Yatindra Singh, J.
1. The only question involved in these writ petitions is whether the degree of Bachelor of Education (B.Ed.) is necessary for admission in M.Ed, classes in Bir Bahadur Singh Purvanchal University, Jaunpur (the Purvanchal University) or recognised diploma of Bachelor in Teaching (8.T.) or Licentiate in Teaching (L.T.) is sufficient.
FACTS
2. The petitioners in the aforementioned four writ petitions are graduates but education was not their subject. They have diploma of L.T. but not degree of B.Ed. They applied for admission in the Purvanchal University but were not successful ; they were not considered on the ground that they did not possess a B.Ed, degree They have filed these writ petitions challenging their rejection on the ground that :
* they were more meritorious than the selected candidates were.
* they were illegally not considered on the ground that they do not have B.Ed, degree.
* they have minimum qualifications, as they possess recognised diploma of L.T.
SUBMISSIONS OF THE PARTIES
3. I have heard Sri D. P. Singh and Sri Amaresh Singh, counsels for the petitioners and Sri A. K. Singh, counsel for the University. Dr. R. G. Padia, senior Advocate and Sri Ashok Khare appeared as friends of the Court. Counsels for the petitioners have submitted that degree of B. Ed. is not necessary for admission in M.Ed., a recognised diploma in L.T. is sufficient. They have raised following two submissions :
(i) B.Ed. not a minimum qualification for appointment as a lecturer in B.A. (Education) in the Faculty of Arts in the Purvanchal University. Petitioners have all other qualifications for such appointment except M.Ed, degree, as such they have minimum qualifications for admission in M.Ed.
(ii) Diploma in L.T. and degree inB.Ed, are equivalent : therelevant rules also soindicate. A purposiveconstruction, Incontradistinction to literalconstruction, may be adoptedso as to include recogniseddiploma in B.T. or L.T. inplace of B.Ed, degree.
1st SUBMISSION : PETITIONER
LECTURER IN B.A. (EDUCATION)
Relevant Rules and Statutes
4. Admission to the M.Ed. classes is governed by Rules 15 and 16 of the 1983 Rules framed by the State Government under Section 28 (5) of the U. P. State Universities Act, 1973 (the Act). Rule 15 (1) of the 1983 Rules states that only a person having B.Ed, degree, or recognised diploma of B.T. or L.T. can get admission in M.Ed, classes. Rule 15 (2| of the 1983 Rules states that a candidate should also have all other qualifications except for M.Ed, for appointment as a lecturer in B.A. (Education) or B.Ed, department in a degree college of the State under the statutes of the University. Minimum qualifications for a lecturer in a degree college are mentioned in Statute 11.13 read with 11.01 (5) (a)and (b) of the IIrst Statutes of the Purvanchal University. Let's first consider if the petitioners have minimum qualification except M.Ed. degree for appointment as a lecturer in B.A. (Education) Department.
B.A. (EDUCATION) IS IN THE FACULTY OF ARTS
5. The Statute 7.01 of the Purvanchal University mentions about faculties. It includes, apart from other faculties, Faculty of Arts and Faculty of Education. Statute 7.05 mentions departments in the Faculty of Arts. Education is one of them and is mentioned at serial No. 7 of the Statute 7.05 Statute 7.15A talks about Faculty of Education and Statute 7.15B states that in this faculty there is only one department, namely, that of Education. Department of Education is mentioned at two places : One under Faculty of Arts, the other underFaculty of Education. The counsel for the Purvanchal University has submitted that :
* the Faculty of Education was created subsequently and the Department of Education was transferred to the newly created Faculty of Education ;
* it is by mistakes that it is mentioned in the Faculty of Arts.
This was submitted, as different provisions apply for appointments of lecturer in the Faculty of Arts and Faculty of Education.
