J. K. P.S.C. And Others vs Dr. Gourav Gupta And Others

 D. S. Thakur, J

Since the issues involved in all the appeals are common, we propose to decide the same by way of a common judgment.

The present set of Letters Patent Appeals arise out of a common judgment and dated 09.11.2011, whereby the petition filed by the petitioners has

been allowed and the selection and appointment of private respondent Nos. 3 to 6 in the writ petition as Lecturers in the Government Dental College,

Jammu quashed on the ground that they did not possess the requisite two years experience as Registrar/Demonstrator/Tutor in accordance with the

rules prescribed by the Jammu and Kashmir Dental Education (Dental College) (G) Service Recruitment Rules, 1993 (in short “the rulesâ€​).

Briefly stated, the material facts are as under:-

The Jammu and Kashmir Public Service Commission (PSC) invited applications for the post of Lecturers in the Government Dental College,

Jammu as also the Government Dental College, Srinagar in various disciplines. The essential qualification prescribed for the said posts was

Master’s Degree or equivalent in the concerned specialty recognized by the Dental Council of India. Besides, this two years experience of acting

as independent Registrar/ Demonstrator/Tutor was required. This was in accordance with Schedule â€"II of the Rules.

Since the petitioners did not have the requisite two years experience as Registrar/Demonstrator/Tutor, they did not apply. However, even the

selected private respondents in the writ petition did not possess the two years experience as such for the post of Registrar/ Demonstrator/Tutor. The

stand taken by the PSC before the Writ Court was that the Eligibility Committee of the Commission considered the experience gained by the selected

private respondents against the higher post of Lecturer/Sr. Lecturer. It was further urged that according to Schedule-I (Class- V) of the Rules, the

post of Lecturer/Tutor/ Registrar were interchangeable and on that basis experience gained against the post of Lecturer was taken as experience

against the post of Registrar/ Demonstrator/Tutor.

The appellants herein also questioned the locus-standi of the petitioners to file the petition on the ground that they were ineligible to apply for the

post of Lecturer, inasmuch as, they too did not have the requisite two years experience against the post of Registrar/Demonstrator/ Tutor.

The Writ Court by virtue of judgment and order impugned, however, allowed the writ petition and set aside the selection of private respondents

therein notified vide notice dated 21.06.2011 and directed the respondents to make the selection in accordance with rules. Hence the present appeals.

The appellants have reiterated the stand taken by them as respondents before the Writ Court.

Admittedly, the advertisement notice as also the Rules of 1993 besides the Master’s Degree in the requisite subject or its equivalent in the

concerned specialty, recognized by the Dental Council of India required possession of 2 years experience as Lecturer/Tutor/Registrar. The appellants

in LPASW Nos. 236/2011, 234/2011, 237/2011 & 239/2011 admittedly did not possess the said two years experience. They claimed experience

against the higher post of Lecturer/Sr. Lecturer etc., which were considered to be good by the PSC by placing reliance upon Schedule-I of the Rules

of 1993 and urged that since the posts were clubbed and interchangeable and enjoyed a common grade, experience gained against one could be

treated as experience gained against the others. In our opinion, the argument is quite fallacious.

It is settled law that if law requires a particular thing to be done in a particular manner, it has to be done in that manner alone or not at all. What

the advertisement and the Rules required is experience against the post of Registrar/Demonstrator/Tutor and not against the post of Lecturer/ Sr.

Lecturer.

Rule 7 of the Rules specifically provides that “a person would not be eligible for recruitment or promotion to a post in service unless he

possesses the qualifications and fulfils the requirements of recruitment prescribed for that post in Schedule-II†and it is Schedule-II which besides the

qualifications prescribes the experience for candidates to be determined as eligible for consideration. The Public Service Commission did not have any

authority in law to digress from the requirement of the Rule by considering experience against the post of Lecturer/Sr. Lecturer. By doing so, the PSC

infact had not only acted contrary to the requirement of the Rules, but had also changed the eligibility criteria mid-stream. This was clearly

impermissible.

