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2024 DIGILAW 56 (ALL)

Dipesh Yadav v. State of U. P.

2024-01-05

AJIT KUMAR

body2024
JUDGMENT Ajit Kumar, J. Heard Sri. R.K. Ojha, learned Senior Advocate assisted by Sri. Nityodit Tripathi, learned counsel for the petitioner, Sri. Manoj Kumar Singh, learned Advocate appearing for the UP Higher Education Service Commission, Sri. Prabhakar Awasthi, learned counsel appearing for 5th respondent and learned Standing Counsel for the State-respondents. 2. By means of this petition filed under Article 226 of the Constitution, petitioner has prayed for quashing of order by which his candidature came to be cancelled holding him not eligible for appointment as Assistant Professor in a postgraduate college for he having not secured Second Division marks in the relevant subject in which he has an undergraduate degree. 3. Basic argument advanced by learned Senior Counsel for the petitioner is that earlier qualification was degree in the relevant subject with 50% marks which subsequently came to be amended as degree in the relevant subject or degree in Second Division. 4. Two fold arguments have been advanced: firstly, the word 'or' being disjunctive, it means there should be undergraduate degree in the relevant subject or degree with second division marks as per the earlier rule and, therefore, it could either be a case of having a degree of relevant subject or having a degree with second division marks; and secondly, the Second Division marks which is required now to be obtained by a candidate which would be considered as per the marks that are generally to be assigned to form a Second Division degree upon a general standard scale which is 45.5% by some universities. 5. Sri. Ojha, however, admits that as far as Rajasthan University is concerned, it does not provide a Second Division below to 48% marks and on that count, the petitioner would not be having Second Division degree as he has degree from that university. 6. Per contra, it is argued by learned counsel for respondent- UP Higher Education Service Commission as well as learned Standing Counsel that even by amendment, the Rules stand on the same footing with an adjustment on the second division which would have lower side marks than fifty percent (50%), but a candidate is to have necessarily a Second Division degree and that too in the relevant subject. 7. 7. In support of the above argument, it is submitted that the word 'or' is to be read as 'and' in conjunction to two preceding and succeeding words as it will give an effective meaning to what the rule making authority had intended and, therefore, applying the rule of interpretation, it is argued that if the word 'or' is read as 'and' then the candidate should have a degree in the relevant subject with second division marks. 8. It is further argued on behalf of Commission as also the State respondents that a candidate is required to produce a Second Division degree in the relevant subject and, therefore, it hardly matters whether there is 50% or 48% marks and if the University does not confer upon a candidate with a second division degree, such a candidate would definitely not be eligible for appointment as Assistant Professor as he was not possessing the requisite qualification. 9. Having heard learned counsel for the respective parties and having perused the records, I find that advertisement issued by the UP Higher Education Service Commission very categorically prescribed the essential qualification for a candidate to have Second Division degree in the relevant subject. The relevant clause of advertisement 6.1.4 is reproduced hereunder: 10. The word and expression '' means that a candidate of course should be graduate in the relevant subject in which the post is required to be filled and then he should be having a Second Division degree. Petitioner though of-course has secured 45% marks, but the Rajasthan University from where he has obtained degree does not provide Second Division at that percentage of marks. Merely because some other universities prescribe for 45.5% or above as Second Division, in my considered view, it will not make any difference. 11. This aspect has previously traveled to this Court and the Division Bench in Shailendra Kumar Bharati v. State of UP & ors in Writ-A No.97 of 2015, dated 12.01.2015 dismissed the writ petition wherein similar plea was taken as is raised in this petition. The relevant part of the judgment dated 12.01.2015 is reproduced hereinunder: "We have considered the submissions advanced by the learned counsel for the parties. The advertisement issued by the Commission specifically requires that candidates should have obtained a second division at the Graduate level. The petitioner admittedly passed the Graduation examination with a third division. The relevant part of the judgment dated 12.01.2015 is reproduced hereinunder: "We have considered the submissions advanced by the learned counsel for the parties. The advertisement issued by the Commission specifically requires that candidates should have obtained a second division at the Graduate level. The petitioner admittedly passed the Graduation examination with a third division. The petitioner cannot be permitted to contend that since some of the Universities grant a second division on obtaining 45% marks, the University from where the petitioner did his graduation should also grant a second division to the petitioner. It is for each University to decide this academic matter relating to grant of a division in the examination conducted by it. Likewise, the petitioner cannot also be permitted to contend that a relaxation of 5% marks should be given to him because he belongs to Scheduled Castes candidate, as the Rules/Regulations do not provide for grant of such a benefit." 