JUDGMENT
H.W. Dhabe, J.
1. On September 9, 1988 we decided Writ Petition No. 1921 of 1988 filed by the non-applicant No. 1 in this Miscellaneous Civil Application No. 161 of 1988. The non-applicant No. 1 had challenged in the said petition the admission granted to the applicant for post-graduate degree course in the subject of Gynaecology and Obstetrics in the Indira Gandhi Medical College, Nagpur. The applicant was respondent No. 3 in the said writ petition. Her admission was challenged on the ground that she passed the subject of Gynaecology and Obstetrics in the third attempt and therefore, as per Clause (f) of rule 6 of the Rules for Admission, she was totally ineligible for admission to the post-graduate registration in the said subject. The applicant was absent and was not also represented in the said writ petition. However, the case of the applicant has not totally gone by default because by defending the orders of the Dean of Indira Gandhi Medical College, granting registration to the applicant in the aforesaid subject, the case of the applicant was in that sense represented by the learned Counsel appearing for the Dean.
2. After thus hearing the learned Counsel for the petitioner and the learned Counsel for the Dean, we held in the above writ petition that Clause (f) of rule 6 of the Rules for Admission to the post-graduate courses provides for ineligibility in the candidates for post-graduate registration in two types of cases; (i) the candidate passing the subject concerned at the 3rd or subsequent attempt and (ii) the candidate passing the whole examination in the 4th or subsequent attempt. We, therefore, held that the applicant was ineligible for registration in the subject of Gynaecology and Obstetrics which subject she admittedly passed in the 3rd attempt. We also considered the question whether we can protect the admission already granted to the applicant in the said subject. We held in that regard that her admission cannot be protected because we have found her altogether ineligible for admission to the post-graduate degree course in Gynaecology and Obstetrics.
3. After this judgment was rendered on September 9, 1988, the applicant has filed the instant Miscellaneous Civil Application on or about 13-9-1988 finding that their admission to the post-graduate degree course is set aside by us in the aforesaid writ petition. The applicant has prayed for setting aside the ex parte judgment against her and for re-hearing of the Writ Petition No. 1921 of 1988. Without going into the question whether the applicant had sufficient cause for remaining absent on the date of hearing of the aforesaid writ petition, we had directed the parties that we would hear the matter on merits and in that light consider the question whether we would set aside our judgment or not. Accordingly, we have heard the learned Counsel for the parties on merits again particularly because the instant case involves a question about the true interpretation of rules 6 of the Rule for Admission to the post-graduate degree/diploma courses in the medical Colleges of the State Government.
4. The learned Counsel for the applicant has urged before us that the case of the applicant should be considered by us as falling within Clause (e) of rule 6 and not under Clause (f) of rule 6. He has further submitted that in fact the Dean i.e. the respondent No. 2 in the said writ petition has considered her case under Clause (e) of rule 6 as it is a consistent practice of the respondent No. 2 to consider such cases under clause (e) of rule 6 itself. In our view the question is not of the practice which the respondent No. 2 is following but the question is of the interpretation of the various clauses of rule 6. It is well settled that the interpretation of a rule does not depend upon what the Government professes about it or what practice it is following. Once the intention of the State Government is translated into a statute or a rule, whether its intention is implemented or not, can be judged from the wordings of the rule in question. See Ku. Suneeta v. State of Maharashtra, . It is, therefore, necessary for us to consider what the true interpretation of Rule 6 of the rules for admission for post-graduate courses in the Government Medical Colleges is.
5. Para 1 of Rule 5 and Rule 6 of the rules for admission to the post-graduate courses which are material for our purpose are reproduced below for ready reference :
5. “Selection of the students amongst those who applied for admission to the post graduate degree or diploma will be on the basis of the marks obtained in the subject at University Examination modified with specified deduction for the number of attempts taken to pass that subject as well as the final M.B.B.S. examination.
“The basis of Selection : The selection of all students will be on merits as laid down in rule 5 i.e., no marks in the subject at University Examination modified as under :
(a) Passing of all subject at first attempt. No deduction.
(b) Passing the subject concerned at first 3% deduction.
attempt and other subject at 2nd
attempt.
(c) Passing the sub concerned at second 3% deduction.
attempt & passing of remaining subject
at 1st attempt.
(d) Passing of the subject at II attempt 6% deduction.
and the remaining subject or subject
2nd attempt.
(e) Passing of the subject concerned at 6% deduction.
