# Pragati Dwivedi v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-13
- **Case number:** Writ A No. 12623 of 2020
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pragati-dwivedi-v-state-of-u-p-ors-47342
- **Pages:** 14

## Headnote

C.S.C., Sri Bajrang Bahadur Singh, Sri
Krishna Kumar Chand, Sri Satya Prakash
Singh

A.
Service
Law
-
UP
Intermediate
Education Act, 1921 - Ch. II Reg. 1 -
Appointment - Post of Lecturer in Music
(Instrument) - Selection held by the
Board,
however,
the
Management
contended that the said post is for Music
(Instrument-Tabla) - Under the statute,
an institution would be recognized by the
Education Board for teaching in Music
(Vocal) and Music (Instrument) and not
for
teaching
a
particular
musical
instrument or a particular branch of vocal
or instrumental music - The institution
was granted recognition by the Education
112 INDIAN LAW REPORTS ALLAHABAD SERIES
Board for teaching in Music (Instrument)
and was not recognized for teaching a
particular musical instrument - Held, the
petitioner being a post-graduate in Music
(Instrument)
was
eligible
for
being
considered for appointment as teacher in
Music (Instrument) in the Institution and
after being so selected is entitled to be
issued an appointment letter by the
Management of the Institution on the post
vacant in the Institution. (Para 17, 18 and
22)
B. Interpretation of statute - Duty of
court - Sanctity of legislation - The Court
cannot rewrite, recast or reframe the
legislation for the very good reason that it
has no power to legislate. The power to
legislate has not been conferred on the
Courts. The Court cannot add words to a
statute or read words into it which are not
there - Assuming there is a defect or an
omission in the words used by the
legislature the Court could not go to its
aid to correct or make up the deficiency.
(Para 17)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

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9 All. Pragati Dwivedi Vs. State of U.P. & Ors.
111
reservation benefits. In all such cases, the
recruiting agency would then have to
independently verify the family origins of
each such candidate in order to ascertain
whether the individual was born in a social
class to which benefits under Article 16 of
the Constitution stand conferred. Ms.
Archana Singh, learned counsel, apprises
the Court that the present recruitment was
undertaken to fill up 69,000 posts of
Assistant
Teachers.
Learned
counsel
informs the Court that 146060 candidates
participated in the selection process. The
facts as noticed above underscore the
enormity of the avoidable and unnecessary
obligation which would stand placed on the
recruitment agency. In fact, placing such an
onus on the recruiting body may also have
a deleterious effect on the paramount
requirement of completing a selection
process connected with appointment to
public posts within a defined timeline. The
Court in view of the aforesaid facts is of the
considered
view
that
there
is
no
justification
for
such
an
additional
responsibility being legally foisted upon the
respondents.

15. The challenge to the Government
Order of 4 December 2020 on grounds as
urged by learned counsel, pales into
insignificance in light of what has been
held and in any case cannot be viewed as
imposing a burden or otherwise ushering in
a position which would be either legally
unsustainable or one which could not have
been recognised to exist irrespective of its
promulgation.

16. Insofar as the submission of
learned counsel with respect to the
candidature
of
the
petitioner
being
considered under the General category is
concerned, the Court notes
that no
foundation in support of the aforesaid
submission stands laid in the writ petition.
The petitioner has not disclosed the
qualifying marks which were obtained by
the last admitted candidate under the
General category to enable the Court to
ascertain whether she could have claimed
an appointment without the benefits of
reservation being extended to her.

17. The writ petition consequently
fails and shall stand dismissed.
----------
(2021)09ILR A111
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.09.2021

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ A No. 12623 of 2020

Pragati Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Pandey

Counsel for the Respondents:
C.S.C., Sri Bajrang Bahadur Singh, Sri
Krishna Kumar Chand, Sri Satya Prakash
Singh

A.
Service
Law
-
UP
Intermediate
Education Act, 1921 - Ch. II Reg. 1 -
Appointment - Post of Lecturer in Music
(Instrument) - Selection held by the
Board,
however,
the
Management
contended that the said post is for Music
(Instrument-Tabla) - Under the statute,
an institution would be recognized by the
Education Board for teaching in Music
(Vocal) and Music (Instrument) and not
for
teaching
a
particular
musical
instrument or a particular branch of vocal
or instrumental music - The institution
was granted recognition by the Education
112 INDIAN LAW REPORTS ALLAHABAD SERIES
Board for teaching in Music (Instrument)
and was not recognized for teaching a
particular musical instrument - Held, the
petitioner being a post-graduate in Music
(Instrument)
was
eligible
for
being
considered for appointment as teacher in
Music (Instrument) in the Institution and
after being so selected is entitled to be
issued an appointment letter by the
Management of the Institution on the post
vacant in the Institution. (Para 17, 18 and
22)
B. Interpretation of statute - Duty of
court - Sanctity of legislation - The Court
cannot rewrite, recast or reframe the
legislation for the very good reason that it
has no power to legislate. The power to
legislate has not been conferred on the
Courts. The Court cannot add words to a
statute or read words into it which are not
there - Assuming there is a defect or an
omission in the words used by the
legislature the Court could not go to its
aid to correct or make up the deficiency.
(Para 17)
Writ petition allowed. (E-1)
Cases relied on :-
1. U.O.I. & anr. Vs Deoki Nandan Aggarwal,
A.I.R.; 1992 Supreme Court 96
2. Sangeeta Singh Vs U.O.I. & ors. (2005) 7 SCC
484
3. Dr. Chetkar Jha Vs Dr. Vishwanath Prasad
Verma & anr.1970 (2) SCC 217

