# Dr. Vinay Kumar v. The Director of Education (Higher) and others

- **Citation:** (2006) 1 ILRA 573
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-17
- **Case number:** Civil Misc. Writ Petition No. 3538 of 2004
- **Bench:** Ajoy Nath Ray, C.J. S. Rafat Alam, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-vinay-kumar-v-the-director-of-education-higher-and-others-40546
- **Pages:** 21

## Headnote

Sri S.M.A. Kazmi, Addl. A.G.
S.C.

U.P.
Higher
Education
Service
Commission (Procedure for Selection of
Teachers) Regulation, 1983 as amended
by U.P. Act No. 2 of 1992-Section 13 (3)
Power of direction-whether the ad-hoc
continuance of principal or Teacher in a
particular college to be given some
weightage?
Held-
'No'-except
merit
position of the candidate u/s 13 (1)-and
the preference of given-discretion can
not be exercised.

Held: Para 34,37, 39

We are of the opinion that the Director
cannot give any weight at all to the
preference of the management in the
selection of a particular candidate as
their Principal or their Teacher.

In our opinion, the Director at the time
of making intimation is to take into
account only two things, in regard to
every candidate, namely, the candidate's
merit position as determined under
Section 13(1), and the preferential list of
colleges or institutions given by the
candidate himself.

In our opinion the Director does not use
a
discretionary
power
in
making
intimations under sub-section (3) of
Section 13. Instead of the Director, any
other person with an equally logical
mind as the Director will also be able to
perform the same act but the Director
has been given the authority, so as to
carry conviction and to make it safe for
the
colleges
to
follow
the
recommendations
and
intimations
coming under his signature.
2003 (2) ESC 944, 2003 (1) AWC-142, 1978
(2) SCC-213, 1978 (1) SCC-405,
1991 (3) SCC-67, AIR 1992 SC-2219, AIR 1991
SC-672, AIR 1965 SC-834,
1981 (Supply) SCC-87, 1990 (2) SCC-378,
2001 (7) SCC-71, 2005 J.T. (6) 160, 1949 (2)
574 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
All.E.R.-155, AIR 1978 SC-851, 1989 (2) SCC754, AIR 1959 SC-459,
2001 (7) SCC-71, AIR 1971 Mad. 245, 1995
(supp.) (1) SCC ?

(B) Constitution of India Art 141-view
taken by D.B. in Alka Rani case in para
10 and 11-held-contrary to provision of
Section 13 of the Act-do not lay down
correct law.

Held: Para 44

The law laid down by the Division Bench
of this Court in Alka Rani's case (supra)
in
paragraph
10
(Second
Part
of
paragraph 10 ) and paragraph 11 do not
lay down the law correctly and are
contrary to provisions of Section 13 of
the Act and Regulation, 1983. The
Division Bench judgment in Dr. Prakash
Chandra's case (supra) do not lay down
any such ratio as was relied on by the
Division Bench in Alka Rani's case. The
observations in paragraph 10 of the
judgment in Dr. Prakash Chandra's case
were on the facts of the said case and
were
not
the
reasons
for
issuing
direction for placement in the said case.

(c) Practice of Procedure-interpretation
of statutes-whether is permissible the
court for interpretation ?

Held: Para 45

It is permissible for a Court to interpret
statutory provisions but not to amend or
add to it.

## Text

_Characters 0–39,880 of 67,398. This is a partial read: ask again with offset=39880 for what follows._

1 All] Dr. Vinay Kumar V. The Director of Education (Higher) and others
573
posts by treating their age of retirement
60 years. If any of the petitioner has not
been permitted to continue in service in
absence of any interim order and has not
been paid his salary without his fault, the
Nigam is directed to reinstate him on his
post for remaining period till attaining his
age of 60 years and pay his salary
alongwith arrears of remaining period
within a period of three months from the
date of production of certified copy of the
order passed by this Court before the
Nigam. The Nigam is further directed to
finalize post retiral benefits of the
petitioners by treating their age of
retirement 60 years. With the aforesaid
directions, the writ petition succeeds and
allowed.

There shall be no order as to costs.

Let a copy of this order be placed on
the
records
of
writ
petition
nos.
58576/2005, 58580/2005, 58578/2005,
45495/2005, 44813/2005, 63752/2005,
61031/2005,
60374/2005,
58584/2005
and 58582/2005.
Petition Allowed.
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 3538 of 2004

Dr. Vinay Kumar

...Petitioner
Versus
The Director of Education (Higher),
Allahabad and others ...Respondents

Counsel for the Petitioner:
Sri P.S. Baghel

Counsel for the Respondents:
Sri S.M.A. Kazmi, Addl. A.G.
S.C.

