1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR 1. S.B. CIVIL WRIT PETITION NO.4336/1997 Mahavir Prasad Saini vs. State & Ors. 2. S.B. CIVIL WRIT PETITION NO.4345/1997 Shankar Lal Sharma vs. State & Ors. 3. S.B. CIVIL WRIT PETITION NO.4296/1997 Mahavir Prasad Soni vs. State & Ors. Date of order : 15/4/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri T.P. Sharma for the petitioners. Shri M.F. Beg, Deputy Government Counsel for the respondents. ****** REPORTABLE All these writ petitions filed by the petitioners working with the respondent- State in Forensic Science Laboratory on the post of Laboratory Assistant claiming promotion to the post of Junior Scientific Assistant, Chemistry Division/Billastics Division/Serology Division respectively. Shri T.P. Sharma, learned counsel for the petitioners submitted that in the schedule appended to the Rajasthan Police Forensic Science Subordinate Service Rules, 1980, source of recruitment to the post of Junior Scientific Assistant is 50% by promotion and 50% by direct recruitment. While for the purpose of direct recruitment, the eligibility qualification required is 2 that of B.Sc. degree in the concerned specialty but for promotion, two years experience in the case of graduate and postgraduate and five years in the case of undergraduate has been required. It is submitted that petitioners are all secondary school pass and therefore even if they are not graduate, they will have to be considered as undergraduate and would therefore be eligible for promotion. Learned counsel for the petitioners submitted that even otherwise the petitioners have been serving the respondent-department for quite sometime and have been facing stagnation. Relevant rules on the subject should therefore be liberally construed so as to grant the benefit of promotion to the petitioners in the context of facts of the case. Shri M.F. Beg, learned Deputy Government Counsel opposed the writ petition and submitted that none of the petitioners are even higher secondary / senior secondary as per division bench judgement of this Court in State of Rajasthan vs. Kanhaiya Lal Verma & Ors., D.B. Civil Writ Petition 3 No.1192/1992 decided on 27.5.1992 only a person who is higher secondary pass i.e. one stage immediately below the stage of graduate, would be considered as undergraduate. If what is argued by the learned counsel for the petitioner is accepted, then even the middle school pass candidate would have to be considered eligible for promotion, which would be defeating the very purpose of the Rule. Learned counsel cited various dictionary meanings of the word “under graduate”. It is therefore prayed that the writ petition be dismissed. Shri T.P. Sharma, learned counsel for the petitioners rejoined and submitted that when this Court has held candidate possessing the higher secondary qualification to be undergraduate. There is no reason why those with secondary school certificates should not be treated as undergraduate. Upon hearing the learned counsel for the parties and perusing the material on record, I find that the division bench in the aforesaid matter of Kanhaiya Lal Verma held 4 as under: “The language used in the rules has to be interpreted which sub-serve the purpose and is not for the destruction of the purpose. A Laboratory Assistant having the Higher Secondary qualification will have no chance of promotion if the word `under graduate' is restricted to the persons who are doing the degree course, but have not completed the same. It is not expected that every Laboratory Assistant will be continuing studies after joining service. The rule making authority has used the word `non-science graduate' in contrast to the Science graduate for the Laboratory Assistant, but this word `graduate' could have been interpreted to mean the persons having degree and, therefore, the mistake was rectified and the word `under graduate' was used. The word `under graduate' has to be read in contrast with the word `Science graduate' i.e. a person who is not a graduate. The next qualification of a person who is not a graduate is Higher Secondary and, therefore, the persons having the qualification of Higher Secondary, Science would be covered in the second category of the Laboratory Assistants, who are required to have 5 years' experience.” 5 Shri M.F. Baig, the learned Deputy Government counsel has cited various dictionaries for meanings of the word "under graduate", which are as under:- I.Webster's new international Dictionary Second Edition Vol.II P.N. 2767: Under graduate: 1. A student in a university a college, etc. who has not taken a degree. 2. One whose training is not yet perfects a novice. II. The Concise Oxford Dictionary 7th Edition Page No.1168: Under graduate: Member of University who has not taken the first degree. III. The Random House Dictionary College Edition Page No.1431: Under graduate: 1. A student in a university who has not taken his first degree. 2. Having the standing of an under graduate. 3. Of, for or characteristic of under graduate. IV. Law Lexion of British India: Under graduate: Student beneath the rank of a graduate. V. Merriam Webster's Collegiate Dictionary, Eleventh Edition Page No.1364: Under graduate: 6 A student at a college or university who has not received a first and esp. a bachelor's degree. In any case, even if one does not go by the dictionary meaning of the word `undergraduate', and if the issue is examined in the context of the dispute raised before this Court and contextual meaning is given to that word, then also a candidate who is not a graduate need not necessarily be always treated as undergraduate. If such a candidate has not qualified the examination which entitles him to take up the study course of graduation, he cannot be considered as an undergraduate. Admittedly, none of the petitioners have passed either higher secondary examination or senior secondary examination, which is the pre-requisite qualification for admission to any graduation course in any of the streams whether B.A., B.Sc., B.Com. etc. If what is contended by the petitioners that persons with secondary school pass certificate should be considered as undergraduate, is accepted, that would negate the very purpose and intent of 7 applying relaxed standards by the rule making authority in the matter of promotion because the rule otherwise requires only two years experience of service for graduates to be eligible for promotion, but in the case of undergraduate, that deficiency is sought to be made up while insisting upon somewhat more period of experience i.e. five years experience. If the argument is considered further in this context, its hollowness would get exposed, the moment one finds that in that event even a middle class candidate could also contend that he is also undergraduate and would therefore be eligible for promotion. The division bench therefore in the above referred to facts held that a candidate who has qualified the higher secondary examination would have to be considered as an undergraduate and in holding so the division bench rejected the argument putforth by the government that only such of the candidates who after qualifying the higher secondary qualification secured admission in the study course of graduation and even if, failed or abandoned the study course, only then they 8 would be considered as undergraduate. Shri T.P. Sharma, learned counsel at this stage sought to draw attention on Rule 37 of the Rules to say that the government has the power to relax the rules. It goes without saying that it was always open to the petitioners to agitate this issue before the government. But then as per Rules, the petitioners cannot be held to be undergraduate in the meaning of above referred to Schedule. Even otherwise, the petitioners cannot complain on any stagnation because they are compensated by grant of selection scale in terms of the scheme of the government as propounded by various Circulars starting from Circular dated 25.1.1992, for such of the members of the subordinate service, who have not been able to get promotion in a span of every nine years i.e. on completion of 9, 18 and 27 years of service. In view of above discussion, I do not find any merit in any of the writ petitions, which are accordingly dismissed, however, with the aforesaid observations. There shall be no order as to costs. (MOHAMMAD RAFIQ), J. RS/