Anil Kumar Rai vs Banaras Hindu University and Others

D.K. Seth, J.—Dr. R. G. Padia sought to interpret the eligibility criteria laid down in the Information Bulletin of Banaras Hindu University Entrance Test 1995-96 relating to the Computer Centre. According to him, there are two eligibilities one is Bachelor''s Degree of minimum three years; duration after + 2 (10 + 2) for which no restriction as to the percentage marks were provided or a Post Graduate Degree with 50% marks in aggregate or equivalent grade.

He contends that this was done with the object to ensure that candidates who had not passed Bachelors Degree of minimum three years, in their case. Post Graduate Degree with 50 % marks is necessary. If a candidate passes Bachelor''s Degree of minimum three years after 10 + 12, then there would be no restriction on the question of marks. He bases his claim also on the ground that the Petitioner being a person referred to in paragraph 16 (b) of the said Information Bulletin with regard to Reservations/Weightage and contends that the said para does not contemplate fulfilment of eligibility criteria laid down as indicated above.

In order to appreciate the circumstances it is necessary to narrate the facts of this case.

The Petitioner''s father Dr. D. K. Rai was an employee of the University who retired on 30th June 1995. Therefore, he comes within the purview of para 16 (b) of the said Information Bulletin. He having appeared in the Entrance Test has been placed a high position, namely, at serial No. 3 in the merit list but he has been denied admission on the ground of non-fulfilment of the eligibility criteria as contended above.

In the above facts, in order to decide the questions raised, it is necessary to refer to the relevant portions of the Information Bulletin of the Banaras Hindu University Entrance Test 1995-96, hereinafter referred to as ''the said Bulletin''. Necessary excepts of the said Bulletin are quoted below:

Courses of Studies and Eligibility Conditions

Course of Study Eligibility conditions Faculty of Arts/Social Sciences/Manila Mahavidyalaya (Male Only) (Female Only) 3 Years Passed + 2(10 + 2 Pattern) or equivalent examination B.A. (Hons.) with 45 per cent marks in the aggregate.

Faculty of Arts (1) One Year B. J. Graduate (10 + 2 + 3 Pattern) with 50 per cent marks in B. Lib & Inf. aggregate or post-graduate with 50 per cent marks in Sc. & B. P. Ed. aggregate.

Faculty of Law (i) 3 Year B.A./B.Sc./ B.Com (10 + 2 + 3 Pattern) with 45 per cent LL.B. marks in aggregate or B. Tech./B.Sc. (Ag.)/M.B.B.S.

(ii) 2 Year 3 Years'' LL.B. after graduation under 10 + 2 + 3 Pattern LLM. or 5 years LL.B. (10 + 2 + 5 Pattern) with 50 per cent. marks in aggregate. Computer Centre (i) 3 Year A. Bachelor''s degree of minimum three years duration in M.C.A. any discipline after + 2(10 + 2)/ or postgraduate degree with 50% marks in aggregate or equivalent grade. B. Must have passed Intermediate + 2 (10 + 2) equivalent examination with Mathematics as a subject. Note.--Notwithstanding anything contained in the prospectus of studies regarding the courses in which admission is made through Entrance Test the only eligibility condition for the purpose of admission shall be those which are mentioned above in the Information Bulletin of the academic session concerned.

RESERVATIONS/WEIGHTAGE:

(a) Seats shall be reserved for Scheduled Castes (15 per cent) and Scheduled Tribes (7.5 per cent) for each course. Admissions against these seats will be made provided the candidates fulfill the minimum eligibility requirements and qualify in the Test. The vacant seats reserved for SC/ST candidates be not filled up by the candidates under general category.

(b) 15% supernumerary seats for sons/daughters of permanant employees of the University in service during the academic session (July to June) immediately preceding the academic session for which the Entrance Test is held provided they qualify in the test.

