Rita Gupta and Anr. vs State of J&K and Others

Would the experience gained by a teacher when he or she is promoted as incharge Lecturer in his or her own pay grade would be different from

the one which is gained by a person who is working on regular basis, is the moot point which is required to be determined in these two appeals.

The appellants herein had submitted their applications for being considered to the post of Lecturer to a service constituted under the Jammu and

Kashmir Education (Gazetted) College Recruitment Rules of 1995 (hereinafter referred to as the Rules of 1995). These applications stand

rejected.

The facts in brief are as under :Appellant Rita Gupta was selected against a post of teacher. This was in the year 1984. Later on, vide

Government Order No; 866(Edu) of 1987, issued on 3rd June, 1987. she was promoted as Incharge Lecturer in her own pay and grade. There

was a stipulation that this appointment was for a period of six months or till the post is filled by the Public Service Commission or by the

Departmental Promotion Committee. This appellant continues in service till date Appellant Rajinder Singh in the connected appeal was promoted

as Incharge Lecturer in his own pay and grade vide Government Order No. 51 (Edu) of 1989 issued on 19th January. 1989. He has continued to

work as such till date. The order by which this appellant was asked to perform the duties of Incharge Lecturer contains similar stipulation as was

there in the case of appellant Rita Gupta.

The claims of the appellants for being considered for appointment to the sen ice constituted under the Rules of 1995 having been rejected, both

the appellants preferred writ petitions in this court. Their basic contention was that as an inservice candidate, they were eligible for being

considered to the post of Lecturer against the quota of 40% of the posts which were meant to be filled by selection from amongst the Lecturers of

Higher Secondary Schools/Head Masters/Zonal Education officers/Additional Zonal Education officers/Zonal Education Planning Officers having

teaching experience of five years at Higher Secondary level in the subject concerned on the basis of open competition. The appellants submitted

that they do possess the teaching experience of five years at Higher Secondarv level in the concerned subjects. Their claims stood rejected

because in the notification issued by the Public Service Commission, it was indicated that only those inservice candidates whose service has been

regularised would be eligible for consideration. The appellants submit that the requirement of having regular service was not there in the Rules and

this condition having been incorporated by the Commission cannot be allowed to operate to their prejudice. It was further submitted that the

experience gained against a post even though not regular, is good and sufficient and this would fulfill the requirement of Rules of 1995. This plea of

theirs' was rejected by a learned Single Judge of this Court. The writ petitions stands dismissed. It was observed that it is only a person gaining

experience while rendering regular service is eligible for being considered. It was observed that such is the requirement laiddown in the notification

issued by the Commission. It is this aspect of the matter which is subject matter of challenge in these two appeals.

The prayer made by the appellants in the writ petitions may also be noticed at this stage. These were:

i/A writ of mandamus was claimed directing the Government to regularise the service of the appellants w.e.f. the date, they had been working as

such; HI that there was no requirement in the Rules that a candidate must have the teaching experience of five years at Higher Secondary level in

the subject concerned and ""having regularised service as such"". Thus, it was urged:

a/that the requirement of having regularised service is a condition which has been added by the Public Service Commission; b/that there is no

difference between the service rendered as Incharge of the post and as working against regularised service.

Before proceeding further, it would be apt to notice Rule 5 and Schedule I of 1995 Rules. Rule 5 deals with the method of recruitment and

Schedule I indicates the qualifications which are supposed to be possessed by a candidate seeking appointment in pursuance of Rule 5 referred to

above. Rule5 and Schedule I in so far as relevant are being reproduced below:

Rule""5

Qualification and Method of Recruitment:

(1) No person shall be eligible for appointment or promotion to any post in any class. Category or grade in the service unless he possesses the

qualifications as laid down in the Schedule II and fulfills other requirements of recruitment as provided in the rules and orders for the time being in

force.

