Gourab Gupta (Dr.) and Another vs State and Others

Hasnain Massodi, Judge

The Jammu and Kashmir Public Service Commission through its Secretary-respondent No. 2 herein vide Notification No. 16-PSC of 2010

dated 3rd December 2010 invited applications from the eligible candidates for available posts of lecturers in different streams of Dentistry in Dental

Colleges of J&K. The posts advertised included one post each in the discipline of Oral Surgery Oral Medicine and Radiology. The petitioners

though having MD in Oral and Maxilla Facial Surgery and Oral Medicine and Radiology respectively to their credit, holding the post of Dental

Surgeons substantively and working as Registrars in the respective Departments of Government Medical College, Jammu decided not to apply for

the advertised posts. The petitioners fell dissuaded from participating in the selection process as neither of them had two years teaching experience

as Registrar/Demonstrator/Tutor.

The petitioner's case is that a number of aspirants for the advertised posts, like the petitioner's did not apply for the advertised posts

notwithstanding having experience as Lecturers in private Colleges, as they did not possess the requisite experience. It is pleaded, that the

respondent No. 2 fully aware that the respondents 3 to 6 did not possess the requisite experience contemplated by Jammu and Kashmir Dental

Education (Dental College) Gazetted Service Recruitment Rules 1993, notified vide SRO 75 of 15th April 1993 (hereinafter Recruitment Rules of

1993) not only entertained the applications of respondents 3 to 6, but selected them against the advertised posts and recommended their

appointment to the respondent No. 1.

The case set up by the petitioners is that the qualification prescribed for the post of Lecturer is ""Master degree or equivalent in the concerned

speciality recognised by Dental Council of India"" and ""two years teaching experience as Registrar/Demonstrator/Tutor"" and that of the

Respondents 3 to 6 has two years teaching experience as Registrar/Demonstrator/Tutor on the relevant date to his credit, they were not eligible to

participate in the selection; process, let alone get selected.

The writ petition is opposed by the respondent No. 2 on the ground that the applications from the respondents 3 to 6 for the advertised posts

were entertained only after they were found to have request teaching experience on higher posts from the Institutions recognised by Dental Council

of India. The respondent No. 2 has tabulated the experience to the credit of respondents 3 to 6 along-with duration of experience and the

Institutions where the respondents 3 to 6 were found to have gained the experience. It is insisted that the Recruitment Rules, did not require

teaching experience gained while serving in a Government Dental College and that the teaching experience gained by candidate while teaching in a

private Institutions/Dental College recognised by Dental Council of India is to be reckoned while determining eligibility of an aspirant for the

advertised post. The applications filed by respondents 3 to 6, are said to have been examined by the Eligibility Committee in its meeting held on

16th June 2011 and because of the reasons detailed in para (v) of the Reply, the respondents 3 to 6 declared eligible for the advertised post. The

respondent No. 2 also questions petitioners' locus to maintain the writ petition on the ground that once the petitioners admittedly were not eligible

for the advertised posts on the relevant date they cannot question the selection made or throw challenge to the selection of the private respondents

3 to 6.

The respondents 3 to 6 in their objections while questioning the maintainability of the writ petition have reiterated the stand taken by the

respondent No. 2 in opposition to the writ petition. It is pleaded, that the respondents 3 to 6 had requisite teaching experience to their credit and

that as they held teaching positions even against the senior posts in the Institutions recognised by Dental Council of India. The petitioners, it is

pleaded, that the writ petition was a camouflage to stall the selection process. The respondents 3 to 6 insist that as none of the fundamental or

statutory rights of the petitioners' have been infringed, the petition in effect is a Public Interest Litigation and thus not maintainable. The respondents

further plead that the Recruitment Rules, do not require teaching experience in a particular Institution and that such experience gained while

working against a position equivalent or superior to that of Registrar/Demonstrator/Tutor is to be counted while determining eligibility of an aspirant

for the post of Lecturer in Government Dental Colleges of the State.

