IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1051 of 2011 RUBI KUMARI, D/O JAGDISH MAHTO, RESIDENT OF ASHOK NAGAR, P.S. CHITRAGUPT NAGAR, DISTRICT KHAGARIA---------------------PETITIONER Versus 1.THE STATE OF BIHAR 2.THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 3.THE DIRECTOR PRIMARY EDUCATION, GOVT. OF BIHAR, PATNA 4.THE DIRECTOR, BIHAR EDUCATION PROJECT COUNCIL, BELTRON BHAWAN, SHASTRI NAGAR, PATNA-23--------------------------RESPONDENTS ----------- For the petitioner :Mr.Hari Shankar Roy, Advocate For Bihar Education Project:Mr.Girijesh Kumar, Advocate For the State :Mr.Krishna Murari Prasad, AC to SC 1 ------ 4. 25.4.2011 Heard learned counsel for the petitioner and learned counsels for the Bihar Education Project Council as also for the State. The petitioner seeks a direction to quash the decision dated 21.12.2010 (Annexure-10) by which the candidature of the petitioner for appointment on the post of Assistant Resource Person on deputation basis under the Bihar Education Project Council has been rejected on the ground that she has experience of less than three years. An advertisement was taken out by the Bihar Education Project Council for appointment on various posts including 69 posts of Assistant Resource Person for which minimum qualification and experience was fixed as Bachelor’s degree with minimum of 50% marks from 2 recognized University and person working with BEP or Reputed Organization with at least three years of experience in the field of Elementary Education. Other desirable qualifications and experience for the posts were mentioned but the same are not relevant in the present matter. The petitioner, who is a Panchayat Teacher appointed on 1.12.2006, applied for the said post and in terms of the advertisement the cut off-date for the purpose of acquiring qualification, experience, etc. being 1.6.2010 claims to have more than three years experience in the field of Elementary Education. She also fulfilled the other requirements of submitting No Objection Certificate granted by the present employer, namely, the Gram Panchayat. However, her candidature was rejected on the ground that she had become a graduate on 5.11.2007 and thus she had experience of only two years, six months, 25 days on 1.6.2010 which is less than three years experience after acquiring minimum qualification. Learned counsel for the petitioner submits that there was nothing in the advertisement to show that the experience in the field of Elementary Education was to be 3 acquired only after obtaining the Bachelor’s degree as it is well known that in the appointment of elementary school teachers there is no requirement of Bachelor’s degree and if the authorities had intention of excluding the experience of elementary education prior to acquisition of Bachelor’s degree the same ought to have been clearly spelt out in the advertisement itself. In support of his stand learned counsel relies upon a decision of the Supreme Court in the case of Anil Kumar Gupta and others vs. Municipal Corporation of Delhi and others : (2000) 1 SCC 128, in paragraphs 22 to 26 of which it has been held as follows : “22. This Court based its decision initially on the practice obtaining in the Department over a long number of years when the rules were understood as requiring full service of three years after obtaining the degree. On that basis it was held that service was not to include service while holding a diploma. Suresh Nathan case was, however, distinguished in M.B.Joshi case. In the latter case the relevant rule referred to (i) diploma-holder Sub-Engineers completing 12 years of service 35%, (ii) Draftsman and Head Draftsman completing 12 years of service, (iii) graduate Sub-Engineers completing 8 years of service 10%. The Court was concerned with category (iii). It was pointed out that the rule did not contemplate any equivalence between a degree with a particular number of years of service as in N.Suresh Nathan case. It was observed that the rules in M.B.Joshi case “clearly provide that the diploma-holders having obtained a degree of engineering while continuing in service as Sub-Engineers shall be 4 eligible for promotion to the post of Assistant Engineer in 8 years of service and quota of 10 per cent posts has been earmarked for such category of persons”. (SCC p. 427, para 12) The judgment in M.B.Joshi case supports the case of the respondents. 23. The above ruling in M.B.Joshi was followed in D.Stephen case. In that case, this Court again distinguished N.Suresh Nathan case. This Court however cautioned that any practice which was dehors a rule could be no justification for the Department to rely upon. Such past practice must relate to the interpretation of a rule in a particular manner. This Court then followed M.B.Joshi case as being one where the language of the rule was specific that “If a particular length of service in the feeder post together with educational qualification enables a candidate to be considered for promotion, it will not be proper to count the experience only from the date of acquisition of superior educational qualification because such interpretation will violate the very purpose to give incentive to the employee to acquire higher education”. (SCC p.755, para 5) This decision in D.Stephen case also supports the case of the respondents. 