Supreme Court of India
Allahabad University vs Geetanjali Tiwari (Pandey) on 18 December, 2024
Author: Dipankar Datta
Bench: Prashant Kumar Mishra, Dipankar Datta
2024 INSC 1003 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 12411-12414 OF 2024
ALLAHABAD UNIVERSITY ETC. ….APPELLANT(S)
VERSUS
GEETANJALI TIWARI (PANDEY) &
ORS. ETC. ETC. ....RESPONDENT(S)
WITH
CIVIL APPEAL NO.12415 OF 2024
ALLAHABAD DEGREE COLLEGE & ANR. .…APPELLANT(S)
VERSUS
GEETANJALI TIWARI (PANDEY) & ORS. .…RESPONDENT(S)
JUDGMENT
DIPANKAR DATTA, J.
THE CHALLENGE
1. Assail in these civil appeals is to the common judgment and order dated
18th January, 20241 passed by a Division Bench of the High Court of
Signature Not Verified
Judicature at Allahabad2, whereby the High Court disposed of a writ
Digitally signed by
rashmi dhyani pant
Date: 2024.12.18
17:54:45 IST
Reason:
1
impugned order
2
High Court, hereafter
1
petition, two special appeals and one review petition3. All but one of the
proceedings were at the instance of Gitanjali Pandey4. 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, Allahabad University published an
advertisement for appointment on the posts of Assistant
Professors in various disciplines. A total of 4 (four) posts were
3
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
4
Respondent 1
2
advertised for Sanskrit. Respondent 1 applied for appointmenton the single advertised post in the unreserved category.
ii. On 30th August 2022, a constituent college of Allahabad
University, viz. Iswar Saran Degree College (ISDC), issued an
advertisement which, inter alia, invited applications from eligible
candidates for appointment on the post of Assistant Professor in
Sanskrit.
iii. On 28th November 2022, another constituent college of
Allahabad University, viz. Allahabad Degree College (ADC),
issued a similar advertisement.
c. Pursuant to all the above advertisements, Respondent 1 duly
applied for appointment on the posts.
d. The requisite qualifications for appointment on the posts of
Assistant Professor, Associate Professor and Professor are
prescribed by the University Grants Commission (Minimum
Qualifications for Appointment of Teachers and other Academic Staff
in Universities and Colleges and other Measures for the Maintenance
of Standards in Higher Education) Regulations, 20185. Clause 4
thereof provides for the minimum qualifications required for the
post of Assistant and Associate Professor. It is not in dispute that
Respondent 1 does possess the requisite educational qualifications
for appointment as Assistant Professor in Sanskrit.
5
2018 Regulations, hereafter
3
e. The procedure for shortlisting candidates for interview is given inthe note to Reg.4.1, which provides for shortlisting on the basis of
an academic score prepared in accordance with Table 3A (for
universities) and 3B (for colleges). Hence, for shortlisting
candidates for the purposes of interview, Allahabad University
would score candidates as per the criteria laid down in Table 3A and
the affiliated colleges in Table 3B.
f. As per clause 7 of Tables 3A and 3B, 2 (two) marks are to be granted
to a candidate for every year of his/her teaching experience or Post
Doctoral experience. Since the contents of both the tables are
similar, we propose to reproduce Table 3A later in this judgment.
g. Despite Respondent 1 fulfilling the eligibility criteria, she was not
shortlisted for the interview as her score did not reach the cutoff
marks. This happened because she was not 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
4
10(f)(iii), previous service of a lecturer on contractual basis wouldcount 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 the records,
she was also not drawing a salary/honorarium equivalent to the
monthly gross salary of a regularly appointed Assistant Professor,
which at the relevant time was Rs. 35,654/-. Therefore, Respondent
1 was not granted any marks for her past services as guest lecturer
and on contractual basis. Falling short of marks, she was not
shortlisted for interview.
k. Thereafter, litigation commenced with the following cases being
presented by the Respondent 1:
i. Upon the advertisement dated 28th September 2021 being
issued and her experience not being marked, Respondent 1
invoked the writ jurisdiction by filing a petition6 praying that
Allahabad University be directed to grant her marks for her
teaching experience as ‘contractual faculty’ while shortlisting
candidates for interview. Her petition was rejected by the Single
6
Writ-A no. 7114 of 2022
5
Judge on 20th May 2022. Challenging the same, she filed theSpecial Appeal (Defective)7.
ii. In respect of advertisement dated 30th August 2022, Respondent
1 filed another petition8 wherein, inter alia, she prayed for a
declaration that Reg.10(f)(iii) of the 2018 Regulations be
declared ultra vires Article 14 of the Constitution of India, 1950.
This petition was dismissed on 2nd August 2023 in light of the
pendency of the Special Appeal (Defective) filed earlier. Against
the order dated 2nd August 2023, Respondent 1 preferred Civil
Misc Review Application9.
iii. Insofar as the advertisement dated 28th November 2022 is
concerned, Respondent 1 filed another petition10 challenging the
vires of Reg.10(f)(iii) of the 2018 Regulations.
iv. Relying upon the judgment dated 20th May 2022 (rendered in
Writ-A No.7114 of 2022), the Single Judge dismissed the
petition11 of the said Brahma Deo. Aggrieved by such dismissal,
Brahma Deo also filed a Special Appeal (Defective)12.
v. As noted above, vide the impugned order, all the
abovementioned four proceedings were disposed of.
7
Special Appeal (D) No. 187 of 2022
8
W.P. 16585 of 2022
9
Civil Misc. Application No. 398 of 2023
10
W.P. No. 580 of 2023
11
Writ-A No. 6927 of 2022
12
Special Appeal (D) no.257 of 2022
6
IMPUGNED ORDER
3. The High Court noted the question arising for decision in paragraph 17
of its decision and commenced its discussion from paragraph 23. We
consider it appropriate to reproduce 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.