Drawing my attention to the eligibility criteria for Computer Centre, Dr. Padia submits that a candidate having Bachelor''s degree is eligible irrespective of his percentage of marks if he has undergone 3 years course after 10+2. Even if he is a postgraduate degree holder and has obtained less than 50% marks, still then he is eligible for admission by virtue of his eligibility on account of having a Bachelor''s degree in 3 years course, namely, that a candidate being eligible on account of the first part, he is entitled to appear in the Entrance Test, no matter whether he has obtained postgraduate degree or not or whether he has obtained less than 50% marks when obtained postgraduate degree. According to him, the second part applies only to the postgraduate degree holders who did not qualify on the first part, namely, not having obtained Bachelor''s degree with 3 years course. According to him, the second condition was laid down in order to enable the candidates having Bachelor''s degree of 2 years course. He contends that the restriction of 50% marks does not qualify the first part. It qualifies only the second part. He attempts to draw inspiration to support his contention by referring to the eligibility clause for Faculty of Arts where the 50% restriction has been used on either part of the said clause, namely, 50% is repeated against each qualification. He also refers to the eligibility criteria of the Faculty of Law and points out that the restriction of percentage is confined only to the first part and so far as the second part, there is no question of percentage. Thus according to him, different eligibility criteria has been laid down in different subjects in different manner. Every where the University had laid down the restriction of marks specifically against each part and deliberately omitted in respect of one or the other part. Therefore, by no stretch of imagination, the restriction of 50% marks can be imported to the first part of the eligibility criteria for Computer Centre in the same manner as it is impossible to stretch the restriction to the second part for the eligibility criteria of Faculty of Law.

Relying on various decisions which he had referred to in the course of his argument. Dr. Padia contends that in order to interpret the said provision, no words can be added to the same to have the complete meaning. The plain and simple meaning of the words used has to be accepted. The University refusing admission to the Petitioner on account of absence of 50% marks in the Bachelor''s degree has wrongly interpreted the said criteria by adding the restriction of 50% marks to the second part as well. Inasmuch as according to him, in order to derive such a meaning, the said criteria has to be read as "Bachelor''s degree of minimum three years duration in any discipline after + 2 (10 + 2) with 50% marks in aggregate or equivalent grade". The University cannot interpret the same in such manner. He also refers to the Banaras Hindu University Ordinance.

Ordinance 11 of the General Ordinances contained in the Banaras Hindu University Calendar provides that where admission is to be made through a Competitive Test, the Academic Council shall lay down the procedure for Admission. Referring to Statute 17 of the Banaras Hindu University Statutes framed under the Banaras Hindu University Act contained in the schedule of the Act prescribes that Academic Council shall consist of the members mentioned in the said Statute.

Mr. Pankaj Naqvi, learned counsel for the University, does not dispute that the procedure for Entrance Test is to be decided by the Academic Council and that the Academic Council consists of the Members mentioned in Statute 17. It is not disputed that the eligibility criteria with which we are concerned has been decided by the Academic Council. We are simply confined with the interpretation of the said criteria. Nothing more nothing less. It is not, therefore, necessary to refer to the ordinance or the Statute for our present purpose. A comparative look of the eligibility criteria, as quoted hereinbefore shows that in the first case in both the qualifications, the restriction of marks was included while in the second case, such restriction was imposed only in respect of the first part. Drawing inspiration from these two clauses. Dr. Padia contends that the restriction of marks has been imposed only in the second part and not in the first part. Mr. Naqvi, however, has produced a copy of the letter issued by the Coordinator of the Computer Centre dated 22nd December, 1993 which is reproduced below:

The Rector Dated : 22.12.93

Banaras Hindu University No. CC/93-94/MCA/137

Varanasi.

Through : The Dean, Faculty of Science.

Dear Sir, Board of studies for MCA vide its resolution passed in the meeting held at the centre on 21.12.93 has recommended the following eligibility criteria for appearing at the admission test for the programme to be conducted by the University at various places in the country.

A graduate in any discipline under (10+2+3) pattern or more of education with at least 50% marks and he/she must have successfully completed a course in Mathematics at (10+2) level earlier.

Kindly accord your approval and instruct the Controller of examinations to insert this eligibility criteria for appearing at the admission test for MCA in the admission notification of University in place of LCSA which should be scrapped from 1994-95 academic session.

Thanking you,

Forwarded Yours sincerely, Sd/--Illegible Sd/--P. Chandra 22/12/93 (P. Chandra) Co-ordinator.

DEAN, Faculty of Science, Banaras Hindu University, Approved to be reported to A/c. Varanasi.

Dean for specific comments. Sd/--Illegible 25/1 Sd/--Illegible Registrar (Head) 22/12.

Recommended

Sd/--Illegible 24/12

Dean Faculty of Science, Banaras Hindu University, Varanasi--221005.

