Insha Sami Baba vs State Of JK & Ors

Ali Mohammad Magrey, J

This intra Court appeal is directed against the Judgment dated 28th of March, 2019 passed by the learned Single Judge in the Writ Petition filed by the Appellant, being SWP No. 711/2017, whereby and whereunder the said Petition stands dismissed.

The brief resume of the events leading to the filing of this appeal is that vide advertisement notice No. 01 of 2015 dated 8th of January, 2015, the Respondent No.2-Director, SKIMS, Soura, Srinagar, invited online applications from amongst the eligible candidates against various posts, including the post of Diabetic Educator with the prescribed education qualification as: (i) B. Sc (Home Science) with M. Sc Diabetics; and (ii) 03 months experience in patient care. The Appellant is stated to have submitted her online application form in tune with the import and purport of the advertisement notice, whereafter, in terms of notice dated 14th of April, 2017, a list of ineligible candidates is stated to have been published by the Respondents with respect to the post of Diabetic Educator, wherein the name of the Appellant figured at S. No. 3 with the remarks ‘acquired experience before completion of M. Sc.’ Feeling aggrieved and dissatisfied, the Appellant represented before the authorities for declaring her as ineligible, but since no decision was taken on the said representation, so, she, accordingly, approached the Writ Court with SWP No. 711/2017, thereby challenging the impugned notice declaring her as ineligible for the post in question. Besides, the Appellant also sought a direction in the name of the Respondents for considering her candidature against the post of Diabetic Educator. The learned Writ Court, on consideration of the matter and in terms of interim Order dated 19th of April, 2017, directed the Respondents to allow the Appellant to sit in the Written Examination. Thereafter, one Ms Munaza Khurshid D/o Khurshid Ahmad Naqati R/o Lal Bazar, Srinagar filed an application for seeking her impleadment as party Respondent in the Writ Petition which was allowed and she was impleaded as Respondent No.3 in the Writ Petition. Subsequently, the learned Single Judge, considered the matter finally and in terms of the Judgment impugned, dismissed the Petition filed by the Appellant on the ground that the experience, as required by the advertisement notice, ought to have been acquired after the acquisition of the qualification prescribed therein and, therefore, the rejection of the candidature of the Petitioner/ Appellant herein by the selection authority for the reason of experience cannot be faulted.

We heard the learned appearing Counsel for the parties, perused the pleadings on record and have considered the matter.

The issue that arises for our consideration in this case is whether the rejection of the candidature of the Appellant by the selection authority on the ground of she having acquired the requisite experience before acquisition of the qualification prescribed in the advertisement notice can be justified or not. The Writ Court has held that the experience, as required by the advertisement notice, ought to have been acquired after the acquisition of the qualification prescribed therein and, thus the rejection of the candidature of the appellant cannot be faulted.

In order to appreciate the aforesaid issue in its true and correct perspective, it has become necessary to have a glance at the qualification prescribed in the advertisement notification for the post in question, which reads thus:

“i. B. Sc (Home Science) with M. Sc Dietetics; and

ii. 03 Months experience in patient care.”

A plain reading of the above qualification prescribed for the post of Diabetic Educator would make it clear that the 03 months experience in patient care is in addition to the basic B. Sc (Home Science) with M. Sc Dietetics. It does not appear from the advertisement notice that the experience of 03 months in patient care should be after acquisition of the basic decree. The provision regarding experience speaks only of 03 months experience in patient care and does not, in any manner, connect it with the degree qualification, either before or after. A conscious omission of the condition of experience after acquiring the basic degree of B. Sc. (Home Science) with M. Sc. Dietetics supports this view that the 03 months’ experience in patient care is sufficient and that it need not be after completion of the basic degree.