***
29. Regulation 10 specifically deals with a defined exigency i.e.
counting of past services for direct recruitment and promotion under
CAS. This exigency is not attracted in the present set of cases.
Regulation 10 has a direct nexus with the object sought to be
achieved i.e. direct recruitment and promotion under CAS. Since past
services are mandatorily required for appointment to the post of
Associate Professor and Professor only, therefore, regulation 10
would have relevance only for appointment and promotion to such
posts.
30. Reference of past services on the post of Assistant Professor for
appointment to the post of Assistant Professor appears to be a
surplusage since the eligibility for the post of Assistant Professor does
not require any teaching experience. Counting of past services as
Assistant Professor for appointment to the post of Assistant Professor
serves no purpose in the scheme contained in the regulations.
Regulation 10 of the regulations, therefore, has no applicability in the
case of direct appointment to the post of Assistant Professor.
7
31. We are persuaded to take such a view as reference to teaching
experience in table 3A has to be read in conjunction with post-
doctoral experience as they constitute a composite class in itself. In
the event regulation 10 conditions teaching experience, as is
suggested by the respondents, the term post-doctoral experience
would also have to be necessarily conditioned by regulation 10. This,
however, does not appear to be the intent of the scheme contained
in the regulations.
32. Limiting teaching experience to the experience of teaching as an
Assistant Professor, by drawing emoluments not less than the
monthly gross salary of a regularly appointed Assistant Professor
would clearly be reading something more than what is specified in
the regulations itself. Counting of past services for direct recruitment
or promotion under CAS to the post of Assistant Professor otherwise
is not contemplated. Such a construction would also be unworkable
once a condition of the kind is attached to the post-doctoral
experiences also.
33. Post-doctoral experiences can be of different kinds, including
research activity, teaching activity etc. If the provisions of regulation
10 are applied while awarding marks in clause 7 of table 3A then an
anomalous situation may arise, inasmuch as 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 short-
listing of candidates to be called for interview.
35. Table 3A specifies the marks to be awarded to a candidate on
different parameters specified therein. Apart from awarding marks
for graduation; post-graduation; M.Phil.; NET with JRF or NET;
SLET/SET the table provides for teaching/post-doctoral experience of
two marks for each year. Since the term teaching/post-doctoral
experience is not defined in the regulations the
ordinary/commonsensical meaning would have to be assigned to it.
36. Teaching experience as a full time teacher in a recognized
university or its affiliated or constituent colleges with requisite
qualification as per regulations for the post of Assistant Professor
would sufficiently entitle a candidate to award of two marks for each
8
year of teaching experience in clause 7 of table 3A. Nature of
appointment i.e. substantive/adhoc/guest lecturer etc. or the amount
of salary paid having not been specified in clause 7 of the table 3A
are not relevant for the purposes of award of marks in clause 7 of
table 3A for short-listing of candidates. Regulation 10 would
otherwise not be applicable for the reasons recorded above. This
construction 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. It would also effectuate the cause of
calling best candidates for interview, inasmuch as teaching
experience of a candidate would be counted towards his merit for
short-listing.
37. The interpretation assigned in this judgment to clause 7 of table
3A would subserve the object of short-listing the best candidates to
be called for interview to the post of Assistant Professors. The
selections already made, however, would not be reopened or
challenged on the ground that short-listing of candidates was not
done in the manner indicated in this judgment. This is so as the
selected candidates are not a party to this bunch of petitions nor their
selections otherwise have been assailed. The respondents would,
henceforth, short-list the candidates to be called for interview for the
post of Assistant Professor in the manner indicated in this judgment.
On these terms the writ petition, special appeal and the review
application are disposed of. No order is passed as to costs.”
SUBMISSIONS ON BEHALF OF THE APPELLANTS
4. Learned senior counsel and counsel for Allahabad University and
Allahabad Degree College, respectively, submitted that the High Court
erred in substituting its opinion 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;
9
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
Commission13 or the appellants as to what is meant by such
expression but instead thereof, allowed itself to be guided by a
perceived anomaly which was not even the pleaded case of
respondent 1;
e. In practice, ‘post-doctoral experience’ refers to post-doctoral
fellowship programmes awarded by various Government
organizations like UGC, Indian Council of Social Science Research,
Department of Science and Technology, etc., not including teaching
activity, yet, it would appear from the impugned order that the
13
UGC
10
Division Bench has proceeded to return findings which are based onmere assumptions;
f. There are decisions of this Court, viz. A.P.J. Abdul kalam
Technological University v. Jai Bharath College of Mngt. &
Engg. Technology14 and Visveswaraiah Technological
University v. Krishnendu Halder15 where it has been laid down
that while dilution of published norms is not permissible, prescribing
enhanced norms is permissible without defeating any right of an
aspirant for a post;
g. The decision of recent origin of the Constitution Bench of this Court
in Tej Prakash Pathak v. Rajasthan High Court16 also puts
beyond any shadow of doubt that any procedure that is transparent,
non-discriminatory/non-arbitrary and having a rational nexus with
the object sought to be achieved can be devised for taking a
recruitment process towards its logical end by the recruiting bodies.
