Smt. Satyawati Devi vs General Manager, Ordnance Factory and Others

D.K. Seth, J.—It is alleged that pursuant to advertisement the Petitioner having applied for being appointed on the post of teacher in the Ordnance Factory Intermediate College, Muradnagar, Ghaziabad. She was selected and placed at Serial No. 1 on the merit list. Though persons who were below in the merit list have been given appointment and Petitioner''s case was ignored. On inquiry she came to learn that she was not given appointment pursuant to certain direction issued from the headquarters. Being aggrieved she has moved writ petition praying for appropriate relief as quoted below:

(i) issue a writ of certiorari order or direction in the nature of certiorari quashing the order dated 11.10.94 passed by Respondent No. 1 (Annexure ''6''):

(ii) issue a will of mandamus, order or direction in the nature of mandamus directing the Respondents to appoint the Petitioner on the post of Assistant Teacher (Hindi, Sanskrit) in Ordnance Factory Intermediate College, Muradnagar in pursuance of the selection held on 2.9.1994;

In the counter-affidavit the case has been made out that the Petitioner is ineligible because she lacked minimum requisite qualification inasmuch as in view of clarification issued by the Director General, Ordnance Factories dated 29.10.90 two years experience includes only that part of experience which has followed after the acquisition of minimum qualification, namely, B. A. and B. Ed. and any experience acquired before acquiring relevant qualification cannot be considered. Therefore, the Petitioner when found not possessed of requisite minimum qualification with regard to two years teaching experience after acquisition of B. Ed. degree, she is ineligible and cannot be given appointment though selected by the Selection Committee.

Mr. Ashok Bhushan, learned Counsel for the Petitioner contends that the rules prescribing qualification does not point out specifically that teaching experience following the acquisition of qualification is only to be counted. There is also no indication to that extent in the advertisement itself. The Petitioner despite such possession had been allowed to appear in the selection and was selected and placed at the top of the merit list, indicates that the ground made out was afterthought and, therefore, the Petitioner is entitled to declaration that she is duly qualified and eligible accordingly to be given appointment pursuant to such selection.

Mr. S. Harkauli, learned Counsel for the Respondents, on the other hand, contends that very arrangement of the qualification in the rules which is Annexure I to the writ petition indicates that it has to be followed on the basis of serial at which it has been arranged. Since third minimum qualification was two years teaching following first two qualification namely, B. A. and B. Ed., therefore. It implies that teaching experience has to be acquired after acquisition of minimum qualification and teaching experience acquired prior to acquisition of qualification has to be ignored. The clarification does not supplement the rules but clarification the rules as already understood, is according to the intention of the framers of the Rules. He further contends that if a person is not eligible or is unqualified even if the Selection Committee selects the same docs not stop the appointing authority from refusing appointment to such candidate so selected. The Court cannot direct the appointment of ineligible person who is not in possession of requisite minimum qualification for being appointed. He further contends that selection is always subject to verification of qualification. Therefore, by reason of selection of the Petitioner at the top in the merit list is also subject to verification of such qualification and unless the Petitioner fulfils minimum eligibility criteria despite her selection at the top Respondents are not bound to give her appointment.

Having heard learned Counsel for the Petitioner, it appears that qualification has been laid down in Annexure I prescribed B. A. as first and B. Ed. as second qualification while third qualification is prescribed as two years teaching experience in recognised school. The said qualification are quoted below:

I. Essential.-

B. A./B. Sc. in the subject concerned from recognised University.

2 A Degree or Post Graduate Diploma in Teaching/Education.

At least 2 years teaching experience in a recognised school.

II. Desirable. -- Competence to teach both in English and Regional language.

In the advertisement that was published, the minimum qualification that was prescribed as compulsory qualification was that (1) Graduate from recognised University; (2) Diploma or certificate from a recognised organisation in education; (3) Two years experience of teaching in class 6 to 10 in a recognised school. The advertisement further prescribed qualification for the post in Hindi and Sanskrit as (i) B. A. and B. Sc. degree from any recognised University in Hindi or Sanskrit; (ii) a degree in education or Post Graduate Diploma; and (iii) two years teaching experience in class 6 to 10 in any recognised University.

Though both the qualifications referred to in the advertisement as compulsory qualification and special qualification for the Post In Hindi and Sanskrit are almost identical, but there is only minor difference In second qualification which is compulsory. It was mentioned that a degree in education or a certificate from a recognised organisation whereas in the special qualification a degree in teaching or education or a Post Graduate Diploma has been mentioned. But recognised University has been omitted in the said second special qualification.

Mr. Harkauli has relied upon his submission to the extent that even if the clarification is ignored, by reason of the arrangement of qualification in the rules, there is no escape from the conclusion that teaching experience or two years must follow the acquisition of qualification.

Mr. Ashok Bhushan, on the other hand, contends that clarification cannot add to or supplement the rules. Though Mr. Harkauli did not agree to the said proposition that the said clarification should be ignored, he contends that even without clarification, the rules itself clearly and explicitly indicate that teaching experience has to follow the acquisition of qualification. He further contends that the reason is that one must apply the theoretical experience by reason of acquisition of qualification and that was the reason why experience was required for. The experience was not simple formality but his requisite minimum qualification which require two years experience as minimum qualification.

