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Synopsis

The Supreme Court has said that 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, the court said.

A bench of Justices Dipankar Datta and Prashant Kumar Mishra emphasised that in such cases, 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.

The Supreme Court set aside the Allahabad High Court's judgment which read down regulations with regard to teaching experience for the post of Assistant Professor advertised for Allahabad University and its associated degree college.

The bench said, ‘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 court said that a situation could arise where a 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.

‘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, the bench said.

However, 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, the bench added.

In the case at hand, the court noted that the division bench of the High Court had 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 offended any of the constitutional rights and/or any provision of the UGC Act or that there was excessive delegation.

Rather, the division bench had read down Reg 10(f)(iii) on the specious ground that the construction it had 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, the bench pointed out.

"In our view, this course of action was impermissible," the bench said.

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, the top court opined.

"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," the bench said.

"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," the bench added.

The court pointed out that once Reg 10 specifically referred 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 had 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," the bench said.

The court said if what the division bench had held regarding past service was upheld, that was, past service as Assistant Professor, or whatever other nomenclature, was 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," the bench said.

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, the bench pointed out.

"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," the bench said.

"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", the bench pointed out.

It noted that the appellant Allahabad University had placed on record applications of multiple aspirants who were shortlisted for interview. It showed that all such aspirants’ past teaching experience gained on the basis of contractual service were 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.

The court found respondent no. 1 Geetanjali Tiwari (Pandey) could not dispute it and this, ex facie, had 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," the bench said.

The court also noted that 69 candidates were shortlisted and called for interview to the post of Assistant Professor in subject of Sanskrit (the cut-off marks being 87.17), who were competing against each other for appointment on only one unreserved vacancy. Respondent no 1 had secured 81 marks and between 87.17 and 81 marks, there were 147 candidates.

"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," the bench said.

Court, therefore, held 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 were not only unwarranted but are wholly unacceptable.

With regard to post doctoral experience, the bench said, 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 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," the bench said.

The court thus set aside the impugned order, holding it unsustainable in law.

"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," the bench said.

Without a doubt, a court cannot in the absence of the requisite pleadings grant relief claimed by a party, the bench held.

Case Title: Allahabad University Vs Geetanjali Tiwari (Pandey) & Ors Etc