Mr. Naqvi also produces another letter dated 28th December, 1993 issued by the co-ordinator which is quoted below:

The Rector Dated : 28.12.93Banaras Hindu University No. CC/93-94/MCA/139 Varanasi.

Subject.--Eligibility Criterion for MCA Course.

Dear Sir,

Kindly refer to our letter No. CC/93-94/MCA/137, dated 22.12.93 duly recommended and forwarded by the Dean, Faculty of Science.

The eligibility clause as it appears in that letter is not unambiguous as pointed by Shri T. N. Bhattacharya. In consultation with Controller of Examination, this has now been strengthened. The modified eligibility condition should read as under:

(a) "Bachelors Degree of Minimum three years duration in any discipline after + 2 (10+2)/ or postgraduate degree with 50% marks in aggregate or equivalent grade.

(b) Must have passed Intermediate/2 (10 + 2)/equivalent examination with Mathematics subject.

Kindly approve these conditions, so that the controller of examination may release the advertisement and Asstt. Registrar (Acad.) may prepare it for reporting to Academic Council.

Thanking you,

Your faithfully, Forwarded.

Sd/--P. Chandra Sd/--Illegible

(P. Chandra) 31/12

Co-ordinator. Dean Faculty of Science Banaras Hindu University, Varanasi--221005. Registrar Sd/--Illegible K. W. F.

On file. Sd/--Illegible

Sd/--Illegible 3/1/94.

May be approved, so that candidates belonging to different discipline. Sd/--Illegible 1/1/94.

It appears that in the letter dated 22nd December, 1993 50% restriction was insisted upon even in case of Graduates. But now confusion has been created by reason of the eligibility criteria laid down in the said Bulletin. It appears to be the reproduction of the criteria laid down in the above letter dated 28th December 1993. A perusal of these two communications show that the later one was the outcome of the first one which was recommended and approved by different authorities. If these two communications are reconciled, in that event, it can be deciphered that it was never intended to have different criteria. This is more so because of the use of an oblique (/) before the word ''or''. Whether the expression ''or used in this clause would have the same import as it has in the Faculty of Arts and Faculty of Law criteria where the same has been used disjunctively. The presence of oblique makes the difference. The use of oblique normally makes it alternatively, and are subject to the same criteria and is used as conjunctive. In order to read the restriction, it is not necessary to add any word in the clause. Inasmuch as the expression ''with 50% marks'' qualifies both the clauses on either side of the oblique as is the case in the eligibility criteria in the Faculty or Law, namely, "B.A./B.Sc./B. Com. (10+2+3 pattern) with 45% marks" Inasmuch as the obliques used in between B.A., B. Sc., B. Com. separate the three qualifications but lays down three alternative qualifications all of which are qualified with 45% marks and then the second part has been disjuncted by use of the word ''or'' where three qualifications have been specified without restriction of marks. Whereas in the eligibility criteria in Computer Centre, the word ''or'' is preceded by a stroke or oblique meaning thereby that the qualifications ''with 50% marks'' qualified both.

Then again the purpose would be wholly redundant if such consideration of Dr. Padia had wanted to make is accepted. Inasmuch as in that event, a candidate not having three years Bachelor''s Course but having a Postgraduate degree with two years Bachelor''s course obtaining 49.9% marks would be eneligible with higher qualification while a candidate with Bachelor''s degree of three years course with minimum pass marks would be eligible. In the case of Faculty of law, 45% marks have been omitted in respect of higher qualification such as B. Tech., B. Sc. (Ag.) M.B.B.S. whereas in the present case, if Dr. Padia''s contention is accepted, then the 50% restriction is omitted in respect of a lesser qualification. The situation would, therefore, then be anomalous.

In order to substantiate his contention that while interpreting a provision, nothing can be added when a plain meaning can be accepted as propounded in various decisions. Dr. Padia relied on the decision in the case of Assessing Authority cum Excise and Taxation Officer, Gurgaon and Anr. v. M/s. East India Cotton Mfg. Co. Ltd., Faridabad AIR 1981 SC 1610 where it has been held:

Now it is a well-settled rule of interpretation that a statute must be construed according to its plain language and neither should anything be added nor subtracted unless there are adequate grounds to Justify the inference that the legislature clearly so intended. It was said more than seven decades ago by Lord Mersey in Thompson v. Cold and Company 1910 AC 409;

It is strong thing to read into an Act of Parliament words which are no nowhere and in the absence of their clear necessity, it is a wrong thing to do.

