Daya Ram Singh v. State Of U.P And Others

H.L Gokhale, C.J:— A reference has been made to the Full Bench, for deciding the following questions:—

(i) What is the correct interpretation of clause No. 4 of the Government Circular dated 10.10.2005, issued by the Government of Uttar Pradesh?

(ii) Whether the decision rendered in the case of Smt. Kanti Singh v. State of U.P, (Special Appeal No. 46 of 2007, decided on 15.1.2007) interpreting the said clause, is based on correct preposition of law?

2. The facts leading to this reference are as follows. The appellant, herein was one of the candidates for the post of Shiksha Mitra (Friends of education), which are the posts created for spread of primary education under the Scheme, which was floated by the State Government initially on 1st of July, 2000, and which has been revised by subsequent Government Circular dated 10th of October, 2005. The rights of the teachers working under the Scheme are some what limited. Clause No. 4 of this Government Circular lays down the Page: 206conditions of eligibility for the selection of Shiksha Mitra. This Clause when translated into English from Hindi reads as follows:—

“The minimum educational qualification for the Shiksha Mitra (men/women) will be passing of the Intermediate Examination conducted by the Uttar Pradesh Madhyamik Shiksha Parishad (Higher Secondary Education Board of U.P), or any other attainment of a qualification recognized by the State Government.

The candidates, who are disabled, widows, or divorced women, will be given 10% extra marks over and above the marks, which they obtain on the basis of their educational qualifications.

The minimum age of the Shiksha Mitra on 1st of July of the relevant year, will be 18 years and maximum 35 years. As far as the disabled persons, widows and divorced women are concerned, the upper age limit will be relaxable by further 5 years. As far as the Instructors/Supervisors working in the non-formal educational Scheme are concerned, they will be given the relaxation in the upper age limit by 5 years and will be appointed on the basis of Prathama Variyata (first priority). All the other conditions of appointment and of eligibility will be applicable to the Instructors/Supervisors as they are.”

3. At the end of the selection process, in which the appellant participated, a chart containing the particulars of the 12 participating candidates was prepared. One Vandana Pathak and one Sangeeta Yadav (respondent No. 9 herein), were shown at Serial Nos. 1 and 2, as they secured 63.5 and 60.1 marks respectively. These marks are given by arriving of the average on the basis of the High School and Intermediate marks of the candidates. One Vivekanand Pathak (respondent No. 8 herein), who is also a non-formal Instructor stood at Serial No. 11 with 47.20 marks and the appellant with 47.05 marks was shown at Serial No. 12.

4. The question, which has arisen in this reference, is with respect to the interpretation of the term ‘Prathama Variyata’. The appellant's submission is that it means ‘first priority’ to be given to the non-formal Instructors/Supervisors as a group. The Government Officer, who examined the marks and prepared the list, does not appear to have taken a different view on the interpretation of this Clause and would have issued an appointment order in favour of the appellant, but for the fact that the above referred Vivekanand Pathak (respondent No. 8 herein), who is also a non-formal Instructor, had obtained better marks, i.e, 47.20, as against 47.05 of the appellant. There was however, some deficiency in the papers submitted by respondent No. 8 and, therefore, the officer directed a re-examination of the papers of respondent No. 8.

5. The appellant challenged this order by filing a writ petition bearing No. 6319 of 2007. The learned Single Judge, who heard the petition, did not go into this controversy between the appellant and respondent No. 8 herein, but observed that the appellant as an Instructor did not have any precedence at all. He referred to the judgment in the case of Smt. Kanti Singh v. State of U.P (supra), wherein it was held that under the Scheme what is contemplated, is a mere preference and not a precedence. It was further held that for seeking preference one must have equal marks and then only one can claim preference amongst the candidates, who are otherwise equal. This was as against the appellant's contention that the non-formal Instructors/Supervisors have the ‘first priority’ as a group over the others under the aforesaid Clause Page: 207No. 4 of the Government Circular dated 10.10.2005 This submission of the appellant was not accepted by the learned Single Judge and consequently, the writ petition was dismissed.

6. The appellant preferred Special Appeal No. 306 of 2007 against this order of the learned Single Judge. The Division Bench, which heard the matter, was of the opinion that the view taken by the Division Bench in Smt. Kanti Singh's case (supra) required a re-consideration, particularly in the light of the judgment of the Apex Court in Secretary, A.P Public Service Commission v. Y.V.V.R Srinivasulu 2003 (7) AIC 755 (SC) , 2003 (97) FLR 792 (SC) , (2003) 5 SCC 341, which was in fact, referred in the judgment of Smt. Kanti Singh (supra), but the ratio thereof did not appear to have been correctly appreciated. The Division Bench, therefore, referred the above two questions for determination of a Full Bench. This is how the matter has been placed before this Bench.

