*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY +Writ Petition No.27619 of 2010 %03.12.2010 #Dr.Pervez Ahmed ..Petitioner Vs. $ The Union of India and others. ..Respondents. !Counsel for the petitioner : Sri K.S.Murthy ^Counsel for the Respondents : Sri Ponnam Ashok Goud (Asst.Solicitor General) <Gist : >Head Note: ?Cases Referred: 1. (1994) 6 SCC 293 2. (2006) 8 SCC 42 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.27619 of 2010 ORDER: The University of Hyderabad, the 3rd respondent, issued rolling advertisement dated 01-01-2010, inviting applications for various posts, including five posts of Lecturers in Urdu. The petitioner and several others submitted applications. The petitioner, however, did not receive the interview call. The petitioner contends that he possesses the prescribed qualifications, and still, the respondents did not issue the interview call letter. In paragraph 4 of the affidavit, he has mentioned the qualifications held by him as well as the teaching experience. The respondents filed a counter-affidavit, stating that 135 applications were received in response to the notification for the posts of Lecturers in Urdu, and the consideration was restricted to 30 candidates, at the ratio of 1:6. It is stated that the petitioner did not secure 50% marks in Intermediate examinations, and in that view of the matter, he was eliminated from consideration, by applying clause 3.3.1 of the conditions, attached to the advertisement. According to them, a candidate must have secured not less than 50% marks in two consecutive examinations, preceding the Master’s Degree, and that the petitioner secured 45% marks in Intermediate and 63.2% in degree examinations. The selections are said to have taken place, after the eligible candidates were interviewed. Heard the learned counsel for the petitioner and learned Standing Counsel for the respondents-University. The qualifications prescribed for the posts of Lecturers in all the subjects, that are covered by the notification, are stipulated under the notification itself. The relevant clause reads: “Good academic record with at least 55% of the marks, or an equivalent grade of B in the 7 point scale with letter grades O, A, B, C, D, E & F at the Master’s degree level in the relevant subject from an Indian University, or an equivalent degree from a foreign University. Candidates may note that NET shall remain the compulsory requirement for the appointment of Lecturers for those with Post Graduate degree/M.Phil. degree. However, the candidates having Ph.D. degree in the concerned subject are exempted from NET. Desirable qualifications: a Ph.D degree in the relevant subject or research work of an equally high standard.” It is not in dispute that the petitioner has more than 55 marks in the Master’s degree and he holds Ph.D degree, and thereby, he is exempted from any. It is represented that as many as 195 applications were received for five posts in Urdu. The University has adopted a policy to limit the issuance of call letters to six candidates for each vacancy. In the matter of screening, normally one goes by the marks secured in the qualifying examination, for the purpose of short listing, or screening the applications. In the instant case, however, the petitioner was not issued call letter on the ground that he did not possess good academic record in degree and intermediate examinations. The phrase “good academic record” occurring in the notification is explained under note (4) appended to 3.3.1 of the advertisement. It reads: “Under the term ‘good academic record’, the candidate must have obtained on an average of 50% marks in two public examinations/degrees immediately preceding the Master’s degree.” The percentage of marks, which is required to be possessed in Master’s degree, is mentioned in the notification itself at 55%. The ‘good academic record’ insisted by the University is explained, to mean, 50% on the average in two examinations for the courses that immediately precede the Master’s degree. Those two courses, for the petitioner are degree and Intermediate. The petitioner secured 67% in the degree examination and 45% in the intermediate examination. It does not require any intellectual back ground to state that the average of this can be procured by adding both of them and dividing the total by two. If so done, it comes to 56%, which, obviously, is more than the required 50%. The University, however, has a different method of interpretation of this simple arithmetic. To put it in the words of the Registrar of the University, the assessment of the ‘good academic record’, is done as under: “It is submitted that the 2nd respondent UGC prescribed that a candidate applying for faculty position should possess Good Academic Record. The fact is that the Good Academic Record has insisted upon by UGC indicating that it is not securing one good performance, but a consistently good performance to have a record of Good Academic Record. To this effect the term “Good Academic Record” has also been defined by the Executive Council of the University in its Resolution, dated 21.04.1993 by stating that candidate must have obtained “On an average of 50% of marks in two public examinations/degrees immediately preceding the Master’s Degree. Here the term “on an Average” is to be understood differently i.e. that