U.P.
Higher
Education
Service
Commission (Procedure for Selection of
Teachers) Regulation, 1983 as amended
by U.P. Act No. 2 of 1992-Section 13 (3)
Power of direction-whether the ad-hoc
continuance of principal or Teacher in a
particular college to be given some
weightage?
Held-
'No'-except
merit
position of the candidate u/s 13 (1)-and
the preference of given-discretion can
not be exercised.

Held: Para 34,37, 39

We are of the opinion that the Director
cannot give any weight at all to the
preference of the management in the
selection of a particular candidate as
their Principal or their Teacher.

In our opinion, the Director at the time
of making intimation is to take into
account only two things, in regard to
every candidate, namely, the candidate's
merit position as determined under
Section 13(1), and the preferential list of
colleges or institutions given by the
candidate himself.

In our opinion the Director does not use
a
discretionary
power
in
making
intimations under sub-section (3) of
Section 13. Instead of the Director, any
other person with an equally logical
mind as the Director will also be able to
perform the same act but the Director
has been given the authority, so as to
carry conviction and to make it safe for
the
colleges
to
follow
the
recommendations
and
intimations
coming under his signature.
2003 (2) ESC 944, 2003 (1) AWC-142, 1978
(2) SCC-213, 1978 (1) SCC-405,
1991 (3) SCC-67, AIR 1992 SC-2219, AIR 1991
SC-672, AIR 1965 SC-834,
1981 (Supply) SCC-87, 1990 (2) SCC-378,
2001 (7) SCC-71, 2005 J.T. (6) 160, 1949 (2)
574 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
All.E.R.-155, AIR 1978 SC-851, 1989 (2) SCC754, AIR 1959 SC-459,
2001 (7) SCC-71, AIR 1971 Mad. 245, 1995
(supp.) (1) SCC ?

(B) Constitution of India Art 141-view
taken by D.B. in Alka Rani case in para
10 and 11-held-contrary to provision of
Section 13 of the Act-do not lay down
correct law.

Held: Para 44

The law laid down by the Division Bench
of this Court in Alka Rani's case (supra)
in
paragraph
10
(Second
Part
of
paragraph 10 ) and paragraph 11 do not
lay down the law correctly and are
contrary to provisions of Section 13 of
the Act and Regulation, 1983. The
Division Bench judgment in Dr. Prakash
Chandra's case (supra) do not lay down
any such ratio as was relied on by the
Division Bench in Alka Rani's case. The
observations in paragraph 10 of the
judgment in Dr. Prakash Chandra's case
were on the facts of the said case and
were
not
the
reasons
for
issuing
direction for placement in the said case.

(c) Practice of Procedure-interpretation
of statutes-whether is permissible the
court for interpretation ?

Held: Para 45

It is permissible for a Court to interpret
statutory provisions but not to amend or
add to it.

(Delivered byHon'ble Ajoy Nath Ray, CJ.)

1. This is a reference made by a
Division Bench in Civil Misc. Writ
Petition No. 3538 of 2004 (Dr. Vinay
Kumar Vs. the Director of Education
(Higher), Allahabad and others).

2. The three questions referred by
the Hon'ble Division Bench will be found
at the end of the judgement at internal
Page 16.

3. The said three questions are set
out below:-

"1. Whether law laid down in Dr.
Prakash Chandra Srivastava Vs.
Director
of
Higher
Education,
Allahabad and Anr, 2003 (1) AWC
142 by this Court and followed in
Alak
Rani
Gupta
(Km.)
Vs.
Director of Education (Higher) &
Anr, 2003 (2) ESC 944, is contrary
to and in violation of the letter and
intent of the express language used
by the legislature in Section 13 of
the Act, 1980 read with Regulation
5 of Regulations, 1983?

2.
Whether it is permissible for the
Court
in
exercise
of
its
extraordinary
jurisdiction
under
Article 226 of the Constitution to
either add or amend a statutory
provision
by
enunciating
an
interpretation, which in its opinion,
is just and proper?

3.
Whether there is a direct conflict
between the ratio of the two cases
Dr. Prakash Chandra Srivastava
(supra) and Km. Alka Rani Gupta
(supra) on one hand, and that of in
Dr. Ranjana Tiwari Vs. Director,
Higher Education of U.P. & Ors,
(2003) 3 E.S.C. (All) 1489 on the
other, which deserves to be resolved
by
an
authoritative
pronouncement?"

