*THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE KG SHANKAR WA NO.1177 OF 2009 % 18.4.2011 Between: The Union of India rep. by its Secretary, Department of Culture, Ministry of Tourism and Culture, Block-C, New Delhi & another .... Appellants And Dr. J. Kedareswari ...Respondent ! COUNSEL FOR THE appellants: - Addl. Solicitor General of India ^ COUNSEL FOR RESPONDENT : Mr. J. Sudheer > Head Note: ? CITATIONS: 1. 2001 (8) SCC 119 2. 2001 (3) SCC 530 3. 1974 (3) SCC 50 THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE K.G.SHANKAR WA No.1177 of 2009 JUDGMENT: ( per Hon’ble Sri Justice Ghulam Mohammed, J ) The Union of India represented by its Secretary, Department of Culture, Ministry of Tourism and Culture, New Delhi, and Salar Jung Museum, represented by its Secretary to the Board, Salar Jung Museum, Hyderabad, filed this writ appeal assailing the order dated 7-9- 2009 passed in WP No.16036 of 2009 by the learned single Judge of this Court. The writ petition was filed by the petitioner-respondent herein seeking to declare the action of the respondents therein in not calling the petitioner for interview for appointment to the post of Director, Salar Jung Museum in pursuance of the notification dated 5-4-2008 and on the other hand calling unqualified candidates for interview as being arbitrary and illegal and for consequential relief. 2. The facts in nut shell are:- the Secretary to the Salar Jung Museum Board by a notification dated 5-4-2008 published in the Employment News sought to recruit an eligible person for the post of Director, Salar Jung Museum, Hyderabad. The educational and other qualifications required for the said post as specified in the notification reads thus:- (A) Educational and other qualifications required for the above post: Eminent Museologist, or scholar with any of the following qualifications. Essential: (a) Atleast a second class Master’s degree in Fine Arts including History of Indian or Foreign Art or Indian or European History from a recognized university or its equivalent and about 15 years experience in a senior administrative position in a Museum of repute. For a person with Diploma in Museology, the period of such experience may be about 10 years. Or (b) Doctorate in Fine Arts, History of Indian, or Foreign Art, or Indian or European History, with experience of working in a College, University, or other academic institution or in a cultural organization in a responsible position with sufficient experience or original research, or guiding of research work, as proved by Published books, or articles, or monographs. Desirable: Knowledge of one more language from any of the following: Sanskrit, Prakrit, Persian, French, or German. 3. The age limit for the said post was originally specified as 50 years, but subsequently, an addendum was issued on 1st January, 2009 increasing the maximum age limit from 50 years to 56 years, this was purportedly to have been done as very few applications were received when the age limit was restricted to 50 years. 4. The petitioner-respondent in the writ appeal, who is working as Keeper (Education, Publication and Public Relations) in the Salar Jung Museum, applied for the post of Director pursuant to the notification dated 5-4-2008. However, as no call letter for the interview was received by her nor any information was furnished to her about rejection of her candidature, though the interviews were commenced in September, 2008 itself, she filed the writ petition. 5. The stand of the appellants herein was that the petitioner did not satisfy the requirements mentioned in the notification dated 5-4-2008 as found by the Search-cum- Selection Committee and therefore she was not called for the interview. It was also stated that on the basis of the interviews held on 5-9-2008 and 15-4-2009 the selection has been finalized and the same is awaiting formal publication. It was explained that the Search-cum-Selection Committee was constituted by the Governor of Andhra Pradesh, who is the Chairman of the Board and it is headed by the Secretary to Government of India, Department of Culture, as Chairman and 3 other members namely., the Director General, Archeological Survey of India; Vice-Chancellor, Osmania University; and one Member of the Salar Jung Museum Board. 6. It was further stated that the petitioner is ineligible to be called for interview and the experience of 15 years as stipulated in the notification is relatable to the administrative experience and supervision and has no nexus to the posts and scale of pay relatable thereof. The petitioner having not been within the zone of consideration of experience of 10 years, notwithstanding the educational and academic qualifications, she could not be considered for interview by the Search-cum-Selection Committee. It was also contended that the posts of Deputy Keeper and Keeper were occupied by the petitioner without the essential qualifications of Diploma in Museology as on the date of respective notifications and her selection as well as the appointment as Deputy Keeper and Keeper were made on a mistake of fact, as the Selection Committee by inadvertence failed to notice the requirement of essential qualification of Diploma in Museology stipulated in the notification. Even at the time of appointment as Keeper, notified on 18-3-2000, the petitioner lacked the 7 years experience and also the requisite 5 years experience with Diploma in Museology. The petitioner’s service from entry as Deputy Keeper to the post of Keeper being fortuitous, she has no vested right to claim that the same shall be taken into consideration for the purpose of the post of Director advertised in the notification dated 5-4-2008. 