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2009 DIGILAW 1906 (PNJ)

Lakhwinder Kaur v. State Of Punjab

2009-11-05

AJAI LAMBA

body2009
Judgment Ajai Lamba, J. 1. Lakhwinder Kaur has approached this Court by way of filing this civil writ petition under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of mandamus directing the respondents to consider and appoint the petitioner as JBT teacher, after giving the benefit of four marks for experience, as per the terms of the advertisement and criteria displayed at the time of interview by respondent No. 2 (Chairman, District Primary Teachers Selection Committee, Patiala-cum- District Education Officer, Patiala). 2. The question posed before this Court is whether the respondents can ask for experience, after obtaining the required qualification, although in the advertisement, no such stipulation has been made ? 3. It has been contended on behalf of the petitioner that the respondents advertised 7230 posts of JBT teachers in April 2000, in Education Department, Punjab (Primary Cell). Advertisement has been placed on record as Annexure P- 1. From Patiala district, 51 posts were to be filled from out of Backward class category. Other details are not being given as there is no dispute in regard to the other categories. 4. The petitioner passed B.A. and B.Ed. examination and thereafter she passed M.A. and M.Ed. examination as would be evident from certificates placed on record as Annexures P-2 to P-5. The petitioner has the experience of serving as Punjabi teacher in S.D. Kanya Vidyalya, Ropar from 16.05.1993 to 31.06.1997. The said school is recognized educational institute. The experience certificate placed on record as Annexure P-6 has been signed by the District Education Officer. The petitioner being eligible in terms of advertisement applied for the post of JBT teacher from Backward class category. The petitioner received call letters in response to which the petitioner appeared for interview. 5. The criteria had been displayed on the notice board which provides that the marks were divided as marks for academic qualification which was the percentage of marks obtained by the candidates in 10+2 and B.Ed. One mark was provided for higher qualification of M.Ed. Besides this, 5 marks were assigned for experience i.e one mark for every year of experience, subject to a maximum of 5 marks. The facts as stated above are not disputed. Only dispute is in relation to the experience of the petitioner. 6. The relevant merit has been given out in para No. 11 of the petition. Besides this, 5 marks were assigned for experience i.e one mark for every year of experience, subject to a maximum of 5 marks. The facts as stated above are not disputed. Only dispute is in relation to the experience of the petitioner. 6. The relevant merit has been given out in para No. 11 of the petition. At Sr. No. 15, Kuldeep Kaur has been shown to have obtained 55.21 marks whereas the petitioner has been shown to have obtained 54.27 merit marks. Claim of the petitioner is that in view of experience certificate Annexure P-6, the petitioner is entitled to 4 additional marks. If those marks are given, the petitioner would be well within the list of selected persons in accordance with her merit position. 7. The only objection of learned counsel for the respondents is on the basis of the plea taken in para No. 2 of the preliminary objections. 8. Contention of learned counsel for the respondent is that the experience of the petitioner could not be considered because she served in the school and got experience while she had not passed her B.Ed. In such circumstances, the experience certificate had to be ignored. Gist of the plea is that the petitioner should have gained experience after completing her education viz. B.Ed. It, however, remains the admitted position that if the experience certificate is taken into account, the petitioner would be entitled to four additional merit marks. 9. I have heard the learned counsel and have gone through the documents to which reference has been made. In the advertisement Annexure P-1, in regard to experience, in para No. 14, the following has been provided by the respondents :- `Experience certificate should be from a recognized school and should be counter signed by the District Education Officer. 10. Learned counsel for the petitioner has relied on Daljit Singh v. Punjab State Electricity Board, 2001(2) SCT 444 and A.K. Raghumani Singh and Others v. Gopal Chandra Nath and Others, 2000(2) SCT 465 to contend that the respondents, in the advertisement, have not provided anywhere that the experience should have been gained after obtaining the necessary qualification. In such circumstances, the respondents cannot ignore the experience certificate of the petitioner. 11. In such circumstances, the respondents cannot ignore the experience certificate of the petitioner. 