Hon'ble Mrs. Jayashree Tiwari, J.
The U.P. Secondary Education Service Selection Board, constituted under the U.P. Secondary Education Service Commission and Selection Board Act, 1982, has filed this Special Appeal through its Secretary, challenging the judgement of learned Single Judge dated 30.11.2009 in Writ Petition No. 40377 of 2008, allowing the writ petition and holding that the filling up of the advertised vacancies, subject matter of Advertisement No. 1 of 2005, (a) by adjustment in exercise of powers under Rule 13 (5) of the U.P. Secondary Education Service Selection Board Rules, 1998, of candidates selected in pursuance to the earlier advertisement; (b) by transfer of candidates from other institutions against advertised vacancies; (c) by compassionate appointment; (d) by promotion and (e) by absorption of subject experts under Section 31-E, is patently illegal and in the teeth of the provisions of the Act of 1982 and the Rules of 1998 framed thereunder. The Court held that all such kind of appointments against advertised vacancies were illegal and appropriate action be taken by the authorities within four weeks of filing a certified copy before the Secretary, Secondary Education, Government of UP, Lucknow. The Court issued further directions to complete the process of selection in respect of all the advertised vacancies except 57 posts which were wrongly advertised, within four months by inviting necessary number of candidates, with reference to their merit in written examination and quality point marks, for interviews and by declaring the final results within two months.
Brief facts giving rise to the writ petition were, that in order to fill up 399 vacancies of teachers in trained graduates grade in the subjects of 'Social Sciences; in different recognized and aided High School and Intermediate institutions, the UP Secondary Education Services Selection Board (the Board), issued Advertisement No. 1 of 2005 on 17.9.2005, inviting applications from eligible candidates. The petitioners and large number of candidates applied. After the results of the written examination were declared, and before the interviews could take place, Dr. Ramesh Chandra Pandey and others preferred Writ Petition No. 43013 of 2006. The Court by its judgment dated 24.7.2007 (reported in 2007 (7) ADJ 218) quashed the selections as a whole, on the ground that the Advertisement No. 1 of 2005 was replete with illegalities at every stage, with directions:-
"1. The U.P. Secondary Education Services Selection Board get correct keys obtained afresh in respect of all the subjects of written examination held. For the purpose of obtaining the correct key answers, the Board shall forward the question papers to a team of experts to be appointed with the approval of the Vice Chancellor of the Allahabad University, which may comprise of Professors and Readers of the University of Allahabad (Central University). After the correct key-answers are obtained from the team of experts, the same shall be feeded in the computer and the answer sheets of all the candidates, who have appeared in the written examination, shall be reevaluated. The Board shall thereafter declare the list of the successful candidates on the basis of merit so prepared category-wise for participation in interview.
2. The candidates, who have appeared from changed centres or who have been allotted new roll numbers by the Chairman/Secretary of the Board or were otherwise ineligible for appearance in the written examination, shall be excluded from the zone of consideration and their answer sheets shall not be evaluated as per the statement made by Sri U.N. Sharma, Counsel for the Board, as noticed in the order of the Court dated 10.10.2006 and dated 14.11.2006.
3. The number of candidates to be invited for interview shall be confirmed to the ratio fixed under sub-clause (6) of Rule 12 of the U.P. Secondary Education Services Selection Board Rules, 1998 and no candidate beyond the prescribed ratio shall be invited for interview.
4. Interview Board shall be constituted strictly in accordance with Rule 8 of the U.P. Secondary Education Services Selection Board Rules, 1998. Each member of the Interview Board shall allocate marks to the candidates concerned in respect of each indices separately as provided for under Rule 12(4) of the U.P. Secondary Education Services Selection Board Rules, 1998 i. e. 4% marks for general knowledge, 3% marks for personality test and 3% marks for ability of expression. The average of the marks awarded by the members of the Board shall be worked out and recorded.
