Dr. Preetha Nayar v. University of Kerala (W.P.C Nos.13688/10 & 14147/10)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 29TH DAY OF NOVEMBER 2013/8TH AGRAHAYANA, 1935 WP(C).No. 13688 of 2010 (I) ---------------------------- PETITIONER: ---------- DR.PREETHA NAYAR, AGED 45 W/O.DR.T.S.NAYAR, THEMATH K.P. V/339(1) PUTICHUY ROAD, KUDAPPANAKKUNNU THIRUVANANTHAPURAM - 695 043. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT: ---------- THE UNIVERSITY OF KERALA THIRUVANANTHAPURAM, REPRESENTED BY ITS, REGISTRAR KARYAVATTOM, THIRUVANANTHAPURAM. R1 BY ADV. SRI.GEORGE POONTHOTTAM,SC,KERALA UTY. BY SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/7/2013 ALONG WITH WPC.14147/2010, THE COURT ON 29/11/2013 DELIVERED THE FOLLOWING: ## **APPENDIX TO W.P.C.NO.13688 OF 2010** ## **PETITIONER'S EXHIBITS:** EXT.P1: TRUE COPY OF NOTIFICATION ISSUED BY RESPONDENT UNIVERSITY ON 26/3/2008 BEARING NO.Ad.H/1803/2008 DATED 26/3/2008. EXT.P2: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 16/5/2008. EXT.P3: TRUE COPY OF LETTER BEARING NO.Ad.H/R.ARCH/R/2/2010 DATED 3/3/2010 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.P4: TRUE COPY OF NOTIFICATION BEARING NO.AC.A111/1/624/2006 DATED 27/4/2006 PUBLISHED BY RESPONDENT UNIVERSITY. EXT.P5: TRUE COPY OF LETTER NO.AC D/4/06 DATED 7/6/06 ISSUED FROM THE RESPONDENT UNIVERSITY. EXT.P6: TRUE COPY OF REPRESENTATION SUBMITTED BEFORE THE VICE CHANCELLOR OF THE RESPONDENT UNIVERSITY DATED 5/4/2010. ## **RESPONDENT'S EXHIBITS:** NIL //TRUE COPY// PA TO JUDGE // True Copy// PA to Judge ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.Nos.13688 of 2010 & 14147 of 2010 ---------------------------------------- Dated this the 29[th] day of November 2013 ## **J U D G M E N T** Both these writ petitions are filed by applicants to the post of Reader in the Archeology Department of University of Kerala. Their applications were rejected on the ground that they did not have the requisite qualification. Since these writ petitions raise a common issue, they are decided together. 2. As per notification dated 26/03/2008, the qualification for the post of Reader is as under: _“Good academic record with a doctoral degree or equivalent published work. Candidates from outside the University System in addition shall also possess atleast 55% marks or an equivalent grade at the Masters Degree Level. Eight years experience in teaching and/or research including upto three years for research degrees and has made some mark in the areas of_ W.P.C.Nos.13688/10 & 14147/10 2 _scholarship as evidenced by quality of publications, contribution to educational renovation, design of new courses and curricula”._ 3. In W.P.C.No.13688 of 2010, the petitioner submits that she has teaching experience for 8½ years as a Guest Lecturer for ten months and thereafter on contract basis till November 2009. Further it is contended that she received fellowship from the Department of Culture, Government of India and served three years as a member of Board of Studies in Archeology as well as member of M.Phil Committee in Archeology of the same University. She was also a Resource person in Archeology for the University of Calicut and as question paper setter for Archeology in M.G.University. 4. The petitioner in W.P.C.No.14147 of 2010 contends that he possess Post Graduate Degree in History, Ph.D. in Archeology and has two publications to his credit. According to him he fulfills the qualifications prescribed by the W.P.C.Nos.13688/10 & 14147/10 3 Academic Council. 5. Counter affidavit is filed by the respondents inter alia stating that the Screening Committee held on 27/01/2010 scrutinised all the four applications received for the post of Reader. Three applications including that of the petitioners were rejected. The application of the petitioner in W.P.C.No.13688 of 2010 was rejected since she did not have the required teaching experience. The teaching experience attained as Guest Lecturer and on contract basis cannot be considered for selection to the post of Reader. The decision of the Screening Committee was therefore communicated to the petitioner. She was having teaching experience on contract basis in the same department only for five years and 11 months that is from June 2002 to 16/05/2008. She was a Guest Lecturer from July 2001 to May 2002. Therefore her total experience in teaching was 6 years and 11 months. It is further indicated that she did not have any research experience after obtaining Ph.D degree. W.P.C.Nos.13688/10 & 14147/10 4 It is therefore contended that the said petitioner was not qualified. 