SUBMISSIONS ON BEHALF OF RESPONDENT 1
5. Learned senior counsel for respondent 1 submitted that the Division
Bench of the High Court has rightly read down Reg. 10(f)(iii) of the 2018
Regulations to save it from being struck down as arbitrary and hence
there is no need for interference. He argued that:
a. Emoluments-based distinction under Reg.10(f)(iii) violates Article
14 of the Indian Constitution as the distinction between Assistant
14
(2021) 2 SCC 564
15
(2011) 4 SCC 606
16
2024 SCC OnLine SC 3184
11
Professors, who are serving on contractual basis, and those who areappointed on regular basis, has no direct nexus with the objective
of ensuring quality education;
b. Exclusion of candidates, who otherwise are qualified and have
ample teaching experience (even though on contractual basis),
undermines the objective of ensuring quality education;
c. The Division Bench has rightly held that since ‘Assistant Professor’
is an entry level post, there is no need for any previous experience;
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
12
were not drawing salary equivalent to gross monthly salary of a regular
Assistant Professor. She further submitted that the salary a teacher
receives does not have any visible correlation with the teaching
experience. Reg.10(f)(iii) is, thus, liable to be declared ultra vires Article
14 of the Constitution.
7. Significantly, apart from the emoluments aspect, neither have we been
able to trace any other point that respondent 1 sought to urge to
invalidate Reg.10(f)(iii), nor was any other part of the 2018 Regulations
subjected to challenge.
THE ISSUE
8. Exception was taken by the High Court to the methodology adopted by
Allahabad University and Allahabad Degree College in shortlisting
candidates for interview for appointment on the post of Assistant
Professor in Sanskrit in terms of Reg.10 of the 2018 Regulations. Since
the High Court did not declare Reg.10(f)(iii) as ultra vires the
Constitution or the parent enactment, i.e., the University Grants
Commission Act, 195617 (in terms whereof the 2018 Regulations were
framed) but read Reg.10 down, we are primarily tasked to decide
whether the High Court was correct in reading it down in the manner it
did. Should the answer be in the negative, allowing the appeal of
Allahabad University and Allahabad Degree College is the logical
conclusion; and since the appeals would thus succeed, as a corollary,
there would be no impediment for the appellants to be guided, inter alia,
17
UGC Act, hereafter
13
by Reg.10 of the 2018 Regulations for the purpose of shortlisting. On
the contrary, if these appeals fail, all the universities and colleges across
the country would be precluded from shortlisting candidates seeking
appointment on the posts of Assistant Professor for interview in terms
of Regs.4 and 10 read with Tables 3A and 3B of the 2018 Regulations.
This is a conclusion that would logically follow from the view expressed
in paragraph 22 of the decision of this Court in Kusum Ingots & Alloys
Ltd. v. Union of India18 and the ramifications, to say the least, could
be significant.
OBSERVATIONS/FINDINGS OF THE HIGH COURT WHILE READING DOWN REG.
10(f)(iii)
9. To recapitulate, the Division Bench of the High Court proceeded to read
down Reg.10 and held that the same would apply only where past
services are required to be counted for direct recruitment and promotion
under the Career Advancement Scheme (CAS), i.e., to the posts of
Associate Professor and Professor. The Division Bench took the view that
marking candidates for 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,
18
(2004) 6 SCC 54
14
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 ‘Post-
doctoral experience’. They form a composite class. Resultantly, if
‘teaching experience’ is allowed to be conditioned by Reg.10, then ‘post-
doctoral 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 teaching experience of a post-doctoral
candidate (who is not drawing gross monthly equivalent to that of a
regular Assistant Professor) is counted as ‘post-doctoral experience’,
then such candidate would be entitled to two marks per year of his/her
experience; however, if it is counted as ‘teaching experience’, then the
candidate would not be entitled to the marks as he/she as a teacher was
not drawing salary as aforesaid. Hence, for the same candidate, two
different markings are possible based on the interpretation chosen. This
perceived anomaly guided the High Court to ultimately read down
Reg.10.
JUDICIAL PRECEDENTS AND THE PRINCIPLES FLOWING THEREFROM
11. It would be of profit to read precedents and to deduce the principles of
law laid down therein, having a bearing on the issue which we are tasked
to decide.
15
ON INTERPRETATION OF STATUTES
12. Hon’ble O. Chinnappa Reddy, J. (as His Lordship then was) in Girdhari
Lal & sons v. Balbir Nath Mathur19, in His Lordship’s inimitable style,
had the occasion to emphasize:
“6. It may be worthwhile to restate and explain at this stage certain
well-known principles of interpretation of statutes: Words are but
mere vehicles of thought. They are meant to express or convey one’s
thoughts. Generally, a person’s words and thoughts are coincidental.
No problem arises then, but, not infrequently, they are not. It is
common experience with most men, that occasionally there are no
adequate words to express some of their thoughts. Words which very
nearly express the thoughts may be found but not words which will
express precisely. There is then a great fumbling for words. Long-
winded explanations and, in conversation, even gestures are resorted
to. Ambiguous words and words which unwittingly convey more that
one meaning are used. Where different interpretations are likely to
be put on words and a question arises what an individual meant when
he used certain words, he may be asked to explain himself and he
may do so and say that he meant one thing and not the other. But if
it is the legislature that has expressed itself by making the laws and
difficulties arise in interpreting what the legislature has said, a
legislature cannot be asked to sit to resolve those difficulties. The
legislatures, unlike individuals, cannot come forward to explain
themselves as often as difficulties of interpretation arise. 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 the words of statutes are plain and19
(1986) 2 SCC 237
16
unambiguous effect must be given to them. A court should give effect
to plain words, not because there is any charm or magic in the
plainness of such words but because plain words may be expected to
convey plainly the intention of the legislature to others as well as
judges. Intention of the legislature and not the words is paramount.
Even where the words of statutes appear to be prima facie clear and
unambiguous it may sometimes be possible that the plain meaning
of the words does not convey and may even defeat the intention of
the legislature; in such cases there, is no reason why the true
intention of the legislature, if it can be determined, clearly by other
means, should not be given effect. Words are meant to serve and not
to govern and we are not to add the tyranny of words to the other
tyrannies of the world.”
13. Another crisp and enlightening passage is found in Reserve Bank of
India (supra), where His Lordship observed as follows:
“33. Interpretation must depend on the text and the context. They
are the bases of interpretation. One may well say if the text is the
texture, context is what gives the colour. Neither can be ignored.