6. Four degrees related to education are offered by different Universities : B.A. (Education), M.A. (Education). B.Ed, and M.Ed. The first two are academic degrees, the remaining two are professional degrees. B.Ed, and M.Ed, courses are always in Faculty of Education if there be such a faculty. But this is not so as far as degrees of B.A. (Education) and M.A. (Education) are concerned. Some times they are in the Faculty of Arts and sometimes in the Faculty of Education. This differs from University to University. One cannot say what is the position in the Purvanchal University. It chose not to file any counter-affidavit despite repeated grant of time. The statutes produced by the counsel for the University indicate that Department of Education is in both the facilities. In view of this, I have no option but to hold that B.A. (Education) is in Faculty of Arts and the case is governed by Statute 11.13 (1).
DEGREE OF B.Ed. IS NOT
REQUIRED UNDER STATUTE
11.13(1)
7. The Statute 11.13 requires Master's degree and consistently good academic record for appointment of a lecturer. M.Ed, is a Master's degree for B.Ed, as well as B.A. (Education). 'Consistently good academic record' is defined in Statute 11.01 (5) (a) for Faculty of Arts, which here includes B.A. (Education). Statute 11.01 (5) (a) does not include B.Ed. The Statute 11.01 (5) (b) dealing with consistently good academic record in Faculty ofEducation mentions about degree of B.Ed. In case B.A. (Education) is in the Faculty of Arts, then degree of B.Ed. is not required in the plain reading of the Statute ; though this may not be said if the case was governed by 11.01 (5) (b). I will deal the case under Statute 11.01 (5) (b) later. The petitioners had qualifications, except for M.Ed., for appointment as a lecturer in B.A. (Education) in the Faculty of Arts. Their candidature could not be rejected on the ground that they did not have the B.Ed, degree. But as no counter was filed, Department of Education may be in Faculty of Education, and in few Universities it is so and as such I don't wish to rest my decision on the first submission.
2nd SUBMISSION : DIPLOMA IN L.T.
IS SUFFICIENT
History of Rules relating to Admission
in M.Ed.
8. The State Government had initially framed Rules in 1975 (the 1975 Rules) for admission in M.Ed. Rules 15 and 16 of the 1975 Rules stated that one could not get admission unless and until he had passed examination for B.Ed, degree. But these rules were changed in 1960 (the 1980 Rules). Rule 14 of the 1980 Rules included recognised diploma inB.T. and L.T. also for eligibility for admission M.Ed, classes. But Rule 15 of the 1980 Rules stated that admissions were to be governed on the basis of marks obtained in B.Ed, examination. These rules were again changed in 1983 in the present form, Rule 16 of the 1983 Rules states that admission is to be made on the basis of marks in B.Ed, or equivalent examination (The relevant 1983 Rules are quoted in footnote 1 and 2). In case B.Ed, is a necessary degree, then why did the State Government introduce :
* recognised diploma in B.T. or L.T. (apart from B.Ed.) in the relevant rules after 1975, and
* admissions to M.Ed, on the basis of marks in the B.Ed, or equivalent examination after1980?
9. 'Why these changes? questioned the counsels for the petitioners. They submitted that purposive interpretation--in place of literal interpretation--be adopted in the 1983 Rules as well as the Statute 11.01 (5) (b). The counsel for the University submits that:
* literal interpretation of Rules 15 and 16 of the 1983 Rules along with Statute 11.13 (2) and 11.01 (5) (b) be adopted.
* consistently good academic record in the statute has been defined to mean at least 50% or 55% (as the case may be) in B.Ed, degree examination and should be so interpreted.
DIPLOMA IN B.T. AND L.T. IS
EQUIVALENT TO B.Ed. DEGREE
10. B.Ed, is a degree awarded by a University. It is a one year course and admission can be taken after graduation from a University. B.T. and L.T. are diploma awarded by the State Government. They are also one year course and admission can be obtained only after graduation from aUniversity. B.Ed., B.T. and L.T. are all one year professional courses for making a person proficient in teaching in schools and colleges. The counsel had also produced the courses for B.Ed, and L.T. Though the numbers of papers are different but the courses are substantially the same. The State Government has also defined the minimum qualification for appointment of teachers in schools and colleges in Appendix A of the U. P. Intermediate Education Act. These teachers have to be trained teachers. The word 'trained' has been defined to mean a person who has obtained B.Ed, degree, or diploma of L.T. or B.T. The State Government itself has put B.Ed., B.T. and L.T. on the same footing. They are equivalent to each other. In this light and the changes in the admission rules, let's consider purposive construction.