1st or IInd attempt and the passing
of the remaining subject or subject at
IIIrd attempt.
(f) Passing the subject concerned at 3rd Not eligible for
attempt or subsequent attempt and admission to
passing the whole examination 4th the post-graduate
or subsequent attempt. registration.
(g) Candidates who have rendered 3
years service anywhere to rural area
(excluding candidates who have
rendered three years service any
where to rural areas (Excluding
district head-quarters hospitals)
addition...or armed forces or have
rendered 3 years service with State
Government."
6. Rule 5 of the Rules for Admission to the post-graduate degree/- diploma courses deals with the question of selection of students for admission to the post-graduate courses. It provides that the selection of students amongst those who applied for admission to the post-graduate degree or diploma courses would be on the basis of the marks obtained in the subject concerned at the University Examination modified with specified deduction for the number of attempts taken to pass that subject as well as the final M.B.B.S. examination. It is, therefore, clear from rule 5 that for being eligible for admission to the post-graduate courses, the criteria is of the marks obtained at the University Examination and if the candidate takes more than one attempt to pass the said examination in the subject concerned as also the final M.B.B.S. examination than there is deduction effected in his marks obtained at the University examination in the subject concerned as specified in rule 6. The examination of rule 6 shows that in providing for graduated deduction of marks a certain process of permutation and combination is utilised with reference to the number of attempts taken in passing the subject concerned and in the remaining subjects or the whole examination. It is clear that in the process of permutation and combination in making deduction in marks a stage would be reached when any further deduction in marks on the basis of the further attempts would be meaningless as the standard or merit of such a candidate then would not be enough to permit him to prosecute the post-graduate courses in the subject concerned. It is at this stage that the total ineligibility is attached to the candidate under rule 6 for admission in the subject concerned.
7. Perusal of the scheme of rule 6 shows that it has provided for graduated reduction in the number of marks obtained by the candidate in the subject concerned depending upon the attempt or attempts he had taken to pass the University Examination in the subject concerned and/or the remaining subjects and the whole examination. It is clear that the object of such graduated reduction in the number of marks in the subject concerned is that the candidate who takes more attempts to pass the University Examination in the subject concerned and/or the remaining subjects or the whole examination is considered less meritorious as compared to the candidate who passes the said examination in the first attempt or fewer attempts as provided in the said Rule 6.
8. Bearing this scheme of rule 6 in mind we now proceed to construe the various clauses of rule 6. Turning first to Clause (a) it is provided therein that if the candidate passes all the subjects in the first attempt, there shall not be any deduction. Clause (b) is in respect of a case where the candidate has passed the subject concerned in the first attempt and has passed the other subjects in the second attempt. In such a case the deduction provided is 3 per cent. Clause (c) then postulates a case reverse of Clause (b) in the sense that the candidate passes the subject concerned in the second attempt but passes all other subjects in the first attempt. In regard to such a case again the same deduction viz. 3 per cent is provided. Clause (d) covers a case where the candidate has passed the subject concerned as well as the remaining subjects in the second attempt. In such a case the deduction provided is 5 per cent. Clause (c) then provides that in a case where the candidate has passed the subject concerned in the first or second attempts, but has passed the remaining subjects in the third attempt, the deduction in his case would be 6 per cent. It is now that the stage is reached when taking further attempts for passing the examination is considered as ineligibility for admission to the post-graduate courses.
9. It may be seen that the process of permutation and combination graduated reduction of marks on the basis of the number of attempts in the subject concerned and the remaining subjects cannot continue ad infinitum and a point must reach when the further attempts in passing the subject concerned or the whole examination has to be viewed with demerit of the candidates for admission to the post-graduate courses. Clause (f) therefore, lays down that if the candidate passes the subject concerned in the third or subsequent attempt and the whole examination in the forth or the subsequent attempt, he will be considered as ineligible for admission to the post-graduate registration. From the scheme of rule 6 it appears to be the view of the rule framing authority that when the candidate takes a third or a subsequent attempt to pass the subject concerned, he should be held ineligible and should not be allowed to prosecute the post-graduate courses in that subject because he would not then possess the standard or merit for prosecuting the said courses. Similarly when the candidate passes the whole M.B.B.S. examination in fourth or subsequent attempt, in such a case also the view of the rule framing authority seems to be that he should be held ineligible for post-graduate-registration, in any subject because he would not then possess the requisite standard for prosecuting the post-graduate courses in any subject.
