Punjab-Haryana High Court
Roma Rani Arora vs State Of Punjab And Others on 16 January, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision : 16.1.2013
CWP No. 4134 of 2011
Roma Rani Arora ..... Petitioner(s)
Versus
State of Punjab and others ..... Respondent(s)
CWP No. 19090 of 2011
Neeraj Mehta ..... Petitioner(s)
Versus
State of Punjab and others ..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. Kapil Kakkar, Advocate, in CWP No. 4134 of 2011
Mr. Rajesh Hooda, Advocate, in CWP No. 19090 of 2011,
for the petitioners.
Mr. Gurinder Pal Singh, Addl. A.G. Punjab and
Mr. Harsimran S. Sethi, Addl. A.G. Punjab, for the respondents.
AUGUSTINE GEORGE MASIH, J.
By this order, I propose to decide CWP No. 4134 of 2011 titled as Roma Rani Arora Versus State of Punjab and others and CWP No. 19090 of 2011 titled as Neeraj Mehta Versus State of Punjab and others as common questions of facts and law are involved in these cases. Facts are being taken primarily from CWP No. 4134 of 2011.
In pursuance to an advertisement dated 23.9.2009 (Annexure-P-
6) inviting applications to fill up 7654 posts on contract basis in the teaching/non-teaching cadre in the Department of Education, Punjab, candidates were required to submit their applications complete in all respects CWP No. 4134 of 2011 and connected case -2- upto 9.10.2009. Out of these posts, 40 posts were to be filled up of Lecturer in English and same number in Lecturer of History. Roma Rani Arora applied for the post of Lecturer in English, whereas Neeraj Mehta applied for the post of Lecturer in History. General conditions were laid down for the selection in which it was one of the condition mentioned that the total posts would be filled up in the ratio of 50:50 amongst female and male candidates. Petitioners who are possessing the prescribed qualification for the post of Lecturers in English and History respectively applied for the same. Applications were to be filled up on-line by the candidates and as per the criteria published in the advertisement dated 23.9.2009 (Annexure-P-6), provisional merit list of candidates, as per the prescribed ratio of 50:50, was published in the first week of December, 2009. Roma Rani Arora found her name at Serial No. 12 of the merit list in the female category and she was shown to have scored 63.73% in the category of Lecturer in English (Female). Name of Neeraj Mehta figured at Serial No. 11 in the provisional merit list of male candidates in Lecturer in History and was shown to have scored 63.8%. A public notice was issued, inviting candidates for scrutiny of their original certificates/documents. Petitioners appeared for the scrutiny of the documents which were found to be correct. A news was published in the Daily Ajit on 30.4.2010 (Annexure-P-9) wherein a statement was issued by the Education Minister, Punjab, that as the recruitment process for appointment of teachers stands completed, appointment letters will be issued to the teachers on priority basis.
To the surprise of the candidates, a public notice dated 9.7.2010 was published wherein the candidates were again asked to appear for counseling/scrutiny of the documents as a revised combined select list of male CWP No. 4134 of 2011 and connected case -3- and female candidates was published in the light of judgment passed by this Court in CWP No. 12275 of 2000 titled as Neelam Rani Versus State of Punjab and others, decided on 8.2.2010 wherein it was declared that the treatment of male and female as different cadres is arbitrary, discriminatory and violative of the statutory Rules as there was no such distinction under the Rules. This combined merit list of male and female candidates showed the name of Roma Rani Arora at Serial No. 16 of the Lecturers in English, whereas the name of Neeraj Mehta at Serial No. 22 in the category of Lecturers in History. This counseling exercise was also carried in the month of July/August, 2010. Roma Rani Arora and Neeraj Mehta were assigned the following marks in this list as per the criteria laid down for selection in the advertisement dated 23.9.2009 (Annexure-P-6) :-
"Name 80% of the eligibility Higher Experience Total
qualification Qualification Weightage Marks
Roma Rani 53.7333 0 10 63.7333
Arora
Neeraj Mehta 47.8 6 10 63.8"
Both these candidates were within the zone of select candidates and, therefore, were waiting for the appointment letters when to their dismay and surprise, another result sheet was issued on the website on 25.2.2011. Here in the category of Lecturer in English, name of Roma Rani Arora figured at Serial No. 62 and her merit marks were lowered from 63.73 to 53.73. In the column of status, it was mentioned 'merit lowered'. Similarly, in the merit list of Lecturer in History in the case of Neeraj Mehta, marks assigned to him were lowered from 63.80 to 53.08 and in the column of status, it was mentioned 'merit lowered'. These petitioners when enquired from the respondents as to why their marks have been reduced, they came to know that CWP No. 4134 of 2011 and connected case -4- this was done because of deduction of 10 marks which they had gained for experience and the reasons for deducting the said marks was that the experience gained by them was prior to their possessing basic requisite educational qualification for the post of Lecturer, which had been earlier taken into consideration which cannot be counted in the light of the specific condition mentioned in the advertisement dated 23.9.2009. It would not be out of way to mention here that the basic requisite qualification for appointment to the post of Lecturer is M.A. or M.Sc. or M.Com with B.T. or B.Ed.