5. The merit of the candidate shall be prepared after addition of the marks obtained in the written examination, interview and other special merit marks and final select list declared category-wise."
The Board got the answer sheets re-evaluated and declared results a fresh inviting 620 candidates in the ratio of 5:1 as against 128 vacancies only. The candidates again filed the writ petition apprehending that the remaining vacancies had been filled up by resorting to the newly added Rule 13 (5) to the Rules of 1998 dated 23.1.2007. They prayed for declaring Rule 13 (5) as ultra vires and for seeking a mandate requiring the Selection Board to declare the result of all the 399 vacancies and to complete the process of selection.
Learned Single Judge noticed that out of 399 posts a High Level Committee constituted by the State Government found that only 128 vacancies were available and that the remaining 271 vacancies were already consumed as follows:- (i) 88 posts advertised posts vide Advertisement No. 1 of 2005 were filled through transfer; (ii) 11 posts were filled by compassionate appointment; (iii) 10 posts were filled by promotion; (iv) 19 subject experts were absorbed under Section 33-E of the Act of 1982; (iv) 22 posts were filled through adjustment by the Selection Board in exercise of powers under Rule 13 (5) of the Rules of 1998; (v) 66 posts were filled up by the Selection Board from the candidates selected in pursuance to earlier advertisements; (vi) 5 posts were occupied by persons under interim orders passed by the Court; (vii) 9 posts were not available; (viii) 17 posts were repeated twice; (ix) 6 posts were actually requisitioned for Science subject, and (x) for 28 posts no requisitions were received.
The details of the persons, who were adjusted and appointed from previous advertisements, were not provided to the Court. On a direction of the Court it was admitted in the second supplementary counter affidavit filed in the writ petition that 88 candidates have been appointed against the advertised vacancies, although they had not applied in pursuance to the Advertisement No. 1 of 2005. The Court directed the Board to give the details. In the third supplementary counter affidavit it was disclosed that 22+66 as aforesaid had not applied and were selected in pursuance to the earlier advertisement. A fourth supplementary affidavit was filed stating that 604 posts of 'Social Science', have again been advertised by Advertisement no.1 of 2009 fixing 20.2.2009, as the last date for receiving application forms and that 64 more vacancies have been notified to the Commission by different District Inspectors of Schools, but they have not been made part of any advertisement.
In order to give a proper notice to all the persons, who were selected in pursuance to earlier advertisements and were adjusted on the posts advertised by Advertisement No. 1 of 2005, notices were issued to them through Secretary, Secondary Education as well as through the Board with directions to give copy of the writ petition to them and to give them opportunity to appear and show cause qua the legality of their adjustment. In response a large number of impleadment applications were filed but that none of them have filed Special Appeal against the judgment.
From the affidavits filed by the persons seeking impleadment, learned Single Judge found as follows:-
"a) Appointments have been made, against the advertised vacancies, by resorting to the provisions of the compassionate appointment.
(b) Candidates selected in response to advertisement published earlier, namely advertisement no. 1 of 2004 etc. with reference to Rule 13(5) of the Rules 1998 have been appointed against vacancies of Advertisement No. 1 of 2005.
(c) Subject Specialists working in the institutions have been adjusted against the advertised vacancies with reference to the Government Order dated 11th December 2006 read with Section 21-D(2), as added to the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as '1982 Act').
(d) Teachers of other institutions have been appointed by way of transfer under Regulation 55 to 62 of Chapter III of the regulations framed under the Intermediate Education Act against advertised vacancies.
(e) Appointment have been made against advertised vacancies by promotion from primary section in terms of U.P. Secondary Education Services Section Board (Second Amendment) Rules, 2005, whereby Rule 10-C has been added providing for 25% posts to be filled by promotion. The amendment has been notified on 25th November, 2005.