(Delivered by Hon'ble Salil Kumar Rai, J.)

1. The facts of the case are that
Shanta Smarak Kanya Inter College,
Meerut
(hereinafter
referred
to
as,
'Institution') is an 'institution' as defined in
Section
2(b)
of
the
Uttar
Pradesh
Intermediate
Education
Act,
1921
(hereinafter referred to as, 'Act, 1921') and
receives maintenance grant from the State
Government. The Institution is governed by
the Act, 1921 and the Regulations framed
thereunder. Selections to the post of
Lecturers
in
recognized
and
aided
institutions are held by the Uttar Pradesh
Education
Services
Selection
Board,
Prayagraj (hereinafter referred to as,
'Board'). The procedure for selection of
Lecturers is prescribed in Uttar Pradesh
Secondary Education Services Selection
Board Rules, 1998 (hereinafter referred to
as, 'Rules, 1998'). Under Section 16(E) of
the
Act,
1921
the
Committee
of
Management of a recognized institution is
the appointing authority of the Teachers of
the institution but under the Rules 1998, the
Committee
of
Management
of
the
institution is liable to issue an appointment
letter to any candidate selected for
appointment and allocated the institution by
the Board.

2. Smt. Krishna Sharma and Smt.
Shashi Maratha, Lecturers in the institution
retired on 30.6.2012. It has been stated in
the counter affidavit filed by the Manager
of the Committee of Management of the
institution, i.e., the respondent No. 5, that
the post held by Smt. Krishna Sharma was
of Lecturer in Music (Instrument-Tabla)
while the post held by Smt. Shashi Maratha
was of Lecturer in Music (Instrument-Sitar)
and they were teaching the said subjects.
After the retirement of the aforesaid
teachers, the Committee of Management of
the institution sent a requisition to the
Board notifying the vacancies and the
requisition form specified that of the two
posts of Lecturer which were vacant in the
institution, one post was of Lecturer in
Music (Instrument-Tabla) and the other
post was of Lecturer in Music (InstrumentSitar).

3. In 2016, the Board issued
Advertisement
No.2/2016
inviting
9 All. Pragati Dwivedi Vs. State of U.P. & Ors.
113
applications for appointment on vacant
posts of Lecturers which included the
abovementioned two posts of Lecturers in
the Institution. It is admitted by the parties
that the aforesaid posts were reserved for
women and the vacancies in the institution
were advertised as Lecturer in Music
(Instrument) (Female Category) and the
advertisement did not specify any subcategory in the aforesaid subject. In other
words, the advertisement did not indicate
that of the two posts advertised one was of
Lecturer in Music (Instrument-Sitar) and
the other was of Lecturer in Music
(Instrument-Tabla).

