Rajasthan High Court - Jaipur
Ravi Dutt Sharma vs State (Transport Dep )Ors on 4 July, 2012
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No.14854/2011 Ravi Dutt Sharma versus State of Rajasthan & ors Date of Order : 4th July, 2012 PRESENT HON'BLE MR. JUSTICE MN BHANDARI Mr MM Mehrishi for petitioner Mr SN Kumawat, Additional Advocate General for respondents BY THE COURT:
By this writ petition, a challenge is made to the order dated 13.4.2011 at Annexure-1 whereby candidature of the petitioner was rejected for the post of Motor Vehicle Sub-Inspector. The petitioner applied for the aforesaid post pursuant to the advertisement dated 26.7.2008 and corrigendum issued on 18.8.2008.
Learned counsel submits that petitioner did his Bachelor of Engineering (Honours) (BE) in Auto-mobile Engineering in the year 2008 and is in possession of the required experience of one year from reputed auto-mobile workshop thus eligible for appointment to the aforesaid post. The candidature of the petitioner has been rejected by the respondents on the ground that he did not acquire working experience after passing BE.
The petitioner earlier preferred SB Civil Writ Petition No. 6488/2011 wherein this court passed and interim order to allow him to appear in selection. Respondents declared result, however, petitioner's result was kept in sealed cover as per interim order. The result of the petitioner was then opened in the court, wherein, his marks were shown 236 as against cut off marks of 237. The writ petition was accordingly withdrawn with liberty to file fresh writ petition, challenging application of scaling formula adopted by the respondents. The petitioner accordingly challenged the application of scaling formula by this writ petition. A further prayer is made to declare petitioner as eligible for the post in reference.
So far as issue of scaling is concerned, it has already been decided by this court in other petitions thus applies to all concerned being judgment in rem. Petitioner's case is covered by the judgments and issue aforesaid is not required to be decided in this matter.
The only issue for consideration is as to whether a candidate is required to possess experience after obtaining educational qualification for the post or it can be prior to or simultaneous to the educational qualification obtained by a candidate?
Referring to the facts of this case, it is submitted that petitioner possesses requisite educational qualification from the University of Rajasthan on 18.8.2008 and working experience as Apprentice w.e.f. 1.7.2007 till 10.8.2008 from M/s Roshan Motors, Jaipur. The rule does not provide for experience subsequent to educational qualification required for the post yet respondents imposed a condition to possess experience subsequent to the educational qualification in ignorance of law settled by the Hon'ble Supreme Court apart from the rules applicable in the matter. Reference of the advertisement has also been given to indicate that requisite educational qualification and experience is provided without a condition that experience should be possessed subsequent to educational qualification. The respondents amended condition of advertisement on 18.8.2008 to provide that experience should be possessed after educational qualification on or before 6.9.2008. The petitioner possessed experience and qualification on or before the aforesaid date. The only controversy now remains about the condition that experience of one year should be possessed by a candidate after the educational qualification. The aforesaid condition is illegal and the issue aforesaid has already been considered and decided by various High Courts as well as the Apex Court. Reference of the judgment of the Full Bench of the Kerala High Court in the case of Shaila Beegum versus Kerala Public Service Commission, reported in 1997(4) SCT 460 has been given wherein similar issue was considered and decided. A further reference of the judgment of the Hon'ble Supreme Court in the case of Subhash s/o Shriram Dhonde versus State of Maharashtra & anr, reported in 1995 Supp(3) SCC 332 has been given. The Hon'ble Apex Court held that experience need not be after educational qualification but it can be prior to it. The petitioner further placed reliance on the judgment in the case of B Ramakichenin @ Balagandhi versus Union of India & ors, reported in 2008 (1) SLR 651.
The view taken by the Hon'ble Supreme Court in the case of Subhash (supra) was reiterated even in subsequent judgment in the case of Anil Kumar Gupta & ors versus Municipal Corporation of Delhi & ors, reported in (2000) 1 SCC 128. It is accordingly prayed that corrigendum should not be given effect in the present matter as it is contrary to the rules. It does not provide possession of experience subsequent to the educational qualification. The respondents cannot alter rule by issuing corrigendum in the advertisement. The impugned order thus deserves to be set aside as the petitioner possesses requisite experience and educational qualification on or prior to the date of submission of application form.