(f) In some applications/affidavits it has been stated that the candidates have been appointed against a different subject posts not covered by the advertisement no. 1 of 2005 and therefore there can be no dispute qua their appointments"
Learned Single Judge found that the advertisement under Rule 13 (5) of the Rules of 1998 had been made on the ground that earlier in pursuance to the advertisement to which they were selected either there was no vacancies, or the vacancy was reserved for a different category. The Court also found that some of these persons could not get appointment as the posts was already consumed by regularisation of adhoc appointees. Learned Single Judge also found that the reduction in the number of vacancies was also on the ground that a number of posts were either fictitious or requisitions were made by the institutions, which were either not running, or that the posts were repeated in the advertisement. The Board also included large number of vacancies for which no requisition was received and that a total number of 57 posts were such on which no selections could be made. Learned Single Judge after making the aforesaid calculations found that 57 such posts were wrongly advertised and that the vacancies could work out to only 399-57 = 342. The Court also accepted the report of the Committee constituted by the Secretary, Madhyamik Shiksha, that 69 posts are still available against advertised vacancies of Advertisement No. 1 of 2005 qua which selection process should be completed.
Learned Single Judge thereafter considered and decided the question of validity of Rule 13 (5) of Rules of 1998 for adjustment of the candidates selected in pursuance to the previous advertisement on vacancies which were not advertised. Rule 13 (5) of the Rules of 1998 is quoted as below:-
"13(5) Where a candidate selected by the Board cold not join in an allocated institution due to non-availability of vacancy or for any other reason, the District Inspector of Schools shall recommend to the Board for the adjustment of such candidate against any other vacancy notified to the Board in any other institution. On receipt of the recommendation of the District Inspector of Schools the Board shall allocate such candidate to another institution in a vacancy notified to the Board."
Learned Single Judge examined the scheme of the Act and considered the judgements of the Supreme Court in State of Karnataka vs. Umadevi (2006) 4 SCC 1; State of Bihar vs. Upendra Narayan Singh and others (2009) 5 SCC 65; Secretary, A.P. Public Service Commission vs. B. Swapana and others 2005 (2) E.S.C. 247 and thereafter following the judgment in Satish Kumar vs. State of UP 2006 (4) ESC 2784 (All.) (DB) in which a Division Bench of this Court held that under the Act of 1992 an unadvertised vacancy cannot be filled up, allowed the writ petition with directions detailed by us in the opening paragraph.
A preliminary objection was raised and put to Shri P.S. Baghel, Senior Advocate learned counsel appearing for UP Secondary Education Service Selection Board, about the locus standi of the Board as a statutory authority to file the special appeal. The Board was required to file an affidavit to show the authority by which it has decided to file the special appeal. Shri Baghel has filed an affidavit of Shri B.L. Saroj, Secretary, U.P. Secondary Education Service Selection Board, U.P. Allahabad, stating therein that the Board in its meeting dated 17.12.2009 decided to file special appeal against the judgment and sent a letter to Secretary, Secondary Education, U.P. Lucknow on 30.12.2009 seeking the permission of the State Government. In reply the Deputy Secretary, State of UP sent a letter on 4.3.2010 to the U.P. Secondary Education Service Selection Board to file a special appeal against the judgment. The letter also mentions that legal opinion has been given by the Law Department on 19.2.2010, in favour of filing the appeal. In paragraph 5 of this affidavit it is stated that since Rule 13 (5) has been introduced through State legislature under Section 35 of the UP Act No. 5 of 1982 giving powers to the Board for adjustment against notified vacancies, the special appeal has been filed against the view taken and interpretation given to the Rule by learned Single Judge.
