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1991 DIGILAW 623 (KAR)

MIRZA WALIUIIAH BAIG v. JAYARAMA REDDY

1991-12-19

S.A.HAKEEM, S.P.BHARUCHA

body1991
S. P. BHARUCHA, C. J. ( 1 ) WE are concerned with the interpretation of the following qualification;" (B) the candidate must have possessed experience of not less than 5 years in an administrative position in the government or statutory body;"the learned single judge took the view that this meant that the candidate should have held a specific administrative post as such for not less than five years. The contention of the appellants is that that is not what the regulation requires. Its requirement would be satisfied if the candidate possessed experience of not less than five years in a position which required him to deal with administrative matters. ( 2 ) THE selection committee consisted of the additional secretary to government, home department, as chairman, the director of instructions, the registrar, Indian institute of science, Bangalore, the deputy director of social welfare, Bangalore, and the dean of the university of agricultural sciences as members. They recommended that the following candidates in order of merit be appointed to the post of superintendent (general) for which the aforementioned qualification was prescribed:"1. Mirza waliulla baig. 2. K. N. Jayarama Reddy. 3. S. Ramachandra rao. 4. K. G. Tikare. 5. G. krishna kumar. 6. Kilhar shivappa mahalingappa. 7. Jayarama Reddy. 8. D. shivakumaraiah. 9. K. Shamsundar. " ( 3 ) THE appointments of mirza waliulla baig (no. 1) and S. Ramachandra Rao (no. 3) were challenged by Jayarama Reddy (no. 7) in W. P. No. 21108/1983 and by one chikkabasavaiah (who was an unrecommended candidate) in W. P. No. 2472/1984. The challenge was made upon the basis that baig and ramachandra Rao held the post of stenographer and that, therefore, they did not possess the required qualification of experience in an administrative position. As aforementioned, the learned single judge upheld this contention. ( 4 ) BEFORE us learned counsel for baig, ramachandra Rao and the university submitted that though baig and ramachandra Rao were stenographers, they had, in fact, had administrative experience of not less than five years. The duties of baig, for example, involved control over typists working in his section. He was required to check and verify attendance registers, service registers, stock and store ledgers and similar records maintained at medium and minor research stations coming under the jurisdiction of the regional research station, raichur, whenever he accompanied the chief scientific officer on inspections. The duties of baig, for example, involved control over typists working in his section. He was required to check and verify attendance registers, service registers, stock and store ledgers and similar records maintained at medium and minor research stations coming under the jurisdiction of the regional research station, raichur, whenever he accompanied the chief scientific officer on inspections. He had been involved in departmental enquiries in administrative matters relating to the medium and minor research stations. He had assisted in the discharge of management work and the taking of administrative decisions in regard to the regional research station and the medium and minor research stations. He was concerned with the maintenance of confidential records, annual, half yearly and quarterly reports of the regional research station, raichur, and of its medium and minor research stations. All this, it was submitted showed that baig, and, similarly, ramachandra rao, had had for more than five years administrative experience. ( 5 ) RELIANCE was also placed upon certificates issued to baig by successive chief scientific officers of the regional research station, raichur, which indicated that he had had to do with administrative matters. ( 6 ) IT was pointed out on behalf of baig, ramachandra Rao and the university that an expert body, viz. , The selection committee, had considered the qualification that was required and the qualification that was possessed by baig and ramachandra Rao and had come to the conclusion that they satisfied it. It was submitted that, in these circumstances, the court should be very slow to interfere. Reliance was placed in this behalf upon the judgment of the Supreme Court in Neelima Misra v Harinder Kaur Paintal, AIR 1990 SC 1402 . The Supreme Court said that it was not unimportant to point out that in matters of appointment in the academic field, the court generally did not interfere. Courts should be slow to interfere with the opinion expressed by experts in the absence of mala fides alleged against them. ( 7 ) NOW, the qualification that we are concerned with is not such an academic or technical qualification as would require us to defer to the interpretation placed upon it by the selection committee. The phraseology of the qualification must be carefully noted. ( 7 ) NOW, the qualification that we are concerned with is not such an academic or technical qualification as would require us to defer to the interpretation placed upon it by the selection committee. The phraseology of the qualification must be carefully noted. It does not say that the candidate must have possessed administrative experience of not less than five years, which could so easily have been said if that had been the intention. The phraseology used is that the candidate must have possessed experience of not less than five years in an administrative position. The occupation of an administrative position for a period of not less than five years is, therefore, a sine qua non. A man who occupies an administrative position for five years gathers, ordinarily, far greater experience than does a man who does not occupy an administrative position but, still, does some administrative work for five years, as for example, a stenographer. ( 8 ) WE think that, in the circumstances, the learned judge was right in the view that he took. That is not to say that the learned judge was right in the orders that he passed upon the writ petitions. Strong exception has been taken on behalf of university to his direction to the university:"a mandamus is hereby issued to respondent 1 to consider the case of the petitioner for appointment to the post of superintendent (general) with effect from the date on which respondents 2 and 3 were appointed. Respondent 1 is further directed to refix the pay-scale of petitioner bearing in mind the deprivation caused to the petitioner as a result of non-selection and non-appointment of the petitioner to the post of superintendent (general) with effect from the date on which respondents 2 and 3 were wrongly appointed. This is in lieu of not awarding of consequential benefits in the post of superintendent (general) from the said date since the petitioner was not permitted to work in the capacity of superintendent by a denial of selection and appointment of petitioner to the post of superintendent (general ). This order shall be implemented within a time-limit of three months from the date of receipt of a copy of this order. " ( 9 ) THE exception taken by the university is justified. This order shall be implemented within a time-limit of three months from the date of receipt of a copy of this order. " ( 9 ) THE exception taken by the university is justified. Although the first sentence of the directions requires the university to consider the cases of the petitioners-jayarama rcddy and chikkabasavaiah to the post of superintendent (genera!) It is clear from the further directions in regard to the fixation of their pay-scales that the university is directed to appoint them "with effect from the date on which respondents 2 and 3 were wrongly appointed. " This direction in the petition of jayarama rcddy has the effect of by-passing the claims of k. g. tikare, g. Krishna kumar and kilhar shivappa mahalingappa, who were the 4th, 5th and 6th respectively of the candidates recommended by the selection committee, and in the petition of chikkabasavaiah could not have passed in any form as he was not a recommended candidate. The learned judge, again, could not have in a matter of this kind required the university to fix a pay-scale in the manner he did "in view of not awarding consequential benefits. " ( 10 ) IT was contended on behalf of baig and ramachandra Rao that they had been appointed to the post of superintendent (general) and had been working in that post for more than five years, so that, in any event, they had now acquired the stipulated qualification. Our attention was drawn in this behalf to the judgment of the Supreme Court in Ram Samp v State of Haryana and others, (1979)1 SCC 168 . The passage relied upon is self-explanatory:"3. The question then arises as to what was the effect of breach of clause (1) of Rule 4 of the rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularized as and when the appellant acquired the necessary qualifications to hold the post of labour-cum-conciliation officer. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularized as and when the appellant acquired the necessary qualifications to hold the post of labour-cum-conciliation officer. We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years' experience of the working of labour laws in any one of the three capacities mentioned in clause (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularized. The appellant worked as labour-cum-conciliation officer from January 1, 1968 and that being a post higher than that of labour inspector, or deputy chief inspector of shops or wage inspector, the experience gained by him in the working of labour laws in the post of labour-cum-conciliation officer must be regarded as sufficient to constitute fulfilment of the requirements of five years' experience provided in clause (1) of Rule 4. The appointment of the appellant to the post of labour-cum-conciliation officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as chief inspector of shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment as labour-cum-conciliation officer and becoming eligible for that purpose, he could not thereafter be reverted to the post of statistical officer. The order of reversion passed against the appellant, was. Therefore, clearly illegal and it must be set aside. " ( 11 ) IN our view, all things considered, it would not be in the interest of Justice noto direct the removal of baig and ramachandra Rao from the post of superintendent (general ). They were not appointed for any mala fide reason. The selection committee bona fide erred in the interpretation it placed upon the phraseology of the required qualification. Baig and ramachandra Rao have worked as superintendents (general) for the last about eight years. They were not appointed for any mala fide reason. The selection committee bona fide erred in the interpretation it placed upon the phraseology of the required qualification. Baig and ramachandra Rao have worked as superintendents (general) for the last about eight years. We think, following the judgment of the Supreme Court aforementioned, that it would be proper to treat their appointments as irregular, an irregularity which stands regularized upon the dates upon which they completed five years in office as superintendents (general ). ( 12 ) IN the result, the appeal is allowed in part. The order under appeal is set asidein so far as it gives to the university the directions quoted above. The petitioner Jayarama Reddy shall be entitled to be considered fet appointment. to the post of; superintendent (general) in the order of merit set out by the selection committee, excluding baig and ramachandra rao. The petitioner-chikkabasavaiah, since he was not on the list of recommended candidates, shall not be entitled to be considered for selection to the post. The appointments to the post of baig and ramachandra Rao shall be treated as having been regularized upon the dates upon which they completed five years of service as superintendents (general) and they shall rank in seniority accordingly. ' all the aforementioned appeals are disposed of by the order aforestated. No orders as to costs. --- *** --- .