4. It has been stated in the writ
petition that the petitioner is a Post
Graduate (M.A.) in Music (InstrumentSitar). In response to the Advertisement
No. 2/2016, the petitioner also filed her
application
to
be
considered
for
appointment as Lecturer (Female Category)
in the subject Music (Instrument) and was
selected by the Board for appointment as
Lecturer in Music-Instrument. In the panel
of selected candidates prepared by the
Board under Rule 12(8) of the Rules, 1998
for appointment as Lecturers in Music
(Instrument), one Smt. Rinki Singh was
placed at Serial No.1 while the petitioner
was placed at Serial No. 3, in order of
merit. Both, the petitioner and Smt. Rinki
Singh, were allocated the Institution for
appointment
as
Lecturers
in
Music
(Instrument) and an intimation for the said
purpose was sent to the Institution by the
District Inspector of Schools-II, Meerut
(hereinafter referred to as, 'D.I.O.S'). The
intimation regarding the petitioner was sent
through letter dated 31.7.2020 of the
D.I.O.S. On 18.8.2020, the management of
the institution issued an appointment letter
to Smt. Rinki Singh appointing her as
Lecturer in Music (Instrument-Sitar) in the
Institution. However, the Committee of
Management of the Institution refused to
issue an appointment letter to the petitioner
on the ground that after Smt. Rinki Singh
joined as Lecturer in Music (InstrumentSitar) no post of Lecturer in Music
(Instrument-Sitar)
was
vacant
in
the
Institution and the other vacant post was of
Lecturer in Music (Instrument-Tabla) and
because the petitioner was not a post
graduate in Music (Instrument-Tabla) but a
post graduate in Music (Instrument-Sitar),
she was not qualified for appointment on
the other vacant post of Lecturer in the
Institution. When the petitioner came to
know about the aforesaid developments,
she submitted a representation to the
Chairman of the Board requesting that, in
light of Rule 13(5) of the Rules, 1998, she
be allocated any other Institution. The
Board has not yet taken any action on the
aforesaid representation of the petitioner
and therefore the present writ petition has
been filed by the petitioner praying for a
writ
of
mandamus
commanding
the
Manager of the Institution to issue an
appointment letter in favour of the
petitioner for the post of Lecturer (Female
Category) in Music (Instrument) and, in the
alternative, a writ in the nature of
mandamus commanding the Board and the
Chairman of the Board to allocate any other
Institution to the petitioner pursuant to her
selection for the post of Post Graduate
Teacher - Lecturer (Female Category) in
Music (Instrument) against Advertisement
No. 2/2016.

5. The Institution has filed a counter
affidavit opposing the prayer of the
petitioner. In paragraph No. 4 of its counter
affidavit, the Manager of the Committee of
Management of the Institution (respondent
No. 5) has stated that by letter dated
13.8.1969 two posts of teachers in Music
114 INDIAN LAW REPORTS ALLAHABAD SERIES
were sanctioned in the Institution. The
letter dated 13.8.1969 has not been annexed
with the counter affidavit. From the tenor
of the averments made in paragraph No. 4
of the counter affidavit, it appears that of
the two posts sanctioned through letter
dated 13.8.1969 one post was for Music
(Vocal) and the other post was for Music
(Instrumental).
Through
its
counter
affidavit the respondent No. 5 has brought
on record the letter dated 24.2.1987 issued
by the Regional Secretary of the Board of
High
School
and
Intermediate
Examinations (hereinafter referred to as,
'Education
Board'),
Regional
Office,
Meerut which shows that the Institution
was recognized by the Board for imparting
education at High School and Intermediate
level. At the High School level, it was
recognized, amongst other, for teaching in
Music while at the Intermediate level, it
was recognized for teaching in, amongst
other subjects, in Music (Vocal) and Music
(Instrumental). It has been further stated in
paragraph No. 4 of the counter affidavit
that vide letter dated 20.6.2005 one post of
Music (Instrument-Sitar) in L.T. Grade was
upgraded to Lecturer Grade. The letter
dated 20.6.2005 has been annexed as
Annexure No. 5 to the counter affidavit. It
has been further stated in the counter
affidavit that Smt. Krishna Sharma who
was working on the post of Lecturer in
Music (Instrument-Sitar) and Smt. Shashi
Maratha, who was working as Lecturer in
Music (Instrument-Tabla) in the Institution
retired on 30.6.2012 and consequently a
requisition, as noted earlier, was sent to the
Board.
In
its
counter
affidavit,
the
respondent No. 5 has also brought on
record the number of students, who had
opted for Music (Instrument) in the
Institution indicating that more students
had opted for Music (Instrument-Tabla)
than Music (Instrument-Sitar) as their
optional subject. It has been averred by the
Institution in paragraph No. 4 of the
counter affidavit that three posts of
Lecturer in Music were sanctioned in the
Institution out of which one post was for
Music (Vocal), one post was of Lecturer in
Music (Instrument-Sitar) and one post was
of Lecturer in Music (Instrument-Tabla).
On the aforesaid facts, the respondent No. 5
pleads that because Smt. Rinki Singh, who
was at serial no. 1 in the panel of selected
candidates, had already joined as Lecturer
in Music (Instrument-Sitar) therefore no
vacant
post
of
Lecturer
in
Music
(Instrument-Sitar) was available in the
Institution and the other vacant post in the
Institution was of Lecturer in Music
(Instrument-Tabla)
but
because
the
petitioner was not a post-graduate in Music
(Instrument-Tabla) but a post-graduate in
Music (Instrument-Sitar) she was not
qualified to be appointed as Lecturer on the
other vacant post and no appointment letter
can be issued to her for appointment as
Lecturer in the Institution. On the aforesaid
ground, the respondent No. 5 has prayed
that the writ petition be dismissed.