4. Brief facts of the case giving rise
to this reference need to be noted for
appreciating the questions referred to this
Bench. The U.P. Higher Education
1 All] Dr. Vinay Kumar V. The Director of Education (Higher) and others
575
Service Commission established under
Section 3 of the U. P. U.P. Higher
Education Service Commission Act, 1980
issued advertisement No. 32 of 2002
advertising several vacancies of lecturers
in different subjects in various non
Government Colleges. The petitioner
applied
for
the
post
of
Lecturer
Mathematics, while applying he also gave
first preference to a college, namely, K.
K.
College,
Etawah.
Under
the
Government order dated 7.4.1998 the
petitioner
was
appointed
to
teach
Mathematics in K.K. College, Etawah on
honorarium basis with the approval of the
Director of Education dated 7.2.2004. The
Commission made selection and declared
merit list against thirty eight posts of
lecturers Mathematics in which list the
name of the petitioner was also included
as against other backward category
candidates.
The
Committee
of
Management claimed to have given no
objection dated 30th November, 2004 for
appointment of the petitioner in K.K.
College, Etawah. Petitioner made a
representation
to
the
Director
of
Education praying for his placement in
K.K. College, Etawah. Petitioner filed the
present writ petition praying for a writ of
mandamus commanding the respondent
No. 1, the Director of Education (Higher)
U.P. Allahabad to make placement of the
petitioner as Lecturer Mathematics in
K.K. College, Etawah in accordance with
law laid down by this Court in case of
Alka
Rani
Gupta
(Km.)
Versus
Director of Education (Higher) &
another, 2003 (2) ESC 944. The Division
Bench before whom the writ petition
came for hearing finding itself unable to
agree with the law laid down in the above
mentioned judgement of Allka Rani
Gutpa
(Km.)
Versus
Director
of
Education (Higher) & another (supra)
referred the above noted three questions
for consideration by this Bench.

5. Sri P. S. Baghel learned counsel
appearing for the petitioner submitted that
the law laid down by the Division Bench
of this Court in Allka Rani Gutpa (Km.)
Versus Director of Education (Higher)
& another (supra) correctly interprets the
provisions of Sections 12 and 13 of the
Act as amended by U.P. Act No. 2 of
1992. He further submits that the view
taken in Allka Rani Gutpa (Km.)
Versus Director of Education (Higher)
& another ((supra)) find support from an
earlier Division Bench judgement of this
Court, Dr. Prakash Chandra Srivastava
Versus Director of Higher Education,
Allahabad
and
another,
2003 (1)
A.W.C. 142. The petitioner who has been
appointed to teach Mathematics on
honorarium basis with the approval of the
Director of Education in accordance with
the Government order dated 7.4.1998 is
also entitled for the benefit of ratio laid
down in Allka Rani Gutpa (Km.)
Versus Director of Education (Higher)
& another (supra) (Paragraph 10). Sri
Baghel submits that the provisions of
Sections 12 and 13 of the Act have been
consciously amended in 1992 providing
for giving of preference of the college by
a candidate and further by Section 13 sub
clause (3) it was mandated that due regard
be given to the order of preference
indicated by a candidate. Sri Baghel
submits that Regulations framed under the
Act, namely, the U.P. Higher Education
Service
Commission
(Procedure
for
Selection of Teachers) Regulations, 1983
having not been amended, the Regulations
will give way to the provisions of
Sections 12 and 13 as amended in 1992
and the preference given by a candidate
cannot be ignored. He further contends
576 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
that a teacher or Principal working in
particular college on ad hoc basis/
honorarium basis has right to placement
in the same College as per his preference
where the committee of management
agrees to such placement. Sri Baghel
while interpreting Sections 12 and 13 as
amended in 1992 submits that the Court
has to interpret the same in a manner so
that preference given by a candidate be
given primacy which according to him is
the intention of the Legislature in
amending Sections 12 and 13 of the Act.
He submits that the Court should
consciously mould the law so as to serve
the needs of time. Reliance has been
placed on various judgements of the apex
Court laying down various principles of
statutory interpretation, namely, (1978) 2
Supreme Court Cases 213 Bangalore
Water Supply & Sewerage Board Vs.
A. Rajjappa and others; (1978) 1
Supreme Court Cases 405 Mohinder
Singh Gill and another Vs. The Chief
Election Commissioner, New Delhi and
others; (1991) 3 Supreme Court Cases 67
Rattan Chand Hira Chand Vs. ASKAR
Nawazjung (Dead) by LRS and others;
A.I.R. 1992 Supreme Court 2219 Mrs.
Sarojini Ramaswami Vs. Union of
India and others; A.I.R.1991 Supreme
Court 672 M/s. Orient Paper and
Industries Ltd. & another, etc. etc. Vs.
State of Orissa and others and A.I.R.
1965 Supreme Court 834 Laxmi Devi Vs.
Mukand Kanwar and others.

