Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 1408 (GUJ)

Bhaveshkumar Sooryakant Shah v. Gujarat Public Service Commission

2016-07-20

N.V.ANJARIA

body2016
JUDGMENT : N.V. Anjaria, J. 1. The first respondent-Gujarat Public Service Commission invited applications for different subjects for the different posts of Lecturer, Gujarat Education Service, Class II, by issuing advertisement and by calling for applications between 30th September, 2015 to 30th October, 2015. Petitioner applied for the post of Lecturer in Electrical Engineering, Class II. 2. The maximum age prescribed in the advertisement for the candidates was 35 years. Relaxation in the upper age limit was available to the candidates already in government service. It was provided that the upper age limit would not be applicable to those government employees who are already in Gujarat Government service, either in permanent or temporary capacity, continuously for six months, provided that such person had not crossed the age limit of 35 years for the post concerned at the time of his previous appointments. 3. The petitioner participated in the process, cleared written examination held on 21st November, 2014, appeared in the personal interview conducted on 04th March, 2016. Though the petitioner had obtained the standard for passing, in the result of the interview, he was declared disqualified on the ground of non-fulfillment of the condition relating to the age relaxation. The representation of the petitioner pointing out to the authorities that he had been in government service for the requisite continuous period of six months, had entered the service at the age of 35 years, and thus fulfilled the relaxation criteria in the upper age for the instant post, failed to convince the respondent. Therefore the petitioner has knocked the doors of this Court by filing this petition for setting aside order dated 02nd June, 2016 passed by the first respondent, seeking further prayer to direct respondents to call the petitioner for personal interview treating him eligible for the post. 4. It is the submission of learned advocate Ms. Mamta Vyas for the petitioner that the petitioner ought to have been treated as fulfilling the upper age relaxation criteria as having joined the previous service while within the age. On the other hand, learned advocate Mr. Premal Joshi for the first respondent-Commission pressingly contended on the basis of the stand taken in the affidavit-in-reply. The stand evinces as under, extracted from paragraph 10. "... ... ... in the present case the birth date of the petitioner is 13/7/1973. He entered as government servant on ad-hoc basis vide appointment order dated 29/7/2008. Premal Joshi for the first respondent-Commission pressingly contended on the basis of the stand taken in the affidavit-in-reply. The stand evinces as under, extracted from paragraph 10. "... ... ... in the present case the birth date of the petitioner is 13/7/1973. He entered as government servant on ad-hoc basis vide appointment order dated 29/7/2008. On that date he had crossed the age limit prescribed for the concerned post i.e. 35 years. Therefore, the date of interview is not relevant date to extend benefit of age relaxation as per the rules." (Para 10) 5. The condition regarding relaxation in age limit in the advertisement is based on Rule 8 of Gujarat Civil Services Classification and Recruitment (General) Rules, 1967. Rule 8 is about condition as to the prescribed qualifications. Sub-rule (5) thereof which is relevant, reads as under. "notwithstanding anything to the contrary contained in any rules for the time being in force relating to recruitment of any service or post a candidate who is already in Gujarat government service, either as a permanent or temporary servant officiating continuously for six months or more in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servant applied thereafter, for the post under advertisement (hereinafter referred to as "the concerned post") the upper age limit prescribed for the purpose of recruitment in such rules, shall not apply to him provided he had not crossed the age limit prescribed for the concerned post at the time of his previous appointments;" 5.1 Undisputedly, the petitioner was in government service having been appointed on 29th July, 2008 as ad-hoc Lecturer in the Government Polytechnic L.B. College at Morbi. He was in the said government employment pursuant to he having successfully competed in the process. In the advertisement then published for the said post on 31st May, 2008, it was contemplated that on the date of interview the candidate must have completed 35 years. The petitioner on the basis of qualification B.E. (Electrical) and upon fulfilling the age requirement, cleared the process, was appointed and he worked for continuous period of six months. The petitioner's birth date is 13th July, 1973. The interview for the said post at Government Polytechnic College was held on 25th June, 2008. On that date he had completed 35 years. He came to be appointed on the said post on 29th July, 2008. The petitioner's birth date is 13th July, 1973. The interview for the said post at Government Polytechnic College was held on 25th June, 2008. On that date he had completed 35 years. He came to be appointed on the said post on 29th July, 2008. On 25th June, 2008, thus, the petitioner had completed 35 years of age when interviewed, but had crossed the said age when came to be appointed on 29th July, 2008. 