Both are important. That interpretation is best which makes the
textual interpretation match the contextual. A statute is best
interpreted when we know why it was enacted. With this knowledge,
the statute must be read, first as a whole and then section by section,
clause by clause, phrase by phrase and word by word. If a statute is
looked at, in the context of its enactment, with the glasses of the
statute-maker, provided by such context, its scheme, the sections,
clauses, phrases and words may take colour and appear different
than when the statute is looked at without the glasses provided by
the context. With these glasses we must look at the Act as a whole
and discover what each section, each clause, each phrase and each
word is meant and designed to say as to fit into the scheme of the
entire Act. No part of a statute and no word of a statute can be
construed in isolation. Statutes have to be construed so that every
word has a place and everything is in its place. … ”
14. Reiteration of the principles of interpretation of statutes and elucidation
of the approach to be adopted, as suggested by the Hon’ble Judge, are
so lucid that we feel hesitant to say anything more. However, while
proceeding with the task entrusted to us, certainly these principles will
have a strong bearing.
17
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 20, 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 were not obviously intended by the legislature or the
lawmaker, a court should open its interpretation toolkit containing
the settled rules of construction and interpretation, to arrive at the
true meaning of the provision. While using the tools of interpretation,
the court should remember that it is not the author of the statute
who is empowered to amend, substitute or delete, so as to change
the structure and contents. A court as an interpreter cannot alter or
amend the law. It can only interpret the provision, to make it
meaningful and workable so as to achieve the legislative object, when
there is vagueness, ambiguity or absurdity. The purpose of
interpretation is not to make a provision what the Judge thinks it
should be, but to make it what the legislature intended it to be.”
(emphasis supplied)
17. This Court, in Union of India v. Deoki Nandan Aggarwal21, had the
occasion to lament by observing that:
“14. We are at a loss to understand the reasoning of the learned
Judges in reading down the provisions in paragraph 2 in force prior20
(2010) 2 SCC 513
21
1992 Supp (1) SCC 323
18
to November 1, 1986 as ‘more than five years’ and as ‘more than
four years’ in the same paragraph for the period subsequent to
November 1, 1986. It is not the duty of the court either to enlarge
the scope of the legislation or the intention of the legislature when
the language of the provision is plain and unambiguous. The court
cannot rewrite, recast or reframe the legislation for the very good
reason that it has no power to legislate. The power to legislate has
not been conferred on the courts. The court cannot add words to a
statute or read words into it which are not there. Assuming there is
a defect or an omission in the words used by the legislature the court
could not go to its aid to correct or make up the deficiency. Courts
shall decide what the law is and not what it should be. The court of
course adopts a construction which will carry out the obvious
intention of the legislature but could not legislate itself. But to invoke
judicial activism to set at naught legislative judgment is subversive
of the constitutional harmony and comity of instrumentalities……….”
(emphasis supplied)
18. The legal position is, thus, clear. A situation could arise where plain and
literal reading of a statute could lead to a manifest contradiction of the
apparent purpose for which the enactment 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.
19
20. In CST v. Radhakrishan22, 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 be conceived. It must always be
presumed that the Legislature understands and correctly appreciates
the need of its own people and that discrimination, if any, is based on
adequate grounds. It is well settled that courts will be justified in
giving a liberal interpretation to the section in order to avoid
constitutional invalidity. These principles have given rise to rule of
reading down the sections if it becomes necessary to uphold the
validity of the sections. … ”
(emphasis supplied)
21. Hon’ble P.B. Sawant, J. (as His Lordship then was) in his concurring
judgment in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress23
captured the rule of ‘reading down’ as follows:
“255. It is thus clear that the doctrine of reading down or of recasting
the statute can be applied in limited situations. It is essentially used,
firstly, for saving a statute from being struck down on account of its
unconstitutionality. It is an extension of the principle that when two
interpretations are possible — one rendering it constitutional and the
other making it unconstitutional, the former should be preferred. The
unconstitutionality may spring from either the incompetence of the
legislature to enact the statute or from its violation of any of the
provisions of the Constitution. The second situation which summons
its aid is where the provisions of the statute are vague and ambiguous
and it is possible to gather the intentions of the legislature from the
object of the statute, the context in which the provision occurs and
the purpose for which it is made. However, when the provision is cast
in a definite and unambiguous language and its intention is clear, it
is not permissible either to mend or bend it even if such recasting is
in accord with good reason and conscience. In such circumstances, it
is not possible for the court to remake the statute. Its only duty is to
strike it down and leave it to the legislature if it so desires, to amend
it. What is further, if the remaking of the statute by the courts is to
lead to its distortion that course is to be scrupulously avoided. One
of the situations further where the doctrine can never be called into22
(1979) 2 SCC 249
23
1991 Supp (1) SCC 600
20
play is where the statute requires extensive additions and deletions.
Not only it is no part of the court’s duty to undertake such exercise,
but it is beyond its jurisdiction to do so.”
(emphasis 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 add to, alter or ignore statutory words
in order to prevent a provision from being unintelligible, absurd or
totally unreasonable, unworkable or totally irreconcilable with the
rest of the statute.’
324. At page 92 of the Cross Statutory Interpretation, the author has
stated that: ‘The power to add to, alter or ignore statutory words is
an extremely limited one. Generally speaking it can only be exercised
where there has been a demonstrable mistake on the part of the
draftsman or where the consequence of applying the words in their
ordinary, or discernible secondary, meaning would be utterly
unreasonable. Even then the mistake may be thought to be beyond
correction by the court, or the tenor of the statute may be such as to
preclude the addition of words to avoid an unreasonable result.’
