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2024 (12) TMI 1603
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....review petition [Writ-A No. 580 of 2023, Special Appeal Defective No. 187 of 2022, Special Appeal Defective No. 257 of 2022 and Civil Misc. Review Application No. 398 of 2023] . All but one of the proceedings were at the instance of Gitanjali Pandey [Respondent 1] . The remaining one was at the instance of one Brahma Deo (Respondent 1 in Civil Appeal No. 12413/2024). RESUME OF FACTS 2. Relevant facts, pertinent for disposal of the present appeal, are summed up as under: a. Respondent 1 was an aspirant for the post of 'Assistant Professor' in Allahabad University and its affiliated colleges. As per her pleadings, between October 2004 and March 2010 (approximately 5 ½ years), she worked as a contractual faculty in Jawad Ali Shah Imambara Girls PG College (affiliated to Pandit Deen Dayal Upadhyay University, Gorakhpur) at a monthly cash honorarium of Rs. 5000/-. Thereafter, between 2016 and 2021, she claims to have worked as a guest faculty in different constituent colleges of Allahabad University at different honoraria ranging from Rs. 25,000/- to Rs. 50,000/-. b. Advertisements: i. On 28th September 2021....
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.... awarded any marks under clause 7 in Table 3A for "Teaching/Post Doctoral experience". Her past teaching experiences on contractual basis and as a guest faculty were not counted as 'teaching experience' by Allahabad University. h. According to Allahabad University, past teaching experience as a guest lecturer and on contractual basis do not fulfill the conditions provided under Reg.10(e) and (f)(iii), respectively; hence, it could not be counted as 'Teaching/Post Doctoral experience'. i. As per clause 10(e), previous service as a 'guest lecturer' would not count as 'teaching experience'. Furthermore, as per clause 10(f)(iii), previous service of a lecturer on contractual basis would count as 'teaching experience' only if the incumbent was drawing total gross emoluments not less than the monthly gross salary of a regularly appointed Assistant Professor, Associate Professor and Professor, as the case may be. Reg. 10, in its entirety, would also be reproduced at a latter part of this judgment for the sake of completeness of understanding. j. As mentioned above, Respondent 1 had served as a guest lecturer and on contractual basis before. Furthermore, as per t....
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.... verbatim the same hereunder: "17. The short question raised in this bunch of petitions is as to whether regulation 10(f)(iii) would be applicable while awarding marks for the teaching/post-doctoral experience, in terms of clause 7 of table 3A for shortlisting of candidates, to be called for interview for the post of Assistant Professors in universities? As a sequel, it has to be seen as to whether regulation 10(f)(iii) is ultra vires Article 14 of the Constitution of India. *** 23. The counting of past services under regulation 10, however, would be relevant and directly co-related to the post on which direct appointment or promotion under CAS itself is sought. Since, past services are required for appointment to the post of Associate Professor and Professor only in the regulations, the relevance of regulation 10 would be restricted to these posts alone. 24. No previous teaching experience (including Assistant Professor) since is required as eligibility condition for appointment to the post of Assistant Professor, as such regulation 10 would have no direct applicability/relevance for appointment to the post of Assistant Professor. *** ....
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....teaching experience gathered by a post-doctoral candidate would entitle him to two marks if teaching by him is considered as post-doctoral experience but such marks would be denied if it is treated as teaching experience only. It is for this reason that table 3A of the regulations does not refer to or rely upon regulation 10. The interpretation drawn by the respondents to read regulation 10 in table 3A, which specifically lays down the criteria for short-listing of candidates for interview for the post of Assistant Professors, therefore, cannot be approved. 34. In our opinion, regulation 10 of the regulations would be attracted only where past services are required to be counted for direct recruitment and promotion under CAS. It cannot be transposed to be made applicable in criteria for short-listing of candidates to be called for interview, to the post of Assistant Professor, by any recognized process of interpretation. Such construction otherwise is not culled out from the scheme contained in the regulations nor it helps in shortlisting of candidates to be called for interview. 35. Table 3A specifies the marks to be awarded to a candidate on different parameters....
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....on to the mandatory methodology followed by them. To persuade us to reverse the impugned order, they argued that: a. For award of marks under clause 7 of Tables 3A and 3B, Reg.10 would apply, even for appointment on the post of Assistant Professor, as the post 'Assistant Professor' is expressly mentioned therein; b. The process of shortlisting as adopted by the appellants is extremely important for them, considering that thousands of candidates apply for a few posts; c. Even if Reg.10 is assumed to be not applicable, the appellants are entitled to adopt the methodology given therein as there is no specific bar in the 2018 Regulations. Hence, it is open for them to supplement such regulations so long as they are not illegal, arbitrary, discriminatory and contrary to the 2018 Regulations; d. The Division Bench while being seized of the writ petition ought to have noticed that respondent 1 had not averred anomaly in respect of clause 7 of Tables 3A and 3B and in the absence thereof, and particularly when 'post-doctoral experience' had not been defined, could have sought clarification from the University Grants Commission [UGC] or the appellants as t....
