52 PS CWP No9440 of 2009 1 INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 201 1 PriyaMahajan e e e etitioner Versus 1 Stateof Punjaband others 0 espondents l r4 0 I 0 CORAMleHONBLE MRJUSTICE PERMOD KOHLI I PresentMr RBajajAdvocate Z for the petitioner Ms Charu Tuli Senior DeputyAdvocate General Punjab 1 1 RRkltRR I I PERMOD KOHLI J Petitioner was a candidatealongwith respondent Nos 3 and 4 rlo for thepostof EnglishTeacher for which advenisement was issued wa Z on 0422008 publishedin DailyTribune in its issue dated 422008 As many as 14 posts of English Teachers were advenised 6 posts for generalcategory Besides the educational the advettisement also prescribedthe of experiencefor the post in question The relevant extractfrom the advettisementis noticed hereunder il Should be MA Englishlor BA vith Hons in Englishl and iil Should be Bi with English as one of electiVe subjec and Anita 2014.04.17 13: 48 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 1 53 CWP No9440 of 2009 2 iiil Should possess at Ieast one year teachingexperience inthe Iinein a Government Institutionor an Institution bythe Government Note 8 Applicant must have acquiredmlnimum and experienceon or before the Iast date fixed for receiptof Note9 Theexperienceacquiredafter attainingthe minimum will be considered and no expenence priorto attainingthe minimum r will be entertained NotelO Regularpay scale or Salaryper month must be 0 0 mentioned in the experiencecertificate experience Wb I certificatewithoutpay willnot be accounted for which C9 should be verified by the Labour I in case of private and byDistrict Z Level Officerin case of educational institutions However expenence issued by the 2 Collegein Punjabshould be I verifiedby the Principalconcemed Onlyfull time t will be accounted for Application of Z candidatehavingexperience as parttimel hourlybasis m wili be rejected and no will be entertainedin this regard 7 Z Petitionerclaims to be for the postin question as the Qm passedGraduation in the year 2002 BEd in 2004 MA Englishl in 2005 with additional subjectof EngIishin BI in Aprii 1 2008t is stated that the petitioner had servea as EngIishMistress in SPhullarwan Girls Sr Secondary SchooI Jalandhar from e Ol 42005 to 2032007 and as EnglishLecturer in Government TrainingInstitutefor Women Jalandhar from September 2007 to May2008 A tentativemerit Iistof the applicantswas putef Onthe website on 2392009 name did not figurein the Anita 2014.04.17 13: 48 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 54 1 9 CWP No9440 of2009 3 said Iist Since objections were invited petitioner filed the objections tothe tentativemerit Iist Final meritIistwas notifiedon 241 12009 in Daily Tribune and the petitioner was not amongstthe Onalselectees The grievanceof the petitioneris that she has highermerit i 6640Io marks whereas Nos 3 and 4 with 5440Io marks and 53 80Iomarks have been selected The the and came to know that she couid not be 1 selected for want of requisiteexperienceprescribed for the post Itl 0 questionunderClause 90f the advertisement Annexure P41 This AO 2 has been accordinglyfiled challengingClause 9 of the I C5 with a further direction in the nature of mandamus to I appoint the and aiso for quashmentof the Z of Nos3 and 4 as English 0 Teachers while admittingthe highermerit of the vcl Z stated that the petitionerA518 not 0f the requisite in terms of Notes 9 and 10 of the advertisementand thus 7 was ineligible for Z haveheard Iearnedcounsel for the partiesat Iength Q 1 Interms of the advertisementand the statutoryRules namely e 1 IndustrialTrainingClass IlllTechnical Services Rules 2001 a candidate should be MA Englishlor BA vith Hons in Englishl Cee and should be BI with Englishas one of the elective subjectand shouldalso possess at Ieast one year teachingexperiencein the Iine in a 1nstitution or an 1nstitution recognizedby the Petitioner thoughacquiredMA degreein Englishin theyear 2005 however she did B1 in the year 2004 but the Anita 2014.04.17 13: 48 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 1 55 P 4 b9P CWP No9440 of 2009 4 10 q e was acquiredby lOY him in April200 Experience Ceitificate producedbythe petitioner indicatethatshehad served as e EnglishMistress from O042005 to 2032007 and from 2007 to May2008 that means after the requisite i Englishin B1 as an elective in April2008 petitioner had no experience of one year as per of the advertisementthoughshehad more than one m yearteachingexperiencebefore attainingthe minimum Lr 0 Note8 providethat the experiencepriorto attaining the 0 minimum will not be entertained It is admitted case of I the petitioner that he was notpossessedof one year experience after I the minimum prescribed The case of the Z is that Note 9 in the adveitisement cannot be enforced tO 2 0 deny to the petitioner as the same is contrary I to thestatutoryrules prescribedbythe State wherein onlyone year Z is requiredand there was no of 1 havingsuch experienceafter acquiring minimum prescribed v for the post To suppotthis contention petitioner has 7 Z relied upon cases titledas Anil Kumar Gupta Versus Municipal 0 of Delhi 2000 111SC 128 AKRaqhumani Sinqhand others Versus Gopal Chandra Nath and others 2000 141 SCC 30 and a Division Bench judgment of this Court reponed eee as 200121ST 444 titled as Daljit SinghVersus PunjabState Electricitv Board In Anil Kumar Guptascase supral two years experiencewas for selection to the