(2) Appointment to the service shall be made on the recommendations of the Commission:

(a) by direct recruitment

(b) by selection: and

(c) partly by direct recruitment and partly by selection in the ratio and in the manner mentioned against each post in the schedule.

Schedule IV A Lecturer 22004000

Master (i) 60% by direct

Degree recruitment,

in the (ii) 40% by

subject selection from

concerned amongst with at Lecturers of

least 50% Higher Secondary marks and Schools/Headmaster good Zonal Education

academic Officers/Addl. record. Zonal Education

Officers/Zonal Education Planning Officers having teaching experience of five year at higher secondary level in the subject concerned on the basis

of open competition.

The further fact is that when the notification came to be issued, a condition was added. This condition was to the effect that a person must have

gained teaching experience of five years at higher secondary school level and as having regularised service as such. The notification issued in this

regard laying down the qualification is reproduced below:

Qualification

Masters Degree in the relevant subject with atlcast 55% of marks or its equivalent grade and good academic record."" All posts are reserved for

inservice candidates viz serving postgraduate lecturers of Higher Secondary Schools/Headmasters/Zonal Edu. Officers/Addl. Zonal Edu.

Officer/Zonal Edu. Planing Officers with atleast 55% marks in post graduation. In service candidates means and include such postgraduate

Lecturers of Higher Secondary Schools/Head masters/Zonal Education officers/Addl. Zonal Education Officers/Zonal Education Planning Officers

having teaching Experience of 5 years at Higher Secondary level in the subject concerned and having regularised service as such..."" (Emhpasis

Supplied)

A perusal of the Rules quoted above and the notification issued by the Commission makes it apparent:

il that the words ""having regularised service as such"" do not figure in the statutory rules;

iil that the aforementioned requirement is not stipulated in the Rules.

It is on the basis of the above, it is urged that the experience gained by the appellants even though, they were working as Incharge Lecturers, is

good and sufficient. It is submitted that their claims have been wrongly rejected. It is also submitted that they were entitled to regularisation in terms

of Government Orders dated 3rd of June 87 and 19th Jan. 89.

The stand taken by the State be now noticed.

It is stated that only those inservice candidates having regular service to their credit are eligible for seeking appointment in terms of Rule 5 read with

Schedule I noticed above. It is further stated that as the appellants were not holding the post on substantive basis, therefore, they were not eligible

for consideration and their claims were rightly rejected. The requirement of a person being in regular service as per the State is mandatory. This

condition as per the State was rightly incorporated. So far as the claims of the appellants for regularisation are concerned, it is submitted that their

claims would be considered in accordance with the law. The para stand taken by the Public Service Commission is similar. It is stated that the

appellants cannot be equated with the Lecturers holding substantive appointments. It is also stated that the intention behind laying down the

qualification is that only these inservice candidates who have been appointed as teachers in terms of SRO 83/741992 are to be considered. It is

submitted that only those Lecturers who are holding substantive appointments are to be considered.

After having heard learned counsel for the parties, we are of the opinion that the question which is required to be gone into is as to whether the

appellants were eligible to submit their applications and make a claim that they be considered in terms of Rule 5 for selection to the post which was

against the quota of 40%. The further question which is also required to be gone into is as to whether the requirement of having regular service

could be insisted upon and the applications submitted by the appellants could be rejected.

The basic argument raised by the learned counsel for the appellants is that the experience gained by an inservice candidate, though holding the

post as an Incharge. is an experience of the same standard as is gained by a person when he is performing the duties against a regular assignment.

It is submitted that the quality of experience cannot be different whether a person is teaching as Incharge teacher or is holding the post on

substantive basis. It is suggested that there may be some difference so far as the emoluments and other service conditions are concerned but the

quality of teaching which is imparted by a teacher remains the same. Therefore, it is submitted that there can be no difference in the matter of

experience which is gained by a teacher whether he is teaching as an Incharge Lecturer or is teaching as a Lecturer having been appointed on

substantive basis. For the above proposition, reliance has been place on a decision of the Supreme Court reported as Dr. Asim Kumar Bose Vs.