Learned counsel for respondents contested the matter. It is submitted that rule provides about educational qualification so as one year's experience thus experience of one year has to be possessed subsequent to the educational qualification. The petitioner herein possesses experience prior to completion of educational qualification thus was not eligible. The issue aforesaid has already been settled by Full Bench judgment of this court in bunch of cases led by DB Civil Special Appeal (Writ) No.571/2004, Rajasthan Public Service Commission, Ajmer versus Abhijeet Singh Yadav, decided on 13.4.2010. The issue was even decided by the Apex Court in the case of Indian Airlines Ltd & ors versus S.Gopalakrishnan, reported in (2001) 2 SCC 362. It was made clear to all the candidates that experience should be after possessing educational qualification. It is, accordingly, prayed that writ petition may be dismissed.
I have considered rival submissions of learned counsel for parties and perused the record.
The issue for my consideration is as to whether one year's experience from reputed Automobile Engineering workshop is to be possessed after requisite educational qualification or it can be prior to educational qualification or simultaneous to it?
The petitioner herein obtained requisite educational qualification on 18.8.2008 as is coming out from the documents submitted during the course of arguments which are taken on record. He obtained one year experience from 1.7.2007 till 10.8.2008 thus period is overlapping.
Reference of rule 11 and Schedule appended to the Rules of the Rajasthan Transport Subordinate Service Rules, 1963 and Schedule providing requisite qualification are quoted hereunder for ready reference -
11. Academic and Technical qualification . - a candidate for direct recruitment to the post specified in the Schedule shall possess (1) the qualification given in column 4 of the Schedule, and (2) working knowledge of Hindi written in Devnagri script and knowledge of Rajasthani culture.
SCHEDULE Name of Post Source of Recruitment with percentage Qualification for Direct recruitment Post from which appointment by promotion is to be made Minimum experience and qualifications required for promotion
2. Motor Vehicle Sub-Inspector 25% by promotion 75% by direct recruitment
1. Must have passed Secondary Examination of a recognized Board; and
2. A Diploma in Automobile Engineering (3 years' course) or a diploma in Mechanical Engineering awarded by the State Board of Technical Examination (3 years' course) OR Any qualification in either of the above disciplines declared equivalent by the Central Government or State Government; and
3. Working experience of at least one year in a reputed Automobile Workshop which undertakes repairs of both light motor vehicle, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engines; and
4.........
-
-
Perusal of the above quoted rule and schedule reveal that one is required to possess qualification or diploma in Automobile Engineering apart from other qualification or even equivalent qualification. The schedule further provides working experience of one year and it does not qualify condition of experience to be subsequent to educational qualification. In the aforesaid background, can rule be substituted or a condition can be imposed by issuing corrigendum to the effect that one should possess experience after obtaining educational qualification. The issue aforesaid was considered by the Hon'ble Supreme Court in similar circumstances in the case of Subhash (supra). Para 2 of the said judgment is quoted hereunder for ready reference -
2.The tribunal has dismissed the appellant's application only on the ground that the applicant had acquired the working experience of one year prior to acquisition of the basic qualification which in this case is diploma in Automobile Engineering. For this purpose, the Tribunal relied upon the circular issued by the Government. The rules, namely, the Motor Vehicles Department (Recruitment) Rules, 1991 framed under Article 309 of the Constitution show that a mere possession of the working experience of at least one year in a reputed Automobile Workshop as mentioned under Rule 3(e ) is enough. The rule does not make any difference between acquisition of such experience prior to or after the acquisition of the basic qualification. What is further, the record shows that even after the acquisition of the basic qualification as mentioned in Rule 3 ( c), the appellant has acquired the additional experience of one year in a reputed Automobile Workshop as required even by the said circular. The Tribunal has committed an error in relying upon the circular which cannot replace the rules framed under Article 309 of the Constitution. We are, therefore, of the view that the Tribunal's decision is incorrect. Since the appellant satisfies the qualification required by the rules, the decision of the Tribunal has to be set aside. We accordingly set aside the impugned decision of the Tribunal and direct the respondent to consider the appellant for appointment, if otherwise he satisfies the requisite qualification including the works obtained in the written test and the interview already held. The appeal is allowed with no order as to costs.
Perusal of the para quoted above reveals that reference to the Rules of 1991 it was held that it provides only for working experience of one year and it does not make any difference between acquisition of such experience prior or after acquisition of basic qualification. The tribunal's judgment therein was set aside.
Similar view was taken by the Hon'ble Apex Court in the case of B.Ramakichenin @ Balagandhi (supra). Therein, referring to the condition of the advertisement providing two years' experience, it was held that same was not required to be obtained after educational qualification as there was no specific condition to that effect in the advertisement.