postof Assistant Engineerapartfrom Anita 2014.04.17 13: 48 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 56 1 er CWP No9440 of 2009 5 other Some of the candidates claimed experience beforeacquiring the degreeThe question arose whether experience possessedby a candidate prior to acquiringthe essential can be taken into considerationor not The in the adveItisementwas minimumtwo years experience Someof the candidates who had acquiredexperiencebefore the were also selected Honble Supreme Couttheld that the service rendered bythe DiplomaHolder before 0 degreecan also be counted 0 I In the case of Singhsupral the rule provided 9 I degree in relevant disciplineof or its equivalentfrom a institutionwith six years regularservice in the gradehe Z question arose whetherexperience before acquiring the CC couldbe taken into consideration or not Honble SupremeCoun I followed the in Anil Kumar Guptascase supraland held Z that the experiencegainedpriorto acquiringthe could also be taken into consideration A Division Bench 7 of this Court in DaljitSinghscase supral while followingthe Z 1 in Anil Kumar Guptascase lpralobserved as underl Ll 1 6After hearing the Iearnedcounsel for the parties we are of the view that there is substance in the e of the Iearnedcounsel for the petitioners As held by the Apex Court in the judgments referredto above the experience which is acquired as a Plant Attendant under the Regulations for the 1 postof AuxillaryPlant Attendant it has not been in the regualtions that the same has to be Anita 2014.04.17 13: 48 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 57 CWP No9440 of 2009 6 afterpassing the ITI course The framers of the rules didnot choose to qualifythe experience and it didnot choose to vest in the Selection Committeeto deviatefrom the clear Ianguageof the rulesle instructionsdatedAugust31988 supralon which reliance was placedbythe would have no bearing after the rules of 1996 were framed 1 18Apattfrom the above it may be noticed here that 0 even a nonmatriculateand nonmITl Junior Plant 1 Attendantis eligiblefor as AuxillaryPlant C5 Attendant who has six years expenence I it cannot be said that some wholly Z illegal considerationwill be done if the experienceof r thedirect recruits as Plant Attendantwhich theyhad I obtainedpriorto obtainingthe ITI IS C Z takeninto accoun 7 0 AnotherDivision Bench while a similar question Sm2 and the under the same Rules thoughfor a diHerent Z postexaminedthe controversyin case of Rakesh Kumar vs State of Qm Puniaband others CWP No 16833 of 2007 decided on 23 9 2008 The issue before the aforementionedDivision Bench was experience for the post of Draftsman Aechanicall lnstructors In the ee advertisementissued a similar note 9 was in the advertisementwhich experience acquiredafter attainingthe rninimum educationaland technical and no experience prior to attaining the could be considered However the rules the PunjabIndustrial TrainingClass Ill Technical Anita 2014.04.17 13: 48 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 58 CWP No9440 of 2009 7 Service Rules 2001 only providedat Ieast two years practicai or at Ieast two years teaching experiencein a institution or in an institution recognizedby the Governmen There was no of havingexperienceafter the minimum educationalltechnical Honble DivisionBench dismissed the writ petitionon the groundthat the is not under challengeand dismissed the writ petition m r Itis admitted case of the pattiesthat the recruitmentto the post Itl 0 questionIS and regulatedby statutoryrules nameIY IndustrialTrainingClass Illl Technicai Seivice Rules 2001 9 I The and experience is providedin AppendixB which reads as underl Z iIShouldbe MA Englishlor BA vith Hons in 2 0 Englishland I be B vith Englishas one of elective Z Subjectland iiiIshouldpossess at Ieast one year teaching in the Iinein a Government institutionor Z an institution bythe Governmer C eeaV the rules do not provideexperience of one year afteracquiringthe educational It is onlYOn acCOUntOf Note9 in the adveItisement that the experienceafter acquiringthe e qualification was prescribedHowever in the presentcase Note 9 in the is mInder challengeand thus the ratioof the Division Bench judgment in case of Rakesh Kumar supralwould not be attracted It is settled Iaw that where any field is governed by provisionsany conditionto the contrarycannot operateIn Anita 2014.04.17 13: 48 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 59 e 4 CWP No9440 of 2009 8 of statutoryrules framed under provisoto Anicle 309 of the of India Note 9 in the advenisement does not hold the groundand cannot be pressedinto service to deny to the with highermerit View expressedby Honble Supreme Court in Anil Kumar Guptas case supral and reiterated ir judgments will have to be followed This is allowed of 1 no who is at the bottom amongst the private is hereby set asid Respondents nO 1 and 2 are directed to appointthre I on the basis of her higher merit to the post of English C5 I teacher of the shail relate back to the dale other selectees were Petitionershall also be entitledto all Z benefits includingseniorityexcept the monetary benefitshowever her pay shall be fixed givingher notional benefit I of increments 0 Z 1 1 00 4 IJ 44 wm 2011 1PERMODKOHLII Z MFK JUDGE le NOTEWhether to be referred to Reponeror RotYES 1 C6 1 11 1 e Anita 2014.04.17 13: 48 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document