Lord Loreborn L.C. also observed in Vickers, Sons and Mixim Ltd. v. Evans 1910 AC 44. We are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.

Dr. Padia then relies on the case of British India General Insurance Co. Ltd. Vs. Captain Itbar Singh and Others, in support of his contention. He further relied on the case of Shyam Kishori Devi v. The Patna Municipal Corporation and Anr. AIR 1978 SC 1678, in which it was held:

It is well known rule of construction that a court must construe a section, unless it Is impossible to do so, to make it workable.

He also relied on the case of Management Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. Vs. S.S. Railway Workers'' Union, , wherein it has been held:

It is well settled that the meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation and the Primary duty of a court is to find the natural meaning of the words used in the context in which they occur, that context including any other phrase in the Act which may throw light on the sense in which the makers of the Act used the words in dispute.

The above principles are well settled and cannot be disputed. Mr. Naqvi has also accepted the proposition and has not disputed the same. He. however, relies on the case of Ombir Singh and Ors. v. State of U.P. and Anr. 1993 Supp (2) SCC 64, wherein the imposition of qualifying marks was held to be valid since the same was necessary for maintaining excellence. In the said case, reference was made to earlier cases. Therefore, the omission of the qualifying marks would be contrary to maintenance of excellence. When in order to maintain excellence, qualifying marks were mentioned everywhere. It could be put in the present case had there been no oblique.

In my view, in order to arrive at the conclusion that the qualifying marks provided in the concerned eligibility criteria qualifies both the parts and for this it is not necessary to read anything in the sentence or add any word thereto. Use of oblique makes it clear.

Then again the Apex Court has held that when it comes to the interpretation of certain guidelines fixed by the University in order to maintain excellence in he academic field, in that event, the interpretation of the University should not be interfered with by the Court unless it appears to be perverse and totally baseless or contrary on the face of it, when the two contemporaneous expositio documents supports the same.

In the case of Desh Bandhu Gupta and Co. and Others Vs. Delhi Stock Exchange Association Ltd., , it has been held:

It may be stated that it was not disputed before us that these two document which came into existence almost simultaneously with the issuance of the notification could be looked at for finding out the true intention of the Government in issuing the notification in question, particularly in regard to the manner in which outstanding transactions were to be closed or liquided. The principle of contemporaneous expositio (interpreting a statute or any other document by reference to the exposition it has received from contemporary authority) can be invoked though the same will not always be decisive of the question of construction. (Maxwell 12th Edn. p. 268). In Crawford on Statutory Construction (1940 Edn.) in Para 219 (at pp. 393-395) it has been stated that administrative construction (i.e., contemporaneous construction placed by the administrative or excecutive officers charged with executing a statute) generally should be clearly wrong before it is overturned; such a construction commonly referred to as practical construction although not controlling, is nevertheless entitled to considerable weight it is highly persuasive. In Baieshwar Bagarti v. Bhagirathi Dass 1LR (1908) Cal 701 the principle, which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha ILR Cal 790 : AIR 1916 Cal 136 has been stated by Mukerjee, J. thus:

It is a well settled principle of construction that courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it, I do not suggest for a moment that such interpretation has by any means a controlling effect upon the Courts; such interpretation may, if occasion arises have to be disregarded for cogent and persuasive reasons, and in a clear case of error, a court without hesitation refuse to follow such construction.

Of course, even without the aid of these two documents which contain a contemporaneous exposition of the Government''s intention, we have come to the conclusion that on a plain construction of the notification the proviso permitted the closing out or liquidation of all outstanding transactions by entering into a forward contract in accordance with the rules, bye-laws and regulations of the Respondent.

The above observations fortify me about the view I have taken. Inasmuch as the University had interpreted the said provision to mean:

Three years MCA after ten plus 2 pattern a Bachelor''s degree (3 years) in any discipline with 50% marks in aggregate or a postgraduate degree or its equivalent with 50% marks in the aggregate.

In its communication dated 22nd January, 1996 produced by Dr. Padia before this Court. Therefore, in the circumstances, I am unable to agree with the contention of Dr. Padia. In my view, the said qualifying marks qualifies both the eligibility criteria.