Shri P.S. Baghel would submit that keeping in view the judgment passed by the Division Bench in Satish Kumar's case and the Government Order dated 19.6.2006, issued in pursuance to the order dated 15.2.2006 passed in Writ Petition No. 75 of 2005 Prem Prakash vs. State of UP, the Board verified the advertised 394 vacancies and found that only 128 posts were vacant and thus the Board proceeded to complete the selection proceedings by holding interviews of the candidates against 128 posts. In a meeting of all the District Inspectors of Schools along with the Secretary of the Board held on 4.10.2010 it was found that 69 more posts are available for which requisition was sent to the Board for the subject, 'Social Science', pursuant to Advertisement No. 1 of 2005, and called for interviews those candidates, who were successful and thus the selections of 197 posts as against 399 was concluded. The remaining posts were not available, for various reasons given in the judgment.
Shri P.S. Baghel submits that Rule 13 (5) was inserted in the Rule of 1998 vide notification dated 23.1.2007 providing that the notified vacancies, even if they were not advertised, the Board can make recommendations of appointment by way of adjustment. The Rule only refers to only those candidates, who were selected by the Board, and could not join in any allocated institution due to non-availability of vacancies or for any other reason. In such case the District Inspector of Schools shall recommend to the Board for adjustment of such candidates against any other vacancies notified to the Board, in any other institutions and on the receipt of the recommendation of the District Inspector of Schools, the Board shall allocate such candidates to another institution in a vacancy notified to the Board. Shri Baghel submits that learned Single Judge has misconstrued Rule 13 (5). He was only required to consider, that no appointment has been made in violation of terms of the Rule 13 (5). It was categorically stated in the counter affidavit that no adjustment has been made in contravention of terms of Rule 13 (5) of the Rules of 1998. The selection of 197 teachers were made in pursuance to the judgment in Prem Prakash vs. State of UP and others Civil Misc. Writ Petition No. 75421 of 2005, and not in terms of Rule 13 (5) of the Rules. He further submits that in the aforesaid writ petition the Court had issued a general mandamus in compliance to which the Government Order dated 19.6.2006, was issued and a Committee was constituted recommending the names of the selected candidates, who were adjusted against the existing vacancies. Shri Baghel submits that learned Single Judge has completely missed this aspect.
Shri P.S. Baghel further submits that when the language of the rule is simple and unambiguous, no other interpretation can be given to it by the Court. There is no inconsistency in Sections 10, 11 and 16. Section 10 and 11 of the Act provide for the procedure and selection by direct recruitment. Section 16 deals with the panel of the candidates. The life of the panel is not provided under Section 11. Section 16 provides that appointments can be made only on the recommendation of the Board with certain exceptions in the proviso. The scheme of the Act shows that the only requirement under the Act is that the vacancy should be notified to the Board. The Board is required to make selections and the management is under obligation to issue appointment letters to the selected candidates. Rule 13 (5) is thus not inconsistent in any manner to Sections 10, 11 and 16 of the Act as the panel under Section 11 has no prescribed period of life.
Shri P.S. Baghel submits that the High Court cannot, in exercise of its powers under Article 226 of the Constitution of India, usurp the legislative function. He would submit that learned Single Judge has not declared Rule 13 (5) as unconstitutional. The Court did not have powers to add a word to the Rule, namely that such vacancy should be advertised in an attempt to make it in harmony with Articles 14, 16 of the Constitution of India. The Court has usurped the functions assigned to the legislature. He relies upon Punjab Land and Development Corporation vs. Presiding Officer, Labour Court 1990 (3) SCC 682; Ovais Singh vs. Union of India 1997 SCC 37 and the judgment of Lord Simonds 1951 2 All 893 (HL) in which the House of Lord disapproved the view taken by Lord Denning in the case of Sea Ford Estate Ltd. vs. Asher 1949 (2) All England Report 155-164. He would submit that similar view has been taken by Supreme Court in Dadi Jagannadham vs. Jammule Ramulu and others 2001 (7) SCC 71 in which it was held that the Court must start with presumption that legislature did not make a mistake; must interpret so as to carry out the obvious intention of the legislature; and it must not correct a deficiency whether act or read the interpretations which are not there particularly when the literal reading lead to an intelligent result. He has relied upon Union of India and others vs. Hansoli Devi and others 2002 (7) SCC 273; V.K. Ashokan vs. Assistant Excise Commissioner 2009 (14) SCC 85 and Philips Medical Systems (Cleveland) INC vs. Indian Mri Diagnostic and Research Limited and others 2008 (10) SCC 227. Shri Baghel strongly relies upon the judgement of Hon'ble Markandey Katju in Philips Medical Systems's case in which he had, applying Heydon's mischief rule, in interpreting the enactment.