11. In Daljit Singhs case (supra) decided by Division Bench of this Court, reference is required to be made to paras No. 12 and 16 for adjudicating on the issue :- `12. In support of his submission, learned counsel for the petitioners relied upon the Apex Court judgments in Anil Kumar Gupta v. Municipal Corporation of Delhi, 2000(1) SCT 731 : 2000(1) SLR 303 (SC) and in A.K. Raghumani Singh and Others v. Gopal Chandra Nath and Others, 2000(2) SCT 465 : 2000(2) SLR 633 (SC). In the said judgments, it was held that unless the rules were to say that the experience which is countable or reckonable is only acquired after obtaining the qualifications, then experience acquired even prior to the acquiring of qualifications cannot be ignored. In Anil Kumar Gupta case (supra) one of the points to be decided by the Apex Court was `While deciding, whether the respondents had two years experience, the experience gained while holding diplomas could also be counted in addition to the experience gained after obtaining degree ? In paragraphs 19 and 20 of the judgment, it was observed as under :- "19. We may point out that in the present case, the relevant provisions applicable and the notification dated 30.6.89 inviting applications refer to essential qualification as (i) Degree and (ii) 2 years professional experience. As stated earlier, experience upto 2 years is the minimum and those above 2 years, get 1/2 marks each years experience ranging between 3 to 12 years, the maximum marks being 5 for experience." 16. After hearing the learned counsel for the parties, we are of the view that there is substance in the arguments of the learned counsel for the petitioners. As held by the Apex Court in the judgments, referred to above, the experience which is acquired as a Plant Attendant under the Regulations for the post of Auxillary Plant Attendant, it has not been qualified in the regulations that the same has to be after passing the ITI course. The framers of the rules did not choose to qualify the experience and it did not choose to vest in the Selection Committee to deviate from the clear language of the rules......" 12. The Honble Supreme Court of India, while considering the case of A.K. Raghumani Singhs case (supra), in paras Nos. The framers of the rules did not choose to qualify the experience and it did not choose to vest in the Selection Committee to deviate from the clear language of the rules......" 12. The Honble Supreme Court of India, while considering the case of A.K. Raghumani Singhs case (supra), in paras Nos. 6 & 7 has held in the following terms :- "6. There is no dispute that as on 1991 the respondent No. 1/Writ petitioner had put in more than 6 years regular service in the grade. Of that period only a little over 2 years was after he was granted the AMIE Diploma. The controversy hinges on the interpretation of the work with used in the eligibility criteria. 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 well." 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 plan 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." 13. Considering the law as laid down by this Court in Daljit Singhs case (supra) and the Honble Supreme Court of India in A.K. Raghumanis case (supra), it emerges that the selecting agency/authority cannot travel beyond what has been provided in the rules or advertisement, as the case may be. If it has been provided that the experience gained should be "after" acquiring of a particular qualification, the authority would be within its rights in ignoring the experience, if it had been gained before acquiring the qualification provided. 14. If, however, it has been provided, as in the present case that the experience should have been gained and experience certificate should be countersigned by the District Education Officer, the respondents cannot deviate from the provision in the advertisement. They cannot at this stage ignore the certificate on the ground that the experience had been gained before passing of B.Ed.. The respondents cannot imply that the experience should have been gained after/subsequent to acquiring qualification. They cannot at this stage ignore the certificate on the ground that the experience had been gained before passing of B.Ed.. The respondents cannot imply that the experience should have been gained after/subsequent to acquiring qualification. It would be unreasonable to read into the provisions in the advertisement that experience should have been gained only after acquiring qualification. Since no such condition was provided in the advertisement, experience certificate of the petitioner cannot be ignored on the ground that the experience had been gained by the petitioner before acquiring qualification. 15. In the extracted portion from Annexure P-1, the advertisement, the recital indicates that the respondents require the experience certificate from a recognized school and counter signed by District Education Officer. It does not anywhere provide that the petitioner should have taken the experience after passing the necessary qualification. The experience gained by the petitioner is as a teacher and hence relevant for the post applied for by the petitioner. In such circumstances, the action of the respondents in not giving credit to the petitioner for experience is clearly unreasonable, arbitrary and not justifiable. 16. In para No. 11 of the petition, it has specifically been pleaded that if 4 marks are given to the petitioner, she would be selected. In the written statement, contents of para No. 11 have been admitted as a matter of record. The only objection raised is in regard to experience which issue has been adjudicated above in favour of the petitioner. 17. Accordingly, the petition is allowed. The respondents are directed to give appointment to the petitioner on the post of JBT teacher in Patiala district. The petitioner would be entitled to the continuity of service from the date the juniors to the petitioner had been appointed. The petitioner, however, would not be entitled to salary for the period, as she has not worked during the period in question. Petition allowed.