10. It is pertinent to notice that although the ineligibility provided in Clause (f) does not specifically make a distinction in regard to the eligibility for post-graduate registration in the subject concerned and ineligibility for admission in any of the subjects in post graduate courses, the said ineligibility clause has to be read distributively upon the principle of reddendo Singula Singulis because two separate contingencies for ineligibility in admissions are considered therein. Thus as per Clause (f) in the case of passing the “subject concerned” at the third or subsequent attempt the ineligibility would be in that subject only and in the case of passing the “whole examination” in the fourth or subsequent attempt, the ineligibility would be for each subject in post-graduate courses.
11. It may be seen that since the scheme of rule 6 is exhaustive and covers all permutations and combinations upto the third attempt in its Clauses (b) to (e) the two requirements therein are cumulative and the expression ‘and’ used therein has to be read conjunctively in the said clauses. There cannot be any dispute about the construction of clause (a) of rule 6 which is applicable to a candidate who passes all the subjects in the firs attempt. Clause (b) however, is applicable to a case where the candidate passes the subject concerned in the first attempt and the remaining subjects in the second attempt. It is not enough for application of clause (a) of rule 6 that the candidate should pass the subject concerned in the first attempt although he may have passed the remaining subjects in the third attempt or that he has passed the remaining subjects in the first attempt and the subject concerned in the second or the third attempt, which contingencies are in fact taken care of and are provided in other clauses of rule 6, but it is necessary for application of clause (a) that he must have passed both the subject concerned in the first attempt and the remaining subjects in the second attempt. Thus for application of Clause (e) of rule 6 also which is involved by the applicant and which is actually made applicable in her case by the Dean in giving her admission, the two requirements therein viz. that the candidate has passed the subject concerned in the first or second attempt and the remaining subjects in the third attempt must both be satisfied. The petitioner who has not passed the subject concerned in the first and second attempt but has passed all the subjects in the third attempt cannot get the benefit of Clause (e) of Rule 6.
12. At this stage we may notice the submission made on behalf of the petitioner in regard to the construction of Clause (f) of rule 6. According to the learned Counsel for the applicant the conjunction “and” used in Clause (f) should be construed in its own sense as “and” and not as “or” in which sense according to him the Clauses (b) to (e) of Rule 6 are construed and not as “or”. By reading the expression “and” in its conjunctive sense it is urged that since the category of passing of the subjects in the third attempt is not separately provided for in rule 6 for the purpose of either deduction in marks or for the purpose of any ineligibility Clause (f) would require its both requirements to be satisfied viz. of passing the subject concerned in the third or the subsequent attempt as well as of passing the whole examination in the fourth or the subsequent attempt for the purpose of ineligibility to the post-graduate courses. The submission thus is that the applicant is not covered by Clause (f) because although she had passed the subject concerned in the third attempt, she has also passed the whole examination in the third attempt and not in the fourth or subsequent attempt as required by the second requirement of Clause (f). It is thus contended that since the case of the applicant is not covered by Clause (f), it should be treated that her case falls under Clause (e) or rule 6 because she has passed the remaining subjects in the third attempt. The above submission is sought to be supported on the ground that this is the practice followed by the Dean who has considered the claim of the applicant under Clause (e).
13. It must be pointed out that there is a fallacy in the above submission made on behalf of the applicant because as the word “and” is read in its conjunctive sense in Clause (e) of rule 6, the case of the applicant cannot be said to be covered by the said clause because it is only when the candidate passes the subject concerned in the first or the second attempt and the remaining subjects in the third attempt that he can fall under Clause (e). The interpretation which is sought to be canvassed by the learned Counsel for the applicant is not only incongruous but it creates a casus omissus which is sought to be supplied by treating the cases like that of the applicant under Clause (e). It may be seen that it is well settled cannon of construction that it is not permissible to create a casus omissus by interpretation save in some cases of strong necessity. See The Mersey Docks and Harbour Board v. Henderson Brothers, 1888 (Vol. XIII) A.C. 595 at page 607. See also Emperor v. Rustomji, 9 B.L.R. 363. The supreme Court has also observed in the case of Commissioner of Income-Tax, Central Calcutta v. National Taj Traders, that a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. It is, therefore, necessary to construe Clause (f) of rule 6 in a manner which would avoid a case of casus omissus and make a congruous and consistent reading of all the clauses of rule 6.
