Allahabad University Etc. vs Geetanjali Tiwari (Pandey) & Ors. Etc. Etc.

Held: 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 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” – This course of action was impermissible – ‘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 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 – 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. [Paras 42, 43]

Interpretation of Statutes – Intention of the Legislature: Held: 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. [Para 18]

Interpretation of Statutes – On the Principle of reading down: Held: 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; 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”. [Para 27] Service Law – Selection – Criterion – Whether a selection Board can fix a higher criterion for shortlisting candidates: Held: The principle discernible from the various decisions of this Court 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. [Para 30]

Pleadings – Grant of relief – Whether, relief can be granted in the absence of requisite pleadings:

Held: 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. [Para 37]