6. In respect of the petitioner in W.P.C.No.14147 of 2010 counter affidavit is filed stating that the petitioner did not possess the requisite teaching experience which was communicated to him as per Ext.P5. It is further indicated that the Committee is statutorily constituted in terms with Statute 4 of Chapter III of the Kerala University First Statutes 1977. Since the Committee had already found that the petitioner did not have the prescribed qualifications, he cannot claim the same. 7. The short question to be considered in the above writ petitions is whether the petitioners have the requisite teaching experience or any other required qualification, as stated in the notification. 8. It is argued by the learned counsel for the petitioners that the word ‘teaching experience’ is not mandatory in view of the language used in the notification. W.P.C.Nos.13688/10 & 14147/10 5 The argument is that the word “and/or” clearly indicates that even without teaching experience if the other qualifications are available, they can be considered for the said post. 9. Reference is made to Cambridge International Dictionary of English to indicate that “And/or is used to mean that either one of two things or both of them is possible.” Ramanatha Aiyar’s Advanced Law Lexicon is referred to indicate “and/or” as under: “ **And/or** : The sub-clause specially mentions two types of specialised farms, namely, those devoted to poultry farming and dairying. As regards others it leaves them to be prescribed by rules under Section 44 of the Act. In this context it is impossible to read the word ‘and’ as ‘or’. _Inayat Ali Khan v. State of U.P., AIR 1971 sc 1407, 1409_ [U.P.Imposition of Ceiling on Land Holdings Act, 1960] The conjunction “and” at the end of sub-clause (i) cannot be read as “or”. It conjoins the two clauses and in effect read in the context of “shall” in the opening para of clause (e) W.P.C.Nos.13688/10 & 14147/10 6 mandates the compensation officer to take both the factors into consideration in assessing the average annual income from the forest. _Durgi Devi v. State of U.P., AIR 1978 SC 1124,_ [U.P.Zamindari Abolition and Land Reforms Act, 1950]. “And/or” means either or both of _Poucher v. State,_ 287 Ala.731, 240 So.2d 695. When expression “and/or” is used, that word may be taken as will best effect the purpose of the parties as gathered from the contract taken as a whole, or, in other words, as will best accord with the equity of the situatuion. _Bobrow v. U.S.Casualty Co.,_ 231 AD 91, 246 NYS 363, 367. Alternative claim is stated by the use of conjunction and/or. _JJS Rodriones v. Union of India,_ AIR 1967 Goa 169, 186. [Civil PC (5 of 1908), O.XIX,R.1]”. Strouds Law Lexicon is referred to emphasize the meaning of “and/or” which is indicated as under: **“AND/OR.** Where statements or stipulations are coupled by “and/or” they are “to be read, either disjunctively, or conjunctively” W.P.C.Nos.13688/10 & 14147/10 7 (per Cairns C., Stanton v. Richardson, 45 L.J.C.P.82), e.g. “the contract on the face of the charterparty was that the parties were to ‘load a full and complete cargo of sugar, molasses, and/or other lawful produce’; so that, according to the contract, the parties were either to load ‘a full and complete cargo of sugar and molasses, and other lawful produce’, or, ‘a full cargo of sugar and molasses, or a full cargo of other lawful produce’, leaving it open in every way by reason of the words ‘and/or’ being introduced into the charterparty” (per Alderson B., Cuthbert v. Cumming, 24 L.J.Ex.198; affirmed ibid. 310: see also Furness v. Tennant, 8 T.L.R.336. A clause in a charterparty that the ship is to proceed to A and/or B at charterer’s option means that the charterer may send the ship to A alone or B alone or to A and to B (Gurney v. Grimmer (1932), 38 Com.Cas.7). A bequest to X and/or Y. where both survived, was held to create a joint tenancy. Semble, if either predeceased, the survivor would take the whole (Re Lewis, Goronwy v. Richards [1942] Ch.424). W.P.C.Nos.13688/10 & 14147/10 8 In a notice to quit containing several grounds the grounds were connected by the expression”and/or”, it was held that the notice was not uncertain (Looke v. Parbury, Henty & Co.Pty.Ltd [1950] V.L.R.94). It is undesirable to use the expression “and/or” in formal legal writs (Neame v. Neame’s Trs., 1956 S.L.T.57). Per Lord Reid: The symbol “and/or” is not yet part of the English language (John G.Stein & Co. v. O’Hanlon [1965] A.C.890).” 