7. The learned single Judge of this Court, by the impugned order, allowed the writ petition and directed the appellants herein to consider the petitioner’s candidature by the Search-cum-Selection Committee constituted by the Board for appointment to the post of Director and till such exercise is done, selection process to the post of Director of Salar Jung Museum shall not be finalized. Hence, this writ appeal. 8. Sri Mohan Parasaran, learned Addl. Solicitor General of India appearing for the Union of India stated that petitioner did not possess the requisite qualification for being called for the post of Director. Learned counsel stated that the eligibility criteria for the post of Director is bifurcated into clause (a) and (b) and clause (a) related to educational qualifications with 15 years experience and 10 years experience in respect persons with a Diploma in Museology in a Museum of repute and that experience related to a post of a senior administrative rank equal in rank and status to that of the Director of Salar Jung Museum and did not extend to the cadres below the rank including the post of Deputy Keeper and Keeper, which the petitioner is holding. It is further submitted that even the appointment of the petitioner to the post of Keeper was based on a wrong order as the petitioner did not possess Diploma in Museology and as such said experience could not be claimed as a vested right on the premise that the said appointment is now regularized and continued. In the light of the these things, learned counsel stated the impugned order is liable to be set aside. 9. Sri J. Sudheer, learned counsel for the petitoner-respondent herein, on the other hand, strenuously contended that the petitioner was appointed through direct recruitment as Deputy Keeper in Salar Jung Museum on 23-11-1996 and thereafter appointed as Keeper, again through direct recruitment on 4-12-2000 and further had been on deputation as Director of Archeology, Government of AP while holding lien as Keeper in the service of Salar Jung Museum and continued till 7- 11-2007 during which time she was the Head of the Department and had the control of all the 27 museums in the State of Andhra Pradesh. It is further stated that on 7-11-2007 she was again appointed as Additional Commissioner Heritage, GHMC and in the said post she worked till 31- 03-2009 and, therefore, in the light of these facts, the petitioner cannot be said to have not held any senior administrative positions. Learned counsel further stated that from 1996 onwards till 2009 she has put in more than 12 years service and therefore fully satisfied the qualifications and experience prescribed in clause (a) of the notification. Learned counsel further contended that it is not now open for the appellants to find fault with the Selection Committee in selecting and appointing the petitioner as Deputy Keeper and Keeper in the years 1996 and 2000 respectively only to deny the petitioner’s claim for experience. 10. The matter rests on narrow compass. The grievance of the writ petitioner is that she was not called for interview though she is fully eligible and it is not her case that her candidature was not properly assessed by the Selection Committee. It is not in dispute that the petitioner is a Diploma holder in Museology, having obtained the said qualification from Osmania University in the year 2000. Thus it is not necessary for her to have 15 years experience and the period of experience may be about 10 years. The petitioner states that she was appointed through direct recruitment as Deputy Keeper in the Salar Jung Museum on 23-11-1996. Thereafter, she was appointed as Keeper, again through direct recruitment vide proceedings dated 4-12-2000. Thereafter, vide G.O.Rt.No.4877, dated 5-10-2003, the petitioner was appointed as Director of Archeology, Government of A.P. on deputation while holding her lien as Keeper in the Service of Salar Jung Museum. The deputation was extended from time to time and she functioned as Director of Archeology till 7-11-2007 during which time she was the Head of the Department and had the control of all the 27 museums in the State of Andhra Pradesh. On 7.11.2007 she was appointed as Additional Commissioner Heritage, GHMC and in the said post she worked till 31- 03-2009. Thereafter, she has come back to the original organization i.e., Salar Jung Museum and as on today working as Keeper. The Minutes of the Board dated 31-03-1970 in which the duties and responsibilities of the Deputy Keeper were enumerated as “they shall have full administrative control over their staff members from the Attender upwards in the Section or Rooms under the Direct Charge”. The case of the petitioner is that she was