Before proceeding to consider the submissions of Shri P.S. Baghel, it will be useful to refer to judgments in Prem Prakash vs. State of UP and others (supra) relied upon by the State for issuing a Government Order dated 19.6.2006 and thereafter the insertion of Rule 13 (5) in the Rules of 1998 on 23.1.2007. In Prem Prakash vs. State of UP (Writ Petition No. 75421 of 2005 decided on 19.2.2006) learned Single Judge of this Court found that a large number of writ petitions are being filed by the candidates selected by the Board, who are unable to join on the posts, for which they have been recommended on account of multifarious problems. After hearing the matter at length the Court found that a number of vacancies, which were requisitioned, got consumed by regularisation; promotion; compassionate appointments; appointment by transfer; appointments resulting on account of judicial intervention and adjudication and also in continuation of such teachers beyond the age of 60 years upto the age of 62 years due to some recent Government Orders enhancing the age of superannuation. The Court directed a mechanism to be adopted to forward correct information by the District Inspector of Schools about the availability of vacancies, and to ensure that the advertisement does not include a vacancy, which cannot be filled up after the recruitment process is complete. The Court also directed that the Board should ensure that it does not recommend the names repeatedly against one post. While returning the recommendation a number of District Inspectors of Schools were relying upon the information given by the management or the principal of the institution in a casual manner resulting into candidates seeking protection of the Court. The Court accepted the suggestion of the Director of Education Shri Sanjay Mohan, to constitute a permanent Committee to monitor and recommend proper action for speedy resolution of disputes. We are informed that such a Committee has been constituted.
Learned Single Judge further issued directions in Prem Prakash's case to the effect that after recommendations are verified and information tendered by the authorities, effective and proper implementation should be made to appoint selected candidates through the District Inspector of Schools. The Court directed that the Board shall also at its level sort out the placement of candidates in accordance with their merit and preference as provided under the Rules, and ensure that the candidates are not unnecessarily harassed and are not placed against a post which is not otherwise available to him, in law. The Board shall also take the note of the directions issued by this Court in the case of Satish Kumar vs. State of UP and others Writ Petition No. 46861 of 2005 issued on 25.8.2005. The directions and observations made herein above are issued in the nature of a general mandamus, the promulgation whereof shall be ensured by the Director of Education. The directions shall be issued in order to ensure the implementation by the Managing Committees and the authorities within a reasonable fixed period of time at least before the commencement of the next academic year, which is to begin from 1st of July 2006. The respondents have ample time, the Court said, by then, to implement the aforesaid directions in the manner and within the time to be suggested by the State Government and the Director of Education.
Shri Ashok Khare, Senior Advocate assisted by Shri Bheem Singh appearing for private respondents submits that the directions in Prem Prakash had clearly reminded the authorities to follow Satish Kumar's case in which it was held that an unadvertised vacancy cannot be filled up in violation of Articles 14 and 16 of Constitution of India. The Court did not issue any such mandamus, which may have authorised the educational authorities to fill up the unadvertised vacancy from selectees of the previous advertisement. Rule 13 (5) providing for adjustment of a candidate selected in pursuance to the advertisement against any further vacancy notified to the Board is in violation of the guarantee of equality in employment by Articles 14 and 16 of Constitution of India. Since Rule 13 (5) was enacted as a Rule of convenience in pursuance to the judgment in Prem Prakash's case, the Court only harmonised the rules, in terms of the previous decision of the Act and in order to save its its constitutionality, it has provided the amendment to be prospective in nature and to apply the Rule only to the advertised vacancies. Learned Single Judge, in order to harmonise Rule 13 (5), which serves the purpose of procedure of selection and appointments provided under the Act as interpreted it to apply only to the vacancies subject matter of the same advertisement against which the candidate has been selected and in order to save it the Rule provided that a candidate selected in pursuance to any earlier advertisement cannot be adjusted against any vacancy subject matter of subsequent advertisement, held that the Board cannot be permitted to recommend a candidate to an institution, a vacancy whereof has been notified but was not advertised/offered to the candidates during interview.
