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Judgment
By this petition under Article 226 of the Constitution, the prayer is that by issuing a writ of certiorari the order dated 29th July, 1991, passed by the Chancellor, Respondent, and communicated to the Petitioner on 16th October, 1993 (Annexure-5 to the writ petition) be quashed. There is a further prayer for Issuance of a writ of mandamus directing the Respondents to consider the candidature of the Petitioner treating the Selection Committee to have been properly constituted.
There is a personal promotion scheme and the Petitioner having completed 10 years service as Reader was entitled to be selected as Professor. For that purpose Selection Committee was constituted u/s 31(4) of the State Universities Ad, 1973 (the Act for short). There were two Experts nominated and the result of the Selection Committee, which met on 8th February, 1990, to select a proper candidate for the purpose, was in favour of the Petitioner. The result was, however, submitted in a sealed cover, which was furnished before the Executive Council on 5th August, 1990. The Executive Council, however, did not agree with the recommendations of the Selection Committee and consequently made a reference under the provisions of Section 31(8)(a) of the Act to the Chancellor, who has decided the matter against the Petitioner holding that the Selection Committee was not properly constituted as required u/s 31(3)(a) & (d) of the Act.
Shri R.N. Singh, learned Counsel for the Petitioner, urged that there was no illegality in the constitution of the Selection Committee and even if Dr. O.P. Srivastava participated as an Expert in place of Or. R.K. Srivastava, though there was no such person, there could not be any Illegality or irregularity much less the same did not affect the merits of the selection in view of Section 66 of the Act. Consequently, the order of the Chancellor deserves to be quashed.
Shri S.N. Upadhya, learned Counsel for the Respondents however, urged that Section 66 of the Act was not very material and no interference is called for with the impugned order.
Having scrutinised the submissions of the learned Counsel for the parties, in our opinion the provision of Section 66 of the Act were not kept |n mind by the Chancellor while disposing of the Reference made by the Executive Council. The provisions of Section 66 of the Act are extracted:
CC, Proceeding not to be invalidated by vacancies, etc....No act or proceeding, of any authority or body or committee of the University shall be Invalid merely by reason of... .
(a) any vacancy or defect in the constitution there of, or
(b) some person having taken part in the proceedings who was not entitled to do so,
(c) any defect in the election nomination or appointment of a person acting as a member thereof, or
(d) any irregularity in its procedure not affecting the merits of the case.
The provisions of Section 66 of the Act have to be read not in isolation but in reference and context to other provisions and also along with the provisions of Sections 99 and 99-A of the Code of Civil Procedure, 1908 (for short the Code) which are in parimateria. Section 66 of the Act has to be interpreted harmoniously. A Latin Maxim LITRES MAGIS VALEAT QUAM PEREAT appears to be the object of the Legislature for enacting Section 66 of the Act or Sections 99 and 99-A of the Code. This Maxim connotes that it is better to validate a thing completed than to invalidate it otherwise and the intention of the Legislature (i.e. making) provisions for Selection Committee and interviewing the candidates to judge their suitability) would go waste.
The purpose of the Legislature in enacting Section 66 appears to be that unless merits have been affected, even if there is some irregularities In constitution of Selection Committee, that has to be ignored There is a Latin Maxim LIT RES VALEAT POTILIS PEREAT which connotes that a Court must avoid that construction which would fail to achieve the purpose of the Legislation. There is a presumption that Legislature enacts a provision to bring about an effective change. In our Sanskrit language the concept of Interpretation, of (Mantra, Richiyan tatha Slokas matras, Rlchayan, or Slokas of Vedas and substantial and procedural provisions of contained in different smritas (i.e. Narada Smritas, Katyan Smritas, Brihaspati Smriti, adi) which equally apply to interpretation of modern statutes, dates back to thousands years in the past. That shows rich Indian heritage in matters of interpretation of statutes and deeds. The relevant principle is "Namal likhyate kinchit. Nanapekshitmachyate" aur "Na tu prithakatyena mantra nirbak-tabyah. Prakaranash aek tu nirbaktalya" Nirakt.
Maharshi Yaskacharya was a Niruktekar, a Great Interpreter ft Commentator of different Mantras Shlokas and Richayen of Vedas and other provisions. He indicates in the aforesaid provisions which mean that nothing is said without any basis or without any purpose. The Mantras of the Vedas and similarly other provisions arc not to be interpreted without context, rather they have to be Interpreted with reference to context. This was an universal principle of interpretation of statutes that interpretation must be textual and contextual.