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.... d. Although respondent 1 has since lost the right to participate in the process initiated by Allahabad University due to passage of time, the impugned order still holds good for the colleges where the process is yet to be concluded and it was urged that a well-qualified candidate like respondent 1 should not lose the opportunity to compete with the whole lot of candidates aspiring for appointment in the manner directed by the Division Bench. PLEADING OF RESPONDENT 1 IN SUPPORT OF HER CLAIM THAT REG. 10(f)(iii) IS ULTRA VIRES ARTICLE 14 OF THE CONSTITUTION 6. In Writ-A No. 580 of 2023, respondent 1 prayed that Reg.10(f)(iii) be declared ultra vires since the same was in violation of Article 14 of the Constitution. She submitted that the said regulation is discriminatory as it creates a hierarchy among teachers (in other words, creates class amongst class) on the basis of salary drawn by them. This adversely impacts other equally qualified and experienced candidates, as they do not get any marks for their past teaching experience just because they were not drawing salary equivalent to gross monthly salary of a regular Assistant Professor. She further submitted that th....
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....r their past teaching experiences in order to shortlist them for interview for appointment on the post of Assistant Professor was a surplusage, since the eligibility for the post of Assistant Professor does not require any teaching experience. Therefore, counting of past services on such posts serves no tangible purpose. In the absence of such a requirement, the applicability of Reg.10 to direct recruitment on the posts of Assistant Professor would not arise, thus, restricting the operation of Reg.10 only to posts which demanded prior experience i.e. Associate Professor and Professor. 10. The Division Bench further opined that 'Teaching experience' as provided under clause 7 of table 3A has to be read in conjunction with 'Postdoctoral experience'. They form a composite class. Resultantly, if 'teaching experience' is allowed to be conditioned by Reg.10, then 'postdoctoral experience' mentioned in the same clause will also necessarily have to be conditioned by the said regulation. This will result into an anomalous situation. According to the Division Bench, 'post-doctoral experiences' can be of many kinds including research activity, teaching activity, et cetera and that if teach....
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....rise. So the task of interpreting the laws by finding out what the legislature meant is allotted to the courts. Now, if one person puts into words the thoughts of another (as the draftsman puts into words the thoughts of the legislature) and a third person (the court) is to find out what they meant, more difficulties are bound to crop up. The draftsman may not have caught the spirit of the legislation at all; the words used by him may not adequately convey what is meant to be conveyed; the words may be ambiguous: they may be words capable of being differently understood by different persons. How are the courts to set about the task of resolving difficulties of interpretation of the laws? The foremost task of a court, as we conceive it, in the interpretation of statutes, is to find out the intention of the legislature. Of course, where words are clear and unambiguous no question of construction may arise. Such words ordinarily speak for themselves. Since the words must have spoken as clearly to legislators as to judges, it may be safely presumed that the legislature intended what the words plainly say. This is the real basis of the so-called golden rule of construction that where th....
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....wever, while proceeding with the task entrusted to us, certainly these principles will have a strong bearing. WHETHER, WORDS CAN BE ADDED TO OR DELETED FROM A STATUTE? 15. Though Reg.10 of the 2018 Regulations expressly refers to "Assistant Professor" as one of the three posts to which the same would apply, the effect and import of the impugned order of the Division Bench of the High Court is that henceforth, Reg.10 has to be read as if it does not apply to the post of Assistant Professor. The following decisions would throw light on whether the approach of the High Court was right or not. 16. In Sri Jeyaram Educational Trust v. A.G. Syed Mohideen [(2010) 2 SCC 513], this Court held: "11. It is now well settled that a provision of a statute should have to be read as it is, in a natural manner, plain and straight, without adding, substituting or omitting any words. While doing so, the words used in the provision should be assigned and ascribed their natural, ordinary or popular meaning. Only when such plain and straight reading, or ascribing the natural and normal meaning to the words on such reading, leads to ambiguity, vagueness, uncertainty, or absurdity which w....
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....ent was introduced and, the situation, necessarily compels the court to adopt that construction which would carry out the obvious intention of the legislature. The court would be justified in doing so, but it must be cautious that while it irons out the creases in the material it does not alter the material of which the legislation is woven. ON THE PRINCIPLE OF READING DOWN 19. Examining the reasons assigned by the High Court for reading down Reg.10(f)(iii) of the 2018 Regulations would necessitate an understanding of what the principle of 'reading down' is all about. Precedents on 'reading down' of a provision are legion and only a few of them are referred to here. 20. In CST v. Radhakrishan [(1979) 2 SCC 249], this Court held: "15. ... In considering the validity of a statute the presumption is in favour of its constitutionality and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles. For sustaining the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can b....