6. Sri S. M. A. Kazmi, learned
Additional Advocate General submitted
that the Division Bench judgement in
Alka Rani's case (supra) in so far as it
carves out an exception with regard to ad
hoc teacher working in the same college
does not lay down the correct law. He
submits that the selection by Commission
is merit based and the preferences given
by
a
candidate
are
taking
into
consideration according to merits of the
candidates.
He
submits
that
the
proposition of law as laid down in
paragraph 9 of the said judgement clearly
spells out the scheme under the Act and
the Regulations. Sri Kazmi submits that
the Court while interpreting the statute
cannot add a word to a provision or
subtract a word from the provision. He
submits that the Court while interpreting
the provision can only interpret the law
and cannot legislate. He submitted that
the amended provisions of Sections 12
and 13 of the Act do not provide that the
placement of the candidate be made in
different college only on the basis of
preference given go by to the merit of the
candidate. Sri Kazmi also placed reliance
on various judgements of the apex Court
on statutory interpretation namely, A.I.R.
1959 Supreme Court 459 Sri Ram Ram
Narain Medhi & others Versus The
State of Bombay; 1981 (Supp) Supreme
Court Cases 87 S.P. Gupta Vs. Union of
India and another; (1990) 2 Supreme
Court Cases 378 P. K. Unni Vs.
Nirmlala Industries and others; 2001
(7) Supreme Court Cases 71 Dadi
Jagannadham Vs. Jammulu Rammulu
and others and 2005 J. T. Volume (6)
160 State of Kerala and another Vs. P.
V. Neelakandan Nair and others.

7. Before we proceed to consider the
submissions of both the parties it is
necessary to look the relevant statutory
provisions on the subject. The U.P.
Higher Education Service Commission
has been established for the selection of
teachers for appointment to the colleges
affiliated
to
or
recognised
by
the
University. Section 11 of the Act provides
for powers and duties of the Commission
1 All] Dr. Vinay Kumar V. The Director of Education (Higher) and others
577
which includes power and duties to frame
proper guide lines on matters relating to
method of recruitment of teachers of
college, to make recommendation to the
management regarding the appointment of
selected candidates. Section 12 provides
that
the
management
shall
make
appointment only on the recommendation
of the Commission. The management
shall notify vacancy to the Commission.
The manner of selection of persons for
appointment to the post of teachers to a
college shall be such as may be
determined by the regulation. Section 13
provides for; recommendation by the
Commission after holding the interview
with or without examination of the
candidates. Section 12 and 13 of the Act
as it originally stood is extracted below:-

"12.
Management
to
make
appointments
etc.
only
on
the
recommendations of Commission,___
(1) Notwithstanding anything to the
contrary contained in the Uttar Pradesh
State Universities Act, 1973 or in the
Statutes
made
thereunder,
every
appointment as a teacher of any college
shall, after the date notified under subsection (1) of Section3, be made by the
management only on the recommendation
of the Commission.

(2) For
the
purpose
of
making
appointment of a teacher under subsection (1), the management shall notify
the vacancy to the Commission.

(3) The manner of selection of persons
for appointment to the posts of teachers of
a college shall be such as may be
determined by regulations;

Provided that the Commission shall,
with a view to inviting talented persons
give wide publicity in the State to the
vacancies notified under sub-section (2).

(4) The provisions of this Section shall
not apply to the appointment of a teacher,
vacancy in respect whereof has been
advertised in accordance with sub-section
 (10) of Section 31 of the Uttar Pradesh
State Universities Act, 1973 at any time
before the commencement of this Act.

(5) Every
appointment
made
in
contravention of the provisions of this
section shall be void."

"13.
Recommendation
of
the
Commission.-(1) The Commission shall
as soon as possible, after the notification
of vacancy under sub-section (2) of
Section 12, hold interview (with or
without examination) of the candidates,
and recommend the names of not more
than three candidates for appointment to
every post of a teacher. Such names shall
be arranged in order of preference.

(2) Where candidates referred to in subsection (1) fail to join the post or where
they are otherwise not available for
appointment, the commission may, on the
request of the management recommend up
to two more names of persons found
suitable on the basis of the examination
or interview held under the said subsection.

(3) Every
recommendation
of
the
Commission under sub-section (1) or subsection (92) shall be valid for a period of
one
year
from
the
date
of
such
recommendation."

8. Section 31 empowers the
Commission to make regulations with the
previous approval of the Government.
578 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
 Regulations
were
framed
by
the
Commission namely, the U.P. Higher
Education
Service
Commission
(Procedure for Selection of Teachers)
Regulations, 1983. Regulation 4 deals
with determination and intimation of
vacancies. Regulation 5 provides for
notification of vacancies, submission of
application and indication of preference.
Regulation 6 deals with the procedure for
selection. Regulation 6 (4) provides for
preparation of list in order of merit which
provided that the names shall not be more
than three times the number of vacancies
or the number of vacancies plus four
whichever is more. Regulation 7 sub
regulation (3) provides for offering the
post of Principal "Degree College in order
of merit with due regard to the preference
given by the candidates. Regulation 5,
Regulation 6 sub regulation (4) and
Regulation 7 are extracted below :-