14. It is also a well settled cannon of construction that the word “and” in the statute can sometimes be read as “or” and vise versa whenever such a construction is necessary in the context of the provision in question or whenever it is necessary to effectuate the obvious intention of the Legislature or when giving the said word its ordinary meaning is likely to produce unintelligible or absurd result. See State of Bihar v. S.K. Roy, and the Joint Director of Mines Safety v. M./s. Tendur & Nayandgi Stone Quarries, . In our view as we would presently show the conjunctive “and” occurring in Clause (f) of rule 6 needs to be read as “or” i.e. in the disjunctive sense so as to effectuate the meaning and the intention of the rule making authority and also to avoid the case of casus omissus which is implict in the submission advanced on behalf of the applicant. If the word “and” used in Clause (f) of rule 6 is read as “or”: although it is read as “and”: in its previous Clauses (b) to (e), the provision of rule 6 will make consistent reading and all the contingencies in contemplation of the rule-making authority would stand covered by such construction.
15. Turning now to Clause (f) of rule 6, as we have noted above, it provides not for deduction of marks but for ineligibility for admission to the post-graduate registration. The two requirements provided in the said Clause (f) are :
(a) passing the subject concerned in the 3rd or the subsequent attempt, and
(b) passing the whole examination in the 4th or the subsequent attempt.
In our view, the above two requirements in Clause (f) or rule 6 provide for separate or independent categories of ineligibility for admission in the post-graduate courses and the expression “and” used in the said Clause (f) is to be read disjunctively in the said clause although in the earlier Clauses (b) to (e), as pointed above, it has to be read in its own sense of “and” i.e., conjunctively. Our reason is that although the eligibility is provided for by permutation and combination of the number of attempts in the subjects concerned and the remaining subjects till Clause (e) of rule 6, in Clause (f) ineligibility for admission is provided for by breaking the permutation and combination of the subject concerned and the remaining subjects as the second requirements of Clause (f) is of passing the whole examination and not the remaining subjects. The language of Clause (f) of rule 6 itself would show that two distinct ineligibilities are provided therein . The first requirement of Clause (f) provides for passing of the subject concerned in the third or subsequent attempt which would mean the 4th attempt also which would stand covered also by the second requirement because the expression the “whole examination” would include the subject concerned also. It may be seen that in earlier Clause (b) to (e), passing the subject concerned or the remaining subjects was in specified attempts while in Clause (f), the passing in the subject concerned or the whole examination is in all the attempts from the 3rd or the 4th attempt respectively. It is, therefore, clear from the language of Clause (f) of rule 6 that it intends to provide for ineligibility for admission to the post-graduate courses separately from two points of view (i) passing in the subject concerned, and (ii) passing in the whole examination. If two requirements of Clause (f) were to be read cumulatively, it would in our view make incongruous and inconsistent reading because although a candidate may have passed the subject concerned in the attempt as provided in the first part of the clause, say 4th attempt, the subject concerned will stand included when as per second part of the said clause he is said to have passed the whole examination in say 4th or the subsequent attempt.
16. It is, therefore, clear that Clause (f) of rule 6 provides for two separate categories of ineligibilities. In other words, it means that if a candidate has passed the subject concerned in the 3rd or the subsequent attempt, he becomes ineligible for admission to the post-graduate courses in that subject. Similarly, if he has passed the whole examination in the 4th or the subsequent attempt, then also he becomes ineligible for admission to any of the post graduate courses. The above interoretation stands supported by the recent University Ordinances 2 and 3 in respect of registration in post graduate Degree and Diploma courses respectively as they provide the ineligibility for registration in these courses if the candidate passes his final M.B.B.S. examination in the 4th or the subsequent attempt.
17. It may now be seen that on our interpretation of Clause (f) of rule 6, there is no snag in rule 6 in not providing the contingency of passing all the subjects in the 3rd attempt because in that event under the first part of Clause (f), the candidate will become ineligible for admission in post-graduate courses in each subject which he has passed in the 3rd attempt, particularly because the condition of passing the whole examination in the fourth or the subsequent attempt is not cumulative over the condition of passing the subject concerned in the third or the subsequent attempt but is a separate condition entailing separate ineligibility for post graduate registration. It is, therefore, neither necessary nor proper to take recourse to Clause (e) in such a case on the ground that it is specifically provided for in rule 6 as is sought to be urged on behalf of the appellant. We have thus no doubt in our mind that the construction we have placed upon Clause (f) of rule 6 in our judgment in the aforesaid Writ Petition No. 1921/1988 is correct. We, therefore, reject the contention raised on behalf of the applicant that her case is covered by Clause (e) of rule 6.
