Naval Kishore Warkade vs Union of India

Challenging the order dated 6th of July, 2004 Annexure-P9 passed by the Central Administrative Tribunal, Jabalpur in O.A.No. 647/2001 dismissing an application filed by the petitioner in the matter of his appointment on the post of Chargeman (Technical & Mechanical) in the establishment of Ordinance Factory, Khamariya, this writ petition has been filed under Article 227 of the Constitution.

Petitioner claims to be a person belonging to the Schedule Tribe Community and has obtained a degree in Engineering i.e. B.E. (Mechanical) in the year 1995.

Petitioner appeared in the final examination for the course in question, which was held in October, 1994. It seems that he did not pass the said examination and, therefore, appeared in the supplementary examination sometime thereafter in the year 1995 and passed the examination. However, after having failed in the examination that was held in October, 1994, the petitioner is said to have joined a workshop namely Uppal Motors Rewa, where he is said to have worked from October, 1994 to June, 1996. An experience certificate in this regard issued by his employer is filed as Annexure-A3, which goes to show that he was working as a Workshop In-charge in Bajaj Auto Engineering Workshop from October, 1994 and was working even on 23.12.1996 when the experience certificate Annexure- A3 was issued.

Respondents issued an advertisement calling for eligible candidates for appointment on the post of Chargeman Grade-II (Mechanical). The advertisement issued is Annexure-R1 wherein, for the candidate to be eligible for appointment as Chargeman Grade-II (Mechanical), the condition stipulated was that the candidate should be a degree holder or a diploma holder in Mechanical Engineering with two years experience in the Mechanical Field. In the pro forma for the application form to be submitted along with photograph and attestation of the candidate, under Clause-7, it was stipulated that the experience of minimum two years as on 7.8.1999 in the relevant field, should be after acquiring the essential qualification and should be supported by a certificate. The petitioner submitted the requisite application in the format prescribed filed as Annexure- R2 and in Column No. 7, he claimed that he had worked and gained experience of two years by working from October, 1994 to December, 1996. He was permitted to participate in the process of selection but ultimately when his documents were scrutinized, it was found that he passed the examination and acquired the essential qualification for appointment only in the year 1995. It was found that part of the experience gained by him was before acquiring the qualification and if the experience gained by him after acquiring the qualification is calculated, it comes to less than two years and he was declared unfit for appointment.

Challenging the same, an original application was filed before the Central Administrative Tribunal and the same having been dismissed, this writ petition has been filed under Article 227 of the Constitution.

Shri Rajendra Shrivastava, learned counsel for the petitioner invites our attention to the advertisement Annexure- R1 and Sub-Clause-2 of the essential qualification to say that the essential qualification prescribed is two years experience in the Mechanical field. Nowhere in this condition is stipulated that the experience should be after acquisition of the qualification. That apart, he invites our attention to the statutory service regulation (SRO) filed by the respondents to say that even in this regulation, there is no stipulation that the experience should be after passing of the essential qualification. Placing reliance on two judgments of the Supreme Court namely, Anil Kumar Gupta and Others Vs. Municipal Corporation of Delhi and Others, and Subhash Vs. State of Maharashtra & Anr. 1995 Supp.(3) SCC 332, learned counsel argued that working experience even before acquisition of basic qualification in these cases have been held to be sufficient enough to enable a candidate to appear in the recruitment process. It is argued by him that once the petitioner has acquired the qualification and when the service regulation filed by the respondents does not show that the experience has to be acquired after passing of the essential qualification, the tribunal has committed an error in dismissing his application.

Shri Sushrut Dharmadhikari, learned counsel for the respondents refuted the aforesaid and invited our attention to the advertisement issued and the prescribed pro forma annexed to the advertisement in which the candidates were required to submit their application form. Shri Dharmadhikari submitted that in Clause-7 of the format, it is clearly stipulated that experience of minimum two years as on 7.8.1999 in the relevant field is to be acquired after acquiring the qualification and not before that and in the application format submitted vide Annexure-R1, petitioner does not mention that the experience is acquired by him after the essential qualification was acquired. Accordingly, Shri Dharmadhikari submitted that there is no error in the order passed by the learned tribunal warranting interference.

