# Dipesh Yadav v. The State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 527
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-05
- **Case number:** Writ A No. 9524 of 2020
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dipesh-yadav-v-the-state-of-u-p-ors-51684
- **Pages:** 5

## Headnote

A. Service Law - Post of Assistant
Professor - Qualification - Rejection of
candidature - Ground of not securing
second division marks in the concern
subject was taken - Though the petitioner
has
secured
45%
marks,
but
the
Rajasthan University does not provide
Second Division at that percentage of
marks - Rejection challenged - Held, 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. (Para 10 and 12)

B. Interpretation of statute - Meaningful
interpretation - Use of word 'or' -
Disjunctive word, how far can be read as
conjunctive - Held, 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.
(Para 14)

Writ petition dismissed. (E-1)

List of cases cited :-

## Text

3 All. Dipesh Yadav Vs. The State of U.P. & Ors.
527
passed by the District Supply Officer,
Kanpur Nagar are hereby quashed. The
District Magistrate, Kanpur Nagar and the
District Supply Officer, Kanpur Nagar are
ordered to revise and redetermine the
petitioner's emoluments during the period
of his service as also his post retiral
benefits, free from the effect of the
impugned order dated 22.06.2011, since
quashed by this judgment.

43. There shall be no order as to costs.
----------
(2024) 3 ILRA 527
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 9524 of 2020

Dipesh Yadav ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shivendu Ojha, Sri S.R.K. Ojha, Sri
Niyodit Tripathi, Sri Radha Kant Ojha (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Bhupendra Nath Singh, ,Sri
Prabhakar Awasthi, Sri Pramendra Pratap
Singh, Sri Manoj Kumar Singh

A. Service Law - Post of Assistant
Professor - Qualification - Rejection of
candidature - Ground of not securing
second division marks in the concern
subject was taken - Though the petitioner
has
secured
45%
marks,
but
the
Rajasthan University does not provide
Second Division at that percentage of
marks - Rejection challenged - Held, 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. (Para 10 and 12)

B. Interpretation of statute - Meaningful
interpretation - Use of word 'or' -
Disjunctive word, how far can be read as
conjunctive - Held, 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.
(Para 14)

Writ petition dismissed. (E-1)

List of cases cited :-

1. Writ A No. 97 of 2015; Shailendra Kumar
Bharati Vs St. of U.P. & ors. decided on
12.01.2015

2. Writ A No. 70918 of 2009; Sushil Kumar
Gupta Vs St. of U.P. & ors. decided on
23.12.2009

3. Writ A No. 26287 of 2018; Vinay Kumar Vs
St. of U.P. & ors. decided on 12.12.2018

4.
Mersey
Docks
&
Harbour
Board
Vs
Henderson; LR (1888) 13 AC 603

5. Indore Development Authority Vs Manoharlal
& ors.; 2020 (8) SCC 129

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri R.K. Ojha, learned
Senior Advocate assisted by Sri Nityodit
Tripathi, learned counsel for the petitioner,
Sri Manoj Kumar Singh, learned Advocate
528 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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
3 All. Dipesh Yadav Vs. The State of U.P. & Ors.
529
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:

*र्शासन के पत्राांक 1129/सिर-1-201315(14)/32/टी.सी./विनाांक 04 विसांबर, 2013 द्वार उिम
र्शैवक्षक अवभलेख को "सुसांगि स्नािक उपावि या उपावियों में
न्युनिम वद्विीय श्रेणी प्राप्ताांक" वनिााररि वकया गया है।

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 ofcourse 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 vs.
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 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 vs. 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 vs.
State of UP & ors in Writ-A No.26287 of
2018, dated 12.12.2018, wherein the Coordinate Bench of this Court followed the
530 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment of Shailendra Kumar Bharati
(supra) and dismissed the petition vide
order dated 12.12.2018.

14.

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 vs. 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.

15.

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 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
3 All. Dinesh Kumar Ojha Vs. The State of U.P. & Ors.
531
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."

16. 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.

17. There will be no order as to cost.
----------
(2024) 3 ILRA 531
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2024
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 11122 of 2023

Dinesh Kumar Ojha ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prashant Kanha, Sri Nikhil Kumar

Counsel for the Respondents:
C.S.C., Sri Satyam Singh, Sri Baibhav
Tripathi

A. Service Law - Disciplinary proceeding -
Removal from service - Earlier proceeding
was quashed by the High Court giving
liberty to proceed afresh - Even during
fresh proceeding, no charge-sheet was
served - There was no postal remark of
refusal - No time was fixed to conclude
inquiry
-
No
evidence
was
led
by
establishment
-
Effect
-
Held,
the
proceeding are again held to have been
done ex parte - Assuming that the
petitioner was served with the chargesheet and he did not participate in the
inquiry,
it
did
not
mean
that
the
respondents could just hold the charges
proved by looking into the charge-sheet
and the papers filed with it - At the said
inquiry, the establishment have to prove
the charges by leading their evidence,
both documentary and oral. Witnesses
have to be examined - Held further, the
Inquiry Officer far from adherence to the
salutary principle, where the Inquiry
Officer, sitting like an impartial arbiter,
would have before him evidence both
documentary and oral led to prove the
charges by the establishment has done
nothing of the kind. (Para 34, 35, 36 and
45)

Writ petition allowed. (E-1)

List of cases cited :-

1. St. of U.P. & ors.Vs Saroj Kumar Sinha;
(2010) 2 SCC 772

2. Roop Singh Negi Vs Punjab National Bank &
ors.; (2009) 2 SCC 570

3. St. of U.P. & anr.Vs Kishori Lal & anr.; 2018
(9) ADJ 397 (DB) (LB)

4. Smt. Karuna Jaiswal Vs St. of U.P.; 2018 (9)
ADJ 107 (DB) (LB)

5. St. of U.P. Vs Aditya Prasad Srivastava &
anr.; 2017 (2) ADJ 554 (DB)(LB)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against an order of removal from service
dated
30.05.2023
passed
against the
petitioner by the Managing Director, U.P.
State Handloom Corporation Limited,
Kanpur Nagar.

2. It would be profitable to refer to
facts giving rise to this writ petition. The
petitioner was appointed to the post a
Salesman in the year 1994 by an order