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2022 DIGILAW 168 (GUJ)

AMITKUMAR DINESHCHANDRA RAVAL v. MANAGING DIRECTOR, MADHYA GUJARAT VIJ COMPANY LTD.

2022-01-28

ANIRUDDHA P.MAYEE, N.V.ANJARIA

body2022
JUDGMENT : N.V. ANJARIA, J. 1. Heard learned advocate Ms. Mamta R. Vyas for the appellant and learned advocate Mr. Premal R. Joshi for the respondents. 2. Learned Single Judge by order dated 27.7.2021 dismissed the Special Civil Application of the applicant-petitioner refusing relief to him to give appointment-promotion on the post of Junior Assistant. 2.1 In the petition, the prayer was made to set aside decision dated 11.1.2021 of the respondent authorities whereby the petitioner was conveyed that since year 2020 was over on 31.12.2020, it was decided not to allot or appoint any candidate against the vacancies which arose subsequently. It is this judgment and order of learned Single Judge that is brought under challenge in this Letters Patent Appeal. 3. The petitioner was appointed as Vidyut Sahayak or Helper in the year 2009 under the respondent Madhya Gujarat Vij Company Limited. The employer company evolved a scheme called Semi Direct Recruitment in order to provide promotional opportunities to the departmental Class-III and Class-IV employees on the post of Junior Assistant. Circular No. 144 dated 16.3.2020 was issued by the Vij company in which it was provided that the employees in Class-III and Class-IV possessing the qualification of graduation and also possessing minimum experience of five years on the date of circular would be eligible to apply. 3.1 It was mentioned that total 10% vacancies in the calendar year was to be filled up through this method. 27 vacancies were available which included 12 unreserved vacancies whereas the rest were to be allotted in reserved category. The method of selection was provided to be written test. The candidate who secured 50% or more were to be considered successful. It was also stated that the appointment will be offered on the basis of the merit of the candidate and that the number of vacancies were subject to 10% ceiling. Condition was also mentioned that, “The selection panel shall remain valid for a period of one year.” 3.2 As per the Circular No. 144 dated 16.3.2020 of the respondent, in the process of conducting the Semi Direct Recruitment, the process in question, last date for making application was prescribed to be 31.3.2020. Because of the situation arising out of pandemic, the time limit was extended for more than one occasion upto 30.6.2020. Because of the situation arising out of pandemic, the time limit was extended for more than one occasion upto 30.6.2020. 3.3 It further appears that the Gujarat Urja Vikas Nigam Limited had issued Circular dated 4.3.2017 applicable to the electricity companies with regard to the undertaking the said process of Semi Direct Recruitment in the cadre of Junior Assistant for Class-III and Class-IV employees. The said circular contained conditions of which the condition No. 1, quoted herein further, inter-alia provided that 5% of total vacancies in calendar year shall be filled up by way of Semi Direct Recruitment. 3.4 The petitioner appeared in the departmental written examination conducted for the purpose on 18.12.2020 and was successful. Result of 149 candidates were declared on 29.12.2020. Name of the petitioner figured at Serial No. 39 with 52% marks. 27 vacancies were filled in by giving appointment to the candidate on 30.12.2020, thereafter 3 candidates named Shri P.N. Makwana, Shri R.V. Katara and Shri R.P. Pateliya, requested for cancellation of their appointment, as a result of which 3 posts fell vacant. 3.5 The petitioner made representation alongwith other two candidates to be considered for the appointment on the vacancies which became available, since the petitioner was in select list. The petitioner’s case was that he was in the selected panel of candidates and in view of availability of vacancy, was entitled to be appointed. 3.6 The claim of the petitioner was contested and sought to be refuted by respondents on the ground of Circular dated 4.3.2017 aforementioned that the vacancies could be filled up in the calendar year only. In the affidavit-in-reply, condition Nos.1 and 4 from said Circular dated 4.3.2017 of the Gujarat Urja Vikas Nigam Limited were relied on. The condition No. 1 was as under: “1. 