Therefore, the Doctrine of Reading Down is an internal aid to construe
the words or phrase in statute to give reasonable meaning, but not
to detract, distort or emasculate the language so as to give the
supposed purpose to avoid unconstitutionality.
***
326. It is, thus, clear that the object of reading down is to keep the
operation of the statute within the purpose of the Act and
constitutionally valid. …”
(emphasis supplied)
21
22. The question of ‘reading down’ a provision arises if it is found that the
provision is ultra vires as it stands. This is the law laid down in
Electronics Corpn. of India Ltd. v. Secy., Revenue Deptt., Govt. of
A.P.24.
23. An instructive passage is found in B.R. Enterprises v. State of U.P.25,
reading thus:
“81. … Thus, where there are two possible interpretations, one
invalidating the law and the other upholding, the latter should be
adopted. For this, the courts have been endeavouring, sometimes to
give restrictive or expansive meaning keeping in view the nature of
legislation, may be beneficial, penal or fiscal etc. Cumulatively it is to
subserve the object of the legislation. Old golden rule is of respecting
the wisdom of legislature that they are aware of the law and would
never have intended for an invalid legislation. This also keeps courts
within their track and checks individual zeal of going wayward. Yet in
spite of this, if the impugned legislation cannot be saved the courts
shall not hesitate to strike it down. Similarly, for upholding any
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 Lodha26, this Court was considering
whether absent a challenge to the law/rule, the same could be read
24
(1999) 4 SCC 458
25
(1999) 9 SCC 700
26
(2011) 13 SCC 262
22
down. Answering in the negative, Hon’ble R. V. Raveendran, J. (as His
Lordship then was) speaking for the bench held:
“12. It is true that any provision of an enactment can be read down
so as to erase the obnoxious or unconstitutional element in it or to
bring it in conformity with the object of such enactment. Similarly, a
rule forming part of executive instructions can also be read down to
save it from invalidity or to bring it in conformity with the avowed
policy of the Government. When courts find a rule to be defective or
violative of the constitutional or statutory provision, they tend to save
the rule, wherever possible and practical, by reading it down by a
benevolent interpretation, rather than declare it as unconstitutional
or invalid. But such an occasion did not arise in this case as there was
no challenge to the validity of Rule 5 and the parties were not at issue
on the validity of the said Rule. We are therefore of the view that in
the absence of any challenge to the Relief Fund Rules and an
opportunity to the State Government to defend the validity of Rule 5,
the High Court ought not to have modified or read down the said
Rule.”
25. Caution has been sounded in Subramanian Swamy v. Raju27 in the
following words:
“61. Reading down the provisions of a statute cannot be resorted to
when the meaning thereof is plain and unambiguous and the
legislative intent is clear. The fundamental principle of the ‘reading
down’ doctrine can be summarised as follows. Courts must read the
legislation literally in the first instance. If on such reading and
understanding the vice of unconstitutionality is attracted, the courts
must explore whether there has been an unintended legislative
omission. If such an intendment can be reasonably implied without
undertaking what, unmistakably, would be a legislative exercise, the
Act may be read down to save it from unconstitutionality. The above
is a fairly well-established and well-accepted principle of
interpretation which having been reiterated by this Court time and
again would obviate the necessity of any recall of the huge number
of precedents…”
26. On the question as to whether harshness of a provision could afford
reason for reading down the same, we find that a three-Judge bench of
this Court in Authorised Officer, Central Bank of India v.
27
(2014) 8 SCC 390
23
Shanmugavelu28 speaking through Hon’ble J.B. Pardiwala, J. has held
as follows:
“100. Thus, the principle of ‘Reading Down’ a provision emanates
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 unambiguous and perfectly valid. A
law/rule should be beneficial in the sense that it should suppress the
mischief and advance the remedy. The harsh consequence of
forfeiture of the entire earnest-money deposit has been consciously
incorporated by the legislature in Rule 9(5) of the SARFAESI Rules so
as to sub-serve the larger object of the SARFAESI Act of timely
resolving the bad debts of the country. The idea behind prescribing
such a harsh consequence is not illusory, it is to attach a legal sanctity
to an auction process once conducted under the SARFAESI Act from
ultimately getting concluded.”
(emphasis supplied)
27. Thus, what follows from the above authoritative discussions is this.
Whenever a court is seized of a question of vires of a primary legislation/
subordinate legislation or a part of it, a presumption of constitutionality
is attached to the impugned provision and the courts would ordinarily
strive to save the impugned provision from being declared ultra vires;
28
(2024) 6 SCC 641
24
however, there could be situations where the subordinate legislation (like
a rule or a regulation) is challenged on the ground of excessive
delegation or is itself violative of the enabling/primary legislation under
which it is framed or even breaches constitutional guarantees. ‘Reading
down’ of a provision is a subsidiary rule of interpretation of statutes,
which the courts tend to employ in situations to save the subordinate
legislation like a rule or a regulation, wherever possible and practical, by
reading it down by a benevolent interpretation, rather than declaring it
as unconstitutional or invalid. However, it has been clarified that it is to
be used sparingly, and in limited circumstances. Additionally, it is clear
that the act of reading down a provision, must be undertaken only if
doing so can keep the operation of the statute “within the purpose of
the Act and constitutionally valid”.
WHETHER, A SELECTION BOARD CAN FIX A HIGHER CRITERION FOR SHORTLISTING
CANDIDATES?
28. One would find a catena of decisions answering the question, as posed,
and the legal position has never been in doubt. The decisions cited by
the appellants are apt. However, without unnecessarily burdening our
judgment with authorities, reference is made to only one decision of this
Court which has a factual resemblance with the present case.