appointed as a Deputy Keeper on 23-11- 1996, her experience in the Senior Administrative position has to be calculated from the year 1996 onwards and thus she has put in 12 years of service (1996 to 2008) as on the date of the notification and, therefore, she has fully satisfied the qualifications and experience prescribed in the notification. The appellants have not denied the educational qualifications of the petitioner, but contend that the experience she gained as Deputy Keeper and Keeper since 1996 are not posts of senior administrative position. But it is relevant to note that the expression ‘senior administrative position’ is not defined either in the notification dated 5-4-2008 or anywhere under the Recruitment Rules. The notification did not even specify the scale to be attached to a particular post so as to treat the same as a senior administrative position. In the absence of clear parameters as to meaning of the expression “senior administrative position”, the question whether the posts of Deputy Keeper & Keeper held by the petitioner is a senior administrative position or not requires consideration by the Board itself or at least by the Selection Committee constituted by the Board. 11. Even if the period during which the petitioner functioned as Deputy Keeper is excluded, the petitioner has the experience in a senior administrative position as Keeper since 2000 and as Director, Department of Archeology, Government of AP, since 2003 to 2007 and as Additional Commissioner, Heritage, GHMC, Hyderabad, since 2007 to 2009 while retaining her lien as Keeper and now continuing as Keeper and her case needs to be placed before the Selection Committee as the notification uses the expression that experience required “may be about 10 years”. 12. The Hon’ble Supreme Court in NILANGSHU BHUSAN BASU vs. DEB K. SINHA (2001 (8) SCC 119) considered the scope of the expression “may be” and held that such expression meant discretion on the authority concerned. In para 6 & 7 of the decision it was held thus:- “6. We feel that once the rules permit recruitment to a post either by direct recruitment or by promotion, leaving the decision to the appropriate authority, it will be difficult to say or lay down that process of recruitment by promotion must necessarily be adopted first. As a matter of fact, it would amount to legislating a provision in the Statute. 7. In absence of any rule to that effect, it would be an administrative function of the appointing/appropriate authority to take a decision as to which method should be adopted for recruitment on any particular post. It may depend on various factors relevant for the purpose e.g. status of the post, its responsibilities and job requirement, the suitable qualifications as well as the age as may be desirable may also be taken into consideration while making such an administrative decision.” 13. In the same decision the Hon’ble Supreme Court explained the term “responsible post” and said that “responsible post” does not mean a post just below the post for which recruitment is to be made. The relevant observation made at para 15 by the Supreme Court is thus:- “15. Learned counsel for the petitioner failed to substantiate the submission that experience on a "responsible post" would mean experience on the just below post. He referred to a circular dated 1/04/1992 issued by the Municipal Corporation (Personnel Department). It relates to recruitment to 'A' Category post like that of Medical Officer, Assistant Engineer and Deputy Assessor Collector, Deputy Treasurer etc. It has been provided that experience on supervisory post would mean the post immediately below the post to which promotion is to be made, for example experience on the post of Assistant Assessor/Assistant Collector/Assistant Treasurer etc. would be experience on a supervisory post for promotion to the post of Deputy Assessor, Deputy Collector, Deputy Treasurer etc. We hardly find that this Circular would be applicable in the case in hand. It is specific about 'A' category posts and not for all categories and ranks. Another Circular dated 21-6-1988 has been referred to which relates to recruitment on the post of Deputy Chief Engineer (Civil), Deputy Chief Engineer (Mechanical) etc. By means of the said Circular experience on the post of Executive Engineer or on any similar post was required. It firstly relates to the recruitment to the post of Deputy Chief Engineer. It cannot be applied for recruitment to the post of Chief Municipal Engineer (Civil). Such a condition is not contained in terms of required qualification for the post of Chief Municipal Engineer (Civil). Wherever experience on a post just below is needed, such a provision is specifically contained. On this basis it cannot be generally held that for every post in any rank or category the “responsible post” must necessarily mean the post next below the post for which recruitment is to be made.” 14. The Supreme Court in LAND ACQUISITION OFFICER & MANDAL REVENUE OFFICER vs. V. NARASAIAH ( 2001 (3) SCC 530) explained the term “may be”, at para 14 held thus:- “14. The words "may be accepted as evidence" in the section indicate that there is no compulsion on the Court to accept such transaction as evidence, but it is open to the Court to treat them as evidence. Merely accepting them as evidence does not mean that the Court is bound to treat them as reliable evidence. What is sought to be achieved is that the transactions recorded in the documents may be treated as evidence, just like any other evidence, and it is for the Court to weigh all the pros and cons to decide whether such transaction can be relied on for understanding the real price of the land concerned.” 