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A departure from the rule of literal construction may be legitimate so as to avoid a Statute or a Legislation working harshly: High Court of J&K and Ladakh

Although it is not permissible to read words in a Statute which are not there but where the alternative lies between either by supplying words which appear to have been omitted accidentally or otherwise or adopting a construction which deprives and defeats the objective of legislation, it is permissible to supply the words as held by the Hon’ble High Court of J&K through a learned bench of Hon’ble Mr. Justice Sanjay Dhar in the case of Sofiya Shafaqat Vs Central University & Others  [WP(C) No.1402/2021 CM No.4776/2021].

The case set up by the petitioner was that respondent issued an admission notice regarding conduct of Admission Test for admission to various Ph.D. programmes during academic session 2020-21. The admission notice was accompanied by instructions governing the process of admission. As per these instructions, qualifying marks are 50% (45% in case of reserved category candidates). It is contended in the writ petition that petitioner being a candidate belonging to EWS was entitled to aforesaid relaxation in her qualifying marks in the entrance.

It is contended by respondents that in the admission notice it was clearly indicated that only the candidates belonging to reserved categories are required to obtain qualifying marks of 45%. The respondents have further relied upon notification issued by Ministry of Human Resources Development, which provides for relaxation in criteria in various reserved categories which include SC/ST/OBC/ Differently-abled but the same does not provide for relaxation in criteria for EWS category. Thus, according to respondents, though the petitioner is entitled to seek her admission in the quota reserved for EWS category yet so far as relaxation in qualifying criteria is concerned, the same is not applicable to her case.

After hearing the parties and a perusal of the facts on record, the court observed that the respondent University has provided for reservation amongst others to the candidates belonging to EWS category. It also comes to the fore that even for the purposes of eligibility, relaxation of 5% marks has been extended to the candidates of EWS category. Thus, it was stated that “If the benefit is limited to the extent of reservation of seats only without extending the benefit of relaxation in qualifying marks in entrance test, the objective of passing the Constitutional Amendment Act, 2019 would get defeated. In order to achieve the objective of the amendment, the benefit of relaxation in qualifying marks at par with the similar benefit extended to other reserved category candidates is required to be extended to the candidates belonging to EWS category”.

While observing when Regulations of 2016 were framed the 103rd Constitutional Amendment had not come into being. The said amendment was effected only in the year 2019 and for this reason; the category of EWS is not mentioned in the Regulations of 2016 whereas all other reserved categories are specifically mentioned in the said Regulations. Therefore, in order to avoid such situation, a purposive construction to proviso to Clause 5.4.1 of the Regulations of 2016 was required. So the court concluded that “Although it is not permissible to read words in a Statute which are not there but where the alternative lies between either by supplying words which appear to have been omitted accidentally or otherwise or adopting a construction which deprives and defeats the objective of legislation, it is permissible to supply the words. A departure from the rule of literal construction may be legitimate so as to avoid a Statute or a Legislation working harshly”.

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Judgment Reviewed by – Aryan Bajaj

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