"5. Notification of vacancies submission
of
application
and
indication
of
preference.-
The
Commission
shall
advertise the vacancies in three issues of
at
least
three
newspapers.
The
Commission shall send a copy of
advertisement to the Director and may, if
it considers proper, also send a copy
thereof to the District Inspector of
Schools and to the Colleges. Such
advertisement shall, inter alia, indicate
the total number of vacancies as also the
number of vacancies in women's colleges
and other colleges separately, the names
of the college (s) and where they are
situate and shall require the candidates to
apply in prescribed form and to give if he
so desires, the choice of not more than
five colleges in order of preference.
Where
a
candidate
wishes
to
be
considered for a particular college or
colleges only, and for no other, he shall
mention the fact in his application;

Provided that where the number of
colleges is large or for any other reason
the Commission considers it inexpedient,
it may, instead of mentioning the names
and particulars of the colleges in the
advertisement, send the copy thereof to
the colleges and to the District Inspector
of
Schools
and
mention
in
the
advertisement that particulars of the
colleges may be seen in the office of the
Commission, the office of the District
Inspector of Schools or in the Colleges;

Provided also that the Commission
shall not be bound by the Choice given by
the candidate and may, in its discretion,
recommend him for appointment in a
college other than indicated by him."

6.
Procedure for selection,____
(1)..................................................
(2)...................................................
(3)...................................................
(4) The Commission shall prepare two
separate lists of selected candidates, one
of the women candidates only and the
other a 'general list' of all the candidates
(including women candidates included in
the first list). The names of women
candidates who specifically opt not to be
posted in women's colleges shall not be
included in the list of women candidates.
The names of the candidates in the two
lists shall be arranged in order of merit
and the number of names shall not be
more than three times the number of
vacancies or the number of vacancies plus
four whichever is more.

7.
Recommendation
for
appointment,___
1 All] Dr. Vinay Kumar V. The Director of Education (Higher) and others
579
(1)

The
Commission
may
recommend the names of upto three
candidates, in order of merit, for each
post.

(2) The post of Principal shall-

(a) in the case of women's colleges,
be offered to the candidates in the list of
women candidates, and

(b) in the other colleges, be offered
to the candidates in the general list after
striking out the names of the women
candidates who have been offered posts
under Clause (a).

(3) The posts of the Principal of
degree colleges in the higher grade shall
be offered in order of merit with due
regard to the preference given by the
candidates and the posts in the lower
grade shall similarly be offered to the
candidates standing next in order of
merit.

(4) The procedure, mentioned in
sub regulations (2) and (2) shall, mutatis
mutandis, be followed in respect of the
posts of teachers, other than principal."

9. The provisions of the Act were
amended by the U.P. Act No. 2 of 1992
by which Sections 12 to 14 of the Act
were substituted. Section 12 sub clause
(4) second proviso provided that the
candidates shall be required to indicate
their order of preference for the various
colleges vacancies wherein have been
advertised. Section 13 sub clause (1)
provides for Commission to send a list to
the Director recommending the names of
the candidates found most suitable. The
names are required to be arranged in order
of merit. Section 13 sub clause (3)
provides that the Director shall having
due regard in the prescribed manner, to
the order of preference, if any indicated
by
the
candidates
intimate
to
the
management the name of the candidate
from the list. Sections 12 and 13 of the
Act as amended in 1992 are extracted
below :-

"12. Procedure for appointment of
teachers,_____

(1) Every appointment as a teacher of
any college shall be made by the
management in accordance with the
provisions
of
this
Act
and
every
appointment
made
in
contravention
thereof shall be void.

(2) The management shall intimate the
existing vacancies and the vacancies,
likely to be caused during the course of
the ensuing academic year, to the
Director at lsuch time and in such
manner, as may be prescribed.

Explanation,_____ The expression
"academic year" means the period of 12
months commencing on July 1.

(3) The Director shall notify to the
Commission at such time and in such
manner as may be prescribed a subjectwise
consolidated
list
of
vacancies
intimated to him from all colleges.

(4) The manner of selection of persons
for appointment to the post of teachers of
a college shall be such, as may be
determined by regulations:

13.

Recommendation
of
the
Commission.-(1)
The
Commissioner
shall, as soon as possible, after the
notification of vacancies to it under sub-
580 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
section (3) of Section 12, hold interview
(with or without examination) of the
candidates, and send to the Director a list
recommending such number of names of
candidates found most suitable in each
subject as may be, so far as practicable,
twenty five per cent more than the number
of vacancies in that subject. Such names
shall be arranged in order of merit shown
in the interview, or in the examination
and interview if an examination is held.

(2) The list sent by the Commission shall
be valid till the receipt of a new list from
the Commission.

(3) The Director shall having due regard
in the prescribed manner, to the order of
preference if any indicated by the
candidates under the second proviso to
sub-section (4) of Section 12, intimate to
the management the name of a candidate
from the list referred to in sub-section (1)
for being appointed in the vacancy
intimated under sub-section (2) of Section
12.