I have gone through the pleadings and the record available on the file and have heard learned counsel for the parties.

The fate of the petition in hand, hinges on interpretation of/construction to be placed on, the Recruitment Rules, of 1993. Rule 3 provides for

Constitution of J&K Dental Education (Dental College) Gazetted Service and its classification into;

(i) Teaching/Non-teaching,

(ii) Clinical/Non-clinical,

(iii) General/Administrative.

In terms of Rule 7, a person would not be eligible for recruitment or promotion to a post in service unless he possess the qualification and fulfils the

requirements of recruitment prescribed for that post in Schedule--II to the Rules. The Commission (respondent No. 2) or Departmental Promotion

Committee while making the selection is, as laid down under Rule 8, to have regard to the;

(a) Academic qualification of the candidate

(b) Teaching experience

(c) Previous record of work, if any.

Schedule-II, lays down qualification and requirements of recruitment for different posts including the post of Lecturer. The minimum qualification

and minimum teaching/minimum research experience, for the posts of Lecturers in all the disciplines is uniform. The minimum qualification

prescribed is Masters degree or equivalent in the concerned speciality recognised by the Dental Council of India, and the minimum

teaching/research experience prescribed is ""two years teaching experience as Registrar/Demonstrator/Tutor"". A closer look at the Rules, reveals

that even if an aspirant for the post of Lecturer does not have a Masters degree in speciality to his credit, still he may be found eligible if he has

equivalent degree in the concerned speciality. The only rider is that the degree he possess is equivalent, and recognised by the Dental Council of

India. The Rules makers however in their wisdom have not left any scope for ""equivalency"" as regards teaching experience. The teaching

experience is to be gained while working as Registrar/Demonstrator/Tutor. Had it been intention of the Rule makers to make two years teaching

experience in whatever position as an essential requirement for recruitment to the post in question, there was no need to ask for such experience as

Registrar/Demonstrator/Tutor"" in the column relating to minimum teaching/research experience in Schedule--II to the Rules. It would have read as

two years teaching experience"" or two years teaching experience in an Institution recognised by the Dental Council of India"". However, the

emphasis in the Rules is not merely on two years teaching experience but also on the capacity in which such teaching experience is gained. The

question arises whether teaching experience gained by an aspirant while serving as Lecturer, Reader or a Professor in a private Dental College

recognised by Dental Council of India would make such aspirant eligible for the post of Lecturer though such candidate has admittedly not gained

this experience as Registrar/Demonstrator/Tutor.

The stand taken by the respondent No. 2 is that the teaching experience gained by the respondents 3 to 6 while working against a post superior

to Registrar/Demonstrator/Tutor say Assistant Professor or Professor in a private Dental College recognised by Dental Council of India, is to be

counted and taken note of while determining eligibility of an aspirant for the post of Lecturer. However the case set up by the respondents does not

deserve to be accepted. In the first place as already pointed out the focus in the Rules is not only on the ""teaching experience"" or its duration but

equally on the position or capacity in which such teaching experience is acquired. Once an aspirant for the post of Lecturer in Government Dental

College has not acquired two years teaching experience while working as Registrar/Demonstrator or such Tutor, he is not eligible for the post,

though he may claim to have acquired two years teaching experience while teaching in a private Dental College recognised by the Dental Council

of India even against a higher post.

It is pertinent to point out that the words ""Registrar/Demonstrator or Tutor"" do not carry the meaning when used in a common parlance so that any

other position equivalent and comparable to Registrar/Demonstrator/Tutor may be taken as satisfying the prescribed criteria. The reference to the

Registrars/Demonstrator/Tutor in column 6 of Schedule 2nd against the post of Lecturer is to be read conjointly with Clause-I of 'Schedule 2nd. It

lays down the method of recruitment for the post of Registrar/Demonstrator/Tutor in terms of the relevant part of Schedule 2nd to the Recruitment

Rules. The Registrar/Demonstrator/Tutor is to be recruited by deputation from Jammu and Kashmir Medical (Gazetted) Service for a specified

period on the recommendation of the Committee constituted by the Government. The deputationist, must be a Graduate or equivalent in the

speciality, recognised by Dental Council of India. Where the Registrar/Demonstrator/Tutor is to work on non-clinical side, he must have BDS

degree or equivalent in dentistry recognised by the Dental Council of India. It follows that when Schedule 2nd relating to the post of Lecturers asks

for two years teaching experience as ""Registrar/Demonstrator/Tutor"" it has reference to the Registrar/Demonstrator/Tutor as provided at the end of

the said Schedule.

