Decided on March 28,1960


Cited Judgements :-



Bhargava, J. - (1.)THIS civil second appeal has been referred to this Bench by a learned single Judge of this Court as the questions involved are of sufficient importance and is directed against the decision of the learned District Judge, Bikaner dated 1st July, 1959.
(2.)YADAV Chandra appellant was admitted in Jain High School, Bikaner in class IX on 26th July, 1957. He was to appear in the High School examination of the Rajasthan Secondary Board of Education which was to commence on 9th March, 1959. As the appellant's attendance fell short of the required quota fixed under the Rajasthan Secondary Board Education Regulations, 1957 (hereinafter called the Regulations) he was refused permission to present himself for the High School examination by the Board. It is not disputed that in the Academic years 1957, 1958-59 there were in all 358 working days in Classes IX and X. there is also no dispute that the appellant attended the school on 239. 5 days during these years. It is provided under Chapter XXIV Regulation 4 (i) that "a candidate cannot be presented for an examination of the Board by a recognised institution unless he has been present for at least 75 per cent of the days for which the institution was open during two academic years in Class IX and X in the case of High School examination. " The appellant's percentage thus calculated fell short by 29 days. It is further provided in Regulation 4 (iii) under the same Chapter that "in case of bona-fide illness supported by a medical certificate or certified by the head of institution from his personal knowledge or any other reason deemed sufficient by the Chairman if the total attendance of the student fell short of the required minimum attendance, the head of the recognised institution may condone deficiency of not more than six days. All such cases are to be reported to the Chairman of the Board. If the shortage in any case exceeds the above, the Chairman may in various circumstances condone a deficiency upto a limit of 20 days. " Inspite of this period of condonation, appellant would not have become eligible to sit at the examination as his deficiency exceeded the limit of 20 days.
Appellant's case is that he got his right leg fractured in an accident on 16th October, 1957 and had to remain as an indoor patient in the Government Hospital, Bikaner from that date to 21st January, 1958 for a period of 98 days. According to him leave period should have been included in counting the percentage of attendance. Further as there was a strike in the school for a period of 20 days he should have been marked present for these days as was agreed upon. According to him as he was admitted in the school on 26th July, 1957 when the Education Code of Rajasthan, 1957 was in force according to which percentage was to be counted from the date of admission and not from the opening of the school and further exemption for leave period was also allowed. Feel-ing aggrieved from the refusal of the Board to allow him to sit at the High School examination the appellant filed a suit in the court of the Munsif, Bikaner praying for an injunction against the Board not to restrain him from appearing at the High School examination which was to commence from 9th March, 1959 and also from withholding his result.

The suit was resisted on behalf of the respondent and it was contended that the appellant has been rightly refused permission to sit at the examination as he failed to attend the school on requisite number of days as required by the Regulations mentioned above. It may be mentioned that on plaintiff's application a temporary injunction was issued against the defendant restraining him from refusing admission to the plaintiff in the examination which was to commence from 9th March, 1959. As a result of this order plaintiff appeared in the examination but his result has not been declared due to the pendency of this case. In the suit the trial court framed the following preliminary issues - 1. Were Rajasthan Secondary Education Regulations, 1957 not applicable to the plaintiff's case as he joined the session which began from July 1957 whereas the Regulations came into force from 1958? 2. If issue No. 1 is decided in the plaintiff's favour, has the defendant no right to ask the plaintiff not to appear at the examination.

These issues were decided against the plaintiff and the suit was consequently dismissed. Plaintiff went in appeal before the District Judge, Bikaner who affirmed the finding of the trial court on the preliminary issues mentioned above and remanded the case to the court of the Munsif, Bikaner to further decide an issue which arose from the allegations contained in para 4 of the plaint namely that the plaintiff was not marked present for 20 days during the period of strike for which it was decided that the students would be marked present. It may be mentioned that in the appeal an additional objec-tion was taken on behalf of the appellant that Regulations 4 (ii) and 4 (iii) would not have any application till the provisions contained in Regulation 4 (i) were complied with. This objection too was negatived by the learned District Judge. It is against this decision that the plaintiff has come in second appeal.

When this appeal came up for hearing before the learned single Judge a preliminary objection was taken on behalf of the respondent about the maintainability of the appeal an the ground that the order under appeal was not an order under O. 41 R. 23 C. P. C. as the first appellate court had not reversed the finding of the trial court on the preliminary issues, rather it has been affirmed by the latter court. Reliance was placed in this connection on an authority of this Court in Ratanraj vs. Kirpa Shanker (1 ). On behalf of the appellant it was there contended that the decision of the learned District Judge amounts to a decree as defined in sec. 2 (2) of the C. P. C. It was submitted that so far as the courts below are concerned the matters in controversy relating to the preliminary objections have been finally decided by them and cannot now be re-agitated before these courts. Reliance was placed on a decision of this Court in Manak Lal vs. Madan Lal (2 ).