Now admittedly the Petitioner is a son of a permanent employee of the University during the Academic Session immediately preceding the Academic Session for which the Entrance Test is held. Mr. Naqvi has not disputed the said fact. If it is so, then there is no dispute that the Petitioner is entitled to claim the benefit under Para 16 (b) of the said Bulletin quoted herein before.

Now a question has been raised by Mr. Naqui that though admittedly the Petitioner comes under Clause (b) of Para 16, but still the Petitioner has to fulfil the eligibility criteria of general candidate and the University has interpreted the "same in such manner as would be apparent from a communication dated 25th September, 1995 which is Annexure ''I'' to the supplementary affidavit filed on behalf of the University.

But a plain reading and comparison of Clauses (a) and (b) clearly makes a distinction in the matter of reservations in the two categories specified in the said two clauses of Para 16 inasmuch as so far as clause la) is concerned, it has been specified that the candidate has to ''fulfil the minimum eligibility requirement and qualify in the test." Whereas in clause (b) there is no such provision relating to the fulfilling of minimum eligibility requirement. When two criteria has been laid down in Clause (a), namely, one fulfilment of eligibility requirement, and second qualifying in the test, both ought to be fulfilled. Whereas in Clause (b), no such provision has been made. Here it has been laid down, "provided they qualify in the test" without providing any requirement of fulfilling eligibility criteria. Therefore, in order to read Clause (b) in the manner Mr. Naqvi wanted to, it is necessary to add after the word ''provided'' the following words:

they fulfil minimum eligibility requirements and.

Relying on the above judgments referred to by Dr. Padia and the established principles of law, the Court is not permitted to add any words or read any word which has not been used there. The interpretation sought to be given with regard thereto in Annexure ''I'' is also in the same line which I have held above. Therefore. Mr. Naqvi, on having submitted that the interpretation of the University should not be interfered with cannot turn round and submit that the interpretation contained in Annexure ''I'' is to be interfered with. I also do not find any perversity or infirmity in the interpretation made in Annexure ''I'' to the supplementary affidavit which can be said to be contrary to clause (b) of Para 16.

In fact it appears that exception has been made in the case of sons and daughters of permanent employees of the University which is permissible as has been held by various courts which is by now a settled principle. Therefore a candidate under the purview of clause (b) of Paragraph 16 is not required to fulfil the minimum eligibility requirement as laid down in the eligibility criteria for Computer Centre with regard to 50% marks provided they qualify in the test. The omission of the condition for fulfilling minimum eligibility requirement of 50% marks is not a mandate so far as the candidates coming within the purview of clause (b).

Though, however, the Petitioner is required to have either the Bachelor''s degree or postgraduate degree as laid down in the said clause but so far as the question of having the minimum percentage marks, the same would not apply because of the specific condition laid down in clause (b) of Para 16. The said fact would be apparent from the Minutes of the Committee meeting of the Academic Council held on 15th December, 1995 which has been produced before the Court wherein clause (b) of Para 16 has been amended to include fulfilling of eligibility requirement. The text thereof is quoted below:

15% supernumerary seats for sons/ 15% supernumerary seats for sons/ daughters of permanent employees of daughters of permanent employees of the University in service during the the University in service any time academic session (July to June) during the academic session immediately/preceding the academic immediately preceding the one session for which the Entrance Test is (session) for which the Entrance Test held provided they qualify in the test. is held, provided the candidates fulfil the minimum eligibility requirements and qualify in the test.

The said amendment would be applicable in the session 1996-97. Without the said amendment, the same cannot be applied for the concerned session, namely 1995-96 in which the Petitioner has been denied admission. It appears that the same eligibility criteria has been included for the session 1996-97 but the same cannot have retrospective effect.

In that view of the matter, the Petitioner''s candidature under Para 16 (b) above cannot be refused on the ground that he did not obtain 50% marks in 3 years Bachelor''s Degree Course.

Therefore, the writ petition is allowed to the above extent. The Petitioner shall be allowed admission on the basis of his result in the Entrance Examination in the category of candidates coming within the purview of Para 16 (b) of the said Bulletin and shall be allowed to attend the classes for the current session for which he has been selected provided he comes within 15% reservation on the basis of his position at Serial No. 3 in the Merit List.

With these observations, this writ petition is disposed of. There will, however, be no order as to costs.

Certified copy of this order may be issued to the learned counsel for the parties on payment of usual charges within 7 days.