the candidate must have at least 50% marks in two public examinations/Degree preceding the Master’s Degree and not the arithmetical average of the average marks obtained in the two preceding examinations. For example a person securing an average of 65% of marks in under graduate and an average of 35% of marks in Intermediate cannot be considered as having a Good Academic Record by adding 65% in Graduate and 35% and dividing by 2. Whereas a person having 50% and 55% in Graduate and Intermediate will be considered is having Good Academic Record. To clarify further, in the first example of the ‘record’ of the candidate would be ‘poor’ in view of obtaining 35% of marks in Intermediate. Since 1993, the same procedure has been adopted. As the petitioner is having 45% marks in Intermediate, his candidature has been rejected by the Screening Committee on the basis of not having good academic record. Though the University received 195 applications for 5 positions in the department of Urdu, it has only called 32 candidates for interview.” This view point does not accord either with the letter or the spirit of the clause contained in the advertisement. In clear terms says that the average of the two examinations preceding the Master’s degree must be 50%. It is just unthinkable as to how it can be interpreted as to mean that the candidate must have secured not less than 50%, in each of the examinations. When the words do not permit of any ambiguity, no one can be permitted to import his own perception, and thereby, transgress the rights of the candidates. Learned counsel for the respondents submits that the understanding of the clause as detailed in the counter-affidavit was being practiced over the past about two decades and there is no reason to depart from it. This contention is to be noted only for rejecting it. If a totally untenable illegal and impermissible interpretation is placed, by an individual, or agency, upon clear provision, with plain meaning, the length of time for which such illegality was perpetrated, does not add legality to it. In fact, it reflects that the University has been, committing patent mistake over that period, and made quite large number of persons to suffer consequences thereof quietly. Further, it is not as if such an understanding is emanating from an organization which is not associated with learning or knowledge or not conversant with the subject; basic mathematics, in the instant case. A University established under an enactment of parliament ought not to have committed such a basic fallacy, at least after it is noticed. Corrective steps must be taken in stead of claiming the benefit of the flaw, as though it is either a scientific invention or discovery for which the University holds patent, or copy right. More the discussion is undertaken about such a fundamental aspect, higher the likelihood of erosion into the reputation of the University. Another argument advanced by the learned counsel for the petitioner is that an employer has the right to prescribe the qualifications and the Courts would be slow to interfere with it. It is also pleaded that the University would have the right to screen the applications, when large number of candidates have applied. Reliance is placed upon the judgment of the Supreme Court in Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar[1]. There is no quarrel with the proposition. The only requirement is that the screening should be done in accordance with the stipulated norms, which in turn must be objective and reasonable. An employer cannot deviate from the norms stipulated by itself, nor can it have resort to a practice, which just cannot be sustained in law. Learned counsel for the petitioner also places reliance upon another judgment of the Supreme Court in Sanjay Kumar Manjul v. Chairman, UPSC[2]. In that case, the Supreme Court held that the other principles of interpretation must be applied, only when the internal or strict interpretation of the provision leads to anomaly or absurdity. It is not even stated by the learned counsel for the respondent as to how, the literal interpretation of the note explaining the phrase ‘good academic record’, would lead to any absurdity. When the writ petition came up for admission, on 15.11.2010, a direction was issued to the respondents not to issue orders of appointment in respect of one post in the O.C. category. It is brought to the notice of this Court that for some other posts in Urdu also orders of appointment were not issued and that no candidate has joined so far. Since a patent illegality has crept into the entire selection process, the exercise needs to be undertaken by issuing call letters to the candidates by screening the applications, in accordance with the interpretation placed above. Hence, the writ petition is allowed, and the action of the respondents in not issuing call letter for the interview for the post of Lecturer in Urdu is declared as unconstitutional and arbitrary. It is declared that the petitioner holds ‘good academic record’ as defined under the relevant clauses of the advertisement. The respondents shall undertake necessary exercise, in view of the said declaration. There shall be no order as costs. _____________________ L. NARASIMHA REDDY, J. Dt.03-12-2010. L.R. copy to be marked. KO/GJ [1] (1994) 6 SCC 293 [2] (2006) 8 SCC 42