Shri Ashok Khare submits that as against 399 vacancies the Board could find only 128, and thereafter added 69 more to make it 197. He submits that in Satish Kumar vs. State of UP & others 2006 (4) ESC 2786 (All.) (DB) it has been held that unadvertised vacancy cannot be filled up from amongst the candidates, who have been selected in any previous selection. Further, the unadvertised vacancy cannot also be filled up without following the procedure of selectioin vide Smt. Amita Sinha vs. State of UP 2008 (4) ESC 2799 (All.) (DB). He also relies upon Secretary, A.P. Public Service Commission vs. B. Swapana and others 2005 (2) ESC 247 in submitting that selection process initiated must be completed in accordance with the statutory provisions and that subsequent amendments in the statutory provisions will not affect the process.
We are dismayed with the manner in which the Board is functioning. On one hand the Board is defending the advertisement, on the ground of erroneous and faulty information provided by the educational authorities in respect of the number of vacancies, which were not available for variety of reasons mentioned as above; on the other hand it is trying to defend Rule 13 (5) inserted purportedly in pursuance to judgment in Prem Prakash's case, and in seeking to adjust the candidates selected in the previous advertisement on the posts, which were not advertised. If the board admits that a large number of posts advertised by it were actually not vacant, it could have easily defended itself in the claims made by the candidates, who were selected but could not be appointed on the ground that the selections do not give any indefeasible rights for appointment. The stand taken by the Board, that it is taking care to advertise only vacant posts, is inconsistent with the argument advanced by Shri P.S.Baghel that it should be given a right to recommend appointments on the posts, which were actually not vacant and tried to fill them up by the adjustment of the candidates selected in the previous selections to be appointed on unadvertised posts. It is something like the Public Service Commission filing a writ petition in the interest of the selected candidates, who could not be given appointments on the ground that there was no vacancy or for any other reason. We find it strange and curious that the Board, which is only a selecting and recommending body to take unusual interest for securing appointments of the candidates selected by it.
In the present case Rule 13 (5) was enacted by the State Government. It was the State, which was required to file a special appeal, if it was actually aggrieved against the interpretation given by learned Single Judge to the Rule. The Board as a selecting and recommendatory body has no business to either to defend the rule or to file a writ petition to allow it to breach the mandate in Satish Kumar's case following the settled law of the land that an unadvertised vacancy cannot be filled up from any sources. It appears that the Board apart from making selections is also interested in securing appointment of individuals, suggesting that it has a role wider than what it is provided under the Act of 1982. As a statutory body concerned with process of fair selection and recommendations it should ordinarily not have any interest in seeking appointment of the selected candidates.
In the present case, the educational authorities committed serious irregularities in compiling and sending requisitions to the Board for selections. Out of 399 requisitioned and advertised posts in Advertisement No. 1 of 2005, it was admitted after an enquiry was made and meetings were called by the State Government in its supplementary affidavit that such number of posts were not vacant. 88 posts were filled up by transfer; 11 by compassionate appointment; 10 by promotion; 19 by absorption of subject specialists; 22 through adjustment by Selection Board and 66 from selected candidates appointed by way of earlier advertisements; 05 were found occupied by the orders passed by the High Court; 17 were repeated twice; 06 were actually sanctioned for Science subject and for 28 posts no requisition was received. The educational authorities were not only careless but are also brazen in its defence in the High Court. The Board also did not admit its mistake for verifying the information sent by the educational authorities. Instead of admitting the mistakes, it proceeded to rely upon a decision of this court in Prem Prakash in which no such direction was given by the Court to fill up the unadvertised vacancies through previous selectees. It has not only defended the illegality, but has also chosen to file an appeal against the judgment.