15. In SHIBAPADA MUKHERJEE vs. THE STATE OF WEST BENGAL (1974 (3) SCC 50) considered the scope of the expression “may”, at para 4 held thus:- “4. Taking the first contention first, it will be noticed that Section 12 (1) of the Act does not lay down in any express terms the time within which the State Government has to confirm the detention order and make a decision to continue the detention of the person concerned in a case where there can be detention for more than three months if an Advisory Board has reported that there is in its opinion sufficient cause for detention. Sub-section (2) of Section 12 and the words "may confirm" in sub-Section (1) indicate three courses which the State can thereunder adopt. Where in the opinion of the Advisory Board there is no sufficient cause for detention, the State Government has to revoke its detention order and release the detenu forthwith. Where, on the other hand, the Advisory Board has reported that there is sufficient cause for detention, the Government may either confirm the detention order and order the continuation of detention or may revoke the order and release the person concerned. The words "may confirm" in sub- Section (1) show that the Government has the discretion either to confirm or not to confirm and continue the detention depending upon whether the circumstances at that date have changed so as not to necessitate any more the continuation of his detention……” 16. Clause (a) of the eligibility criteria under the notification made it clear that for a person with Diploma in Museology, the period of experience may be about 10 years. In other words, the experience less than 10 years can also be considered and it is within their discretion. The case of the petitioner is that even if the experience as Deputy Keeper cannot be construed as senior administrative position, she has eight years of experience in various key posts like Keeper, Director, Department of Archeology, Government of AP and Addl. Commissioner, Heritage, GHMC, Hyderabad. The petitioner’s claim is that she has also satisfied the educational qualifications as well as experience prescribed in Clause (b) of the Notification. It is stated that the petitioner is a Doctorate in History of Arts and that apart she has teaching experience as she had been teaching and delivering lectures. It is also stated that she has sufficient experience in a cultural organization in a responsible position and that Victoria Memorial Hall, Kolkata and Salar Jung Museum, Hyderabad, under the Department of Culture, Ministry of Tourism and Culture, Government of India. That her experience as Director of Archeology and Museums, under the control of Department of Tourism and Cultural, Government of A.P., would also come within the definition of “Cultural organization”. She was appointed as Director, State Art Gallery, at Kavvuri Hills vide G.O.Ms.No.1728, dated 27-12-2003 also falls under “cultural organization”. Besides this, the petitioner has original research also to her credit and published several articles/books/monographs/ reports. The word “museologist” as per dictionary meaning means ‘a person having experience and knowledge of museums’. Commonly known the word ‘scholar’ means ‘an educated person’; ‘someone whose learning is extensive and exact’ or ‘whose approach to learning is scrupulous and critical’. As observed by the learned single Judge, the expression ‘scholar’ used immediately after the word ‘eminent museologist’, has to be construed in the context of the earlier word. Consequently the word ‘scholar’ used in the notification has to be understood as a scholar concerning with museums. The contention of the learned senior counsel for the appellants that the experience of the petitioner as Deputy Keeper and Keeper cannot be taken into consideration, as she was not holding diploma in Museology at the relevant point time, cannot be countenanced as at the time of appointment as Deputy Keeper she was not having the diploma in Museology was within the knowledge of the Selection Committee. Further, at the time of applying for the post of Keeper, the petitioner mentioned in her application form that she was pursing PG diploma and from this it is clear that there was no suppression of facts on the part of the petitioner. 17. In the light of these things, we are of the considered view that the petitioner’s case shall have to be considered for appointment to the post of Director, Salar Jung Museum. In the circumstances, we do find any flaw in the impugned order passed by the learned single Judge and, therefore, the writ appeal is dismissed. No order as to costs. ________________________ Ghulam Mohammed, J _____________________ K.G.Shankar, J Dated: 18-4-2011 Nrg.