6. The Board, the Chairman of the
Board and the D.I.O.S., arrayed as
respondent Nos. 2, 3, and 4 respectively in
the writ petition, have also filed their
counter affidavits in which they have
admitted
that
the
vacancies
in
the
Institution were advertised for appointment
as Lecturer in Music (Instrument) and the
advertisement did not specify that of the
two vacancies advertised, one was of
Lecturer in Music (Instrument-Sitar)and the
other
was
of
Lecturer
in
Music
(Instrument-Tabla).
In
their
counter
affidavits, the respondent Nos. 2, 3 and 4
have not denied the qualification of the
petitioner as stated by her in the petition.
However,
the
counter
affidavits
of
9 All. Pragati Dwivedi Vs. State of U.P. & Ors.
115
respondent nos. 2, 3 and 4 are silent on the
nature of the two posts in the Institution
which
were
advertised
through
Advertisement No. 2 of 2016.

7. The counsel for the petitioner has
argued that the Regulations framed under
the Act, 1921 prescribe only Music (Vocal)
and Music (Instrument) as optional subjects
to be taught in any recognized institution
and no sub-category of the said subjects
have been prescribed as separate optional
subjects to be taught in any recognized
institution. It was argued that the stand of
the management of the Institution that, of
the two posts of Lecturer in Music
Instrument in the Institution, one post was
of Lecturer in Music (Instrument-Tabla)
and the other was of Lecturer in Music
(Instrument-Sitar) is an artificial subdivision of the prescribed subjects and the
said sub-division is not supported by the
Act, 1921 or the Regulations framed
thereunder. It was further argued that
Appendix 'A' to the Regulations prescribes
only post-graduation in Music as the
minimum qualification for appointment as
lecturer in Music and does not prescribe a
degree in a specific branch of Music as a
requisite qualification for appointment as a
Lecturer in Music. It has been further
argued that the vacancies notified by the
Board through Advertisement No. 2/2016
were for appointment as Lecturer in Music
(Instrument) and not as Lecturer in either
Music (Instrument-Sitar) or in Music
(Instrument-Tabla) and the petitioner being
a post-graduate in Music (Instrument) was
therefore qualified to be appointed as
Lecturer in Music (Instrument) and because
she has been selected by the Board for such
appointment and allocated the Institution,
therefore, the Committee of management of
the Institution is liable to issue an
appointment letter to the petitioner and a
mandamus for the said purpose is to be
issued to the respondents. It was further
pleaded by the counsel for the petitioner
that, in any case, as the petitioner has been
selected by the Board for appointment as
Lecturer in Music (Instrument) and, if in
the facts of the case the Court holds that the
petitioner is not entitled to be appointed on
the other vacant post in the Institution, the
respondent Nos. 2 and 3 are liable to
allocate any other Institution to the
petitioner under Rule 13(5) of the Rules,
1998 and therefore a mandamus for the said
purpose may be issued to respondent Nos.
2 and 3, i.e., Board and its Chairman.

8. Rebutting the argument of the
counsel for the petitioner, the counsel for
respondent No. 5 has repeated the stand
taken by the Committee of Management in
its counter affidavit and has argued that the
Board
has
wrongly
allocated
two
candidates having the same qualifications,
i.e., post graduation in Music (InstrumentSitar) for appointment against one post of
Lecturer in Music (Instrument-Sitar) in the
institution and, in the facts of the case, the
institution is not liable to issue an
appointment letter to the petitioner for
appointment
as
Lecturer
in
Music
(Instrument-Sitar). It was argued that in
view of the aforesaid, the writ petition so
far as it prays for a mandamus to the
Institution and for a mandamus to the
respondent Nos. 2 to 4 to ensure that the
petitioner be allowed to join as Lecturer in
Music (Instrument-Sitar) in the Institution,
is liable to be dismissed.

9. I have considered the submissions
of the counsel for the parties.

10. It is the admitted case of the
parties that the Institution is a recognized
institution as defined in Section 2(d) of the
116 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1921 and is governed by the Act and
the Regulations made thereunder. The
qualification of the petitioner as M.A. in
Music (Instrument-Sitar) is also not denied
by the respondents. It is also admitted by
the Board that Advertisement No. 2/2016
was issued notifying two vacancies of
Lecturer in Music (Instrument) (Female
Category) in the Institution and the
advertisement did not specify that the posts
notified were for teaching any particular
musical instrument. The panel of the
selected candidates prepared by the Board
under Rule 12(8) of the Rules, 1998 which
has been annexed as Annexure No. 3 to the
writ petition and has not been denied by the
respondents also shows that the selections
were made by the Board for appointment as
Lecturer in Music (Instrument) in different
recognized institutions.