Today the Information and Communication Technology is in use in all activities of public administration. The education department in the State and the Board appear to be using bullock cart methods in collecting information and using it without proper verification thereby putting hundreds of candidates in each selections to difficulties and forcing them to litigate.
In Satish Kumar's case the Division Bench reiterated in its judgment dated 22.9.2006, the well settled rule of law after going through reading of the Act of 1982 and the Rules of 1998, that the procedure starts with the intimation of the vacancy by the Committee of Management to the Board and ends with issuance of the appointment letter to the selected candidates by the Committee of Management. Any appointment made in violation of the procedure, so prescribed would be dehorse the rules and rendered void in view of the provisions of Section 16 (2) of the Act (para 25). While setting aside the view taken in Savita Gupta vs. State of UP 2004 (5) UPLBEC 2739 in which it was held that if the vacancy has been requisitioned and the management has notified it to the Board under the provisions of the Act then in that event the said vacancy can be offered to a selected candidate, even if the vacancy was not advertised by the Board, the Division Bench held after examining the entire case law on the subject by the Supreme Court including Kamlesh Kumar Sharma vs. Yogesh Kumar Gupta AIR 1998 SC 1021; Prem Singh vs. Haryana State Electricity Board (1996) 4 SCC 319; Union of India vs. Ishwar Singh Gupta 1997 Supp 3 SCC 84; Surendra Singh vs. State of Punjab AIR 1998 SC 18, that where the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention thereof. If statute requires things to be done in a certain way, the things must be done in that way alone and not at all vide Tayor vs. Tayor, (1876) 1 Ch D 426, followed in Ramachandra Keshav Adke vs. Govind Joti Chavare (1975) 1 SCC 559. The Division Bench did not accept the view in Savita Gupta that under Government Order dated 12.3.2001 the adjustment is permissible and is not prohibited. The Court found that there was no power vested in the State Government to issue Government Order for creating an authority other than the referred to in the Rules. In order to enable such authority to issue orders for making adjustment in the event a candidate is unable to join the post, which has been allocated to him, the Court held in the judgment, which holds the field that no adjustment can be made of the candidates selected in pursuance to the previous advertisements, who could not get appointment for whatever reason, which may be, to the unadvertised vacancies. The executive instructions cannot amend or supersede statutory Rules.
In Union of India vs. Hansoli Devi and others (2002) 7 SCC 273 a Constitution Bench clarified Section 28-A of the Land Acquisition Act, 1894 in holding that the dismissal of an application seeking reference under Section 18 on the ground of delay would tantamount to not filing an application within the meaning of Section 28-A of the Land Acquisition Act, 1894. The Supreme Court in para-9 clarified the legal position in respect of the powers of the Court to interpret the legal position as follows:-
"9. Before we embark upon an inquiry as to what would be the correct interpretation of Section 28-A, we think it appropriate to bear in mind certain basic principles of interpretation of statute. The rule stated by Tindal, C.J. in Sussex Peerage case, (1844) 11 Cl and F 85, still holds the field. The aforesaid rule is to the effect :
"If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver."
It is a cardinal principle of construction of statute that when language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson and Co. Ltd., 1955 (2) All ER 345, Lord Reid pointed out as to what is the meaning of "ambiguous" and held that: (All ER p. 366 C-D( "a provision is not ambiguous merely because it contains a word which in different context is capable of different meanings and it would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning."