PURPOSIVE INTERPRETATION OR
CONSTRUCTION
11. Function of a Court is to give effect to the legislative purpose, the intention of the Legislature. It is often achieved by following the literal meaning, or adopting literal interpretation. But if literal meaning is not in tune with the legislative purpose, then what should be done? The Courts have been adopting strained meaning to achieve legislative purpose. This has been termed as purposive interpretation or construction.
12. Viscount Dilhorne in Stock v. Fank Jones, explained that : general judicial adoption of the term purposive construction is recent, but the concept ts not new ; and it may now be fashionable to talk of the purposive construction of a Statute but the need for such a construction has been recognised since the seventeenth century. Lord Diplock in Carter v. Bradbeer, says :
'If one looks back to the actual decisions of (the House of Lords) on questions of statutory construction over the past thirty years one cannot fall to be struck by the evidence of a trend awayfrom the purely literal towards the purposive construction of statutory provisions. Changes in the Judicial approach to questions of statutory construction are not the result of some specific decision of your Lordships House identifiable as a landmark in this field of law. They have been fostered by the influence, persuasive and pervasive, of the similarity of reasoning to be found in the judgments of individual Judges even though they may differ as to the result of applying that reasoning to the particular words of the particular statute which is under consideration in the case.'
13. In middle of 20th Century, Lord Denning stated it' in a newform :
When a defect appears (in a Statute) a Judge cannot simply fold his hands an blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the Statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and
* then he must supplement the written word so as to give 'force and life' to the intention of the Legislature ;
* A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.
Lord Simonds in a later decision Cautioned against this approach of Lord Denning :
This proposition in a new form cannot be supported. It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation, and (Everyman Ed. 1973, p. 162). This has changed. In considering how Judges decide hard cases, 'we do not believe in fairy tales any more'. (Lord Reid, The Judge as Law Maker' 12 Journal of the Society of Public Teachers of Law 22 (1972) ).
Lord Diplock while advocating for adoption of purposive construction laid down three conditions in Jones v. Wortham Park Settled Estates : 1979 (1) All ER 286 (at page 289) :
First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy ; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved ; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.
The third condition is relevant to ponder.
Our Supreme Court too in Vishaka v. State of Rajasthan : (1997) 7 SCO 241, laid down guidelines and norms and said :
'We lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.'
This is not a point involved in this writ petition and I leave it here to be debated among the jurists. It is the less justifiable when it is guesswork with what material the Legislature would, if it had discovered the gap, have filled it in. If a gap is disclosed, the remedy lies in an amending Act.
Since then English Courts have adopted a middle road.
14. Lord Diplock in Kammins Ballrooms v. Zenith Investments, says :
'It is thus impossible to arrive at the terms of the relevant exception by the literal approach. This can be done only by the purposive approach, viz., imputing to Parliament an intention not to impose a prohibition inconsistent with the objects which the Statute was designed to achieve, though the draftsman has omitted to incorporate in express words any reference to that intention.'
15. The House of Lords in Anderton v. Ryan, says :
Statutes should be given what has become known as a purposive construction, that is to say that the Courts should where possible identify 'the mischief' which existed before the passing of the Statute and/then if more than one construction is possible, favour that which will eliminate 'the mischief' so identified.
PURPOSIVE INTERPRETATION OR
CONSTRUCTION IN INDIA
16. Purposive interpretation or construction has found its root to our Jurisprudence too. The Apex Court adopted the purposive interpretation in place of literal interpretation to prevent corruption as a penal offence in Municipal Corporation of Greater Bombay and others v. Indian Oil Corporation Ltd., and advocated purposive interpretation in various cases while interpreting the law.