11. The records annexed with the
counter affidavit filed by the management
of the Institution do not show that of the
two posts of Lecturer vacant in the
Institution and advertised by the Board, one
post was of Lecturer in Music (InstrumentSitar) and the other post was of Lecturer in
Music (Instrument-Tabla). There is nothing
on record to show that the post of Teacher
in L.T. Grade in Music (Instrument) in the
Institution, which was ultimately upgraded
by order dated 20.6.2005 to Lecturer
Grade,
was
for
teaching
in
Music
(Instrument-Sitar). The letter/order dated
20.6.2005 of the D.I.O.S. only indicates
that the post held by Smt. Shashi Maratha
had been upgraded to the Lecturer Grade.
Further, the documents annexed with the
counter affidavit of the management of the
Institution also do not show that Smt.
Krishna Sharma was working on a post of
Lecturer of Music (Instrument-Tabla). The
letter dated 24.2.1987 issued by the
Regional Secretary of the Education Board
only indicates that the Institution was
recognized for teaching in Music (Vocal
and Instrument) and it does not indicate
that the posts sanctioned in the Institution
to teach Music (Instrument) or Music
(Vocal)
were
sub-divided
either
into
different
branches
of
vocal
and
instrumental music or were for teaching
specific musical instrument.

12. The issue before this Court is as to
whether the fact that Smt. Krishna Sharma
and Smt. Shashi Maratha were, in actuality,
teaching two different musical instruments
in the Institution and the requisition sent by
the Institution to the Board specified that of
the two vacant posts of Lecturer in the
Institution, one post was of Lecturer in
Music (Instrument-Sitar) and the other post
was of Lecturer in Music (InstrumentTabla) are relevant to decide the nature of
posts sanctioned in the Institution and the
nature of vacancies advertised by the Board
through its Advertisement No. 2/2016 and
consequently the right of the petitioner to
be issued an appointment letter for
appointment as Lecturer on the other postvacant in the Institution.

13. Under Section 2(d) of the Act,
1921 a recognized Institution means an
institution recognized for the purpose of
preparing the candidates for admission to
the
examinations
conducted
by
the
Education Board. Under Sections 7(3) to
7(5) of the Act, 1921 the Education Board
has the power to conduct examinations at
the end of High School and Intermediate
Courses, to recognize institutions for the
purposes of its examinations and to admit
candidates to its examinations. Under
Section 7(1) of the Act, 1921 the Education
Board has the power to prescribe courses of
instructions
for
High
School
and
Intermediate classes in such branches of
9 All. Pragati Dwivedi Vs. State of U.P. & Ors.
117
education as it thinks fit. Section 15(1) of
the Act, 1921 authorizes the Education
Board to frame Regulations for the
purposes of carrying into effect the purpose
of Act, 1921. Section 15(2) of the Act, 1921
empowers the Education Board to make
Regulations providing for the courses of
study to be laid down for all certificates
and diplomas, the conferment of diplomas
and
certificates,
the
conditions
of
recognition of institutions for the purpose
of its examinations and all matters which
by the Act, 1921 are to be or may be
provided for by the Regulations.

14. Chapter XI of the Regulations
framed under the Act, 1921 provides that
the Education Board shall conduct High
School
Examination,
Intermediate
Examination and Intermediate Vocational
Educational Examination. Regulation 15 of
Chapter VII of the Regulations prescribes
that an institution shall hold classes and
admit students only in subjects for which
the institution has been given recognition
by the Education Board. Regulation 16 of
Chapter VII of the Regulations further
provides that if students are admitted in any
institution for a course not recognized by
the Board the concerned institution may be
subjected to penal action.

15. Apparently, the Education Board
shall conduct examinations only in courses
of study prescribed by it and the subjects
specified in the Regulations. Further, under
Sections 2(d) and 7(4) of the Act, 1921 an
institution is granted recognition by the
Education Board for purposes of its
examinations and to prepare candidates for
admission to the Board's examinations.
Evidently, the recognition given by the
Education Board to the institutions is only
regarding the subjects specified in the
Regulations.

16. Chapters XIII, XIV and XIV(A)
of the Regulations specify the different
subjects/courses
for
instructions.
The
Regulations mention only Music (Vocal)
and Music (Instrument) as optional subjects
for
High
School,
Intermediate
and
Intermediate
Vocational
Education
examinations and do not sub-divide the two
subjects on the basis of genre or different
musical instruments. In other words, the
Regulations do not prescribe as separate
subjects, courses in different genres of
music or in different musical instruments.
Any reading of the Regulations by
specifying the genres of music or musical
instrument would amount to adding words
in the particular entry in the Regulations.
Any such reading of the entries would
result in changing the nature of entry and
prescribing a different subject of study, a
subject not prescribed by the Education
Board and the Regulations. There is
nothing in the Act, 1921 or the Regulations
which could lead to an inference that the
Education Board had intended to prescribe
teaching of different musical instruments or
of different branches of Music as different
subjects. The certificate or degree conferred
by the Board would also indicate that the
candidate was admitted by the Education
Board and passed its examinations in
Music (Vocal) or Music (Instrument) and
would not reflect that the candidate had
studied any specific branch of Music or
gained
proficiency
in
any
particular
musical
instrument.
The
Regulations
framed by the Education Board are
delegated legislations and, therefore, the
omission in Chapters XIII, XIV and XIV-A
of the Regulations in not indicating the
different branches or genres of music or
differqent musical instruments in the
relevant entries can be, at the most, a
casus-omissus which can not be supplied
either by this Court through interpretation
118 INDIAN LAW REPORTS ALLAHABAD SERIES
or by the Education Board through
executive order or by any recognized
institution.