(4) Where a vacancy occurs due to death,
resignation or otherwise during the
period of validity of the list referred to in
sub-section (2) and such vacancy has not
been notified to the commission under
sub-section (2) and such vacancy has not
been notified to the Commission under
sub-section (3) of Section 12, the Director
may intimate to the management the name
of a candidate from such list for
appointment in such vacancy.

(5) Notwithstanding anything in the
preceding provisions, whereto abolition
of any post of teacher in any college,
services of the person substantively
appointed to such post is terminated the
State Government may make suitable
order for his appointment in a suitable
vacancy, whether notified under subsection (3) of Section 12 or not in any
other college, and thereupon the Director
shall
intimate
to
the
management
accordingly.

(6) The Director shall send a copy of the
intimation made under sub-section (3) or
sub-section (4) or sub-section (5) to the
candidate concerned."

10.

Another
provision
worth
noticing is that Section 16 of the Act
which provided for ad hoc appointment
was omitted by the amending Act. After
noticing the relevant statutory provisions,
before we proceed to find out the
legislative scheme as spelled out from the
aforesaid provisions it is necessary to
consider the submissions raised by
counsel for both the parties for applying
principles for interpretation of statutes as
contended by both the parties. Sri Baghel
for the proposition that the statute to be
read and constructed with reference to the
new provisions and not with reference to
the provisions which originally existed,
placed reliance on judgements of the apex
Court in M/s. Orient Paper and
Industries Ltd. and another, etc. etc.
Vs. State of Orissa and others (supra)
and
Laxmi
Devi
Versus
Mukand
Kanwar and others (supra). In M/s.
Orient Paper and Industries Ltd. And
another, etc. etc. Versus State of Orissa
and others (supra) the apex Court
considered the amendment made by Act
No. 15 of 1987 in Orissa Forest Produce
(Control of Trade) Act, 1981 interpreted
the provisions as stood after amendment.
There cannot be any dispute with the
preposition laid down by the apex Court
in the above case. While interpreting the
scheme of the Act the amendment has to
1 All] Dr. Vinay Kumar V. The Director of Education (Higher) and others
581
be
looked
into
and
given
due
consideration.

11. The judgement of the apex Court
in
Bangalore
Water
Supply
and
Sewerage Versus A. Rajappa and
others (supra) which approved the
observation of Lord Denning, L.J., in
Seaford Court Estates Ltd. v. Asher
(1949) 2 All. England Report 155 has
been
heavily
relied.
The
relevant
observation
of
the
apex
Court
in
paragraphs 147 and 148 are extracted
below:-

"147. My learned brother has relied
on what was considered in England a
somewhat
unorthodox
method
of
construction in Seaford Court Estates Ltd.
v. Asher, where Lord Denning, L.J., said :

"When a defect appears a Judge
cannot simply fold his hands and blame
the draftsman. He must set to work on the
constructive task of finding the intention
of Parliament____ and then he must
supplement the written words so as to
give ' force and life' to the intention of
legislature. A Judge should ask himself
the question how, if the makers of the Act
had themselves come across this ruck in
the texture of it, they would have
straightened it out? He must then do as
they would have done. A Judge must not
alter the material of which the Act is
woven, but he can and should iron out the
creases."

When this case went up to the House
of Lords it appears that the Law Lords
disapproved of the bold effort of Lord
Denning to make ambiguous legislation
more comprehensible. Lord Simonds
found it to be " a naked usurpation of the
legislative
function
under
the
thin
disguise of interpretation". Lord Morton
(with whom Lord Goddard entirely
agreed) observed: " These heroics are out
of place" and Lord Tucker said " Your
Lordships would be acting in a legislative
rather than a judicial capacity if the view
put forward by Denning, L.J., were to
prevail."

148.
k
Perhaps,
with
the
passage of time, what may be described
as the extension of a method resembling
the "arm-chair rule" in the construction of
wills, Judges can more frankly step into
the shores of the legislature where an
enactment leaves its own intentions in
much too nebulous or uncertain a state. In
M. Pentiah v. Muddala Veeramallappa,
Sarkar, J., approved of the reasoning, set
out above, adopted by Lord Denning.
And, I mujst say that, in a case where the
definition of "industry" is left in the state
in which we find it, the situation perhaps
calls for some judicial heroics to cope
with the difficulties raised."