In Tinsukhia Electric Supply Co. Ltd. Vs. State of Assam and others, , Constitution Bench (consisting of Hon''ble R.S. Pathak, C.J.I., Hon''ble Sahyasachi Mukherji (as his Lordship then was), Hon''ble Section Natarajan, Hon''ble M.N. Venkatachaliah (as his Lordship then was and present Hon''ble C.J.I and Hon''ble Section Ranganathan, J.) has under para 49 page 152 observed as follows:
The Courts strongly lean against any construction on which tends to reduce Statute to a futility. The provision of a Statute must be so construed as to make it effective and operative, on the principle "ut res roajls valeat quant periat". It is, no doubt, true that if a Statute is absolutely vague and its language wholly intractable and absolutely meaningless, the State could be declared void for vagueness. This Is not in judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a Court of construction, dealing with the language of a statute, does in order to ascertain from, and accord to, the Statute the meaning and purpose which the legislature Intended for it.
A perusal of the aforesaid provisions of Section 66 of the Act read with Section 99 & 99-A of the Code would indicate that these provisions have an overriding effect after a selection has been made by the Selection Committee or a decree has been made by the trial court. This Section 66 of the Act is akin to a proviso to the procedure for selection. This Indicates that no proceeding of any Committee of the University including the Selection Committee shall be invalid merely by reason of any Irregularity In the constitution of the Selection Committee or any vacancy and even if there was any irregularity In the constitution of the Selection Committee because some body participated in the selection of the candidates who could not have participated. But this irregularity need not affect the merits of the case. This provision has been engrafted with a view to do complete justice with the result of the Selection Committee.
The object of Section 99 of the Code is that mere circumstance of there being an error, defect or irregularity in any proceeding would not be a ground for reversing or varying a decree in appeal. In other words, Section 99 and 99-A of the Code enact a statutory rule of law with a view to prevent technicalities from overcoming the ends of Justice and from operating as a means of circuitry of litigation. To put it differently, in case a decision is correct on merits and is within the jurisdiction of the Court, it need not be upset merely for technical and immaterial defects. At the same time it may be pointed out that these errors, defects or irregularities are only of procedure and not of rules of law. See AIR 1937 233 (Privy Council) (1861) 99 Moo Ind App 268. But in case the same has affected the merits of the case or jurisdiction of the Court in that event it can be a ground for reversal of a decree by appellate Court. In other words, Section 99 of the Code cures a mere irregularity error or defect. But It does not cure a material illegality.
In AIR 1937 233 (Privy Council) , their Lordships of the Privy Council ruled that Section 99 of the Code proceeds on sound principle and it is calculated to promote Justice. In Kiran Singh and Others Vs. Chaman Paswan and Others, it was held that when a case has been tried on merits and judgment has been rendered, it should not be reversed purely on technical grounds unless it has resulted in failure of justice.
It is, however, not very easy to define ''merit''. In Dr. Jagadish Saran and Others Vs. Union of India (UOI), . Hcn''ble R.S. Pathak, J. (as hit Lordship then was) pointed out that measurement of merit is difficult and the method now in vogue leaves so much to be desired, that swearing by marks as measure of merit may, even be start superstition His Lordship Hon''ble Krishna Iyer, J, observed that judging merit the heart and its sensitivity are as previous as head and its creativity. See Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, ; Ashok Kumar Yadav and Others Vs. State of Haryana and Others, . In our opinion, these salutary principles of law and cardinal rules of construction equally apply to provisions of Section 31(4), Sections 66 & 68 of the Act.
This provision of Section 66 of the Act ought to have been takes into account by the Chancellor. A perusal of the impugned order would Indicate that there is no whisper of the consideration of the provisions of Section 66 of the Act. In our opinion, therefore, the impugned order Is manifestly erroneous.
Resultantly, the petition succeeds and is allowed. The impugned order dated 29th July, 1991 as communicated to the Petitioner on 16th October, 1993 (Annexure 3 to the writ petition) is hereby quashed. The Chancellor is, however, directed to decide the reference within a period of three months from the date a certified copy of this order is furnished after considering the effect of the provisions of Section 66 of the Act. There shall be no order as to costs.