Testing the aforesaid point on the touchstone of the law governing the subject, it will be profitable to quote Paragraph Nos. 19, 20 and 24 of the law laid down by the Supreme Court in case titled ‘Anil Kumar Gupta & Ors. v. Municipal Corporation of Delhi & Ors., AIR 2000 Supreme Court 659’, hereinbelow, in verbatim:

“19. We may point out that in the present case, the relevant provisions applicable and the notification dated 30-6-1989 inviting applications refer to essential qualification as (i) Degree and (ii) 2 years professional experience. As stated earlier, experience up to 2 years is the minimum and those above 2 years, get ½ 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 v. State of Maharashtra, 1995 (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 or after the acquisition of the basic qualification.

Therefore, on the language of the notification dated 30-6-1989, we are of the view that the 2 years professional experience need not entirely be experience gained after obtaining the degree.”

Applying the ratio of the law laid down above to the instant case, the irrefutable conclusion that we arrive on is that unless and until the advertisement notice does not specifically connect the experience with the basic qualification, either prior or after, it cannot be presumed that the same is intended to have been acquired only after completion of the basic qualification. In that view of the matter, the finding of the learned Writ Court that the Appellant ought to have acquired the 03 months’ experience in patient care after acquisition of the basic qualification prescribed in the advertisement notice, in absence of any such specific provision in the advertisement notice, cannot be upheld. The Writ Court has given its own interpretation on the subject without taking into consideration the fact that no such provision was incorporated in the advertisement notification which would have rendered the Appellant ineligible. The observation of the Writ Court that if the experience was to be gained during the course of internship which forms a part of the curriculum, then the said requirement of experience would be totally unnecessary is also neither countenanced by the terms and conditions of the advertisement notice nor by any law governing the subject to that effect.

Looking at the instant case from yet another perspective, it needs must be said here that, in terms of Order dated 31st of March, 2022, this Court had asked the Respondent No.2 to submit the records in relation to the merit position of the Appellant. The Counsel for the Respondent No.2 has, in a sealed cover, submitted the requisite information drafted on 14th of May, 2018, as communicated by the Administrative Officer (Policy) to the Legal Section, SKIMS in terms of communication dated 11th of April, 2022, whereby it is evident that the Appellant stands at the top of the list in the final merit list of the candidates who appeared in the Written Test as well as in the Interview/ Viva-Voce for the post of Diabetic Educator having acquired overall merit of 76.80 points, followed by Respondent No.3 herein who has secured 74.40 points. If that be so, the rejection of the candidature of the Appellant on the ground of having acquired the prescribed 03 months experience in patient care before acquisition of the basic prescribed degree has also resulted in deprivation of the highest meritorious candidate for the post in question, that too without the said rider having been incorporated in the terms and conditions of the advertisement notice. The purpose and object of any selection process relating to a public post/ position is to find and select the highest meritorious candidate to man such post/ position and, in the instant case, it is the Appellant who, upon culmination of the process of selection, has admittedly emerged as the highest meritorious candidate. In these circumstances and taking an overall view of the matter, we feel that the Appellant could not have been declared ineligible for participation in the process of selection against the post in question on a condition which was not prescribed in the advertisement notice.

Viewed in the context of what has been said and done above, we are of the considered opinion that the view of the learned Single Judge in upholding the rejecting of the candidature of the Appellant by the selection authority on the ground of experience acquired prior to the acquisition of the basic qualification cannot be sustained. That being so, we allow this appeal and set aside the impugned Judgment passed by the learned Single Judge. Consequently, the Writ Petition filed by the Appellant is allowed and, by a ‘Writ of Certiorari’, the impugned notification No. SIMS:302-1318/Dia.Edu/2015-1036-37 dated 14th of April, 2017 to the extent of the Appellant/ Writ Petitioner is quashed. The Appellant is declared as eligible for the post of Diabetic Educator advertised vide Notice No. 01 of 2015 dated 8th of January, 2015. The official Respondents are directed to consider the case of the Appellant for the said post in tune with the merit position obtained by her in the selection process.

Disposed of as above, along with the connected CM.