1. Heard learned counsel for the parties and perused the record.
2. The appointment of respondents No.7 and 8 on Class IV post in S.G.M. Inter College, Firozabad (hereinafter referred to as "the College") has been challenged by the Committee of Management of the said College on the ground that respondent No.8 was the son of real sister of the then Principal Sri S.K.Sharma and respondent No.7 belongs to the village in Rajasthan of which respondent No.9 the then Secretary, Education, Braj Mohan Mina belong. The averment to this effect is made in para 12 of the writ petition.
3. Sri S.K. Sharma, the then Principal himself has filed counter affidavit and in para 10, he has denied any relationship with respondent No.8 and with respect to respondent No.7, he has shown his residence at Agra and also his registration in District Employment Office, Firozabad. In reply to para 10 of the counter affidavit of respondent No.5, which has been sworn by Sri S.K.Sharma the then Principal of the College himself, the petitioner in para 13 of the rejoinder affidavit have said as under:
"That the allegations made in the paragraph no.10 of the counter affidavit are not correct hence denied. It is submitted that the respondent no.7 is the son of the real sister of the Principal Sri S.K.Sharma. Two sisters of Sri S.K.Sharma are married in the same village which is at Biltigarh district Firozabad with Satish Pachauri and Om Prakash Sharma. The sons of both the sisters of the Principal, namely Romil Pachauri and Vimal Kant have applied for appointment and since there were two posts, one was to be filled up obliging the Secretary of the Secondary Education and since one post was vacant against one of the son of the sister of the Principal was appointed. In reply the contents of paragraph no.12 of the writ petition are being reiterated."
4. No material has been placed to show as to how the petitioner claims that respondent No.8 is the son of real sister of the then Principal Sri S.K.Sharma. So far as registration of respondent No.7 in District Employment Office, Firozabad is concerned, and the factum that he is resident of Agra it has not been disputed or denied and nothing has been said about that.
5. Moreover, Regulation 4 Chapter III of Regulations framed under the Intermediate Education Act, 1921, which is applicable in the case of appointment of Class IV employee by virtue of Regulation 100 Chapter III reads as under:
"Any teacher who is a relative of any member of the Management Committee or Headmaster or Principal, shall not be appointed on temporary or clear vacancy in an institution and nor any one shall be appointed as the Headmaster or the Principal who is a relative of any member of the Management Committee.
For the purpose of this regulation, relative means the following : father, grandfather, father-in-law, uncle or maternal uncle, son, grand-son, son-in-law, brother, daughter, grand-daughter, wife, father's brother (Dada), nephew, cousin brother, brother-in-law, sister's husband (Bahnoi), husband, brothers of husband (i.e., Devar and Jeth), husband's sister (Nand), sister-in-law, son's wife, sister, elder brother's wife, wife of cousin brother, mother, mother-in-law, aunt or mother's sister (Mausi)."
6. Perusal of this regulation shows that list of relatives contain therein is not inclusive but exhaustive and it does not include sister's son. Learned Counsel pleaded that this Court should read this list so as to include other close relations like sister's son considering the objective and purpose of framing of such a provision. I am afraid to accept such contention. This would amount to adding something in Regulation 4. This Court is aware that the rules of the interpretation are not rules of laws and are not to be followed like rules enacted by legislature in Interpretation Act as observed by the Hon'ble Apex Court in Superintendent and Remembrance of Legal Affairs, West Bengal Vs. Corporation of Calcutta, AIR 1967 SC 997. The principles of interpretation serve only as a guide. A casus omissus cannot be supplied by the Court. There is no presumption that a casus omissus exists and language permitting the Court should avoid creating a casus Omissus where there is none. It would be appropriate to recollect the observations of Devlin, L.J. in Gladstone Vs. Bower,(1960) 3 All ER 353 (CA):-
"The Court will always allow the intention of a statute to override the defects of working but the Court's ability to do so is limited by recognized canons of interpretation. The Court may, for example, prefer an alternative construction, which is less well fitted to the words but better fitted to the intention of the Act. But here, there is no alternative construction; it is simply a case of something being overlooked. We cannot legislate for casus omissus."
7. The Hon'ble Apex Court in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and others 1978 (36) FLR 266 quoted with approval the following observation of Lord Simonds in the case of Magor & St. Mellons R.D.C. Vs. Newport Corporation, (1951) 2 All ER 839 (841):-
"The duty of the Court is to interpret the words that the Legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited."
8. It would be appropriate at this stage to remind another principle that though a Court cannot supply a real casus omissus, it is equally evident that it should not so interpret a statute as to create casus omissus when there is really none. Recently in Vemareddy Kumaraswamy Reddy and another Vs. State of Andhra Pradesh 2006(2) SCC 670 the Court reiterated that while interpreting a provision the Court only interprets the law and cannot legislate. If a provision of law is misused and subject to the abuse of process of law, it is for the legislature to amend, modify or repeal it if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process.
9. In my view, therefore, it may not be proper to read something in a Regulation which is otherwise has been provided in exhaustive manner as that would amount to legislation, which this Court should loathe to do. Even otherwise, the petitioner has miserably failed to establish the relationship of respondent No.8 with the then Principal of the College, who was the appointing authority in the matter. So far as respondent No.7 is concerned, admittedly, no close or distinct connection has shown with the appointing authority and mere fact that he belong to the village to which the Secretary, Secondary Education, U.P. Government belong would be nothing in absence of any material to connect or show influence of respondent No.9 upon the respondent No.5. The ground of challenge to the appointment of respondents No.7 and 8 therefore, are not substantiated and shall not vitiate the selection.
10. No other infirmity has been shown in the selection in question. I, therefore, find no merit in the writ petition. Dismissed.
Order Date :- 21.1.2011 KA