5% of the total vacancies in a calendar year shall be filled up by way of semi-direct recruitment from the departmental employees possessing qualification of graduation in any of the five disciplines viz. BA/B.Com/BBA/BCA in case if the qualification criteria for open market recruitment in the cadre of Junior Assistant are revised, same will be applicable in this case also.” 3.7 The condition No. 4 reads thus: “4. The unfilled post in 5% ceiling in any year will not be carried forward and no Register or Account in this regard will be maintained. BA/B.Com/BBA/BCA in case if the qualification criteria for open market recruitment in the cadre of Junior Assistant are revised, same will be applicable in this case also.” 3.7 The condition No. 4 reads thus: “4. The unfilled post in 5% ceiling in any year will not be carried forward and no Register or Account in this regard will be maintained. The unfilled post will be filled up by way of Open Market Recruitment as per the provisions prevailing from time to time.” 3.8 On the basis of the above conditions, the stand taken by the authorities to treat the petitioner disentitled to be appointed on the post from the select panel was that 5% of the total vacancies in the calendar year will be filled up by way of Semi Direct Recruitment, therefore the selection list shall be drawn for the particular calendar year only and further that the same shall remain valid from 1.1.2020 to 31.12.2020. According to the respondents, the life of the selection panel would automatically expire on 31.12.2020 upon completion of calendar year of the particular recruitment year. 4. The stand of the respondents found favour with the learned Single Judge. He observed that the petitioner could not have claimed any further rights of being promoted in 5% vacancies even though 3 vacancies had arisen since the selection list was earmarked as “calendar year.” It was the view taken that since the date 31.12.2020 had already gone, the selection list would not remain alive. Learned Single Judge relied on the dictionary meaning of calendar year to mean “A period of 365 days starting from 1st January and ending on 31st December, it was reasoned that the respondents were justified in not extending the list beyond calendar year 2020.” 5. Now, if the meaning of the word “calendar year” as viewed by learned Single Judge is accepted and acted upon, the select list would not remain valid after 31.12.2020. In other words it will have a life for two days as the same was published upon declaration of the result on 29.12.2020. In a given case, such as present, this interpretation would lead to absurd results. If 31st December is taken as deadline making end of the calendar year, in a case where the select list is published on 29th December or 30th December, it would leave only two days for its operation. In a given case, such as present, this interpretation would lead to absurd results. If 31st December is taken as deadline making end of the calendar year, in a case where the select list is published on 29th December or 30th December, it would leave only two days for its operation. Eventuality may happen that in particular selection process, the results are declared on 31st December itself, in such case the “calendar year” having been ended, there would be no select list to be operated. The condition of keeping the select panel valid for period of one year would be rendered otiose. 5.1 There would be no gainsaying, the real intention behind incorporating the condition to have the select list operative is to leave sufficient time, say one year. If the concept of “calendar year” is envisaged to be the period from January to December is adopted and the result is declared at the fag end of the month of the December, even if the vacancies occurred within short span thereafter, it would go waste. The time, money and machinery employed in the recruitment process would also go fruitless in a way. 5.2 It is trite principal in the canons of interpretation that in working of any rule, provision or condition, absurdity or impractical result have to be avoided and eschewed. The interpretational endeavor in law is always to achieve a purpose of the provision or law and to make it applicable in all conceivable situation. 5.3 Proceeding to interpret the phrase “calendar year” keeping above consideration in view, the phrase comprises of two words, “calendar” and “year.” “Calendar” is understood as a span or period ranging over time slots measured in the months or days. 5.4 In Black’s Law Dictionary, Ninth Edition, the word “calendar” is defined as “A systematized ordering of time into years, months, weeks and days; esp. the Gregorian calendar established by Pope Gregory XIII in 1582 and adopted in Great Britain in 1752.” In the same dictionary, the word “year” herein is defined thus “Twelve calendar months beginning January 1 and ending December 31. Also termed calendar year. the Gregorian calendar established by Pope Gregory XIII in 1582 and adopted in Great Britain in 1752.” In the same dictionary, the word “year” herein is defined thus “Twelve calendar months beginning January 1 and ending December 31. Also termed calendar year. It also means “A consecutive 365 day beginning at any point; a span of twelve months.” In the P. Ramanatha Aiyar’s Wadhwa and Company, the Law Lexicon, 1997 Edition, mentions “ordinarily arrangement of divisions of time into years, months, weeks and days, were registered of them and almanac which denotes the list of things arranged in serial order.” For our purpose it is the order of 12 months to become a year. 5.5 The word “year” is understood as the cycle divided into 12 months. It is different connotations in different context. When it is taken as a period from 1st January to 31st December, it