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KM. SUMAN UPADHYA versus THE VICE CHANCELLOR, VIR BAHADUR SINGH PURVANCHAL UNIVERSITY AND OTHERS

High Court of Judicature at Allahabad

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Km. Suman Upadhya v. The Vice Chancellor, Vir Bahadur Singh Purvanchal University and others - WRIT - A No. 48834 of 1999 [2000] RD-AH 3 (25 January 2000)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

1.Civil Misc. Writ Petition No. 48834 of 1999

Km. Suman Upadhyaya and another   …         Petitioners

vs

The Vice-Chancellor, Bir Bahadur Singh

Purvanchal University, Jaunpur and others…  Respondents;

2.Civil Misc. Writ Petition No 52958 of 1999

Arun Kumar Singh and another    …           Petitioners

vs

Vice Chancellor, Purvanchal University,

Jaunpur and others               …          Respondents;

3.Civil Misc. Writ Petition No. 52959 of 1999

Anand Kumar Maurya        …                 Petitioner

vs

The Vice Chancellor, Purvanchal

University, Jaunpur and others    …         Respondents;

                       and

4. Civil Misc. Writ Petition No. 271 of 2000

Brajesh Kumar Singh        …                Petitioners

vs.

Vice Chancellor, Bir Bahadur Singh

Purvanchal university Jaunpur and others  … Respondents

Hon'ble Yatindra Singh, J.

1. The only question involved in these writ petitions is ''whether the degree of Bachelor of Education (BEd) is necessary for admission in MEd classes in Bir Bahadur Singh Purvanchal University Jaunpur (the Purvanchal University) or recognised diploma of Bachelor in teaching (BT) or Licentiate in teaching (LT) is sufficient'.

FACTS

2. The petitioners in the aforementioned four writ petitions are graduates but education was not their subject. They have diploma of LT but not degree of BEd. They applied for admission in the Purvanchal University but were not successful: they were not considered on the ground that they did not possess a BEd degree.  They have filed these writ petitions challenging their rejection on the ground that:

They were more meritorious than the selected candidates were.

They were illegally not considered on the ground that they do not have BEd degree.

They have minimum qualifications, as they possess recognised diploma of LT.

SUBMISSIONS OF THE PARTIES

3. I have heard Sri DP Singh and Sri Amaresh Singh, counsels for the petitioners and Sri AK Singh, counsel for the University. Dr. RG Padia, senior Advocate and Sri Ashok Khare appeared as friends of the court.  Counsels for the petitioners have submitted that degree of BEd is not necessary for admission in MEd, a recognised diploma in LT is sufficient. They have raised following two submissions:

(i)BEd not a minimum qualification for appointment as a lecturer in BA(Education) in the Faculty of Arts in the Purvanchal University. Petitioners have all other qualifications for such appointment except MEd degree, as such they have minimum qualifications for admission in MEd.

(ii)Diploma in LT and degree in BEd are equivalent; the relevant rules also so indicate. A purposive construction, in contradistinction to literal construction, may be adopted so as to include recognised diploma in BT or LT in place of BEd degree.

1ST SUBMISSION: PETITIONER - LECTURER IN BA(EDUCATION)

Relevant Rules and Statutes

4. Admission to the MEd classes is governed by rule 151 and 162 of the 1983 Rules3 framed by the State Government under section 28(5) of the U.P. State Universities Act, 1973 (the Act).  Rule 15(1) of the 1983 Rules states that only a person having BEd degree, or recognised diploma of BT or LT can get admission in MEd classes. Rule 15(2) of the 1983 Rules states that a candidate should also have all other qualifications except for MEd for appointment as a lecturer in BA(Education) or  BEd department in a degree college of the State under the statutes of the University.  Minimum qualifications for a lecturer in a degree college are mentioned in Statute 11.134 read with 11.01(5)(a) and (b)5 of the first Statutes of the Purvanchal University. Let's first consider if the petitioners have minimum qualification except MEd degree for appointment as a lecturer in BA (Education) Department.

BA(Education) is in the Faculty of Arts

5. The statute 7.01 of the Purvanchal University mentions about faculties. It includes, apart from other faculties, Faculty of Arts and Faculty of Education.  Statute 7.05 mentions departments in the Faculty of Arts.  Education is one of them and is mentioned at serial no. 7 of the statute 7.056. Statute 7.15-A talks about Faculty of Education and Statute7.15-B7 states that in this faculty there is only one department namely that of Education. Department of Education is mentioned at two places: one under Faculty of Arts, the other under Faculty of Education. The counsel for the Purvanchal University has submitted that:

the Faculty of Education was created subsequently and the Department of Education was transferred to the newly created Faculty of Education;

it is by mistakes that it is mentioned in the Faculty of Arts.  