Petitioner Roma Rani Arora although had passed her B.Ed. in the year, 1996 but passed her M.A. (English) in the year, 2008 and, therefore, experience gained by her prior to having passed M.A. in English, which is the basic qualification for the post, could not have been taken into consideration. In the case of Neeraj Mehta although he had passed his M.A. (History) in the year, 1997 but passed his B.Ed. in the year, 2005 and, therefore, the experience possessed by him prior to the year 2005 could not be taken into consideration as per the advertisement. Qua the experience clause, which was provided in the advertisement was that maximum 10 marks are admissible for experience by calculating one mark for each year experience 'after' obtaining basic qualification. It is this action of the respondents deducting experience marks which is under challenge in these writ petitions by the petitioners.
It is the contention of the counsel for the petitioners that the experience gained by the petitioners as teachers would remain the same and there cannot be any distinction between experience gained by teacher after obtaining the requisite educational qualification or prior thereto. Petitioners have been working as teacher/lecturer for the last more than 10 years and, CWP No. 4134 of 2011 and connected case -5- therefore, they cannot be denied 10 marks on account of teaching experience which is not sustainable in the eyes of law. Reliance has been placed upon the judgment of the Hon'ble Supreme Court in the case of A.K. Raghumani Singh Versus Gopal Chandera Nath and others 2000 (2) SCT 465 wherein it has been held that it would be unreasonable to distinguish experience even if the requisite experience has been obtained before obtaining the educational qualification. This judgment has been followed by the Hon'ble Supreme Court in the case of Anil Kumar Gupta Versus Municipal Corporation of Delhi, 2000 (1) RSJ 35 and a Division Bench of the High Court of Himachal Pradesh in the case of State of Himachal Pradesh and another Versus Piar Chand and another, 2004 (2) SLR 469. Reliance has also been placed upon the judgment of this Court in Sarita Kadyan Versus State of Haryana and others, 2012 (1) SCT 465 to explain the term experience. Reliance has been placed upon the Division Bench judgment of this Court in D.P. Mehta (Dr.) Versus PGI and its governing body, 1997 (1) RSJ 501 wherein it has been held that the term experience means being engaged in a particular activity, direct observation of or participation in events, encountering, undergoing or living through things in general as take place in the course of time and, therefore, experience gained by the petitioners as teachers although prior to possessing the minimum requisite qualification for the post of Lecturer cannot be ignored.
In CWP No. 4134 of 2011 titled as Roma Rani Arora (supra), challenge has been raised to the clause of advertisement which restricts benefit of teaching experience after possessing the minimum qualification for the post of Lecturer on the ground of it being arbitrary and violative of Article 14 of the Constitution of India having no rational object sought to be CWP No. 4134 of 2011 and connected case -6- achieved. On the basis of these assertions, counsel for the petitioners pray for the present writ petitions deserve to be allowed.
On the other hand, counsel for the State have distinguished the judgments, which have been relied upon by the counsel for the petitioners, by asserting that in all these cases, the Hon'ble Supreme Court was interpreting the clause of the advertisement or the statutory Rules which provided experience with the qualification, whereas in the present advertisement it is specifically stated that the experience which is obtained after the possession of the minimum requisite educational qualification will be counted for granting marks for experience. An objection has been raised with regard to the challenge posed to the clause in the advertisement prescribing therein that the experience will only be counted after the acquisition of the basic qualification for the post. It has been asserted that the petitioners having participated in the selection process without any demur when having been declared unsuccessful now cannot challenge the terms and conditions of the advertisement. They are estopped by their act and conduct and in support of this contention, reliance has been placed upon the judgment of the Hon'ble Supreme Court in Madan Lal Versus State of Jammu and Kashmir, (1995) 3 SCC 486. It has been asserted that the petitioners have been rightly assigned the marks as per the criteria laid down in the advertisement and their experience prior to their possessing the minimum requisite educational qualification for the post of Lecturers could not have been counted for granting them marks for such experience and the deduction of those marks by the selecting authority is in consonance with law, which does not call for any interference by this Court. Prayer has thus been made for dismissal of these writ petitions.
