9911796707
TMI Blog2013 (12) TMI 1689X X X X Extracts X X X X X X X X Extracts X X X X ..... of September 1991 after acquiring qualification upto 8th standard. While serving the respondent, petitioner was keen to pursue his graduation course, and therefore, he made an endeavour to seek permission from the respondents by way of submitting an application in the year 1997. In his application, the petitioner has made it clear that he wants to pursue his graduation course from Indira Gandhi National Open University (IGNOU), and the permission sought for was granted to him. After due permission, petitioner undertook the entrance test known as Bachelor's Preparatory Programme (BPP), as the same is pre-requisite for those individuals who have not passed 10th and 12th standard at school level. On successful completion of BPP Entrance Examination in the year 1998, the petitioner started his degree course of Bachelor of Arts and completed it successfully in the year 2005. The IGNOU, thereupon, issued requisite mark-sheet and certificate to the petitioner. 3. The Insurance Company floated the Promotion Policy for Supervisory, Clerical and Subordinate Staff, 2008 (for short Policy of 2008 ) offering advancement in the service career to the employees working in the cadres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arks for his qualifications. According to the petitioner, not granting him 12 marks against his educational qualifications has downgraded his name in the panel, resulting in his lower ranking vis- -vis the private respondents. Pointing out with clarity and precision, the petitioner has urged in the writ petition that despite his qualification of graduation, non-inclusion of 12 marks under the head Qualifications has seriously prejudiced his candidature, and the same has facilitated promotion in the cadre of Assistant to the private respondents. According to the petitioner, if 12 marks under the head Qualifications are added, then his rank shall automatically step up over and above all the private respondents. Categorizing this sort of decision of the respondents arbitrary and unreasonable, the petitioner has very specifically pleaded that the Circular dated 26th of September 2011 (Annex. 12) issued by the respondents has not properly construed and interpreted the UGC Regulations, 1985 regarding the Minimum Standards of Instructions for Grant of the First Degree through Nonformal/Distance Education [for short, UGC Regulations 1985 (non-formal) ]. As per the petitioner, Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Annamalai's case was rendered by the Apex Court, and as such, challenge thrown to the same cannot be sustained. The Circular refers to part of Regulation 2(1) of the UGC Regulations 1985 (non-formal), which reads as under: No student shall be eligible for admission to the 1st Degree Course through non-formal/distance education unless he has successfully completed 12 years schooling through an examination conducted by a Board/University With this clear stand, the respondents have defended their action of not promoting the petitioner in the cadre of Assistant. As per respondents, the list of the candidates was declared in terms of Para 15 of the Policy of 2008, and as such, there is no infirmity in the ranking list. Defending the Circular with full emphasis, the respondents have pleaded that the same has been issued by the competent authority and there is no conflict between the Policy of 2008 and the said Circular. Reiterating their stand that the petitioner has obtained B.A degree without passing 10th and 12th standard at school level, and without completing 12 years of schooling, his degree of B.A obtained through distance education cannot be construed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar dated 26th of September 2011, the respondents had deliberately not quoted the complete text of Regulation 2(1) of the UGC Regulations 1985 (non-formal) and have deliberately omitted the second part which squarely covers the case of the petitioner for grant of requisite marks for his qualifications. Elaborating his submissions in this behalf, Mr. Bhandari would contend that the second part of Regulation 2(1) of the UGC Regulations 1985 (non-formal) clearly postulates that in case an incumbent is not having previous academic record, he shall be eligible for admission subject to his passing entrance test conducted by the University with the further rider that he should not be below the age of 18/21 years as on first July of the year of admission. 8. Making scathing attack on the impugned Circular, Mr. Bhandari has argued that entire edifice of the Circular is based on complete misreading of the relevant part of the UGC Regulations 1985 (non-formal) and misinterpretation of the verdict of the Hon'ble Apex Court in Annamalai's case. Learned counsel for the petitioner has submitted that the qualification of graduation acquired by the petitioner was very well acknowled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst degree course after he completes successfully 12 years' schooling through an examination conducted by Board/University. The purpose of the aforesaid Regulations for formal education is to differentiate Regulation 2 of the UGC Regulations 1985 (non-formal) and Formal Education. The learned counsel has also placed reliance on a letter dated 14th of October 2013 issued by the Director (Admn.), University Grants Commission, recognizing inter-alia degree awarded by open and distance learning institutions at par with conventional University/institutions. Referring to judgment in Annamalai's case, the learned counsel has submitted that in the said judgment the controversy was with respect to Post-Graduate degree obtained by an incumbent without possessing basic graduation degree and in that context the Hon'ble Apex Court has held that such post-graduation degree is invalid in law. The Hon'ble Apex Court in the said verdict has formulated the issue involved in the matter in Para 3 of the verdict, which is as under: 3. The Tribunal, by its judgment and order dated 14.8.2000, directed the State to consider the objections of Gabriel having regard to the qualifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is. Similar programmes offering courses of undergraduate and post-graduate levels through the OUS were also adopted and followed by various other Universities in India. It is stated that UGC was being apprised of the activities of the appellant-University in regard to instructions/courses offered by it through the non-formal/distance education including the OUS in terms of Regulation 6 of the 1985 Regulations. The Government of Tamil Nadu allegedly at the request of the appellant-University and on the basis of the recommendations made by a Committee constituted by them for the aforementioned purpose directed that the bachelor and postgraduate degrees and diplomas awarded by the Open Universities be treated on par with those awarded under regular stream for any appointment to the post in public service. 