Shri Sureswahr Thakur vs High Court of Himachal Pradesh and State of Himachal Pradesh

D. Raju, C.J.—The above Writ Petition has been filed seeking for the relief to quash the notice issued by the Registrar General, High Court of Himachal Pradesh, inviting applications for an unreserved temporary post of Additional District and Sessions Judge, stipulating the persons eligible to apply for the post and such of those who will not be so eligible, making it further known that applications complete in all respects as envisaged in the notice should reach the Registry of this Court on or before 15.7.1998, filed as Annexure P-1, and consequently to direct the Respondents to reinvite applications for the post by fixing the cutoff date as the last date of submission of application form for the post. In the alternative, the Petitioner has also prayed that in case the Respondents complete the selection process during the pendency of the Writ Petition, the results may not be declared or the claim of the Petitioner may also be considered along with the other persons who have applied for the post by making comparative assessment of all the persons applying for the said post with the merit of the Petitioner and grant him all consequential benefits to which he may be entitled to.

From the averments made in the Writ Petition it is seen that the date of birth of the Petitioner is 18.5.1963, that he has secured B.A.(Hons) and LL.B. Degrees, that thereafter, he got himself enrolled in September 1987 as an Advocate with the Bar Council of Himachal Pradesh, his Enrolment No. being HIM/46/87 and that he has been practising till this date as an Advocate in this Court. After adverting to the notice published in the newspapers on 10.6.1998 and the details specified therein as to the persons who shall not be eligible for recruitment as also the specification relating to the last date for submission of application, the Petitioner challenged the notice insofar as it provided that no person shall be eligible for recruitment unless he "is not less than 35 years and not more than 45 years of age on the first day of January, 1998" on the ground that it is opposed to Rule 9(1)(i) of the Himachal Pradesh Higher Judicial Service Rules, 1973 (hereinafter referred to as "the Higher Judicial Service Rules"). The validity of the stipulation in this regard has been also challenged on the ground that there is no reasonableness and no object can be claimed to have been achieved by fixing the cut-off date as 1.1.1998, since, according to the Petitioner, in the present set of circumstances, the selection process in the ordinary course would be completed in the end of 1998 at its earliest and all persons becoming eligible after 1.1.1998 during such a long span would be arbitrarily denied the right of being considered as in the case of the present Petitioner. The cut-off date was said to have been arbitrarily fixed in violation of Article 14 of the Constitution of India and that in the present set of circumstances, it would be just and fair to read down the date 1.1.1998 in the Notification inviting applications as 15.7.1998 to do complete justice. The further stand taken in the affidavit is that if the appointment is to be made in 1998, the next following year for the purpose of completing 35 years would be necessarily 1.1.1999 and if it is to be made in 1999, the relevant date for completing the age of 35 years would be 1.1.2000. The grievance about the deprivation of his right to be considered as entitled to him under Article 16 of the Constitution of India in not fixing the cut-off date for completition of the age 35 years as on 15.7.1998 has also been urged in the affidavit.

When the matter came up on 8.7.1998 for orders regarding admission, the learned Counsel for the Petitioner urged that the matter requires to be disposed of expeditiously without any further delay. In such circumstances, this Court issued a show-cause notice as to why the Writ Petition should not be admitted and the learned Advocate-General accepted notice for the second Respondent and Ms,. P.P. Grewal, counsel for the Respondent No. 1, accepted notice. They also requested that they may be given four days time to get instructions in the matter and be ready with their briefs and that since the writ petition involves interpretation of Rule 9(1) of the Higher Judicial Service Rules, there is no need to file any reply and that the matter can be heard and disposed of on hearing the arguments on either side. Since the last date for receiving applications was fixed as 15.7.1998, the writ petition has been directed to be listed on 13.7.1998 to see whether it is possible to dispose of the matter by then.

