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Himachal Pradesh High Court · body

2004 DIGILAW 294 (HP)

HEMANT KUMAR v. HP. SERVICE COMMISSION

2004-10-27

BAKHSHISH KAUR, D.S.AMIST

body2004
JUDGEMENT Honble Mrs. Bakhshish Kaur, J. (Retd.) Chairman - This order disposes of three original application (O.A.) No. 2545 of 2004, O.A. No. 2609 of 2004 and | OA No. 2657 of 2004) as the question of law and facts involved therein are similar. 2. Before we proceed to deal with the rival contentions of the parties, it becomes necessary to note a few introductory facts. O.A. 2545 of 2004: 3. The applicant did B.Sc. (Medical) in 1996. Obtained qualification of Bachelor in journalism and Mass Communication from Himachal Pradesh University in 1997. He had also obtained degree in MA (Hindi) from Himachal Pradesh University in 1999 besides obtaining degree of MBA with Specialization in Marketing ( from IGNOU in 2002. He possesses qualification of Master in Journalism and Mass I Communication (2003). He had worked as Sub Editor with Dainik Himalya Dev from I January 1997 to April 2000 and worked as trainee reporter with Danik Tribune I Shimla from December 2001 to June 2002 and from June 2002 to June 2003 as a I reporter with Dainik Jagran. He is working as casual News reader with Reporter and I Announcer with Door Darshan Shimla and All India Radio respectively. 4. He has sought the following reliefs:- O.A. 2545/2004: "Hemant Kumar Wats vs. Himachal Pradesh Public Service Commission and others. (i) That the impugned condition imposed in the advertisement at Annexure A-2 j for the post of Publicity Officer to the effect that "the experience, if any, will be I counted after obtaining EQ for the post" may be quashed and set aside being not in consonance with the Recruitment and Promotion Rules at Annexure A-1. (i) That the impugned condition imposed in the advertisement at Annexure A-2 j for the post of Publicity Officer to the effect that "the experience, if any, will be I counted after obtaining EQ for the post" may be quashed and set aside being not in consonance with the Recruitment and Promotion Rules at Annexure A-1. (ii) That the rejection of candidature of applicants by respondent No.1 vide letters dated 10.8.2004 Annexures A-3 and A4 may be quashed and set aside and the respondent commission may be directed to consider the applicants for appointment to the post in question with all consequential benefits, (iii) That if during the pendency of original application any interview/test is conducted by respondent commission for the post in question without considering for the post in question without considering the applicant, in such event the I test/interview so conducted by the respondent commission for the pose of Publicity Officer pursuant to Annexure A-2 may kindly be quashed and set aside and respondent No.1 may be directed to reconduct the test/interview without insisting upon the impugned condition of two years experience after essential qualification, with all consequential benefits. (iv) That the respondent department may be directed to produce records pertaining to this case before this Honble Tribunal. (v) Any other relief deemed proper in the circumstances may also be granted, (vi) Costs of the application may also be awarded. O.A. 2657 of 2004 Bhajan Dass Kaith vs. Himachal! Pradesh Public Service Commission and another. 5. The applicant did B.A. in 1989 and post graduate diploma in Journalism and Mass Communication from IGNOU in 1998. in 2002 he obtained the qualification of Master in Journalism and Mass Communication. He has been working as Assistant Editor with Parvat ki-Goonj w.e.f. 15.10.1994, besides writing articles for the said paper. Thus, he has experience of creative working for All India as "Giri Raj" O.A. 2609 of 2004: Durga Dutt vs. Himachal Pradesh Public Service Commission and others. 6. The applicant did B.A. in 1987 and Post Graduate Diploma in Journalism and Mass Communication from IGNOU in 2001 and in 2003 obtained qualification of Master in Journalism and Mass Communication. He is working as casual News Reader cum-Announcer with All India Radio w.e.f. Nov. 1998. 7. 6. The applicant did B.A. in 1987 and Post Graduate Diploma in Journalism and Mass Communication from IGNOU in 2001 and in 2003 obtained qualification of Master in Journalism and Mass Communication. He is working as casual News Reader cum-Announcer with All India Radio w.e.f. Nov. 1998. 7. Further facts, in brief, for the purpose of referring to certain documents are taken from O.A. 2545 of 2004 which are also somewhat similar in all these original applications. 8. The respondent No.1 i. e. Himachal Pradesh Public Service Commission (in short the Commission) by way of issuing advertisement Annexure A-2 dated 5.2.2002 had invited applications for the p of publicity officer. Though essential qualification was in consonance with Decrement and Promotion Rules (Rules in snort), but a note appended thereon required that the experience for the post in question has io be counted only after obtaining essential qualifications. 