5.2 The respondent-Gujarat Public Service Commission has taken a view that in the government service in which the petitioner was earlier employed and has been serving continuously for six months, he, though was within the age when appeared in the interview of the said post, as he had crossed the age of 35 years when he came to be actually appointed, he cannot be extended the relaxation in upper age. Riding on the language of the Rule 8(5), the respondent's say is that as on the "date of appointment" the petitioner was above 35 years of age, in the present recruitment, age relaxation benefit cannot be claimed by him. What should be the meaning and purport to be assigned to the word "appointment" in Rule 8(5) is the moot question. 6. The ordinary rule of interpretation is that the word or language in the statute or rule should be literally, that is in its plain readable meaning, understood and applied. But the literal rule, in a given case, can be departed from. The Constitutional Bench in R.L. Arora Vs. State of U.P. AIR 1964 SC 1230 observed that a literal interpretation is not always the only interpretation in a statute and the Court has to look at the setting in which the words are used. It was observed that the Court has to see whether there is something implicit behind the words actually used which was control the literal meaning of such word or words. 6.1 In Hindustan Lever Limited Vs. Ashok Vishnu Kate, (1995) 6 SCC 326 , the Supreme Court quoted the rule of purposive construction from Francis Bennion's Statutory Interpretation (2nd Edition) and explained the role of purposive interpretation of a statute or rule as against literal interpretation. 6.1 In Hindustan Lever Limited Vs. Ashok Vishnu Kate, (1995) 6 SCC 326 , the Supreme Court quoted the rule of purposive construction from Francis Bennion's Statutory Interpretation (2nd Edition) and explained the role of purposive interpretation of a statute or rule as against literal interpretation. It was stated that, "A purposive construction of an enactment is one which gives effect to the legislative purpose by- (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)." 6.2 The purposive interpretation is contrasted in juxtaposition to literal interpretation. The Supreme Court quoted from the above-mentioned book of the author that the court should not be reluctant to adopt a purposive construction in the cases where applying the literal meaning of the legislative language used, would lead to results which would clearly defeat the purpose of the Act; the task which the court of justice is engaged, remains one of construction, even where this involves reading into the Act words which are not expressly included in it. 6.3 Maxwell says about purposive interpretation thus, "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 intention." 6.4 In Surjit Singh Vs. MTNL, (2009) 16 SCC 722 , after referring to the above principles and the concept of purposive interpretation, the Apex Court observed, "To interpret the statute one has to sometimes consider context in which it has been made and the purpose and object which it seeks to achieve. MTNL, (2009) 16 SCC 722 , after referring to the above principles and the concept of purposive interpretation, the Apex Court observed, "To interpret the statute one has to sometimes consider context in which it has been made and the purpose and object which it seeks to achieve. Too literal interpretation may sometimes frustrate the very object of the statute, and such an approach should be eschewed by the Court." 6.5 The Apex Court has applied purposive interpretation in different ways in different situations, keeping in view the object of the provision or the rule, or the context thereof. In U.P. Bhhodan Yagna Samiti Vs. Braj Kishor, (1988) 4 SCC 274 , the words "landless person" were held to mean "landless peasant". The object of the U.P. Bhhodan Act cause to give land to the landless farmers, in that view the expression "landless person" employed in the act was construed to mean "landless peasant" only, without which a landless businessman would also stand included in the landless person. Such literal interpretation would have defeated the object of the law in as much as even a very rich businessman owning the land would be regarded as landless person. In Paul Enterprises and others Vs. Rajib Chaterjee & Co. (2009) 3 SCC 709 the word in focus for includation was "unemployed youth", which was in the context of giving licence for running country spirit shop, for which unemployed youth was eligible under the West Bengal Excise (Selection of Persons for Grant of Licence at New Sites for Retail Sale of Spirit & Certain Other Intoxicants other than Foreign Liquor on Categories of Licences and Licence for Denatured Spirit) Order, 2000. Giving the contextual meaning and departing from literal and dictionary meaning, the Supreme Court stated that a person cannot be said to be employed only because he earns his bare subsistence livelihood by engaging himself in some work, holding the respondents to be qualified for grant of licence as unemployed. Therefore despite the fact that respondents had been earning some money, it was ruled that the same would not disentitle them from taking part in the selection process for grant of licence. 