18. It is then submitted on behalf of the applicant that there are other students like her who had passed the examination in the subject concerned in the third attempt and who were given admissions like her in their subjects concerned. In para 5 of the application the applicant has given the names of such students. Relying upon the continuance of their admissions, it is urged that the admission given to the applicant should not be disturbed. In considering the above submission made on behalf of the applicant it is necessary to see that admissions of the other students referred to by the applicant are not challenged in any judicial proceedings and therefore the question of their alleged wrongful admission is not in issue for which reason their admissions are not disturbed.
19. The learned Counsel for the applicant has, however, relied upon the decision of the Supreme Court in the case of the Principal King george’s Medical College, Lucknow v. Vishan Kumar Agarwal, in which according to him the admission of the student concerned in the said case was not disturbed on an identical ground. We have perused the said judgment. We find from the facts of the said case that the student concerned in that case was given provisional admission by the interim order of the High Court and had thus prosecuted his studies and had appeared for the examination. Since his result was not declared by the University, he claimed a writ of mandamus for declaration of his result which was issued by the High Court. The petitioner in the said case brought to the notice of the High Court that there were two other students like him, who did not fulfil the requirement of the University Ordinance like him but were allowed by the University to appear for the examination. It is in the above facts and circumstances of the said case that the Supreme Court held that since the requirement of the University Ordinance was not insisted upon by the University in their cases of the other students it would be unfair to pick up the petitioner in the said case for differential treatment. It may be seen that the admission of the petitioner was not under challenge in the above case by another student claiming admission for himself in the said seat on the ground that his admission was illegal and that he was eligible to be admitted in his seat as in the instant case. The admission of the applicant is challenged not only in the instant case but in W.P. No. 2005/1988 by another student also. The ratio of the said decision is, therefore, not applicable to the facts and circumstances of the instant case.
20. It would, however, be apt to refer to the observations of the Supreme Court in the case of Krishna Priya Ganguly v. University of Lucknow, . The said case was a case of a student who was not meritorious and was very much lower in the merit list. In regard to his case the Supreme Court has observed as follows in para 25 of the Report :
“we are, however, unable to agree with this argument because to grant admission to a person who is appreciably below the required merit would be to play with the lives of the people whom the candidate would have to treat after getting the M.S. degree.”
In our view the said observations of the Supreme Court would a tly apply in the facts and circumstances of the instant case. The candidate who passes the subject concerned in the third or the subsequent attempt is treated wholly ineligible for prosecuting the post graduate courses because it is clear from the scheme of and the intention behind rule 6 that such a candidate does not possess the required standard or merit for prosecuting the said studies. Therefore, as observed by us in our main judgment in the aforesaid Writ Petition No. 1291/1988, where it is a case of ineligibility for admission to the post-graduate courses altogether on the basis of the standard or merit, we cannot protect the admission of such a student.
21. Moreover, it may be seen that the applicant has hardly attended the course for about a month before her admission was set aside by us in the above judgment. There are also other difficulties in protecting the admission of the applicant. There are norms such as the teacher student ratio being 1 :1 laid down by the Medical Council of India, in regard to the post graduate admissions by which the total number of students to be given admissions is determined. It is not only the non-applicant No. 1, who has challenged the admission of the applicant in the subject concerned, but as referred to above there is another student also who has challenged her admission in Writ Petition No. 2005/1988. If the admission of the applicant, although illegal, is not to be disturbed, we shall be required to direct the authorities to create two additional seats for the non-applicant No. 1 as well as the petitioner in Writ Petition No. 2005/1988 since they are qualified candidates under rule 6 which would be against the norms laid down by the Medical Council about the number of students to be admitted. For this reason also the admission granted to the petitioner cannot be protected.
22. The learned counsel for the applicant has stated before us that the applicant has applied for admission in the post graduate diploma course in child health for which she is eligible because she has passed the said subject in the first attempt although she has passed the remaining subjects in the third attempt. However, he has further stated before us that her case would not be considered in the said subject because of delay. If that is the only reason , we direct that the case of the applicant should be considered for admission in the said subject ignoring the delay.
23. In the result, the instant application fails and is dismissed. However, in the circumstances there will be no order as to costs.