Heard learned Counsel appearing on either side. The learned Counsel for the Petitioner submitted in the course of his arguments and during the course of reply that the impugned Notification in so far as it stipulated, as noticed earlier, that "no person shall be eligible for recruitment that unless he is not less than 35 years of age on the first day of January 1998� is contrary to Rule 9(1)(i) of the Higher Judicial Service Rules and that no object of any public nature can be said to be achieved by fixing such a criteria. According to the learned Counsel, Rule 9 of the Higher Judicial Service Rules envisaged the completion of age criteria stipulated not at the stage of application, but at the stage of appointment only. While answering the submissions of the learned Advocate-General and the learned Counsel for the first Respondent, the learned Counsel for the Petitioner contended that the decision taken on the scope and purport of Rule 9 of the Higher Judicial Service Rules by this Court on the administrative side is nothing but an executive decision and the same cannot be allowed to over-ride the specific stipulation in the statutory Rules. It was also contended that the relevant statutory rule is clear and unambiguous and, therefore, the same has to be construed literally and mere hardship or difficulties that may follow on account of such interpretation can never be the criteria or influencing factor in the matter of construction of a statutory provision. While contending that a cut-off date before appointment was not envisaged by the statutory rules, the learned Counsel for the Petitioner also urged that what can be a better rule in the place of the existing rule is not a matter for the court, but to the Legislature or the Rule making Authority. The need for keeping into consideration the object, intention and purpose of the rules, according to the learned Counsel for the Petitioner, in construing the provisions would arise only when the context so requires and not in a matter or a case like the one before us. The learned Counsel made it clear that he is not pursuing the point relating to the arbitrariness in the matter of fixing a date for eligibility as 1.1.1998 instead of fixing it in relation to the last date for submission of the application.

The learned Advocate-General contended that if the construction of the rule in question as desired on behalf of the Petitioner is allowed to be made, it will lead to absurdities, besides leaving the position nebulous and uncertain as to the minimum age criteria and the manner in which it has to be enforced. The learned Advocate-General emphasised the need to adopt a purposeful and functional construction to really give effect to the substance as also the aim and object of the rule itself, without being carried away by the letter of the rule in a strict sense sacrificing reason justness and the ultimate object. It was also emphasised by the Advocate General as also by the learned Counsel for the first Respondent, who adopted the submissions of the learned Advocate General, that at any rate from 1993 onwards, it has been the consistent practice of this Court on the administrative side to fix the minimum and maximum age qualification in identical terms in the various Notifications inviting applications and that no exception could be taken to the same settled procedure and method being adopted this year also in respect of the Notification inviting applications. Both the learned Counsel for the Respondents highlighted about the nebulous situation, uncertainties and absurdities to which it will lead to if the interpretation sought to be placed on behalf of the Petitioner is accepted or acceded to, by illustrating the manner in which it will lead to such eventualities in different contingencies. Argued the learned Advocate General further that it will lead to an anomalous situation of anyone completing seven years of practice being rendered eligible to apply even before one completes 30 years of age or so and it will also result in unwieldy number of avoidable persons, who otherwise cannot satisfy the age criteria for appointment also entering into the arena for consideration and make the entire exercise a meaningless one. The learned Counsel appearing on either side invited our attention to some of the judicial pronouncements and a reference will be made hereinafter to those decisions, before undertaking an adjudication of the issues raised before us.

In Union of India and another Vs. Deoki Nandan Aggarwal, the Apex Court while discouraging the practice of reading down the particular provision of law noticed by their Lordships, also held that it is not the duty of the court to either enlarge the scope of the legislation or the intention of the legislature, when the language of the provision is plain and unambiguous and that the Court cannot re-write, recast or reframe the legislation for the very good reason that it has no power to legislate. It was also observed therein that the power to legislate has not been conferred on courts and the Court cannot add words to a statute or read words into it which are not there and that even assuming there is a defect or omission in the words used, the courts could not go to its aid to correct to make up the deficiency. While further emphasising that the courts shall decide what the law is and not what it should be, it was also observed that the court of course ultimately "adopts a construction which will carry out the obvious intention of the Legislature but could not legislate itself."