29. In M.P. Public Service Commission v. Navnit Kumar Potdar29, this
Court upheld shortlisting of candidates by the relevant Public Service
Commission. In this case, for the purpose of shortlisting, a longer period
29
(1994) 6 SCC 293
25
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 be called for interview. Such
screening tests or written tests have been provided in the concerned
statutes or prospectus which govern the selection of the candidates.
But where the selection is to be made only on basis of interview, the
Commission or the Selection Board can adopt any rational procedure
to fix the number of candidates who should be called for interview. It
has been impressed by the courts from time to time that where
selections are to be made only on the basis of interview, then such
interviews/viva voce tests must be carried out in a thorough and
scientific manner in order to arrive at a fair and satisfactory
evaluation of the personality of the candidate.
****
8. The sole purpose of holding interview is to search and select the
best among the applicants. It is obvious that it would be impossible
to carry out a satisfactory viva voce test if large number of candidates
are interviewed each day till all the applicants who had been found
to be eligible on basis of the criteria and qualifications prescribed are
interviewed. If large number of applicants are called for interview in
respect of four posts, the interview is then bound to be casual and
superficial because of the time constraint. The members of the
Commission shall not be in a position to assess properly the
candidates who appear before them for interview. It appears that
Union Public Service Commission has also fixed a ratio for calling the
candidates for interview with reference to number of available
vacancies.
*****
13. The High Court has taken the view that raising the period from
five years to seven and half years’ practice for purpose of calling the
candidates for interview amounted to changing the statutory criteria
by an administrative decision. According to us, the High Court has
26
not appreciated the true implication of the short-listing which does
not amount to altering or changing of the criteria prescribed in the
rule, but is only a part of the selection process. … As we have already
pointed out that where the selection is to be made purely on the basis
of interview, if the applications for such posts are enormous in
number with reference to the number of posts available to be filled
up, then the Commission or the Selection Board has no option but to
short-list such applicants on some rational and reasonable basis.”
(emphasis 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 the requisite pleadings
grant relief claimed by a party. We first propose to notice two decisions
27
which arose out of pure civil proceedings and then two decisions arising
out of writ proceedings.
33. In Pt. Shamboo Nath Tikoo v. S. Gian Singh30, this Court held as
follows:
“20. No doubt, the finding recorded by the learned third Judge
(Farooqi, J.) that two rooms of Dharamshalla had been granted by
Maharaja Partap Singh in favour of the Sikh community-defendants,
accords with the finding of another learned Judge (Jalal-ud-Din, J.).
But, that finding, in our view, becomes wholly unsustainable being
altogether a new case made out for the defendants by him, in that,
such case is not in any way traceable to the pleas of defence of the
defendants set out in their written statements against their ejectment
from the said two rooms.”
34. Bachhaj Nahar v. Nilima Mandal31 is a decision where one finds a
neat discussion on the object and purpose of pleadings. The relevant
passages read as follows:
“12. The object and purpose of pleadings and issues is to ensure that
the litigants come to trial with all issues clearly defined and to prevent
cases being expanded or grounds being shifted during trial. Its object
is also to ensure that each side is fully alive to the questions that are
likely to be raised or considered so that they may have an opportunity
of placing the relevant evidence appropriate to the issues before the
court for its consideration. This Court has repeatedly held that the
pleadings are meant to give to each side intimation of the case of the
other so that it may be met, to enable courts to determine what is
really at issue between the parties, and to prevent any deviation from
the course which litigation on particular causes must take.
13. The object of issues is to identify from the pleadings the questions
or points required to be decided by the courts so as to enable parties
to let in evidence thereon. When the facts necessary to make out a
particular claim, or to seek a particular relief, are not found in the
plaint, the court cannot focus the attention of the parties, or its own
attention on that claim or relief, by framing an appropriate issue. As
a result the defendant does not get an opportunity to place the facts
and contentions necessary to repudiate or challenge such a claim 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. The30
1995 Supp. (2) SCC 266
31
(2008) 17 SCC 491
28
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
Kapoor32, 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 rights flowing from the bundle of facts
thereby requiring the respondent to indicate its stand either by denial
or by positive assertions. But in the absence of any averments in the
writ petition or even in the rejoinder-affidavit, it is not permissible for
a court to arrive at a conclusion on a factual position merely on the
basis of submissions made in the course of hearing. The High Court,
therefore, in our view committed serious error in coming to the
conclusion that there existed vacancies in the post of Field Supervisor
on the materials produced before it. In fact the respondents herein
who were the petitioners in the High Court had not produced any
material in support of their stand that vacancies existed and yet
appointments have not been made. We are of the considered opinion
that the conclusion of the High Court that there existed vacancies is
unsustainable in law and is accordingly set aside.”
(emphasis supplied)
36. The difference in pleading in respect of civil proceedings and a writ
petition was succinctly noticed in Bharat Singh v. State of Haryana33
and expressed in the following words:
“13. …, when a point which is ostensibly a point of law is required to
be substantiated by facts, the party raising the point, if he is the writ
petitioner, must plead and prove such facts by evidence which must
appear from the writ petition and if he is the respondent, from the
counter-affidavit. If the facts are not pleaded or the evidence in32
(1998) 7 SCC 469
33
(1988) 4 SCC 534
29
support of such facts is not annexed to the writ petition or to the
counter-affidavit, as the case may be, the court will not entertain the
point. In this context, it will not be out of place to point out that in
this regard there is a distinction between a pleading under the Code
of Civil Procedure and a writ petition or a counter-affidavit. While in
a pleading, that is, a plaint or a written statement, the facts and not
evidence are required to be pleaded, in a writ petition or in the
counter-affidavit not only the facts but also the evidence in proof of
such facts have to be pleaded and annexed to it. …”
37. Based on the aforesaid authorities, we hold that while deciding a writ
petition on the basis of affidavits, the writ court’s enquiry ought to be
restricted to the case pleaded by the parties and the evidence that they
have placed on record as part of the writ petition or the counter/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
30
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 proper
bearing in mind the facts and circumstances before it.
