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2012 DIGILAW 421 (AP)

University of Hyderabad, Hyd. v. D. Pervez Aluned

2012-04-12

K.G.SHANKAR, V.ESWARAIAH

body2012
Judgment K.G. SHANKAR, J. Whether the words ..... ... ... must have obtained on an average of 50% marks in two public examinations/degrees immediately preceding the Master's Degree" means the average of the marks obtained in Intermediate and Degree conjointly or the meaning of the phrase is that the candidate should get 50% of marks in Intermediate as well as 50% of marks in Degree is the question that arises for consideration in this writ appeal. The learned Single Judge held that the average marks in Intermediate and the average marks in Degree should be combined and the average of the two should be arrived at and that if the combined average of the two examinations is above 50%, such a person would be eligible for the post of Assistant Professor. Contending that the applicant who secured minimum of 50% in Intermediate as well as minimum of 50% in Degree and not 50% of the combined average, the University preferred the present appeal. 2. The University advertised on 1.1.2010 for various faculty positions including the post of Assistant Professor in Urdu. Five posts were advertised out of which, one post was reserved for the Scheduled Castes and one post was reserved for other Backward Classes Category. The 1st respondent applied for the post. As he was not called for the interview on the ground that he was not qualified, he preferred the writ petition before the learned Single Judge seeking for a writ of mandamus to declare that the rejection of the application of the 1st respondent was illegal and for a consequential direction to the appellants to appoint the 1st respondent as Assistant Professor in Department of Urdu. 3. The appellants, who are the respondents 3 to 5, filed counter opposing the writ petition. The appellants contended that 135 applications were received for the post of Assistant Professor in Urdu and that the University considered it appropriate to call 30 candidates for interview at 1:6 ratio. The University further pointed out that the 1st respondent did not secure minimum requirement of 50% of marks in Intermediate and 50% of marks in Degree, so much so, the 1st respondent was not called for the interview. The appellants thus contend that the 1st respondent was not qualified and the claim of the 1st respondent is not sustainable. 4. The University further pointed out that the 1st respondent did not secure minimum requirement of 50% of marks in Intermediate and 50% of marks in Degree, so much so, the 1st respondent was not called for the interview. The appellants thus contend that the 1st respondent was not qualified and the claim of the 1st respondent is not sustainable. 4. The whole case revolves round the interpretation of clause 3.3.1 Paras 2 and 3.3.1 Note (4). For the purpose of clarity clause 3.3.1 is quoted: "3.3.1: Essential qualifications for the post of Lecturer in Sciences, Humanities and• Social Sciences, Education, Foreign Languages and Law, Management - (Area of specialization of each post is furnished separately under Sl. No. (4.0.0): Good academic record with at least 55% of the marks, or an equivalent grades of B in the 7 point scale with letter grades O, A, B, C, D, E and 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 not 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. Note: (1) A relaxation of 5% may be provided at the graduate and Master's level for the SC/ST/Differently-abled (Physically and Visually Handicapped) categories for the purpose of eligibility and for assessing good academic record during direct recruitment to teaching positions. (2) A relaxation of 5% may be provided, from 55% to 50% of the marks, to the Ph.D degree holders who have passed their Master's degree prior to 19th Sept 1991: (3) B in the 7 points scale with letter grades O, A, B, C, D, E and F shall be regarded as equivalent of 55% wherever the grading system is follows. (4) 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." 5. The 1st respondent is a Doctorate in Urdu. He claims that he secured 50% of marks in average in Intermediate and Decree preceding the Post Graduation and that the 1st respondent consequently is qualified for the post. The 1st respondent is a Doctorate in Urdu. He claims that he secured 50% of marks in average in Intermediate and Decree preceding the Post Graduation and that the 1st respondent consequently is qualified for the post. The 1st respondent secured 45.2% of marks in Intermediate and 62.2% of marks in Degree. The combined average of two examinations is 53.7%. The qualification for the post of Assistant Professor is Master's Degree with a minimum of 55% of marks. The 1st respondent admittedly secured first class in Urdu at Master's Degree level. Consequently, the 1st respondent satisfied the condition at Para 2 of clause 3.3.1 that he should have secured 55% of marks or more at the Master's Degree level in the relevant subject. 