* Judge must be a jurist endowed with the legislator's wisdom, historian's search for truth, prophet's vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections. Therefore, the judges should adopt purposive interpretation of the dynamic concepts of the Constitution and the Act withits interpretative armoury to articulate the felt necessities of the time. State of Karnataka v. Appa Balu Ingale, 1995 Supp. (4) SCC 469 (para 34).
* It is well-settled that the purpose of law provides a good guide to the interpretation of the meaning of the Act. S. P. Jain v. Krishna Mohan Gupta : (1087) 1 SCC 191 (para 18 at page 201).
* The word 'wood oil' used fn the Act will require purposive interpretation drawing upon the context in which the words are used and its meaning will have to be discovered having regard to the intention and object which Legislature seeks to subserve. The restricted meaning sought to put up by the accused would frustrate the object and the literal interpretation would defeat the meaning. The Legislature does not intent to restrict the word wood oil nor do we find any compelling circumstances in the Act to give restricted meaning that only oil derived from Dipterocarpus trees to be wood oil as contended for the accused and which found acceptance by the learned single Judge. The purposive interpretation would aid conservation of sandalwood, a valuable forest wealth, prevent illicit felling and transportation of them and make the manufacturers of sandalwood oil accountable for the possession of sandalwood trees or chips or roots etc. Forest Range Officer v. P. Mohammed All : 1993 Supp. (3) SCC 627 (para 8).
17. Thus, strained meaning, applying purposive interpretation or construction, may be adopted where literal meaning is not in tune with the legislative purpose. This legislative purpose may be seen in the light of mischief sought to be remedied. Let'sapply this principle to the rules regarding admission in the M.Ed.classes.
18. The rules laid down by theState. Government for admission havebeen framed under Section 28 (5) ofthe Act. They are common to allUniversities governed by the Act ;though the Statutes of differentUniversities are different. In caseRules 15 and 16 of 1975 Rules areseen, then there is no doubt thatB.Ed, degree was necessary in orderto get admission in M.Ed, classes.But this was changed. The 1980 Rulesconceive of recognised diploma ofB.T. or L.T. apart from degree ofB.Ed, for getting admission. Therewas some doubt in the 1980 Rules asadmissions were to be givenaccording to the basis of marksobtained in the B.Ed, degreeexamination (L.T. or B.T. was notmentioned). Thereafter the rules werefurther amended. The 1983 Rulesstate that the admissions are on thebasis of marks obtained in B.Ed, orits equivalent recognisedexamination. B.T. and L.T. areequivalent recognised examinations. If the candidates having recogniseddiploma of B.T. or L.T. were not to beadmitted, then what was thenecessity of amending the Rule 15and Rule 16? The progressive changesin the rules from 1975 to 1980 andthen to 1983, show that the legislativepurpose is that candidates havingrecognised diploma of L.T. or B.T.should be eligible for admission inM.Ed, courses.
19. In case the submission of the counsel for the Purvanchal University is accepted, then no one having diploma in B.T. or L.T. can ever be admitted and the entire exercise of changing the rules becomes meaningless. Rules 15 (1) and 16 would become redundant, as if there is no meaning attached to them. One should be loath to adopt this interpretation ; like Alice in Wonderland :
'If there's no meaning in it.' said the Kind 'that saves a world of trouble, you know, as we needn't try to find any'. 'And yet I don't know,' he went on, spreading out theverses on his knee, and looking at them with one eye ; 'I seem to see some meaning in them, after all'.
20. Rule 15 (2) where it states that 'a person should also have other qualification according to Statute for appointment of a lecturer in B.Ed, department in a degree college' should be read in the light of legislative purpose as indicated in Rule 15 (1) and Rule 16 and the mischief which was sought to be remedied, namely to include the candidates possessing diploma of B.T. and L.T. These rules for admission and the first Statutes of the Purvanchal University have been framed by the State Government. They have to be harmoniously interpreted. If Rules 15 and 16 of 1983 Rules and Statute 11.13 (2) and Statute 11.01 (5) (b) are harmoniously read, then following emerge as minimum qualifications for the admission in M.Ed. :
Ist condition : a candidate should have ;
* B.Ed, degree from recognisedUniversity, or
* recognised diploma in B.T.. or
* recognised diploma in L.T.