represents Gregorian or British system of calendar. In the Hindu calendar system it is ‘Vikram Samvat’ year, a period of 12 months beginning from Kartaka. There also is ‘Shaka’ calendar which represents Hindu year, commencement of which coincides with month of April. The different regions may also have their own calendar year. 5.6 In the realm of legal interpretation, the interpretation of statute or law or rule is viewed in twin ways. One set of principles of interpretation are called the Maxwell principles of interpretation, the other method, forgotten and least applied by the Court is Mimansa Rules of Interpretation. Both methods of interpretation have a concept of purposive interpretation. The Maxwell method of interpretation is search bound, whereas the Mimansa Rules of Interpretation are solution oriented. 6. One of the Mimansa Principle is Gunapradhan Axiom, wherein “Guna” means subordinate or accessory while “Pradhan” means principal. The Gunapradhan Axiom states as quoted by the Supreme Court in Ispat Industries Limited vs. Commissioner of Customs, Mumbai, (2006) 12 SCC 583 as well as further in Gujarat Urja Vikas Nigam Limited vs. Essar Power Limited, (2008) 4 SCC 755 , thus: “If a word or sentence purporting to express a subordinate idea clashes with the principal idea, the former must be adjusted to the later or must be disregarded altogether.” 6.1 The maxim is known also by principle that the main object would gulp the subordinate things or aspects, and only principal consideration would govern. As per Jaimini the exponent of Mimansa theory, acts are of two kinds, principal and subordinate. The Apex Court explaining the principle elaborated thus in Gujarat Urja Vikas Nigam Limited (supra): “Commenting on Jaimini 3:3:9 Kumarila Bhatta says: “The Siddhanta (principle) laid down by this Sutra is that in a case where there is one qualification pertaining to the Accessory by itself and another pertaining to it through the Primary, the former qualification is always to be taken as set aside by the latter. This is because the proper fulfillment of the Primary is the business of the Accessory also as the latter operates solely for the sake of the former. Consequently if, in consideration of its own qualification it were to deprive the Primary of its natural accomplishment then there would be a disruption of that action (the Primary) for the sake of which it was meant to operate. Though in such a case the proper fulfillment of the Primary with all its accompaniments would mean the deprival of the Accessory of its own natural accompaniment, yet, as the fact of the Accessory being equipped with all its accompaniments is not so very necessary (as that of the primary), there would be nothing incongruous in the said deprival.” See Ganganath Jha's English translation of the Tantravartika, Vol.3 Page 1141.” (Para 50) 6.2 The above was reiterated in Ispat Industries (supra), from which paragraph 36 may be extracted to clarify the principle further: “The Gunapradhan Axiom can also be deducted from Jaimini 6:3:9 which states: “When 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. To give an example, the prescribed Yupa (sacrificial post for tying the sacrificial animal) must be made of Khadir wood. However, Khadir wood is weak while the animal tied may be restive. Hence, the Yupa can be made of Kadar wood which is strong. Now this substitution is being made despite the fact that the prescribed wood is Khadir, but this prescription is only subordinate or accessory to the performance of the ceremony, which is the main object. However, Khadir wood is weak while the animal tied may be restive. Hence, the Yupa can be made of Kadar wood which is strong. Now this substitution is being made despite the fact that the prescribed wood is Khadir, but this prescription is only subordinate or accessory to the performance of the ceremony, which is the main object. Hence if it comes in the way of the ceremony being performed, it can be modified or substituted.” (Para 36) 6.3 The Mimansa Rules of Interpretation applies of “Sarthakeya” which signifies meaningfulness has to be ensured in applying any law or rule. Thereby the purpose is made to prevail over the outward expression which becomes subordinate. When the statutory rule is often subjected to a purposive interpretation to bring out its true intend and a meaningful application, then the executive instructions must be viewed and applied by the courts so as to achieve their purpose. When the question is of application of any rule of benevolent or welfare nature, the purposive construction should deservedly be further informed by liberal approach. Even the dictionary meaning has to be departed from if applying such meaning renders the application without any meaning. 6.4 Viewed from Mimansa Philosophy for applying the principals of interpretation and keeping in view the purpose to be achieved by keeping the selection list alive for a particular period, the phrase “calendar year” may be perceived in two segregated elements, the “year” comprising period of 12 months can be said to be a dominating feature whereas the “calendar” is subsidiary, where the “calendar” would be viewed as composition of any 12 months, it may not be necessarily from January as per the British Calendar or Gregorian Calendar. 