As far as the SRO is concerned, Shri Dharmadhikari, pointed out that the SRO prescribes that a candidate should have two years experience and if by an executive order at the time of issuance of advertisement, the period during which these two years experience should be acquired is stipulated, it is within the executive power of the Department and the same does not amount to breach of any statutory rule. Accordingly, Shri Dharmadhikar, submitted that there is no error in the order passed by the tribunal warranting interference.

We have heard learned counsel for the parties and perused the records. The advertisement in question Annexure-R1 calls for the applications and in the essential qualification prescribed, it is indicated that a candidate should have passed the degree or diploma certificate and should have two years experience in the Mechanical Field. Thereafter, in the advertisement itself, a format of the application form along with essential requirements to be stipulated therein is indicated and in Clause-7, it is clearly mentioned that the experience of two years as on 7.8.1999 is after acquisition of the essential qualification. Admittedly, the petitioner in this case will have less than two years experience after acquiring the essential qualification sometime in the year 1995, therefore, the only question warranting consideration is as to whether, the petitioner''s experience acquired with regard to two years experience even before obtaining the graduation can be counted.

Heavy reliance is placed by the petitioner into the judgment rendered by the Supreme Court in the case of Anil Kumar Gupta (supra). Even though in the case of Anil Kumar Gupta (supra), it is held that experience gained before attaining the requisite qualification can be considered but if the judgment is read in it''s totality and if the principles considered in Paragraph Nos.19, 20, 23, 24 & 32 are analyzed, it would be seen that in that case, advertisement only prescribed two years professional experience without linking this with the question of acquisition of degree. There was nothing in the advertisement in the case that was considered by the Supreme Court to show that there was any co-relation or linking between the period of experience and acquisition of the essential qualification. It was because of this peculiar feature that Hon''ble Supreme Court held that in the absence of there being any indication in the advertisement showing linking of the essential qualification with the period for which the experience is required, the employer cannot insist upon acquisition of experience after acquiring the essential qualification. The said case and the facts and circumstances of the present case are clearly distinguishable.

In the present case, in the advertisement Annexure-R1, a stipulation is contained in Clause-7, which goes to say that the experience of two years as on 7.8.1999 has to be after acquiring the qualification and the same has to be supported by requisite certificates. That being so, once the advertisement clearly stipulates a particular condition, the petitioner has to fulfill that condition and if the petitioner does not fulfill the same, he is ineligible for appointment. At this stage, it may be relevant to consider the new question as to whether, such a condition would be stipulated in the advertisement, when the SRO is silent on any such condition.

The SRO available on record only says that a candidate should have two years experience of working in the Mechanical field. The SRO does not say as to how and in what manner, two years experience has to be counted. The SRO being silent with regard to the manner in which the experience has to be counted, the employer is well within its executive power to stipulate the manner in which the two years experience is to be counted and while doing so, they can always say that the experience has to be after acquisition of the degree or the essential qualification, this is within the administrative and executive powers of the employer and does not amount to violation or breach of the statutory rule. When a statutory rule is silent with regard to the certain aspects of the matter and if a reasonable decision is taken to fill in the lacuna in the statutory rule and the decision is based on certain justifiable consideration, the Writ Court is not expected to interfere into the same until and unless the constitutional or statutory provision are shown to be violated.

In the present case, the respondents have stipulated a condition with regard to acquiring of the experience after obtaining the essential qualification and, there being no illegality or irregularity in the same pointed out to this Court, we see no error in the order passed by the administrative tribunal warranting interference.

Accordingly, finding no ground, the petition is dismissed.