In AIR 1988 SC 2255 Union of India v. Somasundaram Viswanathan and Ors. it was held that though norms regarding recruitment and promotion can be laid down either by a law made by the Legislature or by rules under proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 or Article 162 of the Constitution of India, as the case may be, when there is a conflict between the executive instructions and the statutory provisions or rules, the statutory provisions of rules prevail. In Ajay Pradhan Vs. State of Madhya Pradesh and Others, . etc. it was observed that if the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense and give them full effect and the argument of inconvenience and hardship is a dangerous one and is only admissible in construction when the meaning of the statute is obscure and there are alternative methods of construction. It was further stated therein that where the language is explicit, its consequences are for Parliament and not for courts to consider, since it is always the words of the statute which speak the intention of the Legislature and effect must be given to them irrespective of the consequences.

In 1992 Supp. (1) SCC 594 Mohan Kumar Singhania and Ors. v. Union of India and Ors. etc. it was held that while interpreting a statute, considerations of inconvenience and hardship should be avoided and where the words are plain and umambiguous, courts are bound to construe them in their ordinary sense with reference to the other clauses of the Act or Rules. Their Lordships also observed that in construing a statute, the Court has to ascertain the intention of the law-making authority in the backdrop of the dominant purpose and the underlying intendment of the statute and as far as possible the provisions have to be construed without doing violance to its language, consistent with the established rule of interpretation. In M/s. Oswal Agro Mills Ltd. Vs. Collector of Central Excise and others etc. etc., it was observed that where the words of the statute are plain and clear, there is no room for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity in the statute and courts would interpret words as they stand.

In Directorate of Enforcement Vs. Deepak Mahajan and another, the Apex Court after elaborate review of case law on the subject held that normally courts should be slow to pronounce the legislature to have been mistaken in its constantly manifested opinion upon a matter resting wholly within its will and take its plain ordinary grammatical meaning of the words of the enactment as affording the best guide, but at the same time to winch up the legislative intent, it is permissible for the courts to take into account the ostensible purpose and object and the real legislative intent. It was also cautioned therein that otherwise a bare mechanical interpretation and application of the Legislative intent devoid of concept of purpose and object will render the Legislature inane. It was held therein that in given circumstances it was permissible for courts "to have functional approaches and look into the legislative intention and some times it may be necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become futile". The same principle has been approved and reiterated by a Constitution Bench of the Apex Court in 1994 (3) SCC 569 Kartar Singh v. State of Punjab etc., wherein it has been held that though normally the plain, ordinary grammatical meaning of an enactment affords the best guide and the object of interpreting a statute is to ascertain the intention of the legislature enacting it, other methods of extracting the meaning can be resorted to if the language is contradictory, ambiguous or leads to absurd results so as to keep at the real sense and meaning.

In 1990 (1) AER 993 McMonagle v. Westiminister City Council, the House of Lords held as follows:

For these reasons I entertain no doubt in my own mind that we should be giving effect to the true intention of the legislature if we could avoid this absurdity by treating the phrase ''which is not unlawful'' in each of the sub-paragraphs of para 3-A where it appears a mere surplusage, I recognise that this is a strong course to take in construing a statute and one which inputs an unusual degree of ineptitude to the draftsman. The difficult question is whether in the circumstances the course I would choose, if it is available, is a legitimate judicial exercise in construction or whether it must be left to the laborious process of amending legislation to make sense of the statute.

The presumption that every word in a statute must be given some effective meaning is a strong one, but the courts have on occasion been driven to disregard particular words or phrases when, by giving effect to them, the operation of the statute would be rendered insensible, absurd or ineffective to achieve its evident purpose. The principle is shortly stated by Brett, J. in Stone v. Yeovil Corporation (1876) 1 CPD 691 at 701, where he said:

It is a canon of construction that, if it be possible, effect must be given to every word of an Act of Parliament or other document; but that if there be a word or a phrase therein to which no sensible meaning can be given, it must be eliminated.