17. In Union of India & Another Vs.
Deoki Nandan Aggarwal, A.I.R. 1992
Supreme Court 96, the Supreme Court
observed, "that it is not the duty of the
Court either to enlarge the scope of the
legislation
or
the
intention
of
the
legislature when the language of the
provision is plain and unambiguous. The
Court cannot rewrite, recast or reframe the
legislation for the very good reason that it
has no power to legislate. The power to
legislate has not been conferred on the
Courts. The Court cannot add words to a
statute or read words into it which are not
there. Assuming there is a defect or an
omission in the words used by the
legislature the Court could not go to its
aid to correct or make up the deficiency."
Similarly in Sangeeta Singh Vs. union of
India & Others, (2005) 7 SCC 484, the
Supreme Court held that the Courts, cannot
aid the Legislatures' defective phrasing of
an Act, and cannot add or mend, and by
construction make up deficiencies which
are left there and it would be contrary to all
rules of construction to read words into an
Act unless it is absolutely necessary to do
so. The observation of the Supreme Court
in paragraph Nos. 5, 6 and 9 of the reports
which are relevant are reproduced below :-

"5. It is well settled principle in
law that the Court cannot read anything
into a statutory provision or a stipulated
condition which is plain and unambiguous.
A statute is an edict of the Legislature.
The language employed in a statute is the
determinative factor of legislative intent.
Similar is the position for conditions
stipulated in advertisements.

6. Words and phrases are symbols
that
stimulate
mental
references
to
referents. The object of interpreting a
statute is to ascertain the intention of the
Legislature enacting it. (See Institute of
Chartered Accountants of India v. M/s
Price Waterhouse). The intention of the
legislature is primarily to be gathered from
the language used, which means that
attention should be paid to what has
been said as also to what has not been
said. As a consequence, a construction
which requires for its support, addition
or substitution of words or which results
in rejection of words as meaningless has
to be avoided. As observed in Crawford
Vs. Spooner the courts cannot aid the
legislature's defective phrasing of an Act,
they cannot add or mend, and by
construction make up deficiencies which
are left there. (See State of Gujarat Vs.
Dilipbhai Nathjibhai Patel). It is contrary
to all rules of construction to read words
into an Act unless it is absolutely
necessary to do so. (See Stock Vs. Frank
Jones (Tipton) Ltd.) Rules of interpretation
do not permit the courts to do so, unless the
provision as it stands is meaningless or of
doubtful meaning. The courts are not
entitled to read words into an Act of
Parliament unless clear reason for it is to
be found within the four corners of the
Act itself. (Per Lord Loreburn, L.C. in
Vickers Sons and Maxim Ltd. Vs. Evans,
quoted in Jumma Masjid, Mercara Vs.
Kodimaniandra Deviah).

9. While interpreting a provision
the Court only interprets the law and
cannot legislate it. If a provision of law is
misused and subjected to the abuse of
process of law, it is for the legislature to
amend, modify or repeal it, if deemed
necessary. (See C.S.T. Vs. Popular Trading
Company). The legislative casus omissus
9 All. Pragati Dwivedi Vs. State of U.P. & Ors.
119
cannot
be
supplied
by
judicial
interpretative process."

(Emphasis added)

Thus, the entries Music (Vocal)
and Music (Instrument) in Chapters XIII,
XIV and XIV-A of the Regulations are to
be read as they are and without subdividing them either on the basis of
different genres of music or on the basis of
different
musical
instruments.
An
institution would be recognized by the
Education Board for teaching in Music
(Vocal) and Music (Instrument) and not for
teaching a particular musical instrument or
a particular branch of vocal or instrumental
music. The posts sanctioned by the State
Government in any aided institution would
also be for teaching Music (Vocal) or
Music (Instrument) and not for teaching a
particular branch of vocal music or a
particular musical instrument and in light
of Regulation 15 of Chapter VII of the
Regulations, the institutions do not have the
liberty to treat the posts as posts sanctioned
to teach a particular musical instrument.