This was submitted, as different provisions apply for appointments of lecturer in the Faculty of Arts and Faculty of Education.  

6. Four degrees related to education are offered by different Universities: BA(Education), MA(Education), BEd, and MEd.  The first two are academic degrees whereas the remaining two are professional degrees.  BEd and MEd courses are always in Faculty of Education if there be such a faculty.  But this is not so as far as degrees of BA(Education) and MA(Education) are concerned. Some times they are in the Faculty of Arts and sometimes in the Faculty of Education.  This differs from University to University.  One can not say what is the position in the Purvanchal University: It chose not to file any counter affidavit despite repeated grant of time. The statutes produced by the counsel for the University indicate that Department of education is in both the facilities. In view of this I have no option but to hold that BA(Education) is in Faculty of Arts and the case is governed by statute 11.13(1).

Degree of BEd is not required under Statute 11.13(1)

7. The statute 11.13 requires Master's degree and consistently good academic record for appointment of a lecturer.  MEd is a Master's degree for BEd as well as BA(Education).  ''Consistently good Academic record' is defined in statute 11.01(5)(a) for Faculty of Arts, which here includes BA (education).  Statute 11.01(5)(a) does not include BEd. The Statute 11.01(5)(b) dealing with consistently good academic record in Faculty of Education mentions about degree of BEd. In case BA(education) is in the Faculty of Arts then degree of BEd is not required in the plain reading of the Statute; though this may not be said if the case it was governed by 11.01(5)(b). I will deal the case under Statute 11.01(5)(b) later. The petitioners had qualifications, except for MEd, for appointment as a lecturer in BA(Education) in the Faculty of Arts. Their candidature could not be rejected on the ground that they did not have the BEd. degree.  But as no counter was filed, Department of Education may be in Faculty of Education, and in few Universities it is so and as such I don't wish to rest my decision on the first submission.  

2ND SUBMISSION: DIPLOMA IN LT IS SUFFICIENT

History of Rules relating to Admission in MEd

8. The State Government had initially framed rules in 19758 (the 1975 Rules) for admission in MEd. Rules 15 and 169 of the 1975 Rules stated that one could not get admission unless and until he had passed examination for BEd. degree.  But these rules were changed in 198010 (the 1980 Rules). Rule 14 of the 1980 Rules11 included recognised diploma in BT and LT also for eligibility for admission in MEd classes. But rule 15 of the 1980 Rules stated that admissions were to be governed on the basis of marks obtained in BEd examination. These rules were again changed in 1983 in the present form. Rule 16 of the 1983 Rules states that admission is to be made on the basis of marks in BEd or equivalent examination  (The relevant 1983 Rules are quoted in footnote 1 and 2). In case BEd is a necessary degree then why did the State Government introduce

recognised diploma in BT or LT (apart from BEd) in the relevant rules after 1975, and

admissions to MEd on the basis of marks in the BEd or equivalent examination after 1980?

9. ''Why these changes?' questioned the counsels for the petitioners.  They submitted that purposive interpretationin place of literal interpretationbe adopted in the 1983 Rules as well as the Statute 11.01(5)(b). The counsel for the University submits that:

Literal interpretation of rule 15 and 16 of the 1983 Rules alongwith statute 11.13(2) and 11.01(5)(b) be adopted.

Consistently good academic record in the Statute has been defined to mean at least 50% or 55% (as the case may be) in BEd degree examination and should be so interpreted.

Diploma in BT and LT is equivalent to BEd Degree

10. BEd is a degree awarded by a University. It is a one-year course and admission can be taken after graduation from a University. BT and LT are diplomas awarded by the State Government. They are also one-year course and admission can be obtained only after graduation from a University. BEd, BT, and LT are all one-year professional courses for making a person proficient in teaching in schools and colleges.  The counsels had also produced the courses for BEd and LT. Though the numbers of papers are different but in the courses are substantially the same.  The State Government has also defined the minimum qualification for appointment of teachers in schools and colleges in Appendix A of the U.P. Intermediate Education Act.  These teachers have to be trained teachers.  The word ''trained' has been defined to mean a person who has obtained BEd degree, or diploma of LT or BT.  The State Government itself has put BEd, BT and LT on the same footing. They are equivalent to each other. In this light and the changes in the admission rules, let's consider purposive construction.

Purposive Interpretation or Construction

11. Function of a court is to give effect to the legislative purpose, the intention of the legislature.  It is often achieved by following the literal meaning, or adopting literal interpretation. But if literal meaning is not in tune with the legislative purpose, then what should be done? The courts have been adopting strained meaning to achieve legislative purpose. This has been termed as purposive interpretation or construction.