7. It was submitted on behalf of the appellant by Shri Bhagwati Prasad, learned Counsel for the appellant that to understand the correct import of the above referred Clause No. 4, it will be desirable to refer to the Original Scheme as it was promulgated on 1st of July, 2000, and the subsequent clarifications, which have been issued on 21.11.2005 and 24.4.2006 Now, if we look to the Scheme framed on 1st of July, 2000, it is seen that the object thereof is to seek participation of the educated young persons with a view to spread primary education in the villages. It is made clear therein that the Scheme is not basically to generate the employment, but as stated above, its object is to encourage the young persons and involve them in the spread of education in the villages. The period of teaching by the persons concerned was laid down as concluding at the end of educational session in the month of May. These friends of education were initially to be paid Rs. 2,250/- per month, which has been subsequently revised to Rs. 3,000/- per month.

8. It is material to note that after this Scheme was promulgated on 1st of July, 2000, some of its clauses were amended by subsequent Government Circular dated 10th of October, 2005. Initially Clause No. 4 of the Scheme of 1st of July, 2000 had laid down the conditions of eligibility. The initial provision was that the person concerned had to possess the qualification of Intermediate Examination conducted by the U.P State Educational Board, or an equivalent examination recognized by the State Government. It was stated that those, who have passed B.Ed/L.T from the recognized Colleges in the State, or the Colleges/Training Colleges recognized by the State Government, will be given Adhimanyata—(priority). This clause was substituted by the present Clause No. 4, which has been referred to above. Some other clauses of the Scheme were also amended by this Circular.

9. Subsequent to this Circular of 10th of October, 2005, the Government issued a clarificatory letter on 21st November, 2005, wherein it has been clearly stated as to what is meant by Prathama Variyata (first priority). In this letter, it is stated in this behalf as follows : “The meaning of Prathama Variyata is that in case an Instructor/Supervisor, who has earlier participated in non-formal education Scheme is fulfilling all other conditions of eligibility and falls within the specified category of reservation, in that case, he will still be appointed, even if the marks received by him are less”.

(emphasis supplied)

10. Again in a subsequent Government Circular dated 24th of April, 2006 amongst other qualifications, the Government has clarified as follows: “In case in a Village Panchayat, more Instructors/Supervisors are available than the Page: 208required number, in that case, ‘priority’ will be given for the highest period of service rendered on the post of Instructor/Supervisor.” It is, therefore, submitted on behalf of the appellant that the meaning of Clause No. 4, was clear from the beginning, but it has been further clarified by the above referred document. The learned Standing Counsel, appearing for the State/respondents, Mr. G.C Upadhyay, in fact, supported these submissions. Sangeeta Yadav/respondent No. 9, who had been served to represent the candidates, who had otherwise secured better marks and who had otherwise benefited by the interpretation in Smt. Kanti Singh's case (supra), did not contest the matter by filing any counter affidavit or otherwise.

11. We have carefully gone through the judgment in the case of Secretary, A.P Public Service Commission (supra), which has been referred in Smt. Kanti Singh's case (supra). The paragraph from the case of Secretary, A.P Public Service Commission (supra) quoted with approval in Smt. Kanti Singh's case by the Division Bench, reads as follows:—

“The procedure for selection in the case involve, a qualifying test, a written examination and oral test or interview and the final list of selection has to be on the basis of the marks obtained in them. The suitability and all round merit, if had to be adjudged in that manner only what justification could there be for overriding all these merely because, a particular candidate is in possession of an additional qualification on the basis of which, a preference has also been envisaged. The rules do not provide for separate classification of those candidates or apply different norms of selection for them. The ‘preference’ envisaged in the rules, in jour view, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone. A mere rule of preference meant to give weightage to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence. Such a construction would not only undermine the scheme of selection envisaged through the Public Service Commission, on the basis of merit performance but also would work great hardship and injustice to those who possess the required minimum educational qualification with which they are entitled to compete with those possessing additional qualification too, and demonstrate their superiority merit-wise and their suitability for the post. It is not to be viewed as a preferential right conferred even for taking up their claims for consideration. On the other hand, the preference envisaged has to be given only when the claims of all candidates who are eligible are taken for consideration and when anyone or more of them are found equally positioned by using the additional qualification as a tilting factor, in their favour vis-a-vis others in the matter of actual selection.”