18. In the present case, the Institution
was granted recognition by the Education
Board for teaching in Music (Instrument)
and was not recognized for teaching a
particular musical instrument. In fact, in
light of the reasons given, the institution
could not have been granted recognition for
teaching
only
a
particular
musical
instrument. For the said reasons, the two
posts
vacant
in
the
Institution
and
advertised by the Board were of Lecturer in
Music (Instrument) and not of Lecturer in
particular musical instrument and the one
post still vacant is not of Lecturer in Music
(Instrument-Tabla). The fact that the
teachers
previously
working
in
the
Institution were teaching two different
musical instruments and the Management
had sent the requisition specifying that the
posts were for teaching two different
musical instruments is not relevant to
decide the nature of vacancies advertised
by the Board through Advertisement No. 2
of
2016.
In
the
circumstances,
the
information sent by the Committee of the
Management to the Board through its
requisition that, of the two posts of
Lecturers in Music (Instrument) sanctioned
and vacant in the Institution, one was of
Music (Instrument-Tabla) and the other was
of Music (Instrument-Sitar), was not
relevant and the Board rightly ignored it
and notified the vacancies for appointment
as Lecturer in Music (Instrument).

19. The right of the petitioner to be
issued an appointment letter also depends
on whether the petitioner possessed the
minimum qualifications for appointment as
Lecturer in Music (Instrument). Section 16E(3) of the Act, 1921 provides that only a
person
who
possesses
the
minimum
qualifications
prescribed
by
the
Regulations shall be appointed as a teacher
in a recognized institution. Rule 5 of Rules,
1998
provides
that
a
candidate
for
appointment to a post of teacher must
possess the qualifications specified in
Regulation 1 of Chapter II of the
Regulations made under the Act, 1921.

20. Regulation 1 of Chapter II of the
Regulations is part of Appendix 'A'
appended to the Regulations framed by the
Education
Board
and
prescribes
the
minimum
qualifications
required
for
appointment as teacher in a recognized
institution. Entry 25 of Regulation 1
prescribes M.A. in Music (amongst other
alternative qualifications) as minimum
qualification required for a music teacher to
teach intermediate students, i.e., class 11
and 12 students. The Regulations do not
prescribe a degree in any particular musical
120 INDIAN LAW REPORTS ALLAHABAD SERIES
instrument or in any particular genre of
music
as
minimum
qualification
for
appointment as Teacher in Music. Chapters
XIII, XIV and XIV-A of the Regulations
mention
Music
(Vocal)
and
Music
(Instrument) as optional subjects to be
chosen by any candidate admitted for
appearing in the High School, Intermediate
or
Intermediate
Vocational
Education
examinations conducted by the Education
Board. However, the candidates can chose
only one of them as their optional subject
and not both of them as their optional
subjects. In other words, a candidate can
opt either for Music (Vocal) or Music
(Instrument) but cannot opt for both of
them. It is pertinent to note that the
Regulations do not mention 'Music' as a
course of study but specify Music (Vocal)
and Music (Instrument) as courses of study.
Evidently, Music (Vocal) and Music
(Instrument) are two different subjects and
courses of study. However, Entry 25 in
Regulation 1 of Chapter II prescribes postgraduation in Music as the minimum
qualification required for appointment as
Teacher / Lecturer in Music to teach in
Class XI and XII. The Regulations do not
prescribe
different
qualifications
for
appointment
as
Teacher
in
Music
(Instrument) and Music (Vocal). A plain
reading of the qualifications prescribed in
Entry 25 of Regulation 1 of Chapter II for
appointment as Teacher in Music (Vocal)
and Music (Instrument) would lead to an
absurdity as a Post-graduate in Music
(Vocal)
would
also
be
eligible
for
appointment
as
Teacher
of
Music
(Instrument) and a Post-graduate in Music
(Instrument) would also be eligible for
appointment as Teacher of Music (Vocal)
even though Music (Vocal) and Music
(Instrument) are two different subjects
prescribed by the Education Board. While
interpreting
legislative
provisions,
absurdity is to be avoided. Regulation 1 of
Chapter II which prescribes minimum
qualifications for appointment as Teacher
in recognized institutions and the relevant
items in Chapters XIII, XIV and XIV-A
specifying the courses of study are part of
the same legislative enactment. In order to
avoid the absurdity referred earlier, the
qualifications prescribed in Entry 25 have
to be interpreted and read as 'Post-graduate
in Music (Vocal) or in Music (Instrument)
depending
on
the
post
for
which
appointments are to be made.' In other
words, only a candidate, who is a postgraduate in Music (Vocal) would be eligible
for appointment as Lecturer in Music
(Vocal) and a candidate who is a postgraduate in Music (Instrument) would be
eligible for appointment as Lecturer in
Music (Instrument) in any recognized
institution. But the same can not be read to
mean as requiring a post-graduate in a
specific genre of music or a post-graduate
in a particular musical instrument, because
the Regulations do not prescribe, as courses
of study, a particular genre of music or
teaching of a particular musical instrument.
Thus, if the selecting body or the
appointing authority demands from an
applicant a post-graduation in a specific
branch of vocal music or a post-graduation
in a particular musical instrument, such a
demand would be inconsistent with the
Regulations. For the aforesaid reasons, the
refusal
of
the
Management
of
the
Institution to issue an appointment letter to
the petitioner on the ground that she is a
post-graduate in Music (Instrument-Sitar)
and
not
a
post-graduate
in
Music
(Instrument-Tabla) is inconsistent with the
Regulations.