20. Indisputably, the fact that the appellant-University had been granting postgraduate degrees to the candidates concerned although they had not completed three years' course in violation of the Regulation 2 of the 1985 Regulations came to the notice of the UGC as also IGNOU officials. A meeting was held in March 2004. It was agreed in the said meeting that the admissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said: There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case. 12. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 13. The following words of Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice, but you must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan, Bikaner has issued instructions vide circular dated 9.5.2002 in terms of the State Government's order dated 3.5.2002 and admittedly the said circular dated 9.5.2002 has not been withdrawn by the State Government. Hence, the State Government is bound by the aforesaid decision. Thus, in our considered opinion, it was not open to the State Government to contend that such incumbents, who have completed BSTC course after passing 10th class and BAP course from Kota Open University and are graduate also, are not eligible for appointment to the post of Prabodhak. We also find that for admission to graduation course in Kota Open University, Senior Secondary is eligibility criteria and the students who have passed 10th class examination and have undertaken BAP course are treated as eligible for admission to graduation course. It is apparent that Kota Open University is treating BAP course as equivalent to Senior Secondary and that is why admissions are given to graduation course, certificate to the contrary is of no avail to the State. It is not in dispute that at the relevant time, admission to graduation course in Kota Open University could not have been given to a person wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner because he is not an incumbent who falls within the ambit of second part. According to Mr. Vyas, while entering in the services of respondent Insurance Company the petitioner has shown his educational qualification upto 8th standard, and that being so, considering his eligibility he was appointed as subordinate staff, cannot be treated as an incumbent having no academic record within the four corners of the second part of Regulation 2(1) of the UGC Regulations 1985 (non-formal). The sum and substance of the submission of Mr. Vyas that vis- -vis the petitioner first part of Regulation 2(1) of the UGC Regulations 1985 (non-formal) shall apply and in terms of first part of Regulation 2(1) of the UGC Regulations 1985 (non-formal) he has not successfully completed 12 years schooling through an examination conducted by Board/University, his graduation degree has been rightly not construed as valid for awarding him 12 marks. 13. Emphasizing the words no previous academic record , learned counsel for the respondents would urge that petitioner himself has admitted that he has passed his 8th class examination from Government School, Sri Ganganagar, therefore, it cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these faculties, who has not successfully pursued the first Degree Course of three years duration. Provided further that, as a transitory measure where the universities are unable to change over to a three year degree course, they may award a B.A/B.Sc/B.Com (Pass) degree on successful completion of two year course, but that no student of this stream shall be eligible for admission to the Master's course unless he has undergone a further one year bridge course and passed the same. The three year degree course after 10+2 stage should in no case be termed as B.A/B.Sc/B.Com (Pass) degree. 14. The question which required consideration in the matter vis- -vis the qualifications prescribed under the High Court Rules was further elaborated in Para 11 of the verdict, which reads as under: 11. On the other hand, the qualification prescribed under the High Court Rules framed under Article 229 of the Constitution of India has specifically provides that for promotion to certain posts, including Assistants, a candidate must hold B.A/B.Sc/B.Com/B.A (Hons.)/B.Sc (Hons.)/B.Com (Hons.) degree of the Madras University or equivalent thereof of a recognized University. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries 7, 8 and 9 to Category 6. It is clearly mentioned that for the purpose of promotion, a person must possess and hold the B.A/B.Sc/B.Com or other Bachelor's degree of the Madras University or of a recognized University. The rule does not recognize B.A or B.B.A degree from an Open University obtained by a candidate without having the basic +2 qualification. The condition contained in the High Court Service Rules, therefore, cannot in any way be superseded by other law not applicable to the employees of the High Court. 19. Admittedly, the Petitioners, although, obtained the first degree by correspondence course without having the basic +2 qualification. Such degree having not been recognized under the Rules framed by the High Court in exercise of powers conferred under Article 229 of the Constitution of India, the Petitioners cannot claim promotion on that basis. 