Sri Khare has specifically referred to paragraph 23 of the writ petition and submits that in earlier selection the candidate possessing Intermediate Certificate with tailoring craft have been granted appointment pursuant to Advertisement issued by the selection board in the year 2003 and 2006 which has not been disputed by the selection board in its counter affidavit.
8. Learned counsels for the selection board and the learned standing counsel jointly submit that the qualifications as provide in Clause (a) and in Clause (b) both are to be possessed by a candidate so as to be eligible for the post of Teacher in Silai subject for teaching in High School (Class 9 -10).
Discussion and Findings
9. I have carefully considered the submissions of learned counsels for the parties.
10. The qualification provided in Clause (a) is Intermediate C.T. (Intermediate with tailoring or specialisation in tailoring in C.T.) which is admittedly possessed by all the petitioners. The persons having passed Intermediate must have passed High School. The qualification provided in Clause (b) is High School which does not specify any subject or specialisation. Therefore, for those persons who are High School, an additional qualification for diploma in Silai from specified institute has been provided so as to make them eligible to apply for the post. Thus, qualification mentioned in clause (b) is in alternative to the qualification mentioned in clause (a). The note appended to the item no.44 is merely with respect to the persons falling under Clause (b). It has nothing to do with Clause (a). Thus, a candidate so as to be eligible for the post in question must possess the qualification as provided in Clause (a) or in Clause (b) of item no.44 of Appendix "A" in Chapter II of the U.P. Intermediate Education Act, 1921. But word "or" is missing between clauses (a) and (b).
Casus Omissus
11. Casus Omisus is a matter which should have been, but has not been provided for in a statute, can not be supplied by courts subject to few exceptions, as to do so will be legislation and not construction. Casus Omisus can not be supplied by the courts except in case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time Casus Omisus should not be readily inferred.
12. In Reema Aggrawal vs Anupam (2004) 3 SCC 199 (para25) Hon'ble Supreme Court observed as under:-
"25. In Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 (CA), Lord Denning advised a purposive approach to the interpretation of a word used in a statute and observed:(All ER p.164 E-H) "The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature......A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in this texture of it, they would have straightened it out? He must then do so as they would have doe. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
(Emphasis supplied)
13. In Padma Sundara Rao Vs State of Tamil Nadu (2002) 3 SCC 533 (Para 15) Hon'ble Supreme Court considered the principles of construction and held as under:-
"15.Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danckwerts, L.J., in Artemiou v. Procopiou (1966 1 QB 878), (at All ER pp.544 -I), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. I.R.C. (1963 AC 557) where at AC p. 577 he also observed: (at All ER p.664 -I) "This is not a new problem, though our standard of drafting is such that it rarely emerges".] (Emphasis supplied)
14. Thus, it is not allowable to read words in a statute which are not there, but where alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words. Referring to Craies Statute Law (7th edition page 109) Hon'ble Supreme Court so observed in Surjit Singh Karla Vs. Union of India (1991) 2 SCC 87 (Para19) :-
"19. True it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meanings, it is permissible to supply the words"( Craies Statute Law, 7th Edition, P. 109). Similar are observations in Hameedia Hardware Stores V. B. Mohan Lal Sowcar, [1988] 2 SCC 513 at 524-25 where it was observed that the court construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and, the object of the statute in which the said provision is enacted, the court should construe it in a harmonious way to make it meaningful. An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. [See: Sirajul Haq Khan v. Sunni Central Board of Waqf,(1959) SCR 1287,1299].
15. In Gujrat Urja Vikas Nigam Ltd. Vs. Essar Power Ltd (2008) 4 SCC 755 ( paras 53-56) Hon'ble Supreme Court referred to Maxwell and observed as under:-
"53. In the chapter on `Exceptional Construction' in his book on `Interpretation of Statutes' Maxwell writes :
"WHERE the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what the words signify, and that the modifications thus made are mere corrections of careless language and really give the true meaning."
54. Thus, Surjit Singh Kalra vs. Union of India (1991)2 SCC 87, this Court has observed that sometimes courts can supply words which have been accidentally omitted.
55. In G.P. Singh's `Principles of Statutory Interpretation' 9th Edn., 2004 at pp. 71-74 several decisions of this Court and foreign Courts have been referred to where the Court has added words to a statute (though cautioning that normally this should not be done).
56.Hence we have to add the aforementioned words at the end of Section 175 otherwise there will be an irreconciliable conflict between Section 174 and Section 175.
(Emphasis supplied)
16. In Hameedia Hardware Stores Vs. B. Mohan Lal Sowear(1988) 2 SCC 513 (Para 11,12) Hon'ble Supreme Court observed as under:-
"11. In Seaford Court Estates Ltd. v. Asher, (1949) 2 All ER 155, 164. Lord Denning L.J. said:
"When a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament ..... and then he must supplement the written word so as to give 'force and life' to the intention of the legislature ..... A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they should have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven but he can and should iron out the creases."
12. This rule of construction is quoted with approval by this Court in M. Pentiah v. Muddala Veeramallappa, (1961) 2 SCR 295, 314 and it is also referred to by Beg, C.J. in Bangalore Water-Supply & Sewerage Board, etc. v. R. Rajappa (1978) 3 SCR 207. In the present case by insisting on the proof of the bona fides of the requirement of the landlord, the Court is not doing any violence to the statute nor embarking upon any legislative action. The Court is only construing the words of the statute in a reasonable way having regard to the context."
Conclusion
17. It appears that the word "or" between Clause (a) and Clause (b) has been some how missed. It is an apparent drafting error or accidental omission of the word "or". In various other entries preceding the item No.44, the word "OR" between Clause (a) and (b) has been used. For example, item Nos.37, 38, 39 and 41 providing for essential qualification for High School teacher in subjects - (37) spinning and weaving teacher, (38) wood craft teacher, (39) Book Craft teacher and (41) Metal Craft teacher, the word "OR" has been used between the qualification provided in Clauses (a) and (b). As discussed in para 10 above, a candidate to be eligible for the post of Trained Graduate Teacher (Silai) must posses the minimum qualification as provided in Clause (a) or Clause (b) of item No.44. If the word "and" is read between these two Clauses, then the qualifications mentioned in these two Clauses would not only lead to irreconcilable conflict but would also result in absurdity and manifest contradiction and shall defeat the apparent purpose of the enactment for recruitment on the post of teacher. Since between Clauses (a) and (b) of item No.44, the word "OR" does not exist, therefore, there is clear necessity to supply casus omissus to iron out creases so as to give force and life to the intention of the legislature to entries (a) and (b) of item No.44.
18. Thus, the question framed above is answered that a candidate who posses either the qualification provided in Clause (a) or the qualification provided in Clause (b) of item No.44 in Appendix "A" under Chapter II of the U.P. Intermediate Education Act, 1921 shall be eligible for the post of Trained Graduate Teacher in Silai subject for High School (Class 9 -10).
19. For all the reasons aforestated, the impugned orders passed by the Secretary U.P. Secondary Education Selection Board, Allahabad, dated 31.10.2018 are hereby quashed. The aforesaid selection board is directed to declare the results within a month and proceed further in accordance with law.
20. All the Writ Petitions are allowed to the extent indicated above.
21. It is made clear that if any of the petitioners do not possess requisite qualification as provided either in Clause (a) or in Clause (b) of item No. 44, Appendix 'A' under Chapter II of the U.P. Intermediate Education Act, 1921, then they shall not be considered for appointment.
Order Date :- 5.2.2020/vkg