24. 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. 25. It is true that in one of the counter-affidavits in CWP No. 606 of 1985, MCD took the view that the experience ought to be after acquiring degree. But the clarification of UPSC dated 13- 9-1985 addressed to MCD made it clear that the entire service including the service rendered before obtaining degree was to be taken into consideration. This letter has, in fact, been relied upon by the learned Single Judge of the 5 High Court for holding that service rendered before acquiring the degree was to be counted. 26. For the aforesaid reasons, we hold that the service rendered by the diploma-holders before obtaining degree can also be counted.” Learned counsel for the respondents, on the other hand, sought to place reliance upon a decision of the Apex Court in the case of N.Suresh Nathan and another vs. Union of India and others : 1992 Supp (1) SCC 584, in paragraphs 4 and 5 of which it has been held as follows : “4. In our opinion, this appeal has to be allowed. There is sufficient material including the admission of respondents diploma-holders that the practice followed in the department for a long time was that in the case of diploma-holder Junior Engineers who obtained the degree during service, the period of three years’ service in the grade for eligibility for promotion as degree- holders commenced from the date of obtaining the degree and the earlier period of service as diploma-holders was not counted for this purpose. This earlier practice was clearly admitted by the respondents diploma-holders in para 5 of their application made to the Tribunal at page 115 of the paper book. This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6, 1968 extracted at pages 99-100 of the paper book in the counter-affidavit of respondents 1 to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules 6 then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined. 5. The Recruitment Rules for the post of Assistant Engineers in the PWD (Annexure C) are at pages 57 to 59 of the paper book. Rule 7 lays down the qualifications for direct recruitment from the two sources, namely, degree-holders and diploma-holders with three years’ professional experience. In other words, a degree is equated to diploma with three years’ professional experience. Rule 11 provides for recruitment by promotion from the grade of Section Officers now called Junior Engineers. There are two categories provided therein- one is of degree-holder Junior Engineers with three years’ service in the grade and the other is of diploma-holder Junior Engineers with six years’ service in the grade, the provision being for 50 per cent from each category. This matches with Rule 7 wherein a degree is equated with diploma with three years’ professional experience. In the first category meant for degree-holders, it is also provided that if degree-holders with three years’ service in the grade are not available in sufficient number, then diploma-holders with six years’ service in the grade may be considered in the category of degree-holders also for the 50 per cent vacancies meant for them. The entire scheme, therefore, does indicate that the period of three years’ service in the grade required for degree-holders according to Rule 11 as the qualification for promotion in that category must mean three years’ service in the grade as a degree-holder and, therefore, that period of three years can commence only from the date of obtaining the degree and not earlier. The service in the grade as a diploma-holder prior to obtaining the degree cannot be counted as service in the grade with a degree for the purpose of three years’ service as a degree-holder. The only question before us is of the construction of the provision and not of the validity thereof and, 7 therefore, we are only required to construe the meaning of the provision. In our opinion, the contention of the appellants degree-holders that the rules must be construed to mean that the three years’ service in the grade of a degree- holder for the purpose of Rule 11 is three years from the date of obtaining the degree is quite tenable and commends to us being in conformity with the past practice followed consistently. It has also been so understood by all concerned till the raising of the present controversy recently by the respondents. The tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the department.” Reliance has also been placed by learned counsel for the respondents in the case of Indian Airlines Ltd. and others vs. S.Gopalakrishnan: (2001) 2 SCC 362, in paragraph-5 of which it has been held as follows : “5. When in addition