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....s supplied) Hon'ble K. Ramaswamy, J. (as His Lordship then was), in a separate concurring opinion, had the occasion to consider authorities on statutory interpretation and observed: 323. In Craies Statute Law (7th edn., Chapter 5 at page 64) it is stated that where the words of an Act are clear, there is no need for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity in the statute. The safer and more correct course of dealing with the question of construction is to take the words themselves and arrive, if possible, at their meaning without in the first place referring to cases. Where an ambiguity arises to supposed intention of the legislature, one of the statutory constructions, the court propounded, is the doctrine of reading down. Lord Reid in Federal Steam Navigation Co. v. Department of Trade and Industry [(1974) 2 All ER 97, 100] (as also extracted by Cross Statutory Interpretation, Butterworths' edition, 1976 at page 43 in proposition 3) has stated thus: '... the judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to....
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....ny provision, if it could be saved by reading it down, it should be done, unless plain words are so clear to be in defiance of the Constitution. These interpretations spring out because of concern of the courts to salvage a legislation to achieve its objective and not to let it fall merely because of a possible ingenious interpretation. The words are not static but dynamic. This infuses fertility in the field of interpretation. This equally helps to save an Act but also the cause of attack on the Act. Here the courts have to play a cautious role of weeding out the wild from the crop, of course, without infringing the Constitution. For doing this, the courts have taken help from the Preamble, Objects, the scheme of the Act, its historical background, the purpose for enacting such a provision, the mischief, if any which existed, which is sought to be eliminated.........." (emphasis supplied) 24. In State of Rajasthan v. Sanyam Lodha [(2011) 13 SCC 262], this Court was considering whether absent a challenge to the law/rule, the same could be read down. Answering in the negative, Hon'ble R. V. Raveendran, J. (as His Lordship then was) speaking for the bench held: "12. It....
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....ates from a very well-settled canon of law, that is, the courts while examining the validity of a particular statute should always endeavour towards upholding its validity, and striking down a legislation should always be the last resort. "Reading Down" a provision is one of the many methods, the court may turn to when it finds that a particular provision if for its plain meaning cannot be saved from invalidation and so by restricting or reading it down, the court makes it workable so as to salvage and save the provision from invalidation. Rule of 'Reading Down' is only for the limited purpose of making a provision workable and its objective achievable. 101. The High Court in its impugned order resorted to reading down Rule 9(5) of the SARFAESI Rules not because its plain meaning would result in the provision being rendered invalid or unworkable or the statute's objective being defeated, but because it would result in the same harsh consequence of forfeiture of the entire earnest-money deposit irrespective of the extent of default in payment of balance amount. 102. However, harshness of a provision is no reason to read down the same, if its plain meaning is unambi....
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....ar [(1994) 6 SCC 293], this Court upheld shortlisting of candidates by the relevant Public Service Commission. In this case, for the purpose of shortlisting, a longer period of experience than the minimum prescribed was used as a criterion by it to call candidates for an interview. Relevant passages from such decision are reproduced below: "6. The question which is to be answered is as to whether in the process of short-listing, the Commission has altered or substituted the criteria or the eligibility of a candidate to be considered for being appointed against the post of Presiding Officer, Labour Court. It may be mentioned at the outset that whenever applications are invited for recruitment to the different posts, certain basic qualifications and criteria are fixed and the applicants must possess those basic qualifications and criteria before their applications can be entertained for consideration. The Selection Board or the Commission has to decide as to what procedure is to be followed for selecting the best candidates from amongst the applicants. In most of the services, screening tests or written tests have been introduced to limit the number of candidates who have to....
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....supplied) 30. The principle discernible from the above decision as well as those cited on behalf of the appellants is that whenever selection is based solely on the performance of the aspirants in the interview, it is not open to the recruiting authorities to dilute in any manner the norms and standards prescribed by the statutory provisions or executive orders governing recruitment for screening aspirants to be called for interview; however, it is always open to them to prescribe enhanced norms to have the zone of consideration for interview restricted to those aspirants satisfying the enhanced norms or higher criteria. In such cases, however, care has to be taken such that the enhanced norms or higher criteria are not susceptible to a challenge on the ground of arbitrariness or being contrary to the statutory provisions or executive orders governing recruitment. WHETHER, RELIEF CAN BE GRANTED IN THE ABSENCE OF REQUISITE PLEADINGS? 31. The necessity for appropriate pleadings in a writ petition cannot be overemphasized, particularly when such petitions are mainly decided on affidavit evidence and not witness action. 32. Without a doubt, a court cannot in the absence of ....
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....laim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief." 35. In Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor [(1998) 7 SCC 469], this Court noted the settled legal position and interfered with the impugned decision by ruling as follows: "8. ... It is too well settled that the petitioner who approaches the court invoking the extraordinary jurisdiction of the court under Article 226 must fully aver and establish his ri....