IInd conditions : they should also have :
* at least 55% marks in B.Ed. B.T. or L.T. examination with second class marks in graduation ; or
* 50% marks in B.Ed, or B.T. or L.T. examinations as well as in his graduation.
Petitioners were eligible. They could not be excluded on the ground that they did not have B.Ed, degree. Their candidature was wrongly rejected.
RELIEF
21. M.Ed, is a professional course. Seats have been filled without considering the candidates who had recognised diploma of B.T. or L.T. instead of degree of B.Ed. Resources are limited. It is not possible to admit unlimited number of candidates by increasing the seats. And merit has tc be considered. A candidate cannot beignored only for the reason that he has not come to the Court. In the circumstances of the case, the Purvanchal University will :
* consider all candidates with recognised diploma in B.T. or L.T. who were not considered because they did not have B.Ed, degree.
* offer admissions to five candidates in accordance with law on merit, provided they are higher in merit than the last candidate selected.
This process may be completed at an early date and if possible within 10 days from receipt of the certified copy of this order.
CAVEAT-RECOMMENDATIONS
22. In this case. I was concerned with interpretation of Rules 15 and 16 of the 1983 Rules read with Statutes 11.13 and 11.01 (5) fa; and (b) of the Purvanchal University for admission in the M.Ed, course. I was not concerned with appointment of a teacher in the Faculty of Education. I have held that degree of B.Ed, or recognised diploma in B.T. or L.T. is sufficient. This interpretation has been given in light of the history of Rules 15(1) and 16 of the 1983 Rules. In case any question for appointment of a teacher in the Faculty of Education arises, then that question has to be decided afresh. But I have also held that recognised diploma of L.T. and B.T. is equivalent to degree of B.Ed. Soon a question may be raised if such candidates are entitled for being appointed as lecturers in the Faculty of Education or not. It would be best for the respondents to clarify the position ; lest it may give rise to litigation, heart-burning and may unsettle many settled careers. Rule 15 is of the 1983 Rules may also be suitably amended so that recognised diploma holder in L.T. and B.T. may not be left out as has been done in the present case and this controversy may end here.
23. The counsel for the Purvanchal University submitted that Department of Education though mentioned in two different faculties isin the Faculty of Education : though there is nothing on the record to suggest it. Similar situation prevails in other Universities also. If it is so, then this may be suitably modified unless for some reasons Department of Education should continue in two different faculties : being in different faculties have different consequences.
CONCLUSION
24. A candidate having 55% marks in B.Ed, or B.T. or L.T. with second division in graduate degree or more than 50% marks in B.Ed, or B.T. or L.T. and in his graduation is eligible for admission in M.Ed. classes. The admission is to be done in accordance with merit as mentioned in Rule 16 of the 1983 Rules.
25. The petitioners or other similarly situate candidate could not be excluded on the ground that they did not have B.Ed, degree. These petitions are allowed. The University will reconsider all candidates (with recognised diploma of B.T. or L.T.). who were excluded on the ground that they did not have B.Ed, degree in accordance with law and give admissions to five of them according to merit, provided they are higher in merit than the candidate last selected, within ten days from production of certified copy of this order (heading RELIEF paragraph 21 of this Judgment).
Let a copy of this Judgment be sent to following persons to consider the comments under heading 'CAVEAT--RECOMMENDATIONS' (paragraphs 22 and 23) of the judgment.
1. The Principal Secretary Higher Education Uttar Pradesh Government, Lucknow.
2. The Legal Remembrancer U.P, Government, Lucknow.
3. The Secretary. Legislation Government of Uttar Pradesh,Lucknow.
4. The Vice-Chancellor Bir Bahadur Singh Purvanchal University, Jaunpur.
Let a copy of this judgment be placed in the Writ Petition Nos. 52958 of 1999, 52959 of 1999 and 271 of 2000.