As for the preliminary objections learned counsel appearing for the respondent has not seriously pressed it before us and it is almost conceded that the decision of the learned District Judge does finally decide some of the matters in controversy between the parties and in that view of the matter it amounts to a decree and an appeal can be filed against it. We are also of opinion that the authority relied upon by the appellant supports his contention. As some of the points in controversy between the parties have been finally decided against the appellant by the courts below and cannot be agitated by him again the decision in question amounts to a 'decree and the appellant has rightly filed an appeal against that order.

Let us now examine the case on merits. Learned counsel for the appellant has raised the following objections. 1. that Regulation 4 (i), under Chapter XXIV is an integral part of Regulation 4 the very language of which indicates that it is mandatory and unless it is complied with, Regulations 4 (ii) and 4 (iii) do not come into play. In substance the argument is that unless the school remains open for at least a period of 210 days in one academical year it is not obligatory upon the students to comply with requirement of Regulation 4 (ii) i. e. , attendance for at least 75% of the days for which the school was open. 2. that when the appellant was admitted in class IX Educational Code of Raja-sthan, 19,57 was in force and Rule 3 under Chapter VIII provides "no scholar may be allowed to sit for the annual examination of Classes III to VIII and IX or IX and X in the case of Higher Secondary Schools who. (a) Has not put 75% of the total attendance during the period his name was on rolls of the institution in the school year from the date of first admission to the class exclusive of the leave granted on medical or other legitimate grounds. " According to him the above rule should apply to him. Regulation 4 should not govern his case as these regulations came into force later on i. e. , 14th December, 1957. 3. that according to Regulation 43 of the Regulations, it was incumbent upon the Board to have made some provision for students who before the date of commencement of this Regulation were studying or were eligible for any examination of the said university but no such provision as contemplated by the Regulations has so far been made and until that is done Regulation 4 (H) should not be applied to him. 4. that even if Regulation 4 applied to the appellant even then his percentage should be calculated for one academic year only as provided in Regulation 4 (vi ). We, therefore, proceed to examine these objections one by one.

Although the first objection seemingly appears to be plausible yet on a careful scrutiny it appears that there is no force in it. If the argument that unless an institution remains open for not less than 210 days during one academic year the candidates are not bound to remain present for at least 75% of the days the school was open, is accepted, it would render Regulation 4 (ii) completely nugatory. In that case the candidates would be quite free to give a go by to the rule of attendance in the school and yet claim their right to sit at the examination. This would lead to undesirable situation in educational institutions. Regulation 4 (i) has therefore to he read in such a way that the other parts are reconciled with it. and not rendered ineffective. The proper course would be to apply the broad general rule of construction which is that a section or an enactment must be construed as a whole each portion throwing light if need be on the rest. "it is an elementary rule that construction is to be made of all the parts together, and not of one part only by itself. Such a survey is often indispensable, even when the words are the plainest; for the true meaning of any passage is that which (being permissible) best harmonises with the subject and with every other passage of the statute. " Maxwell on Interpretation of Statutes, 10th Edition page 28-29.