Union of India. AIR 1983 SC 509. In the above case, a doctor working as Specialist Grade II in a teaching hospital belonging to the Central

Health Services was eligible for appointment or promotion as Professor or Associate Professor in the concerned specialty. It was observed that

the recruitment rules did not anywhere provide that the teaching experience gained by a Specialist in an exofficio capacity shall not count towards

the requisite teaching experience. There was no provision in the Rules that the teaching experience must be gained in a regular appointment. It was

observed that there was hardly any difference so far as teaching experience is concerned; whether it is acquired on a regular appointment or as a

Specialist in a teaching hospital with the exofficio designation. As the statutory rules did no exclude the teaching experience gained by the appellant

before the Supreme Court while holding the post of RadiologistcumAssociate Professor of Radiology, the same was held to be good and it was

observed that this cannot be ignored in determining his eligibility for appointment as Professor of Radiology. The relevant rule which was being

considered by the Supreme Court is R. 8 (3) of the Central Health Services Rules of 1963. For facility of reference, this Rule is being reproduced

below: ""Rule 8 (3) provides that 50 per cent of the vacancies Supertime Grade II to be filled in by promotion of General Duty Officers Grade I

and Specialists Grade II Officers in the ratio of 2:3

Supertime 50 years and For Professors/Gd. II below relaxable Additional ProRs. 1300180 for Govt. fessors in medical servants colleges/teaching

institutions. A postgraduate degree in the concerned speciality mentioned in Part A of Annex. II or equivalent.

For Professors/Additional Professors in medical colleges or teaching institutions, at least 6 years experience as Associate Professor/Asstt.

Professor/Reader in a medical College or teaching institution after the requisite postgraduate degree qualification out of the aforesaid 12 years

standing. (Qualification relaxable at Commission's discretion in the case of candidates otherwise well qualified).

Specialist 45yrsand For Associate Professors/Grade below (re Readers/Assistant

(Rs.6001300) taxable for Lecturers. Govt.servants). A postgraduate degree in the concerned speciality mentioned in Part A of Annexure II or

equivalent.

For Associate Professors: At least 5 years experience as Reader/Assistant Professor in the concerned speciality in a medical college/teaching

institution after the requisite postgraduate qualifications. (Qualifications relaxable at Commission's discretion in the case of candidates otherwise

well qualified).

After taking note of the aforementioned Rule, an opinion was expressed that there is hardly any difference in sofaras teaching experience is

concerned whether it is acquired on regular appointment or otherwise. The position in this case is similar. The experience which was gained by the

appellants as Incharge Lecturer cannot be said to be different from that of experience which was gained by others who were working in

substantive capacity. Therefore, on this consideration alone, it can safely be concluded that the claims of the appellants were not considered

properly.

Independently of the decision of the Supreme Court noticed above, it be seen that in the Rules there is no stipulation that only that person who

is working against a regular appointment is eligible for being considered. As a matter of fact, the Rule which has been quoted above, does not

debar the appellants from being considered. The method of recruitment is silent as to the feeding cadre. Therefore, any person having teaching

experience of five years at Higher Secondary Level in the subject concerned could have applied for the post. The addition of the words 'having

regularised service as such' is a condition which has materially changed the complexsion of the Rule. Something which was not there in the Rule

could not be added with a view to disqualify the appellants.

The learned counsel appearing for respondents sought to distinguish the aforementioned decision of the Supreme Court on the ground that the

wording used in the rule which was subject matter of consideration before their Lordships of the Supreme Court is different. We are of the opinion

that there is no material difference between the wording used in the rule which was being interpreted by the Supreme Court and the wording which

have been used in the present case.