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....ounter/reply affidavit, as the case may be. Findings of the court have to be based on the pleadings and the evidence produced before it by the parties. It is well-nigh impermissible for the writ court to conjecture and surmise and make out a third case, not pleaded by the parties, based on arguments advanced in course of hearing. ANALYSIS AND REASONS 38. Allahabad University and, for that matter, Allahabad Degree College are both bound by the UGC Act and the 2018 Regulations. Normally, if compliance with certain statutory provisions of a central statute bring about adverse result for a citizen, the said result has to be accepted by him/her because the statutory provisions are nothing but the will of the people of India expressed by the Parliament. The only exception is if the vires of the relevant statutory provision is challenged on either of the two available grounds of challenge, i.e., legislative incompetence and manifest repugnancy with any of the Constitutional rights, and the challenge succeeds on any one of such grounds. In such a case, rights of the affected party invaded by the impugned statutory provision is protected by the courts in the manner considered just and....
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....nder the CAS of a teacher as Assistant Professor, Associate Professor, Professor or any other nomenclature, provided that: (a) The essential qualifications of the post held were not lower than the qualifications prescribed by the UGC for Assistant Professor, Associate Professor and Professor, as the case may be. (b) The post is/was in an equivalent grade or of the pre-revised scale of pay as the post of Assistant Professor (Lecturer), Associate Professor (Reader) and Professor. (c) The Assistant Professor, Associate Professor and Professor concerned should possess the same minimum qualifications as prescribed by the UGC for appointment to the post of Assistant Professor, Associate Professor and Professor, as the case may be. (d) The post was filled in accordance with the prescribed selection procedure as laid down in the Regulations of the University/State Government/Central Government/Institutions concerned, for such appointments. (e) The previous appointment was not as guest lecturer for any duration. (f) The previous Ad hoc or Temporary or contractual service (by whatever nomenclature it may be called) shall be counted for di....
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....ent in respective State SLET/SET Universities/Colleges/Institutions only. 41. For reasons more than one, we hold that the Division Bench of the High Court was in error. 42. First and foremost, the Division Bench of the High Court has not found Reg.10(f)(iii) to be ultra vires on any of the available grounds, i.e., either on the ground of legislative incompetence or that it offends any of the Constitutional rights and/or any provision of the UGC Act or that there is excessive delegation; rather, the Division Bench has read down Reg.10(f)(iii) on the specious ground (paragraph 36 of the impugned order, extracted supra) that the construction it has placed "would obviate the need to examine the challenge laid to the regulation 10(f)(iii) and the general instructions appended to the advertisement in that regard". In our view, this course of action was impermissible having regard to the authorities noted above. 'Reading down' can be resorted to whenever a provision, which is questioned, is found to be ultra vires by the court but there is scope for the court to read the same down in a manner so as to save it from being declared constitutionally invalid. The Division Bench without e....
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....re for eligibility as well as marks for teaching experience earned from past service of the nature ordained which, of course, is in the nature of a desirable quality and is such that the 2018 Regulations permit for being taken into consideration for shortlisting of candidates, more particularly when the proportion of candidates applying for the number of posts available is quite high. 45. Even otherwise, we find no justification to uphold the view taken by the Division Bench of the High Court. It was never the intention to deprive aspirants of marks for their teaching experience as Assistant Professors, albeit for shortlisting purposes. Conditions of eligibility for entitlement to secure marks, which have been laid down, are matters of policy over which the courts have no expertise. Judicial review would not extend to cases of the present nature where regulations are framed by experts having a fair measure of idea of what is required and what is not for appointment on teaching posts. The Division Bench overstepped its limits and treaded a territory, which was forbidden. 46. Besides, even on a plain reading of Reg.10, we have failed to comprehend why the High Court embarked on....
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....ppointment on very few vacant posts of Assistant Professor. 47. Above, we have assigned reasons why the High Court was not justified in its approach. Independent thereof, there is one equally weighty reason for allowing the instant appeals. As discussed in M.P. Public Service Commission (supra), a recruiting authority is well-nigh entitled to adopt a method for shortlisting candidates on some rational and reasonable basis when selection is required to be made only on the basis of an interview. In the present case, 'Note' to Reg.4.1 relating to Assistant Professor ordains that after shortlisting of candidates based on academic score specified in Tables 3A and 3B, "the selections shall be based only on the performance in the interview". In course of hearing, we were informed by learned senior counsel for Allahabad University that 69 candidates were shortlisted and called for interview (the cut-off marks being 87.17), who were competing against each other for appointment on only one unreserved vacancy. Respondent 1 had secured 81 marks and between 87.17 and 81 marks, there were 147 candidates. It is true that these facts and figures are not on record but appointment in furtherance ....