16. Lastly, the learned counsel for the respondents has argued that the present case is not a case of recognition or de-recognition of a degree by the respondents. According to Mr. Vyas, it is a case of prescribing qualification for appointment/promotion, and for which the sole discretion lies with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the eligibility qualification for a particular post was earlier Graduate and by amendment, it is raised to Post graduate , it does not mean that degree possessed by the candidates are derecognised. What it simply means is that the eligibility qualifications are enhanced and a higher qualification is now required. It is also to be taken into account that purpose behind amendment to the rule was not to derecognise any degree, diploma or certificate, it was only to delete certain qualifications from the eligibility criteria. This may be because of the changed situation in which the employer may find that candidates who have passed the Secondary School Examination from the Statutory Boards and Universities are available in sufficient numbers and it was not necessary to consider the candidates having equivalent qualifications. The respondents cannot be forced to accept equivalence of certain qualifications and to accept such equivalence for all times to come. 33. In the result, we conclude that there is no force in the contention of the petitioners that the amended qualifications shall not apply to them because they had acquired the equivalent qualifications prior to the ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, if the aforesaid Circular is examined then it will ipso facto reveal that the Circular has quoted first part of Regulation 2(1) of these Regulations while omitting the second part of the Regulation, which is highlighted supra. 20. As a matter of fact, there cannot be two opinions that a student cannot become eligible for admission to first degree course unless he has successfully completed 12 years schooling through an examination conducted by a Board/University. However, while interpreting the second part of Regulation 2(1) of the UGC Regulations 1985 (non-formal), this Court has doubts that how and in what manner second part of Regulation 2(1) is not applicable in the instant case, or the said part of Regulation 2(1) cannot come to the rescue of the petitioner. 21. The UGC has formulated different Regulations for non-formal/distance education and the formal education. In case of UGC Regulations of 1985 regarding the Minimum Standards of Instruction for the Grant of First Degree through Formal Education, the relevant Regulation 2(1) under the caption admission/students reads as under: 2. Admission/Students: (1) No student shall be eligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the question involved in that matter hovers around the eligibility of an individual to seek admission to the Master's Degree Programme, who has not completed first degree of three years duration. From a bare reading of the judgment in Annamalai's case, indisputably, an incumbent, who has undergone the preparatory course and passed the written test, becomes eligible to join the under-graduate programme of his or her choice. While discussing the Regulations of 1985 vis- -vis Formal and Non-Formal/distance education, the Hon'ble Apex Court has held that there is no conflict between them as they are covering two different spheres. On thorough examination of the ratio decidendi of the aforesaid judgment of the Hon'ble Apex Court, prima facie, this Court feels that the judgment has dilated on the UGC Regulations of 1985 pertaining to Formal Education and in the verdict obviously there is no observation/finding that second part of Regulation 2(1) of the UGC Regulations 1985 (non-formal) is declared as invalid. That apart, from the verdict of Hon'ble Apex Court, it cannot be inferred that an incumbent, who has obtained his first degree course without previous academi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany to ascertain and elucidate the true purport and ratio decidendi of the judgment of the Hon'ble Apex Court. The judgment of Hon'ble Court, in Gowramma's case (supra), dilating on the issue that how ratio decidendi of a precedent is to be relied upon, deserves due credence and therefore reliance can be profitably made on that judgment for this proposition. 27. The Division Bench judgment of this Court, on which the learned counsel for the petitioner has placed reliance, i.e in Lachcha Ram's case, the Division Bench has treated Bachelor of Arts Preparatory Course as equivalent to Senior Secondly Course of Board of Secondary Education, Rajasthan, and the said Preparatory Course is almost akin to Bachelor's Preparatory Programme (BPP), which the petitioner has successfully undergone. Therefore, to that extent, the said judgment can be applied to treat the BPP Course undertaken by the petitioner to be at par with the Senior Secondary Examination of the Board of Secondary Education, Rajasthan. 28. On churning out the controversy threadbare, still a question needs to be addressed is the true purport and meaning of the words no previous academic r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of a statute must be construed so as to give them a sensible meaning. The legislature expects the Courts to observe the maxim ut res magis valeat quam pereat, which means it is better for a thing to have effect than to be made void. If a statute gives rise to obstacles in implementation, it is obviously desirable from the Court to do its best to find ways of overcoming those obstacles so as to avoid absurd results. It is a well settled principle of interpretation of statutes that a construction should not be put on a statutory provision, which would lead to manifest absurdity, futility, palpable injustice and absurd inconvenience, or anomaly. Elaborating the purpose of interpretation with full emphasis, this Court feels that precisely the purpose of interpretation is to give effect to the intention underlying the statute, and therefore, unless the grammatical construction leads to absurdity, it is safe to give words their natural meaning, because the framer has presumed to use the language which conveys the intention. 31. Applying the cardinal principles of interpretation of statutes, I am afraid, the interpretation, as suggested by the learned counsel for the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