39. The 2018 Regulations are subordinate legislation and not per se part of
the central statute, i.e., the UGC Act. However, nothing much turns on
it. The authority to craft subordinate legislation is derived from the
enabling/primary legislation and it is imperative that such legislation
harmonises with the provisions outlined in the enabling/primary
legislation. Thus, grounds for challenging a subordinate legislation to
ultimately succeed would, normally, be the same. The only additional
ground available is that if the subordinate legislation offends any
provision of the enabling/primary legislation, that too would provide
room for the courts to hold the impugned provision ultra vires such
enactment.
40. Respondent 1, for succeeding in her claim, challenged Reg.10(f)(iii) of
the 2018 Regulations. However, it is noteworthy that she did not
challenge any other regulation. At this juncture, we consider it useful to
read Regs.4 and 10 together with Table 3A. Since there is no dispute
that respondent 1 possesses requisite eligibility for consideration of her
candidature for appointment on the post of Assistant Professor, we
refrain from reproducing the eligibility criteria. The other relevant
provisions are reproduced hereunder:
“4.0. DIRECT RECRUITMENT
31
4.1. For the disciplines of Arts, Commerce, Humanities, Education,
Law, Social Science, Sciences, Languages, Library Science, Physical
Education, and Journalism & Mass Communication.
I. Assistant Professor:
Eligibility (A or B):
A. ***
OR
B. ***
Note: The Academic score as specified in Appendix II (Table 3A) for
Universities, and Appendix II (Table 3B) for Colleges, shall be
considered for short-listing of the candidates for interview only, and
the selections shall be based only on the performance in the
interview.”
(emphasis supplied)
“10.0. COUNTING OF PAST SERVICES FOR DIRECT RECRUITMENT AND
PROMOTION UNDER CAS.
Previous regular service, whether national or international, as
Assistant Professor, Associate Professor or Professor or equivalent in
a University, College, National Laboratories or other
scientific/professional organisations such as the CSIR, ICAR, DRDO,
UGC, ICSSR, ICHR, ICMR and DBT, should count for the direct
recruitment and promotion under 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.
32
(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 direct
recruitment and for promotion, provided that:
(i) 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;
(ii) the incumbent was appointed on the recommendation of a
duly constituted Selection Committee/Selection Committee
constituted as per rules of the respective university;
(iii) 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.
(g) No distinctions shall be made with reference to the nature of
management of the institution where previous service was rendered
(private/local body/government) while counting the past service
under this clause.”Table 3A is reproduced below:
“Table 3A”
S.N. Academic Record Score
1. Graduation 80% & Above 60% to less 55% to less 45% to
= 15 than 80% = than 60% = less than
13 10 55% =
05
2. Post Graduation 80% & Above 60% to less 55% (50% in case of
= 25 than 80% = SC/ST/OBC (non-
23 creamy layer)/PWD) to
less than 60% = 20
3. M.Phil. 60% & above 55% to less than 60% = 05
= 07
4. Ph.D. 30
5. NET with JRF 07
NET 05
SLET/SET 03
6. Research Publications (2 10
marks for each research
publications published in
Peer-Reviewed or UGC-listed
Journals)
7. Teaching/Post Doctoral 10
Experience (2 marks for one
year each)#
8. Awards
International/National Level 03
(Awards given by International
Organizations/Government of
India/Government of India
recognized National Level
Bodies)
State-Level 02
(Awards given by State
Government)33
#However, if the period of teaching/Post-doctoral experience is less than one year then the
marks shall be reduced proportionately.
Note:
(A) (i) M.Phil + Ph.D Maximum – 30 marks
(ii) JRF/NET/SET Maximum – 07 marks
(iii) In awards category Maximum – 03 marks
(B) Number of candidates to be called for interview shall be decided by the concerned universities
(C) Academic Score – 80
Research Publications – 10
Teaching Experience – 10
Total – 100
(D) Score shall be valid for appointment 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 even recording any prima facie opinion, much
less final opinion, that Reg.10(f)(iii) is ultra vires, chose to sidestep the
issue of examining the vires by observing what we have noted above.
34
The line of reasoning weighing with the Division Bench that the need to
examine the challenge would stand obviated if Reg.10(f)(iii) were
construed in the manner it did is, thus, plainly erroneous.
43. Moving on, we have no hesitation to hold that in construing Reg.
10(f)(iii) in the manner it did and observing that Reg.10 has no
application in relation to appointment on the post of Assistant Professor
(since reference to past services in Tables 3A and 3B appears to be
surplusage and serves no purpose in the scheme of the 2018
Regulations), the Division Bench of the High Court has clearly exceeded
its jurisdiction by resorting to a sort of judicial legislation. Once Reg.10
specifically refers to counting of previous regular service, whether
national or international, inter alia as Assistant Professor, the Division
Bench in the exercise of its judicial review powers could not have held
that Reg.10 has no application to one aspiring for appointment as an
Assistant Professor. Law is well settled that courts cannot add words to
a statute or read words into it, which are not there; at the same time, it
cannot also read a statute in a manner that results in deletion of words
which are there. This is for the simple reason that the court has no power
to legislate; hence, it cannot rewrite the legislation. Bearing this
principle in mind, the Division Bench was wholly unjustified in its
approach.
44. That apart, clause (f) and other clauses of Reg.10 lay down the
conditions to be satisfied for an aspirant to claim marks for past service,
read with Tables 3A and 3B. If what the Division Bench has held
35
regarding past service is upheld, that is, past service as Assistant
Professor, or whatever other nomenclature, is a surplusage, that would
result in candidates answering all the conditions referred to in clauses
(a)-(g) being deprived of marks for teaching experience. Certainly, this
could not have been the intention of the UGC while it framed the 2018
Regulations. We have been shown that even the predecessor regulations
had similar such provisions for shortlisting of candidates. It is, therefore,
as a matter of policy, that the UGC has laid down qualifications
mandatory in nature 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.