6. However, the qualifications include "good academic record" together with 55% or more at Master's Degree level. "Good academic record" as found in Para 2 of clause 3.3.1 has been explained in Note (4) that "good academic record" is securing an average of 50% of marks in two public examinations/degrees immediately preceding the Master's Degree. Barring for peculiar Master's Degrees like Post Graduation in Law where usually one should be a graduate in some subject and a graduate in Law (at least before the advent of 5 years' Law Course) for other Post Graduations, the candidate must have passed Intermediate and Degree. As we are concerned with the post of Assistant Professor in Urdu, we are concerned with Intermediate and Decree, which immediately precede the Post Graduation in Urdu. We are not concerned with the Ph.D. that the 1st respondent has secured. As the Notification prescribed average of 50% of marks in two public examinations/degrees before Post Graduation, we construe Intermediate and Degree of the 1st respondent for the purpose of calculation. There is no objection indeed from either side for this assumption. Both sides agreed that the marks of the 1st respondent in Intermediate and Decree shall determine what a good academic record is within the meaning of clause 3.3.1 Para 2 read with Note (4). 7. Sri K.S. Murthy, learned Counsel for the 1st respondent, contended that the definition is patent and clear that the average of the percentage of marks secured in Intermediate and Degree shall determine whether the 1st respondent is eligible or otherwise. 7. Sri K.S. Murthy, learned Counsel for the 1st respondent, contended that the definition is patent and clear that the average of the percentage of marks secured in Intermediate and Degree shall determine whether the 1st respondent is eligible or otherwise. The learned Single Judge precisely has resorted to this mathematical calculation and held that the 1st respondent secured more than 50% of marks when the percentage of marks secured by him in Intermediate and Degree are combined. Perhaps, this sort of an average is mathematically not correct. For Intermediate, it would appear that the total marks are 1000 and if a person secures 500 marks out of 1000 marks in two years of Intermediate put together, it would be considered that one secured 50% of marks. In Degree, the total marks are for' about 1500 or 1600. One should get 50% thereof to be treated as securing 50% in Degree. We are afraid that the percentage of marks secured in Intermediate and the percentage of marks secured in Degree cannot be combined and the average of two percentages cannot be arrived at as it would be trying to combine two unequal parameters, on account of the total marks in Intermediate and the total marks in Degree. Perhaps, totalling 45.2% and 62.2% and arriving at an average of 53.2% is not correct and does not show the correct position. 8. Sri S.R. Ashok, learned Senior Counsel for the appellants-University, contended that the University has been following this system of minimum of 50% of marks in Intermediate and also minimum of 50% marks in Degree through and through ever since the constitution of the University about 25 years ago and that this has been the meaning attributed and understood not only by the University but also by the academic circles as to the meaning of Note (4) of clause 3.3.1 of the Notification. He contended that as the University has been considering that the percentage should be independently in Intermediate and independently in Degree and that there would not have been any necessity to phrase Note (4) in this manner if the intention of the appellants was that the average should be on the combined percentage of marks in Intermediate and Degree. 9. The learned Senior Counsel for the appellants placed reliance upon Uma Kant v. Bhikalal Jain, (1992) 1 SCC 105 . 9. The learned Senior Counsel for the appellants placed reliance upon Uma Kant v. Bhikalal Jain, (1992) 1 SCC 105 . The Supreme Court observed in this case: "It is well settled that in matters relating to educational institutions, if two interpretations are possible, the Courts would ordinarily be reluctant to accept that interpretation which would upset arid reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities." (Para 9) 10. In N. Suresh Nathan v. Union of India, 1992 Supp (1) SCC 584, the Supreme Court observed: "... ... If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. ..." (Para 4) It is the case of the learned Senior Counsel for the appellants that the Supreme Court observed that the construction of the Notification in consonance with the long-standing practice would prevail where the Notification creates possibility of two constructions. 11. Sri S.R. Ashok, learned Senior Counsel, drew our attention to the Additional Affidavit. The Registrar of the University filed Additional Affidavit dated 20.3.2012 clarifying: "The Executive Council decided to remove the ambiguity regarding the definition of good academic record for appointment to positions in the University and resolved that good academic record shall mean that the candidate must have obtained 50% average marks in each of the two public examinations immediately preceding the qualifying examination prescribed for the given position." 12. Thus, the University now clarified that the rule of 50% average marks shall be in each of the public examinations preceding the Master's Degree. We are afraid that this clarification cannot be taken into consideration in determining whether the 1st respondent is qualified or otherwise. This clarification has come up on 20.3.2012. This very writ appeal was filed on 27.1.2011. The date of the order of the learned Single Judge is 3.12.2010. The clarification in March, 2012, therefore, has no relevance at all. Consequently, we do not place any reliance upon the clarificatory note filed through the Additional Affidavit. 13. Regarding the merits of the case, Sri K.S. Murthy, learned Counsel for the 1st respondent, submitted that the average can be considered to mean average of the two percentages. The clarification in March, 2012, therefore, has no relevance at all. Consequently, we do not place any reliance upon the clarificatory note filed through the Additional Affidavit. 