Another argument raised by the respondents is that if relief is to be granted to the appellants, then the entire selection process would have to be

done denovo. A candidate who has not applied for the post on the ground of eligibility criteria having been fixed by the commission would now

become eligible on account of interpretation which is now being placed. It is also urged that the appellants having not arrayed the selected

candidates as party to this litigation cannot be granted any relief.

This argument is also of no avail to the respondents. The total number of posts which were advertised were 9 in the subject of chemistry. Three

posts are lying vacant. An interim order was passed when writ petition was pending. This order was, extended when this appeal was filed. The

claims of the two of the appellants can, therefore, be considered against the vacant posts. Their claims are to be considered alongwith other

candidates. No direction is being given that on the basis of the decision now given the appointments already made be upset. The appellants if after

consideration of the claims and merits come high in the merit then they would be appointed against the posts which are lying vacant. They are not

to upset the vested right of any other person.

The matter can be looked into from another point of view. If the argument put across by the State is to be accepted, then it would mean that

the claims of the appellants depend upon the decision which the State Government may or may not take visavis regularisation of the service of the

appellants. In one case the State may take this decision without delay and another person may be made to wait for years. As a matter of fact, this

situation arose in a Letters Patent Appeal No: 22 of 1998 decided on 12.5.98. Several teachers who had been appointed on adhoc basis sought

regularisation. In one set of cases, the State Government asked the teachers to withdraw the writ petitions. It was indicated that in that eventuality

i.e if they withdraw the writ petition their claims for regularisation would be considered. On the withdrawal of the writ petitions, they were afforded

regular status. The State, however, denied similar treatment to others. They came to this Court. It was held that the State cannot be permitted to

deal differently with persons similarly situated. It was in the above case observed.

A perusal of the aforementioned order would make it apparent that offer was made to the teachers to withdraw the writ petition and then their

claims would be considered. On the basis of this, the argument raised is that if relief could be given to the teachers posted at Srinagar. then there is

no justification to deny the same relief to the appellants. The appellant thus seek parity.

This argument was noticed in the Karnataka Stated private College case AIR 1992 SC 677. What was said in paragraph 7 is relevant and is

being reproduced below:

x x x x x Further the State of Karnataka appears to have been regularising sen ice of adlioc teachers. Till now it has regularised services of

contract lecturers, local candidates. University lecturers. Engineering College. Lecturers etc. II may not furnish any basis for petitioners to claim

that the State may be directed to issue similar order regularising services of teachers of privately managed colleges. All the same such policy

decisions of government in favour of one of the other set of employees of sister department are bound to raise hopes and expectations m

employees of other departments. That is win it is incumbent on governments to be more circumspect in taking such decisions. The petitioners may

not be able to build up any challenge on discrimination as employees of government colleges and private college may not belong to the same class

yet their claim cannot be negatived on the respondents' stand in the counter affidavit that the regularisation of temporary teachers who have not

faced selection shall impair educational standard without explaining the effect of regularisation of temporary teachers of university and even

technical colleges. Such being the unfortunate state of affairs this court is left with no option but to issue following directions to respondents for not

honouring the commitments before the High Court and acting contrary to the spirit of the order and also due to failure of Govt. in remainding

vigilant against private management of the college by issuing timely directions and taking effective steps for enforcing the rules.

It be seen that in the above case, the Supreme Court of India was of the view that the teachers of private colleges cannot build up an argument

of discrimination as the teachers of Government colleges and private colleges form separate class. In the present case, the situation is entirely

different. Teachers appointed in the Government institutions did come to this court. They preferred a writ petition No. 1654/89 in this court. In this

writ petition a suggestion appears to have been given to the effect that if the writ petitioners withdraw the writ petition, their claim for regularisation

can be considered. The writ petitions were withdrawn and the services of nine of the teachers/lecturers came to be regularised in pursuance of the

order dated 1.2.1995. This order has already been noticed above. Therefore, the argument sought to be raised by the learned counsel for the

respondents that if such concession has been given to a teacher then to writ of mandamus can be issued to the State to grant the same benefit to

the appellants.