In Union of India and Another Vs. Sudhir Kumar Jaiswal, the Apex Court had an occasion to deal with a challenge to the "cut off date", for determining the eligibility in the matter of age of the candidates for the examination for recruitment to the I.A.S./I.P.S./, etc. and repelling the plea of arbitrariness, it was held as follows:

Having known the legal prameters within which we have to function, let it be seen whether fixation of 1st August as cut-off date for determining the eligibility of applicants qua their age can be held to be arbitrary despite preliminary examination being conducted before that date. As to why the cut-off date has not been changed despite the decision to hold preliminary examination, has been explained in paragraph 3 of the special leave petition. The sub and substance of the explanation is that preliminary examination is only a screening test and marks obtained in this examination do not count for determining the order of merit, for which purpose the marks obtained in the main examination, which is still being held after 1st August, alone are material. In view of this, it cannot be held that continuation of treating 1st August as the cut-off date, despite the Union Public Service Commission having introduced the method of preliminary examination which is held before 1st August, can be said to be "very wide off any reasonable mark" or so capricious or whimsical as to permit judicial interference.

In Mrs. Rekha Chaturvedi (Smt) Vs. University of Rajasthan and Others, while dealing with the relevant date for adjudging the qualifications, the Apex Court observed as hereunder:

The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the fast date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would, not be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications is prasenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in presenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, no hesitation in holding that when the Selection Committee in the present case, as argued by Shri Manoj Swarup, took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad and Another Vs. B. Sarat Chandra and Others, and District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another Vs. M. Tripura Sundari Devi,

In A.P. Public Service Commission, Hyderabad and Another Vs. B. Sarat Chandra and Others, the Apex Court highlighted the guiding principle in construing the minimum age limit prescribed in the rules which stipulated, "No person shall be eligible for appointment as a Deputy Superintendent of Police, Category 2 by direct recruitment unless he has completed the age of 21 years and had not completed the age of 26 years on the first day of July of the year in which the selection is made", and held as hereunder:

The rule prescribes the minimum as well as the maximum age for appointment as Deputy Superintendent of Police. Minimum age is 21 years. The candidate must have completed 21 years on the first day of July of the year in which the selection is made. He should not have also completed 26 years as on that day. The Tribunal while construing this rule has observed:

According to the procedure the process of selection begins with the issue of the advertisement and culminates in forwarding the list to the appointing authority. The essence of the process lies in the preparation of the list. A selection can be said to have been done only when the list is prepared. In this view the eligibility of the candidates as to age has to be determined at this stage.

If the word ''selection'' is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. It would be, therefore, unreasonable to construe the word selection only as the factum of preparation of the selection list. Nothing so bad would have been intended by the rule making authority.

Rule 9(1) of the Himachal Pradesh Higher Judicial Service Rules, 1973, reads as follows:

9(1). No persons shall be eligible for direct recruitment unless he:

(i) is not less than 35 years and not more than 45 years of age on the first day of January next following the year in which his appointment is made.

(ii) has been for not less than 7 years an advocate or a Pleader and is recommended by the High Court, after, it has held an interview or an examination or both as may be prescribed by it, for such appointment.

The objectionable portion of the notification in para 3, which is challenged in this writ petition reads thus:

No person shall be eligible for recruitment he-(i) is not less than 35 years and not more than 45 years of age on the first day of January 1998.