CWP No. 4134 of 2011 and connected case -7- I have heard counsel for the parties and with their assistance have gone through the records of the case.
The question which requires to be answered and on which the fate of the cases would depend is :
whether the experience gained by the petitioners prior to obtaining the basic qualification for the posts of Lecturers can be counted for calculating the marks to be assigned to the petitioners under the experience clause of the advertisement ? For decision of this question, reference to the clause in dispute needs to be made as finds mention in the advertisement dated 23.9.2009. The same reads as follows :-
"3. Max. marks 10 are admissible by calculating 1 mark for each year experience after obtaining the basic qualification. No mark will be given for the experience less than 1 year. 10"
A perusal of the above would show that the clause itself is clear and categoric when it specifies that the marks would be admissible to a candidate after obtaining the basic qualification. The basic qualification for the post of Lecturer as advertised is as follows :-
"(b) Basic qualification : M.A. or M.Sc. or M.Com. with B.T. or B.Ed."
Admittedly, Roma Rani Arora passed her Masters degree, i.e. M.A (English) in April, 2008. It is then that the petitioner possessed the minimum basic qualification and similarly, Neeraj Mehta passed his Bachelor in Education (B.Ed.) in August, 2005 and then obtained the minimum qualification for the post of Lecturer. The experience, therefore, obtained by the petitioners prior to their possessing the minimum essential qualification for the post of Lecturer cannot be counted for the purpose of experience which CWP No. 4134 of 2011 and connected case -8- would entitle them to the grant of marks as per the terms of advertisement. The judgments relied upon by the counsel for the petitioners are of cases where the Courts were dealing with a situation where the advertisement/statutory Rules required a candidate to possess experience 'with' the qualification prescribed for the post, whereas in the present case, the requirement, as per the advertisement, specifies the word 'after' obtaining the basic qualification which clearly means subsequent to the acquisition of the basic qualification prescribed for the post. The judgments thus relied upon by the petitioners' counsel are not applicable to the case in hand and, therefore, no benefit can be granted to the petitioners on the basis of the said judgments.
Admittedly, if marks, which were granted to the petitioners for the experience which they had gained prior to obtaining the basic qualification for the post of Lecturer are excluded, the petitioners cannot be selected as they do not get the marks higher than the last selected candidate in their respective category. In the light of the fact that the petitioners could not be granted earlier 10 marks given to them for the experience, which is inadmissible as per the clause of the advertisement, the deduction of the same in the subsequent corrected result cannot be said to be not in consonance with law or against the mandate of the advertisement and, therefore, the claim of the petitioners cannot be accepted.
As regards the challenge by the petitioners to the clause of the advertisement which makes admissible the experience after obtaining the basic qualification for the post is concerned, suffice it to say that the challenge to the advertisement, at this stage, when the petitioners had accepted the advertisement and in pursuance thereto submitted the applications, CWP No. 4134 of 2011 and connected case -9- participated in the selection process without any demur or objection and now on being declared as unsuccessful, they had turned around to challenge the terms and conditions, cannot be permitted as such a challenge would be hit by the principle of estoppel. Their act and conduct debar them from raising such a challenge to advertisement at this belated stage and the judgment passed by the Hon'ble Supreme Court in Madan Lal's case (supra) would dis-entitle them of such a challenge to the advertisement. That apart, clause in the advertisement which makes admissible the experience to be counted by calculating one mark for each year after obtaining the basic qualification satisfies the object for which advertisement was issued. The benefit of the experience is to be given to only those candidates who have gained the experience after obtaining the minimum prescribed basic qualification for the post as this is an advantage or added weightage given to a candidate apart from possessing the higher qualification than the minimum prescribed for the post. The purpose and intent for counting experience subsequent to obtaining basic qualification is just and reasonable and cannot be said to be violative of Articles 14 and 16 of the Constitution of India. The challenge, therefore, to the clause in the advertisement dated 23.9.2009, dealing with the admissibility of experience for assigning marks after obtaining basic qualification, is rejected as the same is in accordance with law.
In view of the above, finding no merit in the present writ petitions, the same stand dismissed.
Copy of this order be placed on the connected case file.
(AUGUSTINE GEORGE MASIH) JUDGE 16.1.2013 sjks