12. The prescribed qualification cannot be held to be arbitrary and if the employer asks for a relevant degree in a particular division then a candidate must possess that. The candidate cannot question the eligibility conditions led in the advertisement only because his university prescribes Second Division at a higher percentage marks than other universities. This issue is open for the petitioner to raise with the university as discrimination can be attributable to the statute of that university. The Commission cannot be held to be responsible in any manner for laying down such conditions, nor such conditions appear to be arbitrary and discriminatory. Earlier, 50% marks for teaching post prescribed for, was even held to be not bad by this Court in Writ-A No.70918 of 2009 (Sushil Kumar Gupta v. State of UP & ors) decided on 23.12.2009. Similarly, the advertisement came to be challenged before this Court in the case of Vinay Kumar v. State of UP & ors in Writ-A No.26287 of 2018, dated 12.12.2018, wherein the Co-ordinate Bench of this Court followed the judgment of Shailendra Kumar Bharati (supra) and dismissed the petition vide order dated 12.12.2018. 13. Even otherwise, rule of interpretation is to find a provision meaningful and sensible and whatever leads to absurdity is to be shunned. 13. Even otherwise, rule of interpretation is to find a provision meaningful and sensible and whatever leads to absurdity is to be shunned. Normal rule is that a disjunctive word cannot be read conjunctively as it may lead to an extreme interpretation to give meaning to a sentence or provision contrary to or in access of what rule making authority or legislature might have intended. However, at times if disjunctive word is read as conjunctive, it would make a provision more meaningful and will lead to understand real import of the provision. Lord Halsbury L.C. observed in Mersey Docks & Harbour Board v. Henderson; LR (1888) 13 AC 603 that the reading of 'or' as 'and' is not to be resorted to "unless some other part of the same statue or the clear intention of it requires that to be done." Thus, there has to be reasons genuine to use a disjunctive word as conjunctive to have meaningful interpretation. Here in the case in hand the disjunctive word 'or' if not used as conjunctive word 'and', no meaningful purpose is going to be served. A candidate if is said to possess a degree in concerned subject/discipline or a degree in Second Division, it would mean either to have degree in the concerned subject or discipline or otherwise any degree with second division marks. This, interpretation if accepted it will make first part of possession to have degree in relevant subject absolutely irrelevant as one would be then required to have second division degree in any subject. This is neither the intention behind the condition, nor the purpose. The authority could have provided that a candidate should have second Division Degree and relevant subject degree as preferential qualification or vise versa. Thus, in my considered view here the disjunctive 'or' is to read as conjunctive word 'and' it makes not only sense but gives a meaningful interpretation to the entire provision. 14. In the case of Indore Development Authority v. Manoharlal & ors; 2020 (8) SCC 129 , the Constitution Bench observed that if there were two prohibitions used, the word 'or' is to be read as 'and or as 'nor'. The Court was interpreting provision as contained under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation Act, 2013. The issue was as to interpretation of sentence 'either possession taken or compensation paid". The Court was interpreting provision as contained under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation Act, 2013. The issue was as to interpretation of sentence 'either possession taken or compensation paid". The Court held so to bring an end to proceedings under the old Act as it would be taken to have lapsed in the event both the conditions were attained. The Court vide paragraph 352 observed thus: "352. There is a plethora of decisions where, owing to delay of 6 months or more, this Court has repelled the challenge to the acquisition proceedings. In our opinion, Section 24 does not revive the right to challenge those proceedings which have been concluded. The legality of those judgments and orders cannot which be reopened or questioned under the guise of the provisions of Section 24(2). By reason of our reasoning in respect of that provision [which we have held But under Section 24(2) that word "or" is to be read as "and" or as "nor", even if one of the requirements has been fulfilled i.e. either possession taken or compensation paid], there is no lapse unless both conditions are fulfilled i.e compensation has not been paid nor has possession been taken; the legality of the concluded proceedings cannot be questioned. It is only in the case where steps have not been taken by the authorities. The lapse or higher compensation is provided under Section 24(2) and its proviso under the 2013 Act." 15. Thus, in view of the exposition of law and rule of interpretation, I do not find any merit in the submissions of learned Senior Advocate, Mr. R.K. Ojha. Writ petition lacks merit and is, accordingly, dismissed. 16. There will be no order as to cost.