Coming to the facts of these appeal.

Therefore, to let the State Government to have a latitude in the matter of deciding the claims for regularisation of the incumbents holding aclhoc

or slop gap arrangement and leaving it to the State Government's discretion to determine as to who and when this status is to be conferred would

mean that the claims of such persons would always remain in suspended animation and uncertain. A qualification which depends upon this type of

uncertain situation cannot be permitted.

The learned counsel appearing for respondent have placed reliance on a Single Bench Judgment of this Court in SWP No. 2614/97. decided

on 2nd May'98. It is submitted that the above decision would be attracted to the facts of this case. We are of the opinion that on the correct

appreciation of the legal position the onlv way to look at the matter is that the experience gained by a person working as Incharge lecturer can be

taken not of.

There is another aspect of the matter, if the Rules referred to above are persued. It would become apparent that so far as direct recruitment is

concerned, there is no requirement of possessing of teaching experience. Again in the notification which has been issued by the Public Service

Commission the minimum age which has been fixed is 18 years. It is well known that there is hardly a person who would acquire Masters Degree

at the age of 18. Normally such a degree is acquired at the age of 23 or 24. If the experience of five years is added, then the person becomes

eligible at the age of 28. The recruitment of there being no teaching experience when direct recmits are to be recruited and laying down such a

qualification for inservice candidates who have the basic qualification and also possess teaching experience, is again a matter which is not

understandable. The learned counsel for the respondents submit that this system has been adopted with a view to bend experience with fresh

recruits. This aspect of the matter is only being noticed and is not being further commented upon.

The learned counsel for the State submitted that only those candidates who were in lower hierarchy of the service which is covered by SRO

83/741992 are eligible as inservice candidates. He submitted that it is only a substantive appointment in this service which would confer requisite

qualifications.

We are again of the view that this would again mean adding something to the qualifications fixed in the Rules. The words ""teaching experience

of five years at Higher Secondary Level' would have to be read as ""teaching experience of five years at Higher Secondary Level in a service

rendered under Rules framed under SRO 83/741992. Additional words cannot be added in the Rules of 1995. Already the Commission has

added words to the Rules. The learned counsel for the State wants further addition of the words to be made in the Rules. We are of the opinion

that this course is not available to this Court. The rules and the Statute are to be read as these are. The rules are clear. There being no ambiguity in

them. There is no need to add any words to the Rules in question. This argument is thus repelled.

We are accordingly of the view (i) that under the Rules, there is no requin ment that only those persons who are ha' ing experience of five years

at Higher Sei ondary Level in the subject concerned ar having regularised service as such woul be eligible.

(ii) that this stipulation being not there i the Rules and having been added in the npatently contrai to the requirements of the rules: (iii) that the experience gained as Inchar§ Lecturer and that gained as working again a

substantive appointment is the sann There is no difference so far as the exper ence is concerned. What was said by tli Supreme Court of India in

the case of D Asim Kumar Bose (supra) would be ai traded to the facts of this case, (iv) that any interpretation which depend upon the sweet will

of the Government an leaves a candidate in State of uncertaint and leaves a qualification to be determine at the sweet will of the Government can

not to be accepted.

(v) that the argument of the State counsel that only those candidates who are work ing in a service governed by SRO 83/74 1992 are eligible, can

again be not accepts as this would mean adding words to the Rules.

(vi) The appellants want a declaration that as their claims have been wrongly rejected they be considered afresh. There are three available

vacancies. The two appellant are to be considered against these three vacancies. This consideration would naturally not be at the cost of those

candidate who have already been selected,

(vii) The claims of the appellants for regularisation be considered in line with thi treatment given to others. In view of the above, these appeals are al

lowed. The appellants are found eligible for consideration in terms of Rules of 1995. Le their claims be now considered.