In other words an aspirant for the post of Lecturer has to be a deputationist from Jammu and Kashmir Medical (Gazetted) Service satisfying the

criteria laid down in the Schedule, who has been on recommendation of the Committee constituted by the Government appointed by deputation as

Registrar/Demonstrator/Tutor and in such capacity acquired the teaching experience of two years to be eligible for the post of Lecturer. Provided

of course he has Master degree or equivalent in the concerned speciality recognised by the Dental Council of India. Resultantly an aspirant for the

post of Lecturer has Masters degree or equivalent in concerned speciality, but does not have two years experience as

Registrar/Demonstrator/Tutor would not be eligible for the post of Lecturer even if he has served against a higher post in a private Dental College

recognised by Dental Council of India. The respondents 3 to 6 thus were not eligible to be considered let alone selected for the post of Lecturers

advertised vide advertisement notice No. 16-PSC of 2010 dated 3rd. December 2010.

The next question that calls for attention relates to locus of the present petitioners' to question selection of private respondents to maintain the

writ petition. It is admitted case of the petitioners that having regard to the prescribed eligibility criteria they were not eligible for the post of

Lecturer on the relevant date. Whether the petitioners notwithstanding their ineligibility for the advertised posts are competent to maintain the writ

petition is the question that calls for an answer. The answer is an affirmative. It appears that the Eligibility Committee of the respondent No. 2

seemingly not itself satisfied that respondents 3 to 6 were eligible for the advertised posts embarked on an exercise to justify their participation in

the selection process. The Committee appears to have drawn support for their decision to declare the respondents 3 to 6 eligible for the advertised

posts from the following aspects of the matter reproduced in para (V) of Reply filed by respondents No. 2:-

(i) That as per precedence, the experience as Sr. Lecturer/Lecturer has already been entertained by the Commission for the posts of Lecturer in

Dental/Lecturer in Health Medication Education Department of various disciplines during the past selections; and

(ii) In Schedule-I (Clause-V) of J&K Dental Education (Dental College) (G) Service Recruitment Rules 1993, the designation of the posts of

Lecturer/Tutor/Registrar have been shown as interchangeable with the total No. Of posts as 24 with no separate break up as per the notification

under discussion; and

(iii) The Eligibility Committee of the Commission have held the candidates possessing experience as Lecturer/Sr. Lecturer/Reader being their

teaching experience on a post which is higher than Tutor/Registrar/Demonstrator as mentioned in Recruitment Rules for the post.

(iv) The experience gained as Lecturer/Sr. Lecturer shall count for the purpose of experience for the post of Lecturer Dental.

The stand taken by the respondent No. 2 when read together indicates that the Eligibility Committee as a matter of fact decided to relax the

eligibility criteria prescribed under Rules to the extent it relates to two years teaching experience as Registrar/Demonstrator/Tutor. The Eligibility

Committee decided not to stick to the capacity/position in which two years teaching experience was gained. In other words, it was decided not to

insist on acquisition of such experience only while performing duties as Registrar/Demonstrator/Tutor but allow the aspirants having requisite

academic qualification to their credit and two years teaching experience while working as Lecturer, Reader, Assistant Professor etc in private