21. An issue similar to the issue in the
present case arose before the Supreme
Court in Dr. Chetkar Jha Vs. Dr.
9 All. Pragati Dwivedi Vs. State of U.P. & Ors.
121
Vishwanath Prasad Verma & Another,
1970 (2) SCC 217. In the aforesaid case,
the controversy related to the minimum
qualifications required for appointment as
Professor in Department of Political
Science in Patna University. The relevant
Statutes of the University, at the time of
advertisement, prescribed the minimum
qualifications for appointment as Professor
in the University as, "first or second class
Master's degree of an Indian University or
an equivalent qualification of a foreign
university." The Bihar Public Service
Commission, which at that time had the
power
to
recommend
names
for
appointments to the University, advertised
the
said
post
and
the
minimum
qualifications required for appointment to
the post were published as "first or second
class Master's degree in the subject of an
Indian
University
or
an
equivalent
qualification of a foreign university." The
Vice-Chancellor of the University got
published,
through
the
Commission,
another advertisement amending the earlier
advertisement
and
the
revised
advertisement
stated
the
required
qualifications as "first or second class
Master's degree in Political Science or in
an allied subject like History or Economics
of an Indian University or an equivalent
qualification of a foreign university." The
appointment of the selected candidate was
under challenge before the Supreme Court
wherein it was argued that the words in the
University
Statute,
namely,
that
the
University Professor "shall possess a first
or second class Master's degree" meant a
Master's degree "in the subject" and
therefore the original advertisement was in
conformity with the University Statute
relating to the qualifications and the revised
advertisement had the effect of amending
the Statute and was therefore unauthorized
and the appointment of the selected
candidate was contrary to the Statute. The
Supreme Court rejected the aforesaid
contention and held that the words "in the
subject" in the advertisement initially
issued by the Commission debarred the
candidates with first and second class
Master's degree in subjects other than
Political Science and was therefore not in
conformity with and not consistent with the
relevant University Statute laying down the
qualifications.
In
this
context
the
observations of the Supreme Court in
paragraph Nos. 10, 11 and 12 of the reports
are reproduced below :-

"10. Under Section 58 of the Act,
until Statutes, Ordinances, Regulations and
Rules
were
made
under
the
Act,
Regulations made under the Bihar State
Universities Act, XIV of 1960, which were
in
force
immediately
before
the
commencement of the present Act, were to
continue to be in force and were to be
deemed
to
be
Statutes,
Ordinances,
Regulations and Rules made under the
corresponding provisions of this Act.
Chapter XII of the Statutes made under the
earlier Act and which was in force
immediately before the commencement of
the Act, was, therefore, to continue in force
and was deemed to have been made under
the present Act. Under that Statutes, the
qualifications for the post of a University
Professor were inter alia "a first or a second
class
Master's
degree
of
an
Indian
University or an equivalent qualification of
a foreign University". The Statute, it will
be noticed, did not lay down that the
Master's degree had to be "in the
subject" for which the candidate would
be appointed. Apparently, the question
whether the concerned candidate was
proficient in the subject for which he had
applied for appointment was left for
decision by the appointing authority.
122 INDIAN LAW REPORTS ALLAHABAD SERIES
Under Chapter XIV of the Statute,
whenever an appointment had to be made
the Vice-Chancellor had the power with the
approval of the Chancellor to decide
whether the post should be filled up by
promotion or by direct recruitment.

11. There is no dispute that the
Vice-Chancellor
had
obtained
such
approval and the post was to be filled up by
direct recruitment. As required by Section
26(1) of the Act, appointments of teachers
and professors of the University could only
be made on the recommendations made by
the State Public Service Commission.
Accordingly, the Vice-Chancellor sent to
the
Commission
a
requisition
for
advertisement
for
the
post.
In
that
requisition he set out, without any words
of, limitation or additional qualifications,
Chapter XII of the Statutes which laid
down
the
qualifications.
In
the
advertisement issued by the Commission,
however, that body introduced the words
"in the subject" announcing thereby that
the candidate must possess a first or
second class Master's degree in Political
Science.