6.6 The real exercise of interpretation is to bring out the internal sense in the language, group of words or a word. Therefore despite the fact that respondents had been earning some money, it was ruled that the same would not disentitle them from taking part in the selection process for grant of licence. 6.6 The real exercise of interpretation is to bring out the internal sense in the language, group of words or a word. Plow den opines to explain the purposive interpretation in this way, "It is not the words of the Law but the internal sense of it that makes the law, and our law (like all others) consists of two parts, viz., body and soul, the letter of the law is the body of the law and the sense and reason of the law is the soul of the law... And it often happens when you know the letter you know not the sense, for sometimes the sense is more confined and contracted than the letter, and sometimes it is more large and extensive." 6.7 Ramesh Mehta Vs. Sanwal Chand Singhvi and others, (2004) 5 SCC 409 was in relation to a provision regarding no-confidence motion against the chairman under the Rajasthan Municipalities (Motion of No-Confidence against Chairman or Vice Chairman) Rules, 1974, the Supreme Court held that "whole number of members" to comprehend only those members who had right to vote on the motion, construing the words as "whole number of elected members". The Apex Court in so construing rejected the view that in counting the whole number of members even nominated members who had no right to vote would be liable to be included, thereby reaffirming the object of the provision that the only elected members were entitled to participate in the No-confidence Motion. 6.8 The Mimansa Rules of Interpretation which are traditional principles of interpretation, which are solution oriented principles, are also applied by the courts. The purposeful construction is based on principle of "Sarthakeya". In Surjit Singh (supra), the Apex Court quoted Jaimini Sutra 6:3:9 that where there is a conflict between the purpose and the material, the purpose is to prevail, because in the absence of the prescribed material a substitute can be used, for the material is subordinate to the purpose. The Court explained that in the mimansa system the Linga principle is the rule of purposive interpretation as against Shruti principle which means literal interpretation. The Court explained that in the mimansa system the Linga principle is the rule of purposive interpretation as against Shruti principle which means literal interpretation. Comparing the decision in U.P. Bhhodan Yagna Samiti (supra) which construed the word "landless person" as reference to hereinbefore, it was observed that such was a Linga principle which is a principle of suggestive power of words or expressions. 6.9 The dictionary meaning is always not endeared, more particularly when provisions in the statute or in the rule is required to be applied for some working purpose or to achieve functional object. In such case, not the textual but contextual interpretation would call for. 7. As already seen, Rule 8 of the aforementioned Rules deals with the condition as to the prescribed qualifications and Sub-rule (5), application and interpretation thereof which is in question, has a principal requirement that candidate must be in government service either as permanent or temporary servant officiating continuously for six months, and in such case, he would be entitled to relaxation in upper age limit in the recruitment in which he may participate. The requirement that he must not have crossed the age limit prescribed for the post at the time of previous appointment is in the nature of proviso. The dominant object and intention is to give benefit of age relaxation to the candidates who are in government service officiating for the required period of six months. Therefore when it is provided that the provision in the nature of proviso that he must not have crossed the age limit at the time of previous appointment is subsidiary to the primary and basic condition of being in continuous government service. The subjugatory requirement cannot control the principal and basic condition. 7.1 The relevant text of the Rule reads "at the time of his previous appointments". The context is the completion of six months continuous government service. The clear intention behind this prescription is that if the candidate is already in government service for the said period having entered that service while being below the age of 35 years, he or she would be entitled to relaxation for the post in question. If the Rule is literally construed, on the date of appointment, the petitioner had crossed the 35 years of age limit and would stand out of zone of relaxation. If the Rule is literally construed, on the date of appointment, the petitioner had crossed the 35 years of age limit and would stand out of zone of relaxation. However, in particular the word "appointment" therein must receive a sensible interpretation. When it is provided that a candidate already in service of the State Government having been appointed in such service, the idea is that the candidate must have entered the government service and continued in such service for six months; the entry and continuation in the service should be at the age of 35 years and on the basis of the age of 35 years. 