(3.)AGAIN in Regulation 4 (ii) it has been provided that in case of intermediate examination candidates have atleast to be present in 75% of the lectures delivered in each subject and atleast 75% tutorial and practical work classes (taken together) held in each subject during two academic years in class XI and XII. Similarly in Regulation 4 (iii) it is provided that the Chairman of the Board may in various special circumstances condone a deficiency upto 6% of the lectures delivered and practical and tutorial done in each subject in the case of intermediate examination. In Regulation 4 (iv) also we find that a candidate appearing in the High School examination has also to be present at 75% of the periods devoted to physical training including the attendance and games to the extent of 15%. Regulation 4 (i) equally applies to those recognised institutions where studies are provided upto class XI and XII. If the provisions of Regulation 4 (ii), (iii) and (iv) were dependent on compliance of Regulation 4 (i) then attendance of the lectures or the periods as mentioned above would not have been necessary. The conclusion is therefore, irresistible that the obligation of the candidates to be present for atleast 75% of the days for which the institution remains open is not dependent upon the fulfilment of the condition mentioned in Regulation 4 (i) by the institution. In Regulation 4 (i) an obligation has been cast upon the institution to keep it open during one academical year for atleast 210 days. This may have been fixed for different considerations of educational needs but the candidates are hot absolved from their independent obligation to attend the school on 75% of the days on which the institution has actually remained open. We are, therefore, clear that Regulation 4 (i) and Regulation 4 (ii) are independent of each other and compliance of the latter is not dependent on the compliance of the former.
Mr. Rastogi has laid considerable stress on the language of Regulation 4 (i) in particular on the words "must be held" and shall not be less than "210 days", this provision was intended to be mandatory and has to be complied with before the candidates can be called upon to comply to the next following provisions regarding their attendance. But we cannot hold Regulation 4 (i) to be mandatory simply on the ground of the language used therein. The question whether this provision is mandatory or directory has to be decided in the light of the scheme and purpose of these regulations and the context in which it occurs. In State of U. P. vs. Manbodhan Lal Srivastava (4),it was observed that - "the use of the word 'shall' in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctilliously followed, the proceeding, would be invalid. On the other hand, it is not alwary correct to say that whee the word 'may' has been used, the statute is only permissive or directory in the sense that not-compliance with those provisions will not render the proceeding invalid. In this connection, the following quotation from crawford on 'statutory Construction' - Art. 261 at p. 516, is pertinent: "the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these art to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. . . . . . . . . . . . . " The question whether a particular provision is mandatory or directory has been examined and very elaborately discussed in a recent case of Shatrushal Singh vs. Noor Mohammad (4), wherein it was observed that. "the mere use of the! word 'shall' does not make any difference if the context suggests that the legislature did not intend that any disobedience of minor rules of procedure should defeat its main purpose. The primary consideration, therefore, is the language of the rule itself, examined in the light of the scheme and purpose of the legislation in the context of which the rule occurs. Secondly, it has to be seen whether on the face Of the rule there is any penalty provided in which case the penalty may require to be enforced Thirdly, one has to interpret the rule having regard to the balance of convenience which may result in case it is held to be directory or mandatory. Lastly the well known doctrine of construction should be borne in mind that where the legislature requires a thing to be done by any public authority or person, then if there is substantial compliance with the rule, it should be held to be sufficient. " Applying the principles enunciated above to the Regulation in question we find that there is no penalty provided in Rajasthan Secondary Education Act, 1957 on the Regulations framed under it for its non-compliance. The context in which the Regulation occurs also does not suggest that it was meant to be mandatory. If it was intended to be imperative the framers of these Regulations would have made the subsequent parts, specially Regulation 4 (ii) as 'subject to' Regulation 4 (i ). Similarly Regulation 4 (ii) would have been worded in a different manner if Regulation 4 (i) was meant to be mandatory. The framers of the Regulations would instead of saying that "no candidate will be presented. . . . , unless he has been present for at least 75% of the days of which the institution was open" could have very well said "unless he has been present for at least 75 percent of the days out of 210 days". Judged from the point of view of the balance of convenience also it does not appear to be mandatory because as stated above unforeseen circumstances may arise due to which such compliance of this Regulation may become impossible. Lastly it is an obligation which the public authorities are required to perform and as such its substantial compliance would be sufficient. (See Maxwell on Interpretation of Statutes Tenth Edition page 381 ). "it is a well settled rule of construction that 'where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed or, in other words, as directory only. " The Supreme Court also in Dattatraya Moreshwar vs. The State of Bombay (5) has laid down that - "it is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done. " We are therefore, not prepared to hold that regulation 4 (i) is mandatory or that regulation 4 (ii) would come into operation only upon the fulfilment of the conditions of Regulation 4 (i) by the institutions concerned. As stated above all the clauses under Regulation 4 are to be so read that each may be reconciled with the other and full effect may be given to each one of them.

We are not unmindful of the fact that in some cases, and probably the appellant's may be one of such genuine cases, where so construed the regulation may result in hardship. May be that a candidate who on account of illness or Tor any unavoidable cause is prevented from attending the school for some days be still able to complete the required percentage if the institution remains open for a minimum period of 210 days in one academic year. Consideration of hardship however, cannot affect the mind of the court in deciding what is the true construction of the Regulation. It is to the Board that the candidate must appeal for relief and not to the Court. Our conclusion, therefore, is that the appellant had to be present at least on 75% of the days on which the school remained open during the two academic years, even though the institution did not remain open for the minimum period of 210 days in one academic year.

Coming to the next objection we find that after the integration of various covenanting States into present Rajasthan State unified rules and regulations were codified in the Education Code of Rajasthan, 1957. Under Chapter I, R. 3 the Director of Education had been empowered with the sanction of the Government to suspend the operation of any rule as applying to any class of institution or to institutions situated in any particular area. As we read Rule 3 in Chapter VIII which is the relevant rule for the purpose of this appeal we find that it is not applicable to high school examinations but its application is confined to home examinations conducted by the school authorities upto class IX. This rule does not pertain to high school examination which is conducted by the University. The relevant rule before the Rajasthan Secondary Education Regulations came into force was rule 79 under Chapter 39 of the Hand Book of the University of Rajasthan (Part II) which provided that "no candidate will be presented for an examination of the University by a recognised institution, unless he has been present for at least 75 per cent of the days for which the institution was open during two academic years in classes IX and X". It is therefore, clear that even at the time when the appellant was admitted to class IX the provision for the attendance was the same as is provided in Regulation 4 and whichever rule may apply to the appellant his percentage falls short of the required number of days. We, therefore, do not find any force in this objection too.


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