13. Regarding the merits of the case, Sri K.S. Murthy, learned Counsel for the 1st respondent, submitted that the average can be considered to mean average of the two percentages. He referred to Harbans Kumari v. State of U.P., (1979) 2 SCC 239 , where the Supreme Court had occasion to consider the meaning of 'average'. The Supreme Court held: "4. ... ... ... Now so far as the connotation of the word 'average' is concerned, it does not admit of any doubt. According to Shorter Oxford English Dictionary, the word 'average' means 'arithmetical mean: to estimate by dividing the aggregate of a series by the number of its units'. The same is the connotation of the word 'average' according to the Random House Dictionary of the English Language where the total receipt has been stated to mean the total receipt from sales divided by the number of the units sold." 14. On the basis of this decision and on the basis of the meaning of the word "average" attributed by the Oxford English Dictionary, it is contended by the learned Counsel for the 1st respondent that what is required is 50% of marks averaging the percentage of marks in Intermediate and Degree and that if one secures lesser than 50% in one of these examinations, such a candidate would nevertheless be qualified if he were to secure a higher percentage in the other examination and secured more than 50% of the combination of the two examinations. We, therefore, shall have to consider the meaning of Note (4) of clause 3.3.1. 15. As rightly submitted by the learned Senior Counsel for the appellants, academic record is the track record and is not a chance mark. What the University expects is a consistent performance by the applicant and not a freak or chance performance. The University certainly is justified in expecting the candidate to have secured minimum of 50% of marks in Intermediate and a minimum of 50% of marks in Degree as a pre-requisite for qualifying to apply for the post of Assistant Professor in the relevant subject. The University certainly is justified in expecting the candidate to have secured minimum of 50% of marks in Intermediate and a minimum of 50% of marks in Degree as a pre-requisite for qualifying to apply for the post of Assistant Professor in the relevant subject. We are afraid that the average cannot be considered to be a combined average because the appellants have been considering disjoint average of the two examinations and not the combined average in Intermediate and Degree. In the light of Bhikalal Jain's case (supra) and N. Suresh Nathan's case (supra), we are afraid that the view taken by the University cannot be upset at this point of time. That the University intended that the candidate should secure minimum of 50% of marks in Intermediate and Degree separately is clear from the subsequent amendment of the University in amending the rule, making the rule position clear and in any event where the Notification did not state that 50% of marks should be on the "combined average", we are unable to appreciate the contention of the learned Counsel for the 1st respondent that the meaning of the Notification is that the candidate should possess a minimum of 50% of marks in the combined average of Intermediate and Degree. In the absence of such an interpretation, the language of the advertisement would mean that the 1st respondent should secure 50% of marks in Intermediate and 50% of marks in Degree. 16. The learned Senior Counsel for the appellants, inter alia, contended that the University has disqualified as many as 49 candidates for the post of Assistant Professor in Urdu on the ground of not securing 50% of marks disjointly in Intermediate and Degree and that if the 1st respondent is to be called for interview, the appellants would have to face hardship of inviting 49 dropped candidates for interview. We are not concerned with the inconvenience that the University would face. If the University did not follow the rules properly, they are bound to be disciplined whether it is inconvenient for the University or otherwise. Consequently, the claim of the University that it may have to call as many as 49 persons for interview in the event the claim of the 1st respondent is accepted and that the claim of the 1st respondent consequently deserves to be rejected cannot be countenanced. 17. Consequently, the claim of the University that it may have to call as many as 49 persons for interview in the event the claim of the 1st respondent is accepted and that the claim of the 1st respondent consequently deserves to be rejected cannot be countenanced. 17. Be that as it is, we are satisfied from the very language of the Notification and from the past practice of the University as submitted by the learned Senior Counsel for the appellants that the meaning of Note (4) of clause 3.3.1 of the Notification is that the applicant should have secured 50% of marks in Intermediate as well as 50% of marks in Degree for becoming eligible to apply. As the 1st respondent admittedly did not secure 50% of marks in his Intermediate, the appellants rightly chose not to call the 1st respondent for interview. The learned Single Judge erred in construing clause 3.3.1 Note (4) of the Notification. We hold that the University was justified in not calling the 1st respondent for interview disqualifying him. The 1st respondent, who is the writ petitioner, consequently is not entitled to the relief claimed by him. The writ issued in favour of the 1st respondent is incorrect and is liable to be set aside. Accordingly, we allow the writ appeal. The order of the learned Single Judge is set aside. No costs.