The interpretation sought to be given by Mr. Harkauli is too right. Without the aid of clarification, it could not have been given such an interpretation. The advertisement also does not specify that the teaching experience has to follow the acquisition of B. Ed. qualification. In ordinary parlance, a person is eligible for teaching even without B. Ed. degree though the same is preferential qualification and sometimes teachers teaching in schools are allowed to acquire that qualification even after appointment. If the authority were so rigid in the matter, in that event it ought to have been clarified in the rules even if it was not clarified in the rules and clarification is relied upon, in that event the same ought to have been mentioned in the advertisement itself, wherein the clarification has to be laid down. The authority has every right to insist on the minimum qualification in the order they propose to lay down but when inviting application, the minimum qualification is to be specified. Separate and different interpretation of the qualification than that indicated in the advertisement cannot be allowed. If it is so, in that event, the entire selection has to be cancelled on the ground of difference in the advertisement itself. But the Respondents have not taken that stand and it had given appointment to the other candidates so selected pursuant to the same advertisement. If it was not indicated in the advertisement that teaching experience must follow the acquisition of B. Ed. qualification. in that event the position would have been otherwise. But the same having not been indicated, the authority cannot change their position which is not a part of the rules which was not also indicated in the advertisement itself.

Then again the Rules does not prescribe the teaching experience after obtaining B. Ed. Degree. In the case of Government of Andhra Pradesh and Another Vs. Dr. R. Murali Babu Rao and Another, , similar Rule was interpreted. The requisite minimum qualification included two Post Graduate Degree. The teaching experience was coined in following form, viz.:

Teaching experience. -- Teaching experience specified in Rule 4 shall mean teaching experience in the speciality concerned in a Medical College or an Institute recognised by the Medical Council of India after obtaining Post Graduate Qualification as specified in Annexure II:

Provided that the teaching experience during second post graduation in a recognised College or Institute within the country or abroad in the concerned speciality of those who are:

(i) Holding teaching appointment; or

(ii) Holding beds under their charges; or

(iii) doing tutorial work;

shall count towards teaching experience for purposes of this rule.

The Government sought to interpret the above expression to mean five years teaching experience after the Second Post Graduate Degree. But the Apex Court held that:

The fallacy underlying the arguments is obvious. Rule 4 in terms speak of the eligibility of such class of Assistant Professors of Cardiology for promotion to the post of Professor of Cardiology who possess five years'' teaching experience. The expression teaching experience'' as defined in Rule 5 speaks of ''teaching experience'' in the speciality concerned in a medical college or an institute recognised by the Medical Council of India after obtaining Post Graduate Qualification as specified in Annexure II''. The words used an after obtaining Post Graduate Qualifications; It does not speak of the second Post Graduate Qualification.

The case at hand does not mention the experience to be after the B.Ed. or equivalent Degree. Here also two minimum requisite qualifications is mentioned and two years teaching experience is required. On the same analogy, as indicated in the case of Dr. R. Murali Babu Rao (supra), the meaning sought to be given by the clarification or otherwise cannot be warranted.

In the facts and circumstances of the case, according to the Respondent, the Petitioner has only six months experience after she had acquired B. Ed. degree. It is not disputed that she has two years experience of teaching in class 6 to 10 In recognised schools. Nowhere in the counter-affidavit, the said qualification has been disputed though, however, Mr. Harkauli has pointed out that experience has divided in two parts and in between there was a little gap of time. Admittedly, the Petitioner acquired experience after she was Graduate. Neither the advertisement nor the rules prescribed that the qualification of two years experience Is to be continuous two years teaching experience. If such interpretation is to be found out after the advertisement is issued according to the continuation as quoted hereinbefore, in that event it would open scope of rejecting select list on various grounds giving scope of arbitrariness in the matter of appointment by the authority. Unless it is specified in the advertisement itself or the rules are referred to therein and from the rules it is; apparent that the Petitioner is patently not possessed of all the requisite qualification, in that event, despite her being selected, she would not have been eligible for her appointment. But the present case is not of such magnitude.

For all these reasons given above, in my view, the Petitioner is eligible according to the qualification prescribed in the rules as mentioned in the advertisement itself and she cannot be refused appointment on the ground that she has not acquired the qualification of teaching for a period of two years after the acquisition of B. Ed. degree in view of the said clarification. Therefore, she is entitled to the appointment pursuant to her selection and to all other benefits as would have been available to her by reason of her such selection.

Therefore, the writ petition succeeds and is allowed and the order dated 11.10.1994 being Annexure VI, impugned in the present petition is hereby quashed. Let a certiorari do issue accordingly. In view of the above finding, she may be given appointment in terms of her selection. Let mandamus do issue accordingly to the above extent.

However, in the facts and circumstances of the case the Petitioner shall be entitled to salary from the date she resumes duty or from the month of September, 1997 whichever Is earlier. But the Petitioner''s seniority should be counted at Just above the other candidates selected and given appointment in the same selection. Her salary shall also be fixed normally at the stage giving benefit of seniority and continuity of service from the date when the first of other candidates selected in the same selection has joined without any right to recover the arrears for the period during which she has not worked.

In the result the writ petition succeeds and is allowed with costs assessed at Rs. 5,000 to be paid to the Petitioner by the Respondents within 30.9.1997.