It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda Bose, 1953 SCR 1 had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Quebec Railway Light Heat and Power Co. v. Vandray, AIR 1920 PC 181, it had been observed that the Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. Similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had passed into a law. At times, the intention of the legislature is found to be clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language and in such a situation, it may be permissible for the court to reject the surplus words, so as to make the statute effective. Bearing in mind the aforesaid principle, let us now examine the provisions of Section 28-A of the Act to answer the questions referred to us by the Bench of two learned Judges. It is no doubt true that the object of Section 28-A of the Act to confer a right of making a reference, who might have not made a reference earlier under Section 18 and, therefore, ordinarily when a person makes a reference under Section 18 but that was dismissed on the ground of delay, he would not get the right of Section 28-A of the Land Acquisition Act when some other person makes a reference and the reference is answered. But the Parliament having enacted Section 28-A, as a beneficial provision, it would cause great injustice if a literal interpretation is given to the expression "had not made an application to the Collector under Section 18" in Section 28-A of the Act. The aforesaid expression would mean that if the land-owner has made an application for reference under Section 18 and that reference is entertained and answered. In other words, it may not be permissible for a land owner to make a reference and get it answered and then subsequently make another application when some other person gets the reference answered and obtains a higher amount. In fact in Pradeep Kumari's case the three learned Judges, while enumerating the conditions to be satisfied, whereafter an application under Section 28-A can be moved, had categorically stated "the person moving the application did not make an application to the Collector under Section 18". The expression "did not make an application", as observed by this Court would mean, did not make an effective application which had been entertained by making the reference and the reference was answered. When an application under Section 18 is not entertained on the ground of limitation, the same not fructifying into any reference, then that would not tantamount to an effective application and consequently the rights of such applicant emanating from some other reference being answered to move an application under Section 28-A cannot be denied. We, accordingly answer question No. 1(a) by holding that the dismissal of an application seeking reference under Section 18 on the ground of delay would tantamount to not filing an application within the meaning of Section 28-A of the Land Acquisition Act, 1894."
Without amending the Act, the legislature sought to overreach the decision in Satish Kumar by adding Section 13 (5) to the Rules of 1998 on 23.1.2007 and in providing a mode other than the mode which is prescribed under the Act of 1982 and the Rules of 1998 namely by adjustment which was clearly impermissible as it was not only beyond the scope of the Act and violation of Section 16 (2) of the Act but also unconstitutional.
The reliance upon Heydon's mischief rule, in submitting that the Court cannot add something to the Act to save it from the voice of unconstitutionality, is entirely misplaced. The mischief as used in statutory interpretation means a legal defect which is sought to be rectified or the factual condition that is causing concern. In the later case it is also called as social mischief. It may also be a legal mischief or a defect in the law corresponding to social mischief. In Heydon's case (1584) 3 Co. Rep 7a it was resolved 'that for the sure and true interpretation of all statutes in general, four things are to be discerned or construed; (1) what was the common law before making of the Act; (2) what was the mischief and defect for which the common law did not provide; (3) what remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth; and (4) the true reason of the remedy'. The rule provides that the judges should make such construction as may suppress the mischief and advance the remedy; suppress subtle inventions and evasions for the continuance of the mischief for private benefit, and add force life to the cure and remedy according to the true intent of the makers of the Act for the public good.
It is the duty of the judge to rationalise the law, and to attune it with the object and purpose for which the law is enacted. It is not necessary in every case to strike down the rule, if it can be saved by subtle intervention without causing damage to the contents, with purpose and to save it from the vice of unconstitutionality. Where it is necessary, the Court may in order to serve the public good, interpret the rule in a manner, without offending the object and purpose of the Act, to give an interpretation in line with the Act and the rules. The job of the Court is such a case is to act like a musician, tuning a musical instrument, to bring it into harmony with the orchestra.
For the aforesaid reasons we do not find any error of law in the judgement of learned Single Judge to interfere in the Special Appeal.
The Special Appeal is dismissed.
Dt.21.01.2011 RKP/