12. Further strong reliance has been
placed on paragraph 19 of the apex Court
judgement in Mohinder Singh Gill and
another Versus The Chief Election
Commissioner, New Delhi and others,
AIR 1978 Supreme Court 851 which is
extracted below:-

''19. The old articles of the supreme
lex meet new challenges of life, the old
legal pillars suffer new stresses. So we
have to adapt the law and develop its
latent capabilities if novel situations, as
here, are encountered. That is why in the
reasoning we have adopted and the
perspective we have projected, no literal
nor lexical but liberal and visional is our
interpretation of the articles of the
582 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Constitution and the provisions of the Act.
Lord Denning's words; are instructive:

"Law does not stand still. It moves
continually. Once this is recognised, then
the task of the Judge is put on a higher
plane. He must consciously seek to mould
the law so as to serve the needs of the
time, must not be a mere mechanic, a
mere working mason, laying brick on
brick, without thought to the overall
design. He must be an architect__
thinking of the structure as a whole
building for society a system of law which
is strong, durable and just. It is on his
work that civilised society itself depends."

The invulnerable barrier of Article
329(b)."

13. Further, the observations of the
apex Court made in paragraph 7 in (1989)
2 Supreme Court Cases 754 Union of
India and another Versus Raghubir
Singh (dead) by Lrs. Etc, has been relied
which are to the following effect :-

"7. India is governed by a judicial
system identified by a hierarchy of courts,
where the doctrine of binding precedent is
cardinal feature of its jurisprudence. It
used to be disputed that Judges make law.
Today, it is no longer a matter of doubt
that a substantial volume of the law
governing the lives of citizens and
regulating the functions of the State flows
from the decisions of the superior courts.
"There was a time" observed Lord Reid
"When it was thought almost indecent to
suggest; that Judges make law___ they
only declare it...... But we do not believe
in fairy tales any more". In countries such
as the United Kingdom, where Parliament
as the legislative organ is supreme and
stands at the apex of the constitutional
structure of the State, the role played by
judicial law-making is limited. In the first
place the function of the courts is
restricted to the interpretation of laws
made by Parliament, and the courts have
no power to question the validity of
Parliamentary
statutes,
the
Diceyan
dictum holding true that the British
Parliament
is
paramount
and
all
powerful. In the second place, the law
enunciated in every decision of the courts
in England can be superseded by an Act
of Parliament. As Cockburn CJ observed
in Ex parte Canon Selwyn : (1872) 36 JP
54 ):

"There is no judicial body in the
country by which the validity of an Act of
Parliament could be questioned. An act of
the Legislature is superior in authority to
any Court of Law."

And Ungoed 'Thomas J. in Cheney v.
Conn (1968) 1 All. ER 779) referred to a
Parlimentary statute as "the highest form
of law... which prevails over every other
form of law". The position is substantially
different under a written Constitution
such as the one which governs us. The
Constitution of India, which represents
the Supreme Law of land, envisages three
distinct organs of the State, each with its
own distinctive functions, each a pillar of
the State. Broadly, while Parliament and
the State Legislature in India enact the
law
and
the
Executive
government
implements it, the Judiciary sits in
judgment not only on the implementation
of the law by the Executive but also on the
validity of the legislation sought to be
implemented. One of the functions of the
superior judiciary in India is to examine
the competence and validity of legislation,
both in point of legislative competence as
well
as
its
consistency
with
the
1 All] Dr. Vinay Kumar V. The Director of Education (Higher) and others
583
Fundamental Rights. In this regard, the
courts in India possess a power not
known to the English Courts. Were a
statute is declared invalid in India it
cannot be reinstated unless constitutional
sanction is obtained therefor by a
constitutional
amendment
or
an
appropriately modified version of the
statute is enacted which accords with
constitutional prescription. The range of
judicial review recognised in the superior
judiciary of India is perhaps the widest
and the most extensive known to the world
of law. The power extends to examining
the validity of even an amendment to the
Constitution, for a now it has been
repeatedly held that no constitutional
amendment can be sustained which
violates the basic structure of the
Constitution. (See Kesavananda Bharati
v. State of Kerala (1973) 4 SCC 225;
Indira Nehru Gandhi v. Raj Narain
(1975) Supp. SCC 1; Minerva Mills Ltd.
v. Union of India (1980) 2 SCC 591 and
recently in S.P. Sampath Kumar v. Union
of India (1987) 1 SCC 124. With this
impressive expanse of judicial power, it is
only right that the superior courts in India
should be conscious of the enormous
responsibility which rest on them. This is
specially true of the Supreme Court, for
as the highest Court in the entire judicial
system the law declared by it is, by Article
141 of the Constitution, binding on all
courts within the territory of India."

14. On the other hand, the reliance
has been placed on apex Court judgement
in A.I.R. 1959 Supreme Court 459 Sri
Ram Ram Narain Medhi Versus The
State of Bombay and paragraph 38 has
been referred which has been extracted
below:-

"38........ If the language of the
enactment is clear and unambiguous it
would not be legitimate for the Courts to
add any words thereto and evolve
therefrom some sense which may be said
to carry out the supposed intentions of the
legislature.
The
intention
of
the
Legislature is to be gathered only from
the words used by it and no such liberties
can
be
taken
by
the
Courts
for
effectuating a supposed intention of the
Legislature. There is no warrant at all, in
our opinion, for adding these words to the
plain terms of Art. 31A (1)(a) and the
words "extinguishment or modification of
any such rights" must be understood in
their plain grammatical sense, without
any limitation of the type suggested by the
petitioners".