12. The Division Bench, which decided the case of Smt. Kanti Singh, has emphasized the following sentence from that case viz. “a mere rule of preference meant to give weightage to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence.” What is observed by the Apex Court in the sentence prior to above sentence, is quite relevant wherein the Apex Court has observed as follows : “The ‘preference’ envisaged in the rules, in our view, under the Scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone.” Thus, in the facts before the Apex Court, it did hold that as far as rules before the Court were concerned, the preference Page: 209envisaged in that rules did not provide for an absolute en bloc preference akin to reservation.

13. In the present case, what we have to examine is as to whether what is provided, is a mere preference or a first priority. In the event, the rule provides a mere preference, it will mean that the candidates concerned will have to have equal marks to begin with and then one amongst so many, will be given a preference. As against that, if there is an en bloc priority given to a category, that will have to be preferred irrespective of the marks obtained. The word ‘Variyata’ has been defined in the Oxford Hindi into English Dictionary, as priority or precedence. Besides from the two Government Circulars, which are referred to above and which were issued subsequently, i.e, one dated 21.11.2005 and the latter dated 24.4.2006, the intention has been further clarified. As we have noted, the Government Circular dated 21.11.2005, gives the clarification specifically stating that an Instructor/Supervisor, who has worked in the non-formal education Scheme, if available and if having the other conditions of eligibility, and if falls in the prescribed category of reservation, will be appointed, even if he is having less number of marks. The Government Circular of 24.4.2006, clearly states that amongst the Instructors/Supervisors, one who has put in longer years of service, will be preferred. In the earlier Government Circular dated 10.10.2005, those who had passed B.Ed/L.T, were to be given the preference while stating that the word used was Adhimanyata (preference). That clause has been removed and the terms used in Clause No. 4, are Prathama Variyata, which will mean ‘first priority’ or ‘precedence’. The provisions contained in this Clause, when read with the clarification dated 21.11.2005, clearly lead to the inference that the Instructors/Supervisors, who have worked in the non-formal education Scheme ought to be preferred en bloc with priority over the others, if such persons are available.

14. This interpretation also stands to reason in view of the fact that such instructions have obtained experience in working in such a rural education Scheme. Besides, right from the time it was promulgated, the Scheme made it clear that it is not a Scheme of employment, but for spread of education. For that purpose, those who have the necessary experience, will have to be given precedence en bloc. This is what, the relevant rule has done. In State of U.P v. Om Prakash 2006 (45) AIC 578 (SC) , 2006 64 ALR 903 (SC) , 2006 AIR SCW 4281, the Apex Court has interpreted the term ‘preference’ by laying down that the concerned candidate ought to possess the equal requisite qualification to begin with. Only when one or more of them are found equally positioned, then the additional qualification may be taken as a tilting factor as against others. The interpretation of the term ‘preference is undoubtedly very clear. However, in our case, we are concerned with finding out as to what is the provision made in the relevant rule.

15. As stated above, when we see the text of the rule, purpose of the Scheme and the Government Circulars, they make it clear that the Instructors/Supervisors ought to be preferred en bloc. It is a golden rule of interpretation that the Rule is to be read as it is and in the context in which it is framed. Thus, for example, in the context of taxation it has been laid down by the Apex Court in The Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. Parson Tools and Plants, Kanpur AIR 1975 SC 1039, that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the Court to give full effect to the same. This has to be done without engrafting, Page: 210adding or implying anything therein, which are not congenial to or consistent with such expressed intent of the law-giver.

16. In the present case, as stated above, when we see the provision made under the relevant rule in its correct context, it becomes clear that the relevant Clause No. 4 provides for ‘first priority’ to the Instructors/Supervisors, who are in the non-formal education Scheme. That is the correct interpretation of Clause No. 4 of Government Circular dated 10.10.2005 This is the answer to question No. 1, which has been referred. As far as the second question is concerned, we have to hold that the decision in Smt. Kanti Singh's case (supra), does not lay down the correct preposition of law. The Reference is answered accordingly.

17. Let Special Appeal No. 306 of 2007 be, therefore, placed before the appropriate Division Bench to decide the appeal in the light of the above interpretation.

Reference Answered.