7. In the other method it is also a purposive interpretation. 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.” 7.1 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).” 7.2 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. Too literal interpretation may sometimes frustrate the very object of the statute, and such an approach should be eschewed by the Court.” 7.3 The purposive interpretation is contrasted in juxtaposition to literal interpretation. The Supreme Court stated 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. 7.4 The Supreme Court in Surjit Singh (supra) observed that in order to interpret the statute one has to sometimes consider the context in which it has been made and the purpose and object which it seeks to achieve. 7.4 The Supreme Court in Surjit Singh (supra) observed that in order to interpret the statute one has to sometimes consider the context in which it has been made and the purpose and object which it seeks to achieve. The Supreme Court said that too much literal interpretation may sometimes frustrate the very object of the statute, and such an approach should be eschewed by the Court. 8. 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 was 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 asmuch as even a very rich businessman owning the land would be regarded as landless person. 8.1 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. 9. It may be highlighted that in Circular No. 144 of 16.3.2020, the condition No. 3 is properly mentioned attaching correct interpretation to the concept of the period for keeping the select panel alive, it provides that “the selection panel shall remain valid for a period of one year.” Meant accordingly, the petitioner will be entitled to the benefit of being appointed in view on the vacancies available. The problem arose as the respondents adverted to the prescription of “calendar year” in Circular dated 4.3.2017 stating that in that view the select panel which was published on 29.12.2020 would expire on 31.12.2020. 9.1 The exercise of judicial interpretation is a scientific exercise. It is a process to churn out from the language used in the provision or rule to destine it to the main object and purpose for which the provision is engrafted. When the intention is clearly gatherable, the task of construction would be eased out since the Court would focus to ensure the attainment of the principal purpose of the provision in applying it. If the provision or rule is ambiguous in some way, the function would be of ironing out the creases to secure the dominant purpose. 9.2 Summing up the entire discussion, the result list in the present case was published on 29.12.2020, if the “calendar year” is applied as per the stand of the respondents, to be the period from 1st January till 31st December, it would be a pedantic approach. The list would remain valid only for two days. As already stated, if such list in a given case is published on 31.12.2020, it will have no life as select list since the year would be treated to have been over on the very date of publication of the select panel. The situation obtained is not only absurd in nature but it will also be detrimental to the aspiring selectee who would in such circumstances lose chance even if the vacancies are available and are created in the immediacy in time, therefore the “calendar year” as mentioned in condition No. 1 in Circular dated 4.3.2017 has to be attached the meaning, to be the period comprising of 12 successive months commencing from the date of publication of the select list. Such interpretation is entirely possible applying the above delineated Mimansa Principals of Interpretation and further using the concept of purposive interpretation. 10. As a result, the judgment and order dated 27.7.2021 of the learned Single Judge dismissing the Special Civil Application No. 8633 of 2021 is set aside. The decision of the respondents in communication dated 11.1.2021 is set aside. Such interpretation is entirely possible applying the above delineated Mimansa Principals of Interpretation and further using the concept of purposive interpretation. 10. As a result, the judgment and order dated 27.7.2021 of the learned Single Judge dismissing the Special Civil Application No. 8633 of 2021 is set aside. The decision of the respondents in communication dated 11.1.2021 is set aside. The respondents are further directed to give promotion cum appointment to the petitioner on the post of Junior Assistant on the available vacancy by operating the select list, giving such appointment within a period of six weeks from the date of receipt of the present order. 11. The present Letters Patent Appeal is allowed accordingly. In view of disposal of the main Appeal, the present Civil Application will not survive. Accordingly, it is disposed of. 12. Direct service is permitted.