9. Al! the applicants herein had applied for the post on prescribed proformas within the prescribed limit but their candidatures were rejected on the ground that they do not posses requisite experience of two years after acquiring essential qualification. The impugned orders as Annexure A-3 dated 10.8.2004. 10. The respondents No.1 and 2 have filed replies to the original applications. 11. The consistent stand taken up by the respondent No.1 is that the counting of experience acquired after obtaining essential qualification has been rightly incorporated in the advertisement dated 5.5.2004 Annexure A-2. It is in accordance with the decision of the commission taken as far back as in January 1988 and also the latest clarification received from the government in similar provision of the Rules for the post of Publicity Officer in the department of Information and Public Relations. The applications were not eligible as their experience; after acquiring post graduate degree in Journalism from a recognized University/Institution was less than two years. 12 The respondent No.2 has averred that to fill up the post of Publicity Officer there is a provision of essential qualification of post Graduate/degree in Journalism from a recognized University/Institution or its equivalent with at least two years experience in creative working, editorial work and Journalism. This educational qualification is necessary. 13. We have heard Sh. Dalip Sharrna learned counsel for the applicants. Sh.D.K. Khanna, learned counsel for the commission and Sh. Chirag Bhanu Singh learned Deputy Advocate General for the respondent No.2. 14. This educational qualification is necessary. 13. We have heard Sh. Dalip Sharrna learned counsel for the applicants. Sh.D.K. Khanna, learned counsel for the commission and Sh. Chirag Bhanu Singh learned Deputy Advocate General for the respondent No.2. 14. In all these original applications commission common question of law arises for consideration, namely whether the requirement of two years experience after obtaining essential qualification as incorporated in the advertisement Annexure k-2 is in consonance with the Rules or not. 15. Ms. Dalip Sharma, learned counsel for the application contended that the rules Annexure A-1 provide that experience in question of two years should be possessed with the essential qualification, they nowhere prescribe that the experience should be after obtaining essential qualification. The word "with" cannot 1 be read to mean "subsequent". The language of the rules is clear and unambiguous I which provides that the candidate should possess post graduate degree in I Journalism from recognized University with at least two years experience. Meaning j thereby that if a candidate has essential qualification and also two years experience I then he fulfils the condition of eligibility to be considered for the post in question. I Thus, the impugned letter dated August 10, 2004 and Annexure A-4 vide which the j candidature of the applicant had been rejected is illegal, ultra vires and is liable to be I quashed. 16. Mr. Dilip Sharma, learned counsel for the applicant to support his argument has placed reliance on "A.K. Raghumani Singh and others vs. Gopal Chandra Nath and others, (2004)4 Supreme Court Cases 30" Under para 7 and 8 at page 12 it has been observed as under:- "7. The word "with" has been defined in the New Shorter Oxford Dictionary (1993), diversely the meaning depending on the context in which it is used. But , when it is used to connect two nouns it means: "Accompanied by; having as an addition or accompaniment. Frequently used to connect two nouns, in the sense and- as weir 8. Applying the definition to the eligibility criteria it is clear that it requires the prescribed educational qualification and 6 years experience as well. Given the plain meaning of the phrase, the Court would not be justified in reading a qualification into the conjunctive word and imply the word "subsequent" after the word "with". 17. Applying the definition to the eligibility criteria it is clear that it requires the prescribed educational qualification and 6 years experience as well. Given the plain meaning of the phrase, the Court would not be justified in reading a qualification into the conjunctive word and imply the word "subsequent" after the word "with". 