12. Viscount Dilhorne in Stock Vs Fank Jones12 explained that: general judicial adoption of the term purposive construction is recent, but the concept is not new; and it may now be fashionable to talk of the purposive construction of a statute but the need for such a construction has been recognised since the seventeenth century. Lord Diplock in Carter vs Bradbeer13 says:

If one looks back to the actual decisions of [the House of Lords] on questions of statutory construction over the past thirty years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions. Changes in the Judicial approach to questions of statutory construction are not the result of some specific decision of your Lordships House identifiable as a landmark in this field of law.  They have been fostered by the influence, persuasive and pervasive, of the similarity of reasoning to be found in the judgements of individual judges even though they may differ as to the result of applying that reasoning to the particular words of the particular statute which is under consideration in the case.

13. In middle of 20th Century, Lord Denning stated it14 in a new form:

When a defect appears (in a statute) 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 the texture of it, they would 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.

Lord Simonds in a later decision15 cautioned against this approach of Lord Denning

This proposition in a new form cannot be supported.  It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation16, and it is the less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it in.  If a gap is disclosed, the remedy lies in an amending Act.

Since then English courts have adopted a middle road.  

14. Lord Diplock in Kammins Ballrooms v. Zenith Investments17 says:

It is thus impossible to arrive at the terms of the relevant exception by the literal approach.  This can be done only by the purposive approach, viz imputing to Parliament an intention not to impose a prohibition inconsistent with the objects which the statute was designed to achieve, though the draftsman has omitted to incorporate in express words any reference to that intention.

15. The House of Lords in Anderton vs. Ryan18 says:

Statutes should be given what has become known as a purpose construction, that is to say that the courts should where possible identify ''the mischief' which existed before the passing of the statute and then if more than one construction is possible, favour that which will eliminate  ''the mischief' so identified.

Purposive Interpretation or Construction in India

16. Purposive interpretation or construction has found its root to our jurisprudence too. The Apex Court adopted the purposive interpretation in place of literal interpretation to prevent corruption as a penal offence in Municipal Corporation of Greater Bombay and others vs. Indian Oil Corporation Ltd19 and advocated purposive interpretation in various cases while interpreting the law.

Judge must be a jurist endowed with the legislator's wisdom, historian's search for truth, prophet's vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections. Therefore, the judges should adopt purposive interpretation of the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time. {State of Karnataka vs. Appa Balu Ingale: 1995 Supp (4) SCC 469 (para 34}.

It is well settled that the purpose of law provides a good guide to the interpretation of the meaning of the Act. (SP Jain vs Krishna Mohan Gupta : (1987) 1 SCC 191 (para 18 at page 201)

The word wood oil used in the Act will require purposive interpretation drawing upon the context in which the words are used and its meaning will have to be discovered having regard to the intention and object which legislature seeks to subserve.  The restricted meaning sought to put up by the accused would frustrate the object and the literal interpretation would defeat the meaning.  The legislature does not intent to restrict he word wood oil nor do we find any compelling circumstances in the Act to give restricted meaning that only oil derived from Dipterocarpus trees to be wood oil as contended for the accused and which found acceptance by the learned Single Judge.  The purposive interpretation would aid conservation of sandalwood, a valuable forest wealth, prevent illicit felling and transportation of them and make the manufacturers of sandalwood oil accountable for the possession of sandalwood trees or chips or roots etc. {Forest Range Officer vs P. Mohammed Ali: 1993 Supp (3) SCC 627 (para 8)}.

17. Thus strained meaning, applying purposive interpretation or construction, may be adopted where literal meaning is not in tune with the legislative purpose.  This legislative purpose may be seen in the light of mischief sought to be remedied.  Let's apply this principle to the rules regarding admission in the MEd classes.

18. The rules laid down by the State Government for admission have been framed under section 28(5) of the Act.  They are common to all Universities governed by the Act; though the statutes of different Universities are different.  In case rules 15 and 16 of 1975 Rules are seen then there is no doubt that BEd degree was necessary in order to get admission in MEd classes. But this was changed. The 1980 Rules conceive of recognised diploma of BT or LT apart from degree of BEd for getting admission. There was some doubt in the 1980 Rules as admissions were to be given according to the basis of marks obtained in the BEd degree examination (LT or BT was not mentioned).  Thereafter the rules were further amended.  The 1983 Rules state that the admissions are on the basis of marks obtained in BEd or its equivalent recognised examination. BT and LT are equivalent recognised examinations. If the candidates having recognised diploma of BT or LT were not to be admitted then what was the necessity of amending the rule 15 and rule 16?  The progressive changes in the rules from 1975 to 1980 and then to 1983, show that the legislative purpose is that candidates having recognised diploma of LT or BT should be eligible for admission in MEd courses.