7.2 By resorting to the rule of purposive interpretation, the word "appointment" in the phrase "previous appointments" in Rule 8(5) has to be applied by viewing it and construing the same as "process of appointment". In other words, if a candidate was within age limit in the process of appointment concerned pursuant to which he was taken in government service and worked for six months continuously, it would amount to fulfilling of condition for relaxation of age limit in the present recruitment. It was indeed supplying something which was omitted by the Legislature without which the real intention was not achieved. Such is the function of a judicial interpreter, who is called upon to interpret the provision purposively and rationally. 7.2.1 In Ramesh Mehta (supra), the Apex Court had rejected the contention that by purposive interpretation the Court was supplying casus omissus, pertinently extracting the statement of law in this regard. "... ... ... Before us, as stated above, it was urged that the respondent is claiming casus omissus in support of his argument that the words "whole number of members" must be construed as "whole number of elected members". We do not find any merit in this argument. In the case of State of Karnataka v. Union of India, (1977) 4 SCC 608 : AIR 1978 SC 68 (SCC p. 663, para 81 : AIR at p. 107), it has been observed by this Court that although a court cannot supply casus omissus, it is equally clear that it should not interpret a statute so as to create a casus omissus when there is really none." (Para 12) 8. Sticking to the word "appointment" and insisting for the "date of appointment" would lead to absurd, arbitrary and illogical results. Sticking to the word "appointment" and insisting for the "date of appointment" would lead to absurd, arbitrary and illogical results. It is trite principle that interpretation or construction which leads to irrationality should be eschewed. Therefore in interpreting the provision, the tenets of Article 14, namely rationality, reasonableness and non-arbitrariness, can never be foreign considerations. 8.1 This principle can be said to be stemming from the following observations of New India Insurance Company Limited Vs. Nusli Neville Wadia, (2008) 3 SCC 279 , "So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled, which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations. The provisions of the Act and the Rules in this case, are, thus required to be construed in the light of the action of the State as envisaged under Article 14 of the Constitution. With a view to give effect thereto, the doctrine of purposive construction may have to be taken recourse to." 9. Rationale and object behind the relaxation on the basis of previous government service is the requirement of minimum period of continuous service of six months, and indeed not to say in straight-jacket way that the candidate must have been "appointed" before 35 years of age. It would suffice if at the age of 35 years a candidate had succeeded in the selection process for appointment and thus had entered the service so as to possess continuous service of six months or more as required. There need not be a meek submission to the plainness of word, when it is required to be construed with an object sought to be achieved. In order to avoid patent injustice, anomaly or absurdity, the court may depart from the rule that plain words should be interpreted in the plain meaning. There need not be a meek submission to the plainness of word, when it is required to be construed with an object sought to be achieved. In order to avoid patent injustice, anomaly or absurdity, the court may depart from the rule that plain words should be interpreted in the plain meaning. 9.1 In light of the above discussion and principles of interpretation enunciated from the various decisions of the Apex Court, the stand of the respondent in refusing to grant the age relaxation to the petitioner that he was below 35 years of age at the time of interview for the previous employment, but since had crossed 35 years of age on the date of appointment cannot hold good. It is against the real purport and interpretational import of the rule of condition for the age relaxation to be given. The petitioner is declared to have fulfilled the condition of 35 years of age at the time of his previous appointment and completion of six months' continuous service, and is held entitled to the age relaxation for the purpose of selection to the post in question. 10. For the aforesaid reasons and principles, the petitioner is declared to be entitled to the age relaxation for the purpose of validly advancing his candidature for all the stages for appointment including on the post in question. The impugned decision as well as communication dated 02nd June, 2016 from the first respondent-Gujarat Public Service Commission treating the petitioner as ineligible to be called in interview is liable to be set aside and hereby stands set aside. Respondent No. 1 is directed to call the petitioner for interview for the post of Lecturer, Electrical Engineering, Class II, pursuant to advertisement published on 31st May, 2008. 10.1 The interview of the petitioner, which was scheduled as communicated to the petitioner on 18th May, 2016, but was not taken due to the impugned decision, shall now be arranged completing the procedure expeditiously and not beyond ten days. The petitioner shall be intimated about the date of interview with a clear gap of three days. 11. Petition stands allowed and disposed of. Direct service is permitted.