17. It was a case where the appellant/respondent No.1 in Public Health Engineering department of Government of Manipur had degree in Engineering. They joined service. Respondent No.1 obtained diploma in 1989 having duty qualified in both sections of the associate membership examination of the institution of Engineerings (AMIE) diploma is recognized by the Central government as being on par with bachelor degree of Engineering for the purpose of recruitment to superior course under the Central government. Thus, the question arose whether respondent No.1 was eligible to be considered for promotion to the post of Superintending Engineer in 1991. The answer to the aforesaid line of arguments advanced by Sh. Dilip Sharma, learned counsel for the applicant can be found from specific averments and the stands taken up by the respondent commission in its reply. It shows that the commission had already considered mater of experience so as far back in January 1998 and it was decided as per Annexure R-1/1 that as the matter of general policy specified in the Recruitment and promotion Rules of a particular post, experience gained prior to the attaining of essential educational qualification prescribed for the post shall not be counted towards experience qualification which may be required for such post. 18. Similar view was conveyed by the Principal secretary (1 and PR) to the Director Information and Public Relations vide letter dated December 27S 2003 Annexure R-1/2 conveying therein that the experience gained prior to attaining qualification cannot be counted as an experience for eligibility. It reads as under: "I am directed to refer to your letter No. 5-87/82 Pub. 6361 dated 2nd September, 2003 on the subject cited above and to say that the experience gained prior to attainment cannot be counted as an experience for eligibility. your are, therefore, requested to inform the H.P. Public Service Commission that the three years experience gained after obtaining Diploma/Degree of Journalism, mentioned as the essential qualification in the Recruitment and promotion Rules, be counted for eligibility." 19. your are, therefore, requested to inform the H.P. Public Service Commission that the three years experience gained after obtaining Diploma/Degree of Journalism, mentioned as the essential qualification in the Recruitment and promotion Rules, be counted for eligibility." 19. The close scrutiny of the aforesaid would, therefore, convey that word with" cannot be read to mean "subsequent" when the rules require that the candidate should possess post graduate degree in Journalism from recognized University with at least two years experience. Mr. D.K. Khanna, learned counsel for the respondent contended that if word "with" cannot be referred as "subsequent" it can also not be read as prior, the past practice, decision of the commission Annexure R/1 and clarifications received from the government Annexure R1/2 provides sufficient guidelines in the matter. 20. In "UP. Public Service Commission V/s. Dr. Sood Usmani, (1998)8 Supreme Court Cases 345," which also related to Recruitment process and determination of eligibility, experience, the Public Service Commission decided that ft\e experience as demonstrator could be accepted subject to two conditions, namely (i) a candidate should have worked as a demonstrator on full time basis, and (ii) the experience should have been after acquiring postgraduate qualification on the post of Clinical Registrar/Demonstrator. It was therefore, held that the commission was right in rejecting the respondents candidature on the ground that the appellant did not have post graduate qualification and, therefore, his experience as a Demonstrator could not be treated as teaching experience. 21 Mr. Khanna learned counsel has also relied upon "Anil Kumar Gupta and others v/s Municipal Corporation of Delhi and others, (2001) Supreme Court cases 128" and "Indian Airlines Ltd. and others etc. v/s S. Gopal kirshanan etc., Supreme Court 2001 (2) All India Service Law Journal, 179". In Indian Airlines Limited and others etc. (supra) It has been held that when in addition to qualification, experience is required it only mea s experience after obtaining the qualification. The observations made by the Honble Judges of the Apex Court in Para 4 at page 181 are as under: 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 posses five years of experience as required under the relevant rule. In the case of the respondent, he obtained the ITI certificate in the year 1994 and, therefore, did not posses 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 thee years of experience as he got the same in April, 1996 and on relevant date he did not posses such qualification. In indeed in prescribing qualification and experience, it is also made clear in the general information instruction as item No.6 that experience will be computer after the date of acquiring the necessary qualification". 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 either by the learned Single Judge or the Division Bench does not stand to reason. 22. Above being the position we are of the considered view that the candidature of the applicants has been rightly rejected by the respondents as the experience gained after acquiring essential qualification for the post is to be counted for the eligibility. The applicants were not eligible as their experience after acquiring post graduate degree in Journalism from recognized University was less than 2 years. In view of the aforesaid, all the original applications i.e. 2545/2004, 2657/2004, 2609/2004 are dismissed. Copies of the judgment be placed on O.A. 2657/2004 and 2609/2004.