36
46. Besides, even on a plain reading of Reg.10, we have failed to
comprehend why the High Court embarked on reading down
Reg.10(f)(iii). After reading Reg.4, one had to first read Reg.10, as a
whole, and then, clause by clause, phrase by phrase and word by word.
Had Regs.4 and 10 been so read, there could be no difficulty in
ascertaining the intent behind incorporation of Reg.10 (f)(iii) in the 2018
Regulations. The whole lot of aspirants having served nationally or
internationally as Assistant Professor in institutions, as specified, were
entitled to have such service counted for direct recruitment as an
Assistant Professor on fulfilment of conditions in clauses (a)-(e), f(i), f(ii)
and (g) with which the Division Bench High Court had no reservation.
The Division Bench only had reservation qua clause f(iii). In expressing
its reservation about clause f(iii), the Division Bench appears to have
overlooked that an aspirant having previous experience, even while
working on ad hoc/temporary/contractual basis internationally, could
claim that his past service be counted subject, of course, to producing
proof that his total gross emoluments were not less than the monthly
gross salary of a regularly appointed Assistant Professor. Whatever was
applicable to previous regular service rendered internationally by an
aspirant was made applicable equally to service rendered within the
nation. Allahabad University has placed on record applications of
multiple aspirants who were shortlisted for interview. Learned senior
counsel, referring to the contents thereof, showed that all such aspirants’
past teaching experience gained on the basis of contractual service were
37
taken into consideration since they had been drawing salary in the pay
scale for academic level prescribed by the UGC/7th Central Pay
Commission, i.e., drawing salary equal to that of a regularly appointed
faculty. Respondent No. 1 could not dispute the same before us and this,
ex facie, has the effect of removing the plinth of her claim for declaring
Reg.10(f)(iii) invalid. While focusing on Reg. 10(f)(iii) singularly, the
Division Bench missed the woods for the trees and the interpretation
placed by it would certainly have the effect of (a) robbing aspirants
having previous teaching experience of the nature specified from such
experience being counted for the purpose of shortlisting and (b)
requiring the selectors to be engaged in a long drawn process of
interview of a large number of candidates aspiring for appointment 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
38
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 of the advertisement dated 28th September,
2021 having been made, the High Court directed that appointment
already made need not be reopened. It is for this reason that we do not
disbelieve the instructions provided to learned senior counsel for
Allahabad University. However, considering the disproportionate number
of applications received in comparison to the number of vacancies
available to be filled up, Allahabad University narrowed the zone of
consideration by adopting a marking scheme in the way it did with the
obvious ultimate objective of permitting candidates with higher teaching
experience to enter the zone of consideration. This methodology was
perfectly in sync with Regs.4 and 10 read with Table 3A. The Division
Bench, therefore, ought not to have been swayed in its decision-making
process by reason of teaching experience not being a mandatory
eligibility criterion.
48. We are also of the view that the criteria for shortlisting of candidates as
engrafted in Tables 3A and 3B were in furtherance of the entire scheme
framed by the UGC for appointment on the post of Assistant Professors
in universities as well as in colleges. Clause 7 of Tables 3A and 3B,
having direct relation with Reg.10, did not call for any observation from
39
the Division Bench of the High Court of the nature noticed above. An
aspirant satisfying the conditions in Reg.10 would be entitled to marks
either for teaching experience or post-doctoral experience for which a
cap of 10 (ten) marks is imposed. Reg.10, on its very terms, makes it
clear that rendering of past services is not a sine qua non for direct
recruitment. If indeed a candidate has served in the past and answers
all the conditions that Reg.10 envisages, read with clause 7 of Tables 3A
or 3B, as the case may be, he/she would be entitled to marks for
teaching experience. In such circumstances, we hold that the Division
Bench completely erred in appreciating the contentious issues in the
proper perspective vis-à-vis the law applicable thereto and returned
findings which are not only unwarranted but are wholly unacceptable.
49. Finally, we consider it essential to say a few words about the approach
adopted by the Division Bench in relation to ‘post-doctoral experience’,
referred to in clause 7 of Tables 3A and 3B. It is plain and clear that
respondent 1 did not question the same. In fact, the noun ‘anomaly’ had
not even been referred to by respondent 1 in her writ petition. In the
absence of any definition of ‘post-doctoral experience’ as well as a
complete lack of pleadings in regard to such experience earning marks,
but assuming that there was good reason for the Division Bench to notice
a grey area, either the UGC or the appellants ought to have been asked
to clarify. Without seeking any clarification, it was not open to the
Division Bench to surmise and conjecture and to be guided to a particular
direction based on a ‘perceived anomaly’ while giving its decision. We
40
are inclined to the view that the Division Bench, in the absence of the
requisite pleadings and the ramifications that are closely associated with
its decision, ought to have adopted a hands-off approach in this regard.
CONCLUSION
50. In our opinion, for the foregoing reasons, the impugned order is
unsustainable in law and deserves to be set aside. Consequently, the
impugned order is set aside and the writ petition of Respondent 1 is
dismissed. Also, the special appeal filed by Respondent 1 challenging
dismissal of her writ petition, filed earlier, stands dismissed and the
order of the Single Judge is affirmed. The review petition filed by
Respondent 1 also stands dismissed.
51. The writ petition filed by the said Brahma Deo also stands dismissed.
52. All the appeals stand allowed, without order for costs.
……………………………………….J.
(DIPANKAR DATTA)
………………………………………..J.
(PRASHANT KUMAR MISHRA)
NEW DELHI;
18th DECEMBER, 2024.
41