It is settled law that it is open to the appointing authority to lay down the requisite qualification for recruitment to the Government service. A full

Bench of Punjab and Haryana High Court in “Som Dutt Vs State of Haryana and another†reported in 1984(1) ILR (Punjab) 400 in paragraph 9,

held thus:-

“9………….. Generally it seems somewhat elementary that the employer alone would know what are the specialties and conditions of service or

post for which the incumbent is required. Therefore, it would follow that its discretion in seeking the right man for the right job should be left relatively

unfettered. Consequently, no doctrinaire rule can be laid down that a technically higher educational qualification is necessarily better or more

advantageous for the peculiar needs of a post for which the employer-State has prescribed lower qualifications…………..â€​

Reliance placed by the appellants on Schedule-I is also inapt, as the said schedule does not in any manner deal with the issue of equivalence of

experience between the posts of Lecturers and those of Registrar/ Demonstrator/Tutor, nor did it vest the PSC with the authority or power to

determine the equivalence as regards experience, therefore, the PSC could not have at all gone into the question of determination of equivalence of

experience.

Moreover, there is no similarity between the post of Registrar/Demonstrator/ Tutor with that of Lecturer either in regard to qualification or

experience. Whereas a post-graduate degree is required for the post of Lecturer, with two years experience as Registrar/Demonstrator/ Tutor a

candidate need be only a graduate for the post of Registrar/Demonstrator/Tutor without any experience. Even otherwise, it would be a contradiction in

terms to say that for purposes of appointment as a Lecturer one should have to his credit two years experience of having worked as a Lecturer.

Challenge to judgment and order impugned on that ground is, therefore, legally untenable and is, accordingly, rejected.

Locus-Standi

It was next contended that the petitioners have no locus-standi in filing the writ petition, inasmuch as, even they did not possess the requisite

experience of two years as against the post of Registrar/Demonstrator/Tutor. It was urged that the petitioners themselves being ineligible could not,

therefore, throw a challenge to their selection or subsequent appointment.

Admittedly, the petitioners did not possess the requisite two years experience on the cut-off date as prescribed by the advertisement notice and

they were enrolled against the said post subsequently and would complete their two years tenure in the year 2013. However, a categoric assertion

was made by the petitioners in the writ petition, which was also noticed by the Writ Court in its judgment to the extent that had the petitioners been

told that the Public Service Commission would consider experience gained even against the post of Lecturer/Sr. Lecturer, even they could have

produced material to lay a claim on that basis.

The Apex Court in “Balbir Kaur and another Vs Uttar Pradesh Secondary Education Services Selection Board, Allahbad & ors.†reported in

(2008) 12 SCC 1 held that a violation of the equality clauses, enshrined in Articles 14 and 16 of the Constitution, or discrimination in any form, can be

alleged, provided that, the writ petitioner demonstrates a certain appreciable disadvantage qua other similarly situated persons.

The Apex Court in “A. Subhash Babu Vs State of A.P.â€​ reported in AIR 2011 SC 3031 held as under:-

“The expression „aggrieved person‟ denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and

comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which

contravention is alleged, the specific circumstances of the case, the nature and extent of complainant‟s interest and the nature and the extent of the

prejudice or injury suffered by the complainant.â€​

The petitioners had a real interest in ensuring that persons not eligible as per the rules are prevented from occupying the posts especially when the

posts in the faculty are not advertised on an annual basis and may fall vacant after decades.

Usurpation of a post by a person appointed in gross-violation of the provisions of the Rules to the detriment and possible right of consideration of

the petitioners at a later date would make the petitioners fall within the ambit of the term “person aggrieved†entitling them to prefer the writ

petition under Article 226 of the Constitution.

Having considered the entire matter, we cannot persuade ourselves to take a view different from the one taken by the Writ Court. For the reasons

mentioned above, the appeals are found to be without any merit and are, accordingly, dismissed along with connected IAs.