19. In case the submission of the counsel for the Purvanchal University is accepted then no one having diploma in BT or LT can ever be admitted and the entire exercise of changing the rules becomes meaningless.  Rules 15(1) and 16 would become redundant, as if there is no meaning attached to them. One should be loath to adopt this interpretation; like Alice in Wonderland 

''If there's no meaning in it' said the Kind' ''that saves a world of trouble, you know, as we needn't try to find any.'  ''And yet I don't know,' he went on, spreading out the verses on his knee, and looking at them with one eye; ''I seem to see some meaning in them, after all.'

20. Rule 15(2) where it states that ''a person should also have other qualification according to statute for appointing of a lecturer in BEd department in a degree college' should be read in the light of legislative purpose as indicated in rule 15(1) and rule 16 and the mischief which was sought to be remedied, namely to include the candidates possessing diploma of BT and LT.  These rules for admission and the first Statutes of the Purvanchal University have been framed by the State Government. They have to be harmoniously interpreted.  If rule 15 and 16 of 1983 Rules and statute 11.13(2) and statue 11.01(5)(b) are harmoniously read then following emerge as minimum qualifications for the admission in MEd:

Ist Condition: a candidate should have

BEd degree from recognised university or

recognised diploma in BT or

recognised diploma in LT.

IInd Conditions: they should also have

at least 55% marks in BEd, BT or LT examination with second class marks in  graduation; or

50% marks in BEd or BT or LT examinations as well as in his graduation.

Petitioners were eligible. They could not be excluded on the ground that they did not have BEd degree.  Their candidature was wrongly rejected.

RELIEF

21. MEd is a professional course. Seats have been filled without considering the candidates who had recognised diploma of BT or LT instead of degree of BEd. Resources are limited. It is not possible to admit unlimited number of candidates by increasing the seats. And merit has to be considered. A candidate can not be ignored only for the reason that he has not come to the court. In the circumstances of the case the Purvanchal University will  

consider all candidates with recognised diploma in BT or LT who were not considered because they did not have BEd degree.

offer admissions to five candidates in accordance with law on merit, provided they are higher in merit than the last candidate selected.

This process may be completed at an early date and if possible within 10 days from receipt of the certified copy of this order.    

CAVEAT - RECOMMENDATIONS

22. In this case I was concerned with interpretation of rule 15 and 16 of the 1983 Rules read with statute 11.13 and 11.01(5)(a) and (b) of the Purvanchal University for admission in the MEd course. I was not concerned with appointment of a teacher in the Faculty of Education. I have held that degree of BEd or recognised diploma in BT or LT is sufficient. This interpretation has been given in light of the history of rule 15(1) and 16 of the 1983 Rules. In case any question for appointment of a teacher in the Faculty of Education arises, then that question has to be decided afresh.  But I have also held that recognised diploma of LT and BT is equivalent to degree of BEd.  Soon a question may be raised if such candidates are entitled for being appointed as lecturers in the Faculty of Education or not. It would be best for the respondents to clarify the position; lest it may give rise to litigation, heart burning and may unsettle many settled careers.  Rule 15 is of the 1983 Rules may also be suitably amended so that recognised diploma holder in LT and BT may not be left out as has been done in the present case and this controversy may end here.

23. The counsel for the Purvanchal University submitted that Department of Education though mentioned in two different faculties is in the Faculty of Education; though there is nothing on the record to suggest it. Similar situation prevails in other Universities also. If it is so, then this may be suitably modified unless for some reasons Department of Education should continue in two different faculties: being in different faculties have different consequences.

CONCLUSION

24. A candidate having 55% marks in BEd or BT or LT with second division in graduate degree or more than 50% marks in BEd or BT or LT and in his graduation is eligible for admission in MEd classes. The admission is to be done in accordance with merit as mentioned in rule 16 of the 1983 rules.

25. The Petitioners or other similarly situate candidate could not be excluded on the ground that they did not have BEd degree. These petitions are allowed. The university will reconsider all candidates (with recognised diploma of BT or LT), who were excluded on the ground that they did not have BEd degree in accordance with law and give admissions to five of them according to merit, provided they are higher in merit than the candidate last selected, within ten days from production of certified copy of this order (heading RELIEF paragraph 21 of this judgement).

Dated: 25.1.2000

BBL

Let a copy of this judgement be sent to following persons to consider the comments under heading ''CAVEAT - RECOMMENDDATIONS' (Paragraph 22 and 23) of the judgement.

1.The Principal Secretary, Higher Education Uttar Pradesh Government, Lucknow.

2.The Legal Remembrancer U.P. Government, Lucknow.

3.The Secretary, Legislation Government of Uttar Pradesh, Lucknow.

4.The Vice-Chancellor Bir Bahadur Singh Purvanchal University, Jaunpur.

Let a copy of this judgement be placed in the writ petition nos. 52958 of 1999, 52959 of 1999 and 271 of 2000.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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