to qualification, experience is prescribed, it would only mean acquiring experience after obtaining the necessary qualification and not before obtaining such qualification. In the case of the respondent, he obtained the ITI certificate in the year 1994 and, therefore, did not possess five years of experience as required under the relevant rule. If his qualification as a diploma-holder in Mechanical Engineering is taken note of, he has not completed three years of experience as he got the same in April 1996 and on the relevant date he did not possess such qualification. Indeed in prescribing qualification and experience, it is also made clear in the general information instruction at Item 6 that “experience will be computed after the date of acquiring the necessary qualifications”. Therefore, when this requirement was made very clear that he should have experience only after acquiring the qualification, the view taken by the High Court to the contrary 8 either by the learned Single Judge or the Division Bench does not stand to reason.” Learned counsel also relies upon a decision of a learned Single Judge of this Court in the case of Nutan Kumari & Anr. Vs. The State of Bihar & Ors. : 2007(4) PLJR 808, in which relying upon the decision of the Apex Court in S.Gopalakrishnan’s case (supra) it was held in paragraph-4 as follows : “4. The stand on behalf of the respondents is that the advertisement with regard to the minimum qualification cannot be interpreted to mean that a person who has acquired experience even prior to acquiring a bachelors degree would meet the requirements of the advertisement. The advertisement is very clear that the experience of five years talks about experience acquired after the bachelors degrees’ acquisition and not prior to the same. In this regard reliance is being placed upon a decision of the Hon’ble Supreme Court rendered in the case of Indian Airlines Ltd. vs. S.Gopalakrishnan, (2001)2 SCC 362. The Hon’ble Supreme Court while dealing with a similar matter had held that when in addition to the qualification experience is prescribed, it would only mean acquiring experience after obtaining the necessary qualifications and not before obtaining such qualification. If this is the law then the respondents have committed no wrong in not treating the past experience of these petitioners prior to acquisition of their bachelors degree.” 9 I have considered the submissions of learned counsels for the parties. It is evident from the decision of the Supreme Court in the case of Anil Kumar Gupta (supra), which has also considered the decision in the case of N.Suresh Nathan (supra), that there is no hard and fast rule that experience has to be obtained after obtaining the educational qualification. It is clearly laid down in the said case that the whole issue depends upon either the advertisement for the recruitment or the relevant rule applicable to the same. Thus both the conditions are possible depending upon terms and conditions laid down in the advertisement. In the case of S.Gopalakrishnan(supra) it has been clearly noted by the Apex Court that the instruction at Item 6 provided that experience will be computed after acquiring necessary qualifications. Hence the observation made in the said case has to be considered in the light of what has been laid down in the said instructions accompanying the rules. In the present matter, qualification and experience mentioned in the advertisement are not consecutive. It was open to the respondent Council to have prescribed the obtaining of three years experience in the field of Elementary Education 10 after obtaining bachelors degree but the same has not been done. It cannot be held out as an absolute proposition that the experience in the field of Elementary Education, specially teaching in Elementary School, would be qualitatively different for a person who is non-graduate, graduate or even post graduate. Thus it cannot be said that there is any qualitative experience obtained by the person concerned merely on account of the degree possessed by the said person. Hence, in view of the wide and general manner in which the experience has been prescribed in the advertisement it must be held that three years experience in the field of Elementary Education need not be one acquired only after obtaining Bachelor’s degree. Learned counsel for the respondent Education Project Council seeks to raise other issues also but since the rejection of the petitioner’s candidature is solely on the ground that she had experience of less than three years, it is not open to the respondents to add to the same by raising other pleas. In the light of the aforesaid discussions, the writ application is allowed and the rejection of petitioner’s candidature by Annexure-10 is quashed. The respondents 11 are directed to consider the petitioner’s case for appointment on the post of Assistant Resource Person on deputation on the basis of what has been held above. (Ramesh Kumar Datta,J.) Spal/