The facts of this case is little different as in the present case a corrigendum was issued by the respondents to indicate that experience should be possessed after obtaining educational qualification. Para 20 of the said judgment is however quoted hereunder for ready reference -
20. However, in this case we have noticed that in paragraph 3.1 of the advertisement of the UPSC dated 23.5.1998, the method of short-listing has been given. Hence the UPSC cannot resort to any other method of short- listing other than that which has been prescribed in paragraph 3.1. In the said paragraph of the advertisement, it is mentioned that the Commission may restrict the number of candidates on the basis of either qualifications and experience higher than the minimum prescribed in the advertisement or on the basis of the experience higher than the minimum prescribed in the advertisement or on the basis of experience in the relevant field. In other words, it was open to the UPSC to do short-listing by stating that it will call only those who have Ph.D. degree in Agriculture (although the essential degree was only M.Sc. degree in Agriculture). Similarly, the UPSC could have said that it would only call for interview those candidates who have, say, five years experience, although the essential requirement was only two years experience. However, experience after getting the M.Sc. degree cannot be said to be higher than the experience before getting the M.Sc degree. Also, the advertisement dated 23.5.1998 does not mention that two years experience must be after getting the M.Sc. Degree.
In the case of Anil Kumar Gupta (supra), Hon'ble Supreme Court endorsed the view taken by the Hon'ble Apex Court in earlier judgment in the case of Subhash (supra). Relevant paras of the said judgment are quoted hereunder for ready reference -
We may point out that in the present case, the relevant provisions applicable and the notification dated 30.6.89 inviting applications refer to essential qualification as (i) Degree and (ii) 2 years' 'professional' experience. As stated earlier, experience upto 2 years is the minimum and those above 2 years, get 1/2 marks each year's experience ranging between 3 to 12 years, the maximum marks being 5 for experience. We may at the outset state that the provision regarding experience speaks only of "professional experience" for two years and does not, in any manner, connect it with the degree qualification. In our view, the case on hand is similar to Subhash Vs. State of Maharashtra (1995 Supp.(3) SCC 332) where, while considering Rule 3(e) of the relevant Recruitment Rules, namely, the Maharashtra Motor Vehicles Department (Recruitment) Rules, 1991, this Court pointed out that the rule 3(e) which required one year experience in registered Automobile Workshop did not make any difference between acquisition of such experience prior to or after the acquisition of the basic qualification. It is true, in N. Suresh Nathan's case, the experience of a candidate while holding diploma was not counted. There the relevant rules stated:
"Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years' service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years' service in the grade."
Reference of the judgment of Full Bench of Kerala High Court is also relevant as in the case of Shaila Beedum (supra) similar issue was decided holding that experience need not to be possessed after acquiring educational qualification but it can be prior to it. Therein, judgment of the Hon'ble Apex Court was considered in detail.
As against the judgments referred to above, learned counsel for respondents placed reliance on the judgment in the case of G. Sundareswararao versus The Government of AP & ors, reported in JT 1996 (3) 392. Therein, referring to rule 4(b) of the AP Institute of Preventive Medicine Service Ad hos Rules, it was held that experience should be possessed after the educational qualification, however, the judgment aforesaid was given on the facts of the case and rules applicable. Therein, earlier judgment in the case of Sheshrao Janglujibagde versus Bhaiyya reported in (1991) Supp 1 SCC 367 was also relied upon. The judgment in the case of G. Sundareswararao (supra) is quoted hereunder for ready reference -
This special leave petition has been filed against the order of the Administrative Tribunal, Hyderabad dated March 28, 1995 made in O.A. No.81344/90. It is the case of the petitioner that he had the requisite qualification for promotion as a Senior Scientific Officer. But he was unduly denied of his right for consideration for promotion from Junior Scientific Officer. Mr. L.N. Rao, the learned counsel, contends that Rule 4(b) of the A.P. Institute of Preventive Medicine Service Ad hoc Rules to the post of Chief Public Analyst, Senior and Junior Scientific Officers, issued in G.O.Ms. No.219 Health Medical & Family Welfare, dated March 26, 1987 is ultra vires of the power. Once the petitioner acquired post-graduate qualification, the insistence of 5 years service after the acquisition of the post-graduation is not warranted. In support thereof, he placed reliance on a judgment of this Court in Sheshrao Janglujibagde vs. Bhaiyya [(1991) Supp. 1 SCC 367]. Rule 4 (b) reads thus:
"Must have not less than 5 years experience as Post-Graduate in the analysis of Food under the control of Chief Public analyst/Government Analyst who is appointed under the prevention of Food Adulteration Act, 1954."