Dental Colleges recognised by Dental Council of India to participate in the selection process. Respondent No. 2 thus in effect changed eligibility

criteria midstream when the selection was on and yet to be concluded Such a course was not open to the respondent No. 2, notwithstanding the

justifications it has tried to find for such a recourse. Even if, the respondent No. 2 is held to be competent to relax or change the eligibility criteria

as regards teaching experience in the middle of the selection process yet the respondent No. 2 was required to notify the relaxation/change in the

eligibility criteria so that all similarly situated candidates would also apply for the advertised posts and participate in the selection process. In case

the Commission did not find adequate response and wanted to allow such of the candidates who did not possess two years experience as

Registrar/Demonstrator/Tutor but had gained such experience while teaching in private Dental Colleges recognized by Dental Council of India and

decided to widen the zone of eligibility, the petitioners and other aspirants who conscious that they did not possess the prescribed experience

though they had like respondents 3 to 6 taught in private Dental Institutions were to be given a fair opportunity to compete for the advertised posts.

So viewed, the objection raised by the respondents as regards locus of the present petitioners to maintain the writ petition and its

maintainability cannot be sustained. It needs no emphasis that the Recruitment Rules in the present case have been framed in exercise of Section

124 Constitution of Jammu and Kashmir and are statutory in nature. The Recruitment Rules are to be followed in letter and spirit and any

departure would be in conflict with Article 16 Constitution of India. The departure from Recruitment Rules of 1993 in the present case has violated

the right of equal opportunity guarante under Article 16 Constitution of India to the petitioners. It was not lawful for the respondent No. 2 to keep

the petitioners and the candidates similarly placed as the private respondent at bay and away from selection process. The argument that as in the

Rules (Schedule-I class V) the posts of Lecturer/Tutor/Registrar are clubbed together and made interchangeable, the leaching experience gained

while working as Lecturer in a Private Dental College is to be taken as teaching experience acquired while working as Registrar/Tutor does not

sound convincing. Schedule-I Class (V) of the Rules is not to be read in isolation, but conjointly with Schedule--II to the Rules. Schedule--II as

mentioned in Rule 7 prescribes qualification and requirement of recruitment for the posts constituting the Service. The qualification prescribed in the

relevant part of Schedule-II for the post of Registrar/Demonstrator/Tutor is markedly different from the qualification prescribed for the post of

Lecturer. Whereas, for the post of Lecturer in addition to Masters degree or equivalent in the concerned speciality recognised by the Dental

Council of India, two years teaching experience as Registrar/Demonstrator/Tutor is prescribed, no teaching experience is required for the post of

Registrar/Demonstrator/Tutor. Furthermore, an aspirant for the post of Registrar/Demonstrator/Tutor must be Graduate or equivalent in the

speciality as recognised by the Dental Council of India and in case of Registrar/Demonstrator/Tutor--non-clinical the qualification prescribed is

BDS degree or equivalent in Dentistry recognised by Dental Council of India. In the circumstances merely because Lecturer/Tutor/Registrar are

clubbed together in Schedule-I to the Rules to show the total strength in the Pay Scale of 2200-4000, the post of Registrar/Tutor cannot be

treated equivalent in status with the post of Lecturer, or the posts held interchangeable. In terms of Recruitment Rules of 1993, the post of Lecturer

is higher to that of Registrar/Demonstrator/Tutor and only a person who has two years teaching experience as Registrar/Demonstrator/Tutor can

aspire for the post of Lecturer. It would be contradiction in terms to say that for a post of Lecturer the aspirant must have two years teaching

experience as Lecturer.

For the reasons discussed above, the writ petition is allowed and selection of private respondents 3 to 6 as Lecturers notified vide notice dated

21.06.2011 (Annexure-G) is set aside. Resultantly, the respondent No. 1 is commanded not to act on the communication addressed to it by the

respondent No. 2 recommending appointment of respondents 3 to 6 as Lecturer Oral Medicine & Radiology, Lecturer Oral Surgery, Lecturer

Periodontia and Lecturer & Dental oral Pathology. The respondent No. 2 shall be at liberty to initiate fresh process for making selection in

accordance with Rules against the posts of Lecturers available in Government Dental Colleges. Allowed.