15. The apex Court in 1981 (Supp.)
Supreme Court Cases 87 S.P. Gupta
Versus Union of India and another has
again considered and said the entire law
on the subject. The seven Judges Bench of
the apex Court had considered the
principle of statutory interpretation and
after considering several earlier cases on
statutory interpretation following was laid
down in paragraphs 273, 274 and 275 :-

"273. Thus, on a full and complete
consideration of the decisions classified
under
the
various
categories,
the
propositions that emerge from the decided
cases of this Court and other foreign
courts are as follows:-

(1) Where the language of a statute is
clear and unambiguous, there is no room
for the application either of the doctrine
of casus omissus or of pressing into
service external aids, for in such a case
the words used by the Constitution or the
statute speak for themselves and it is not
584 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
the function of the court to add words or
expressions merely to suit what the courts
think is the supposed intention of the
legislature.

(2) Where, l; however, the words or
expressions used in the constitutional or
statutory provisions are shrouded in
mystery, clouded with ambiguity and are
unclear and unintelligible so that the
dominant
object and spirit of the
legislature cannot be spelt out from the
language, external aids in the nature of
parliamentary
debates,
immediately
preceding the passing of the statute, the
report of the Select Committees or its
Chairman, the Statement of Objects and
Reasons of the statute, if any, or any
statement made by the sponsor of the
statute which is in close proximity to the
 actual introduction or insertion of the
statutory provision so as to become, as it
were, a result of the statement made, can
be pressed into service in order to
ascertain the real purport, intent and will
of
the
legislature
to
make
the
constitutional provision workable.

We might make it clear that such
aids
may
neither
be
decisive
nor
conclusive but they would certainly assist
the courts in interpreting the statute in
order to determine the avowed object of
the Act or the Constitution as the case
may be.

(3) Except in the aforesaid cases, a mere
speech of Member made on the floor of
the House during the course of a
parliamentary or legislative debate would
not be admissible at all because the views
expressed by the speaker may be his
individual views which may or may not be
accepted by the majority of the Members
present in the House.
(4) Legislative history of a constitutional
prevision though not directly germane for
the purpose of construing a statue may,
however, be used in exceptional cases to
denote the beginning of the legislative
process which result in the logical end
and the finale of the statutory provision
but in no case can the legislative history
take the place of or be a substitute for an
interpretation
which
is
in
direct
contravention of the statutory provision
concerned.

(5) Where the scheme of a statute clearly
shows that certain words or phrases were
deliberately omitted by the legislature for
a particular purpose or motive, it is not
open to the court to add those words
either by conforming to the supposed
intention of the legislature or because the
insertion or the omission suits the
ideology of the Judges deciding the case.
Such a course of action would amount not
to interpretation but to interpolation of
the statutory or constitutional provisions,
as the case may be, and is against all the
well-established cannons of interpretation
of statutes.

274. The main reason behind the
principles enunciated above is that the
legislature must be presumed to be aware
of the expanding needs of the nation, the
requirements of the people and above all,
the dominant object which the legislation;
seeks to subserve.

275. Thus, where the language is
plain and unambiguous the court is not
entitled to go behind the language so as to
add or supply omissions and thus play the
role of a political reformer or of a wise
counsel to the legislature."
1 All] Dr. Vinay Kumar V. The Director of Education (Higher) and others
585
16. Again another Constitution
Bench of Supreme Court in (2001) 7
Supreme
Court
Cases
71
:
Dadi
Jagannadham
Versus
Jammulu
Ramulu and others laid down following
in paragraph 13 :-

"13.
We
have
considered
the
submissions made by the parties. The
settled principles of interpretation are
that the court must proceed on the
assumption that the legislature did not
make a mistake and that it did what it
intended to do. The court must, as far as
possible, adopt a construction which will
carry out the obvious intention of the
legislature. Undoubtedly if there is a
defect or an omission in the words used
by the legislature, the court would not go
to a statute or read words into it which
are not there, especially when the literal
reading produces an intelligible result.
The court cannot aid the legislature's
defective phrasing of an Act, or add and
mend, and, by construction, make up
deficiencies which are there."

17. From the pronouncement of the
apex Court as noted above, it is clear that
for interpreting a statute intention of the
legislature has to be ascertained. While
interpreting a statute the court adopts an
interpretation which carry forward the
object of the legislature and advances the
legislative scheme. The Court could not
add word to the statutes or read words in
the statute which are not there, Moreso
when the literal reading produces an
intelligible result. True, the law is not
static and the Court is to adopt an
interpretation
which
advances
the
legislative object, remedies the defect.
18.