We have carefully considered the submissions of the learned Counsel appearing on either side, in the light of the factual background and the principles of law laid down by the Apex Court in the various pronouncements which were strongly relied upon on either side. The case on hand cannot be said to be one wherein, giving a plain meaning to the words and placing literal construction could either make proper reading or sense out of the rule or that it could be legitimately contended that the resultant consequences of doing so would be merely some hardship or inconvenience, only. On the other hand, adopting such a course would mean that every person who has put in 7 years of practice, irrespective of whether even he would satisfy or not the minimum age of 35 stipulated for that matter on the date of actual appointment could also apply and there is every possibility that those numerous persons could be in range or age group of even 29 to 34, and ultimately when one is selected he may fall short of the minimum age stipulated and the entire exercise may be one held in vain. The very object of fixing the minimum age is to have persons of sufficient maturity of mind and sobriety called for to occupy a post of the District Judge and there cannot be any nebulousness ok uncertainty in the matter as to who can apply for the post, when the applications are invited. It is to avoid such uncertainties, the notification under challenge specified the cut-off date with precision and clarity. If the construction commended by the learned Counsel for the Petitioner for our acceptance is to be accepted, it will create in equal measure uncertainty and confusion in the minds of those who are in the range of the maximum age limit prescribed. It is for that purpose a definite date has to be fixed with clarity and precision in the notification and the same, in our view, cannot be said to be either "off the mark" viewed with reference to the statutory rule or arbitrary or opposed to either the substance of the rule or the real object or intention of the rule making Authority. It is on account of such a piquant and rather peculiar situation that a literal construction of the statutory rule will present itself and the absurdities to which it may lead to, the functional appro(sic) or construction approved by the Apex Court as permissible to avoid absur(sic) and ensure giving proper affect to the real purpose, aim and object the enactment of the rule and the intention of the Legislature or the very rule making authority, requires to be adopted in this case. We are also unable to accept the submission of the learned Counsel for the Petitioner that merely because one or the other words used in the rule is capable of clear cut meaning, there is no scope for interpreting the rule, in the manner in which the learned Advocate General would try to impress upon us to be construed. It is only because such words pointed out in the rules, if given their ordinary dictionary or literal meaning, the entire rule as such does not make a proper or sensible reading and does not reflect the real intention or aim of the rule making Authority, that we are constrained to have in this case, recourse to the other well settled and approved rules of construction, so as to make the rule properly and reasonably workable. Thus construed, there could be no objection, in our view, for the course adopted by the Registry in notifying the cut-off date in para 3 of the notification and the same cannot be said to be either arbitrary or unreasonable or in any manner opposed to the spirit or purport or substance of Rule 9(1) of the Higher Judicial Service Rules.

We are also of the view that the word "appointment" in Rule 9(1) of the Higher Judicial Service Rules cannot be so construed as to mean or refer to the final act of actual appointment or issuing or notifying an appointment for a person to assume or join duty. Having regard to the context that the rule relates recruitment process, the word "appointment" will and shall be construed to comprehend all and various steps or stages, such as issuance of an Advertisement or notification calling for applications, receipt and processing of applications, conducting of examinations and/or interviews, selection and preparation of the panel of successful candidates to be recommended to the Government for appointment and issue of actual order of appointment by the Government. Therefore, as observed by their Lordships of the Apex Court, when such and so many are the different steps in the process of Appointment, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or nebulous or uncertain date, apart from such date, if agreed to operating to the detriment of those who will be qualified when they apply, but ceased to be so, by the time the appointment is made, for no fault of theirs. As noticed earlier, acceptance of the interpretation sought to be projected for the Petitioner, would also result in large number of candidates who may not be eligible, minimum agewise for ultimate appointment but merely because they have had seven years of practice in courts entering into the fray of selection and make the entire selection process unwieldy, cumbersome and a futile exercise, at times too. Consequently, the stipulation contained in the impugned notification, inviting applications, specifying a positive and determinate date within the peripherial parameters of the general stipulation contained in the statutory rule, cannot be said to be either opposed to or in violation of the statutory rule, so as to be struck down by us in this proceedings. The fixation of such a specific date in the notification inviting application is with a definite, positive and constructive purpose to avoid misgivings and confusion among probable candidates who desire to apply and cannot be said to either totally off the mark, or arbitrary or unreasonable to attract the vice of Article 14 or Article 16 of the Constitution of India. The fact that in Article 233 it is stipulated that a person not already in the service of the Union or the State shall only be eligible to be appointed a District Judge if he has been "for not less than seven years an Advocate or a pleader" does not confer any right upon every one, who completes seven years, to be automatically eligible to either apply or compete for appointment inasmuch as the said stipulation is of a minimum requirement only and not the only thing; or an optimum requirement.

For all the reasons stated above, we are of the view that there are no merits in the above Writ Petition and the same shall stand dismissed. No costs. Consequently, C.M.P. No. 877 of 1998 is also dismissed.