In view of that mandatory rule that the candidate must have not less than S years experience as post-graduate in the analysis of the food, the intendment of the rule is manifested that after acquiring post-graduation, one must necessarily have not less than 5 years experience in the analysis of food. It would be relevant to mention that when the analysis of food for adulteration is to be made the senior Scientific Officer is required to counter test the report of the analyst sent in that behalf, the Rule appears to have intended that he must have expert knowledge after acquiring post graduation and minimum period of not less than 5 years experience has been prescribed and insisted under the rule. The words "not less than" furnishes the legislative intention of mandatory character 5 years minimum experience after getting post-graduate. Therefore, it being the legislative policy, it cannot be said that the rule is ultra vires or arbitrary.
It is true that in the above-cited judgment, this Court has stated thus:
"Normally, when we talk of an experience, unless the context otherwise demands, it should be taken as experience after acquiring the minimum qualifications required and, therefore, necessarily will have to be posterior to the acquisition of the qualification. However, in the case of a promotion the same interpretation may not be just or warranted."
But later this Court also explained that it would depend upon the relevant provisions as also the particular type of experience which is required. In that case, on the basis of the language contained in the rules, this Court had held that the insistence 10 years experience after post- graduate was not required. In view of the above mandatory language, we cannot say that the rule made was not correct in law.
It is then contended that the Government have done away with the minimum experience after post-graduation in the subsequent rules and that, therefore, the petitioner is entitled to be considered. We have no doubt that his case will be considered according to rules. The SLP is accordingly dismissed.
Perusal of the judgment in the case of G. Sundareswararao (supra) reveals that considering the language of the rule, judgment aforesaid was given, however the rule referred herein does not contain same language. It all depends on relevant provisions and also particular type of experience required that as to whether it should be prior to educational qualification or subsequent thereto. If the language of the rules referred herein is looked into, it does not provide that experience should be obtained subsequent to the educational qualification and, in any case, the facts are peculiar in a way that petitioner obtained required experience simultaneous to his educational qualification.
Similar rules were otherwise considered by the Hon'ble Apex Court in the case of Subhash (supra) which are almost para-materia to the rules applicable herein.
In my opinion, the condition imposed by the respondents to possess experience subsequent to the educational qualification by issuing a corrigendum and rejecting the candidature of the petitioner cannot be held to be valid. A condition can be imposed by the RPSC to possess experience after obtaining educational qualification if rules so mandates otherwise Public Service Commission has no authority to impose a condition which is not coming out from bare reading of the rules.
Learned counsel for respondents, on the other hand, referred judgment in the case of Indian Airlines Ltd. & ors versus S. Gopalakrishnan, reported in 2001(2) SCC 362, wherein, it was held that experience should be after obtaining requisite qualification. This is more so when it was clarified by general information. In the aforesaid case, respondent was short of five years required experience. In para 5 of the said judgment, an observation is made that where-ever experience is prescribed in addition to the qualification, it only means experience after obtaining required qualification. Without elaborating the aforesaid, the judgment therein was rendered looking to the facts of that case as respondent was not in possession of required five years experience. Therein, earlier judgment of the Hon'ble Apex Court in the case of Subhash s/o Shriram Dhonde (supra) was not brought to the notice of the court though another judgment in the case of Anil Kumar Gupta (supra) has been referred but it is applicable on its own facts as explained in this judgment. In the case of Subhash s/o Shriram Dhonde (supra) it was categorically held that rule does not make any difference between acquisition of experience prior to or after obtaining basic qualification. The judgment aforesaid was rendered in the year 1995 but was not brought to the notice of the Apex Court in the case of Indian Airlines (supra) decided in the 2001. In the subsequent judgment in the year 2008 in the case of B Ramakichenin @ Balagandhi (supra) sane view was reiterated as was given in the case of Subhash (supra). It was held that advertisement does not provide experience after getting MS degree thus subsequent to the Indian Airlines judgment and even prior to it, the Hon'ble Apex Court laid down the law on the issue and has been referred in this judgment holding that experience can be prior or after educational qualification.
In view of aforesaid, writ petition is allowed. The impugned order dated 13.4.2011 at Annexure-1 is set aside. The petitioner is held eligible for the post of Motor Vehicles Sub Inspector. The RPSC has declared the result afresh after removing the formula of scaling thus if petitioner's result has not been declared it may also be declared and if he is found in merit then petitioner should be entitled to the consequential benefit of appointment.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-J