10. Learned counsel for the respondent relied upon the Division Bench judgment of this Court in **Vasundhara G. v. Dr.Sailas Benjamin and Others** _[2010 (1) KHC 514]_ in which it is indicated that the experience as a Guest Lecturer could not be reckoned as experience under Section 2(27) of the Calicut University Act. Another judgment relied upon is **Sreekala Devi Ammal P.N. v. Kerala Public Service Commission and others** _[2012(2) KHC 514]_ in which It is held by the Division Bench as under: W.P.C.Nos.13688/10 & 14147/10 9 _“Experience required has to be one that was acquired after obtaining the minimum educational qualification prescribed. When gaining of experience is intricately linked with obtaining a qualification, the acquisition of experience cannot start to run before or commence prior to the actual acquisition of the educational (technical) qualification prescribed. What needs to be decided in each situation would depend on the relevant provisions and the particular type of experience which is required. The mere fact that one may know a particular science or art or one would have the ability to carry out a particular technical work does not enable that person to claim the legitimate acquisition of the prescribed qualification.”_ 11. It is not in dispute that the University has taken a view that eight years teaching experience is a mandatory provision. The argument of the learned counsel for the petitioners is that the words “and/or” indicates that the candidate, though does not have the eight years teaching experience, it is enough that they have qualifications of W.P.C.Nos.13688/10 & 14147/10 10 “research including up to three years for research degrees and has made some mark in the areas of scholarship as evidenced by quality of publications, contribution to educational renovation, design of new courses and curricula.” On a perusal of the definition of using the words “and/or” from the various Dictionaries and Law Lexicons relied upon by the learned counsel for the petitioners, one cannot come to a conclusion that it can either be treated as additional qualification or it has to be treated as an alternate qualification. Whether it should be treated as an additional qualification or alternate qualification is a matter to be considered depending upon the facts and circumstances of each case. As far as the qualification prescribed for the post of Lecturer is concerned, it is good academic record with atleast 55% marks or an equivalent grade at the Masters Degree level in the relevant subject from an Indian University or an equivalent degree from a Foreign University. Reader post is a higher post to that of a Lecturer. In W.P.C.Nos.13688/10 & 14147/10 11 addition to the Masters Degree with 55% marks, for the Reader post, one should have a doctoral degree or equivalent published work. In addition to the doctoral degree, eight years experience in teaching is also prescribed. On a bare reading of the qualification criteria, taking into consideration the nature of post, it is clear that an experience in teaching is a mandatory requirement. Hence the word “and/or” can be treated as an additional qualification which is desirable for the purpose of selection to the said post. In other words, the three years research for research degrees and other criteria is in addition to the eight year experience mentioned in the notification. 12. As far as the petitioner in W.P.C.No.13688 of 2010 is concerned, she adds on experience as a Guest Lecturer to contend that she has more than eight years teaching experience. As held by this Court in **Vasundhara** (supra), such an experience need not be reckoned by the University. As far as the petitioner in W.P.C.No.14147 of 2010 is W.P.C.Nos.13688/10 & 14147/10 12 concerned, he has not specified in what manner he is qualified. Of course, he has a post graduate degree with a Doctorate but there is no indication that he has the teaching experience. In that view of the matter when the Screening Committee has decided that the petitioners do not have the requisite qualification, I do not think that the petitioners are entitled for any relief, as prayed for and therefore the writ petitions are dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr