Madhya Pradesh High Court
Dr. Mrs. Ankita Bohare vs Madhya Pradesh Public Service ... on 26 September, 2013
1
Writ Petition No.4086/2011
Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission
26.09.2013
Shri R.N.Singh, learned senior counsel with
Shri Arpan Pawar learned counsel for the petitioner.
Shri K.S.Wadhwa, learned counsel for respondent
No.1.
Shri S.S.Bisen, learned counsel for respondent No.2.
Shri Ajay Pratap Singh, learned counsel for Intervenor.
With consent of learned counsel for the parties, petition is heard finally.
Communication dated 27.01.2011 and 21.02.2011 are being questioned vide this writ petition.
By communication dated 27.01.2011, Madhya Pradesh Public Service Commission informed the petitioner of rejection of her application for appointment to the post of Professor, Zoology for the reason that she does not possess the requisite qualification as per advertisement.
Whereas by communication dated 21.02.2011, the teaching experience gained in Private College is declined to be taken into consideration.
Applications for appointment to the post of 2 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission Professor in various discipline, including Zoology, were invited vide Employment Notice No.1/p;u/2009 dated 19.01.2009 from candidates having requisite qualifications prescribed in the advertisement as under:
**¼b½ vgZrk %& 1- ;w-th-lh- }kjk le;≤ in fofgr 'kS{kf.kd vgZrk,a lacaf/kr fo"k; esa ih-,p-Mh- vfuok;Z vgZrkA 2- Lukrd@LukrdksRrj d{kkvksa esa 10 o"kZ dk v/;;u vuqHkoA ;w-th-lh- ekxZn'kZu ekpZ] 2003 %& iz[;kr fo)ku ftudk mPp xq.koRrk dk izdkf'kr dk;Z] gks tks vuqla/kku dk;Z esa lfdz; :i ls yxk gks] lkFk esa LukrdksRrj d{kkvksa esa v/;kiu dk 10 o"kZ dk vuqHko vkSj ;k fo'ofo|ky;@jk"Vªh; Lrj ds laLFkkuksa esa vuqla/kku dk;ksZa dk xkbZM ds :i esa vuqHko lfEefyr gks ;k ,d mRd`"B fo)ku ftldk Kku ds {ks= esa egRoiw.kZ ;ksxnku djus dk LFkkfir izfr"Bk gksA** The qualification prescribed were in accordance with Rule 8 schedule III of Madhya Pradesh Educational Services (Collegiate Branch) Recruitment Rules, 1990.
Petitioner applied for the post of Professor, Zoology on the strength of her being an Assistant Professor in Mata Gujari Post Graduate Women's College, Jabalpur, a Private Institution, and the Doctorate Degree (Ph.D) awarded in the year 2003. As for the ten years experience of teaching, petitioner 3 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission claimed it on the basis of her teaching in graduate and Post Graduate classes.
The petitioner's application was however rejected for the reasons assigned vide impugned communication that she does not possess requisite experience and the experience gained in private institution is not applicable.
The rejection of candidature is being assailed on the ground that the respondents have arbitrarily declined to recognize the teaching experience gained by the petitioner while teaching as Assistant Professor in Mata Gujari Post Graduate Women's College, wherein graduation course was recognized since 1998 vide University Grant Commission's letter No.MS/98/3100 dated 12/01/1998 and the Post Graduate degree since March 2003, vide UGC's letter No.F-8-19/96 (CPP-I) dated 28.03.2003. Petitioner has further relied on the experience certificate dated 01.03.2011 issued by the Principal, Mata Gujari Mahila Mahavidyalaya, certifying the petitioner having served in the institution since 01/07/1999. Petitioner has also relied on an undated certificate of experience issued by Professor Sureshwar Sharma, Commission Member, University Grant 4 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission Commission. However, during course of hearing this certificate has not been pressed into service. In view whereof, the certificate of experience issued by Professor Sureshwar Sharma is not taken into consideration.
The respondent No.2 on its turn deny the contentions that on the date of advertisement petitioner was having ten years teaching experience in Graduate and Post Graduate College. It is urged that till the last date of filling the form i.e. 20.02.2009 the petitioner was having the teaching experience of 09 years 06 months and 20 days. It is further contended that even the experience gained in Private Institution was not acceptable because of the clarification issued by the State Government on 09.04.2010.
The clarification issued by the State Government is in the following terms:
e/; izns'k 'kklu mPp f'k{kk foHkkx ea=ky;
dzekad ,Q 1&23@2007@1&38 Hkksiky] fnukad 29 vizsy 2010 izfr] lfpo e/; izns'k yksd lsok vk;ksx] 5 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission bankSj fo"k; %& lh/kh Hkjrh ds izk/;kidksa ds inksa ds p;u ds laca/k esaA lanHkZ %& vkidk v/kZ 'kk i= dzekad 97@ful@2010 fnukad 25-03-2010 vkids mijksDr fo"k;kafdr lanfHkZr i= ds lanHkZ esa lh/kh Hkjrh ds izk/;kidksa ds p;u esa lafonk vfrfFk fo)ku rFkk ikVZ VkbZe ds vuqHko dks 'kkfey djus ds laca/k esa fuEukuqlkj fu.kZ; fy;k x;k gS %& ¼v½ fjlpZ QSyks@fjlpZ ,lksfl;sV dks v/;kiu dk;Z dk vuqHko ekU; ugha fd;k tk,A ¼c½ 'kklu ds }kjk ekuns; izkIr dj 'kkldh; egkfo|ky; esa v/;;iu dk;Z esa jr lafonk] vfrfFk fo)ku rFkk ikVZ VkbZe ds vuqHko dks ekU; djus ds fy;s lgefr yksd lsok vk;ksx dks Hkst tk,A vfHker esa ;g Li"V fd;k x;k gS fd 'kkldh; ,oa vuqnku izkIr egkfo|ky;ksa@fo'ofo|ky;ksa esa gh dk;Zjr lafonk] vfrfFk fo)ku rFkk ikVZ VkbZe ds vuqHko dks ekU; fd;k tk,] D;ksafd budk vfHkys[k la/kkfjr gksrk gS rFkk bldk lR;kiu fd;k tk ldrk gSA v'kkldh; laLFkkvksa esa vfHkys[k la/kkj.k ds lR;kiu esa vR;f/kd dfBukbZ gksxhA vr% v'kkldh; laLFkkvksa esa dk;Zjr lafonk vfrfFk fo)ku rFkk ikVZ VkbZe ds f'k{kdksa dks ekU; ugha fd;k tk,A mijksDrkuqlkj lh/kh Hkjrh ds izk/;kidksa ds inksa ds p;u ds laca/k esa vko';d dk;Zokgh djus dk d"V djsaA ¼izcy flikgk½ mi lfpo e-iz- 'kklu] mPp f'k{kk foHkkx 6 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission It is urged that the petitioner since was not having requisite qualification, her candidature was rejected.
Respondent No.1, the State Government has supported the stand taken by the Public Service Commission.
Considered the rival submissions.
Apparent it is from the advertisement inviting application for appointment as Professor in various discipline that imperative it is for the candidate to have ten years teaching experience. It is an essential qualification. The petitioner vide Additional affidavit filed on 29.09.2011 has admitted having 09 years, 06 months and 20 days of teaching experience in Mata Gujari College, Jabalpur. Thus on the cut off date i.e. 20.02.2009 she was not eligible to participate in selection. Need for having the requisite qualification on the last date of receiving the form came up for consideration before Supreme Court in U.P.Public Service Commission v. Alpana : (1994) 2 SCC 723 wherein it has been observed :
"6. In the facts of the present case we fail to appreciate how the ratio of the said decision of this Court can be attracted. The facts of this case reveal that the respondent 7 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission was not qualified to apply since the last date fixed for receipt of applications was August 20, 1988. No rule or practice is shown to have existed which permitted entertainment of her application. The Public Service Commission was, therefore, right in refusing to call her for interview. The High Court in Writ Petition No. 1898 of 1991 mandated the Public Service Commission to interview her but directed to withhold the result until further orders. In obedience to the directive of the High Court the Public Service Commission interviewed her but her result was kept in abeyance. Thereafter, the High Court while disposing of the matter finally directed the Public Service Commission to declare her result and, if successful, to forward her name for appointment. The High Court even went to the length of ordering the creation of a supernumerary post to accommodate her. This approach of the High Court cannot be supported on any rule or prevalent practice nor can it be supported on equitable considerations. In fact there was no occasion for the High Court to interfere with the refusal of the Public Service Commission to interview her in the absence of any specific rule in that behalf. We find it difficult 8 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission to give recognition to such an approach of the High Court as that would open up a flood of litigation. Many candidates superior to the respondent in merit may not have applied as the result of the examination was not declared before the last date for receipt of applications. If once such an approach is recognised there would be several applications received from such candidates not eligible to apply and that would not only increase avoidable work of the selecting authorities but would also increase the pressure on such authorities to withhold interviews till the results are declared, thereby causing avoidable administrative difficulties. This would also leave vacancies unfilled for long spells of time. We, therefore, find it difficult to uphold the view of the High Court impugned in this appeal."
In State of Haryana and others v. Anurag Shrivastava and another (1998) 8 SCC 399 it has been observed :
"4. Learned counsel for the 2nd respondent has relied upon two decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar and Rekha Chaturvedi v. University of Rajasthan.
Both these judgments hold that the qualifications which have to be considered are 9 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission those possessed as on the last date of filing applications. The High Court has, therefore, rightly held that the 2nd respondent did not possess the requisite qualifications at the material time and was not entitled to be selected under the advertisement of 7-12-1980. The appeal is, therefore, dismissed. There will be no order as to costs."
In Sunil Kumar Goyal v. Rajasthan Public Service Commission (2003) 6 SCC 171 it has been held :
" 9. The petitioners herein admittedly did not complete the said period of three years of active practice at the Barr. They joined services prior thereto. They might have been representing their department while in service before the Tribunal but we fail to understand as to how they could appear before the Court like lawyers. Be that as it may, representing the employer in a Court or Tribunal would not amount to practice at the Bar and as such the criteria laid down by this Court would not stand satisfied.
11. It may be true that pursuant to or in furtherance of said directions the petitioners had filed affidavits but evidently the impugned order has been passed by the respondent Public Service Commission being not satisfied as regard fulfillment of requirement of the statutory rules as then existed."
Contentions on behalf of the petitioner is that the 10 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission experience gained during research ought to have been taken into consideration is of no help to the petitioner because there is no such stipulations in the qualification prescribed, nor any relaxation in the rules have been provided. In view whereof, the decisions in Dr.Kumar Bar Das v. Utakl University and others (1999) 1 SCC 453, G.N.Nayak v. Goa University and others (2002) 2 SCC 712 and B.C.Mylarappa alias Dr.Chikkamylarappa v. Dr. R.Venkatasubbalah and others (2008) 14 SCC 306 is of no assistance.
The petitioner since did not had to her credit ten years teaching experience in Graduate/Post Graduate classes was rightly not found suitable for candidature for appointment as Professor.
Moreover, the experience gained by the petitioner in the private institution since was not recognized by the State Government as evident from letter dated 29.04.2010, for that reason also the petitioner was rightly held not eligible for appointment as Professor. In this context reference can be head of the decision in Dr. (Sushri) Rajni Bala Agrawal v. lalit Narain Mithila University 1992 (6) SLR 223 wherein the Full Bench of 11 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission Patna High Court while dwelling upon the question : as to whether for the purpose of computing teaching experience of a College teacher, whether the teaching experience said to have been acquired in a college which was not affiliated shall have to be taken into consideration; answered in the following terms :
"17. ........For all the reasons, it must be held that teaching experience in an unaffiliated college cannot be taken into consideration."
There is another aspect of the matter. Petitioner while appointed as Assistant Professor in Mata Gujari College on 01.07.1999 was not having Doctoral Degree to her credit, which was awarded to her in the year 2003. the requisite qualification for appointment of Professor as stipulated in the advertisement and the relevant Rule is :
**¼b½ vgZrk %& 1- ;w-th-lh- }kjk le;≤ in fofgr 'kS{kf.kd vgZrk,a lacaf/kr fo"k; esa ih-,p-Mh- vfuok;Z vgZrkA 2- Lukrd@LukrdksRrj d{kkvksa esa 10 o"kZ dk v/;;u vuqHkoA** ;w-th-lh- ekxZn'kZu ekpZ] 2003 %& iz[;kr fo)ku ftudk mPp xq.koRrk dk izdkf'kr dk;Z] gks tks vuqla/kku dk;Z esa lfdz; :i ls yxk gks] lkFk esa LukrdksRrj d{kkvksa esa v/;kiu dk 10 o"kZ dk vuqHko vkSj ;k fo'ofo|ky;@jk"Vªh; Lrj ds laLFkkuksa esa vuqla/kku dk;ksZa dk xkbZM ds :i esa vuqHko lfEefyr gks 12 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission ;k ,d mRd`"B fo)ku ftldk Kku ds {ks= esa egRoiw.kZ ;ksxnku djus dk LFkkfir izfr"Bk gksA** Thus the teaching experience of ten years has to be counted from the date on incumbent acquires Ph.D and not from the date prior thereto.
In Indian Airlines Ltd. and others v.
S.Gopalakrishnan (2001) 2 SCC 362, it has been held:
"4. The respondent has obtained the ITI certificate in June 1994 and he had about five years of experience after obtaining the certificate and diploma in Mechanical Engineering was obtained in April 1996. In any event, it is clear that the experience obtained by him falls short of the requisite qualification. This Court in N.Suresh Nathan v. Union of India, Gurdial Singh v. State of Punjab and Anil Kumar Gupta v. Municipal Corpn.of Dehli has explained the necessity to obtain experience after obtaining the requisite qualification.
5. When in addition to qualification, experience is prescribed, it would only mean acquiring experience after obtaining the necessary qualification and not before obtaining such qualification. In the case of the respondent, he obtained the ITI certificate in the year 1994 and, therefore, did not possess five years of experience as required under the relevant rule. If his qualification as a diploma 13 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission holder in Mechanical Engineering is taken note of, he has not completed three years of experience as he got the same in April, 1996 and on relevant date he did not possess such qualification.Indeed in prescribing qualification and experience, it is also made clear in the general information instruction at Item No.6 that experience will be computed after the date of acquiring the necessary qualifications. Therefore, when this requirement was made very clear that he should have experience only after acquiring the qualification, the view taken by the High Court to the contrary either by the learned Single Judge or the Division Bench does not stand to reason."
In the case at hand the teaching experience gained by the petitioner of teaching Graduate and Post Graduate classes would from the year 2003 when she was awarded Doctoral Degree. Apparently, on 20.02.2009 (the last date of applying) the petitioner was not having ten years experience but only about six years experience. The petitioner thus was ineligible for appointment as Professor and her candidature, in the considered opinion of this Court was rightly rejected vide impugned communication.
It is next urged by learned Senior counsel that vide interim order, the petitioner has been provisionally permitted to appear and having found eligible she has 14 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission been provisionally appointed, thus a right has accrued in her favour. The contention that with the provisional appointment there is an accrual of right has no force in the light of interim orders dated 04.03.2011 and 20.05.2011 wherein it was categorically mentioned that the provisional acceptance of forms and provisional appointment would be subject to final outcome of the petition. There is no accrual of vested right in the petitioner. And since the action of the respondent commission in rejecting the petitioner's candidature has been upheld, the petitioner will have to give way to other eligible candidate.
In this context that whether with passing of interim order any right accrues in favour of petitioner reference can be had of the decision in State of Rajasthan v. Hitendra Kumar Bhatt (1997) 6 SCC 574 wherein it is held :
"6. Looking to the clear terms of the advertisement which we have referred to above, the respondent was not eligible for consideration. It is submitted by the respondent before us that since he has been continued and has now been confirmed we should not disturb his appointment. He has requested that his case should be considered sympathetically. The fact, however, remains that the appellants have taken the correct 15 Writ Petition No.4086/2011 Dr.Mrs.Ankita Bohare v. M.P.Public Service Commission stand right from the beginning. The respondent's application was not considered and he was not called for an interview. It was on account of interim orders which were obtained by the respondent that he was given appointment and continued. He was aware that his appointment was subject to the outcome of his petition. One cannot, therefore, take too sympathetic a view of the situation in which the respondent find himself. A cut-off date by which all the requirements relating to qualifications have to be met, cannot be ignored in an individual case. There may be other persons who would have applied had they known that the date of acquiring qualifications was flexible. They may not have applied because they did not possess the requisite qualification on the prescribed date. Relaxing the prescribed requirements in the case of one individual may, therefore, cause injustice to others."
Having thus considered, this Court does not find any substance in the petition. In the result the impugned communications are upheld. Petition fails and is dismissed. No costs.
(SANJAY YADAV) JUDGE anand