JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri Sanjiv Singh, learned counsel for the petitioner, Sri R.N. Singh, learned Senior Advocate, assisted by Sri G.K. Singh for the respondent No. 5, Sri P.S. Baghel, learned Senior Advocate appearing for the respondents No. 1 and 2 as well as learned Standing Counsel appearing for the State respondents No. 3 and 4. 2. Counter affidavit on behalf of respondent No. 5 has been filed in the writ petition to which rejoinder affidavit has also been filed. With the consent of learned Counsel for the parties, the writ petition is being disposed of. 3. By this writ petition, the petitioner has prayed for quashing the order dated 8.10.2009, issued by the U.P. Public Service Commission, rejecting the candidature of the petitioner for the post of Principal, Government Medical College on the ground that the petitioner does not possess five years experience as professor. The petitioner has also prayed for a mandamus, directing the respondents No. 1 and 2 to permit the petitioner to appear in the interview for the post of Principal, Government Medical College (Allopathic) and to consider the candidature of the petitioner for the appointment to the post of Principal. 4. Brief facts of the case necessary for deciding the writ petition are that the petitioner was appointed as Lecturer in Medical College, Kanpur on 5.9.1985. The petitioner was promoted on the post of Assistant Professor on 4.1.1988 and functioned as such till 4.3.1999. He worked as Associate Professor from 5.3.1999. The petitioner was working as Associate Professor in G.S.V.M. Medical College Kanpur where the Head of Department retired on 31.3.2004 whereafter w.e.f. 1.4.2004, the petitioner has been working as Head of the Department of E.N.T. there being no Professor in the Department. Several posts of professors in different Government Medical Colleges of the State were advertised by the U.P. Public Service Commission. The petitioner as well as one Dr. S.P. Singh another associate professor applied against the post of Professor. The petitioner as well as Dr. S.P. Singh were interviewed by the Commission on 17.7.2004. The result of the post of Professor was declared on 21.7.2004, declaring both the petitioner and Dr. S.P. Singh selected on the post of professor. Although appointment letter was issued to Dr. S.P. Singh another associate professor applied against the post of Professor. The petitioner as well as Dr. S.P. Singh were interviewed by the Commission on 17.7.2004. The result of the post of Professor was declared on 21.7.2004, declaring both the petitioner and Dr. S.P. Singh selected on the post of professor. Although appointment letter was issued to Dr. S.P. Singh on 6.8.2004 as professor Opthalmology but the appointment letter to the petitioner could be issued on 6.11.2004 as Professor E.N.T., in pursuance of which he could join the post of Professor on 16.11.2004. 8 posts of Principals in different Government Medical Colleges (Allopathy) were advertised by advertisement dated 27.8.2009. The qualifications for the post of Principal as provided in the advertisement were; (1) M.D/M.S. Or an equivalent qualification recognised by Medical Council of India, (2) Atleast ten years teaching experience as Professor/Associate Professor in a recognised Medical College out of which atleast five years should be as professor. 5. The petitioner submitted his application in response to the aforesaid advertisement. In his application, the petitioner claimed experiences as follows : (a) Associate Professor (in society) 5.3.1999 to 19.11.2002 (b) Associate Professor (From U.P. Public Service Commission) from 20.11.2002. (c) Professor (From Public Service Commission) from 17.7.2004 (d) Head of Department E.N.T. w.e.f.1.4.2004. 6. The petitioner’s application has been rejected by the U.P. Public Service Commission by order dated 8.10.2009 on the ground that the petitioner does not possess five years experience as Professor. The petitioner filed the present writ petition challenging the aforesaid order dated 8.10.2009. This Court vide order dated 28.10.2009 passed following interim order, directing the respondents to provisionally permit the petitioner to appear in the interview. “Heard, learned counsel for the petitioner and Shri P.S. Baghel for the respondent No. 2. By this petition, petitioner has prayed for quashing the order dated 8.10.2009, passed by Commission by which the petitioner’s candidature has been rejected on the ground that he does not have 5 years experience as a Professor. Petitioner’s case in the writ petition is that he appeared for selection before the Commission on the post of Professor and he was declared selected on 21.7.2004. He submits that due to delay on the part of the respondents, appointment letter could not be issued on 6.11.2004. Petitioner’s case in the writ petition is that he appeared for selection before the Commission on the post of Professor and he was declared selected on 21.7.2004. He submits that due to delay on the part of the respondents, appointment letter could not be issued on 6.11.2004. Placing the reliance on the judgment of the Supreme Court in (2008) 1 SCC (L&S) 308, Union of India v. Sadhana Khanna (SMT), learned counsel for the petitioner contends that the mere issuance of delayed appointment letter cannot defeat the rights of the petitioner and from the date he was declared selected as Professor he had completed requisite number of service. Petitioner has made out a prima-facie case for permitting him to appear in the interview which is schedule to take place today. The respondent No. 2 is directed to permit the petitioner to appear in the interview provisionally. Shri P.S. Baghel, learned counsel appearing for the respondent No. 2 shall communicate this order. Shri P.S. Baghel may file counter affidavit within three weeks. List thereafter.” 7. The petitioner was interviewed by the Commission and the U.P. Public Service Commission declared its result on 6.11.2009 provisionally selecting the petitioner as Principal subject to result of the writ petition. The respondent No. 5, who was not a party to the writ petition, moved an application seeking his impleadment as one of the respondents in the writ petition on the ground that respondent No. 5 also applied and was interviewed for the post of Principal but could not be selected due to selection of the petitioner against the second post reserved for Other Backward Classes. The case of the respondent No. 5 is that the petitioner being not eligible for the post of Principal, his candidature as well as selection on the post of Principal deserves to be cancelled, which shall result in selection of respondent No. 5, who is the next Other Backward Class candidate. 8. Learned counsel for the petitioner in support of the writ petition contended that the petitioner fulfils the five years’ experience as professor and was wrongly treated as ineligible by the Commission in rejecting his candidature. It is submitted that the petitioner had appeared in the selection on the post of Professor before the Commission on 17.7.2004, result of which was declared on 21.7.2004, declaring the petitioner selected on the post of Professor. It is submitted that the petitioner had appeared in the selection on the post of Professor before the Commission on 17.7.2004, result of which was declared on 21.7.2004, declaring the petitioner selected on the post of Professor. It is submitted that in case the date of selection of the petitioner is treated to be the date from which the petitioner can count his experience as professor, he becomes clearly eligible. It is submitted that both the petitioner as well as Dr. S.P. Singh were interviewed for the post of professor on 17.7.2004, the result of which was declared on 21.7.2004, but Dr. S.P. Singh was issued appointment letter for the post of Professor on 4.8.2004, whereas the petitioner’s appointment letter was issued with delay on 6.11.2004, which fact cannot prejudice the rights or claim of the petitioner to claim his experience atleast from the date when he was declared selected i.e. 21.7.2004. It is submitted that the petitioner infact had been working as Head of Department E.N.T. from 1.4.2004 after retirement of the earlier Head of Department and there was no other professor working in the E.N.T. Department and it was the petitioner, who while functioning as Associate Professor was working as Head of Department and teaching the students. In the last, it is submitted that the petitioner has represented to the State Government claiming benefit of appointment as professor from the date Dr. S.P. Singh, another professor was given appointment as Professor and the State Government vide order dated 26.11.2009 has modified the earlier appointment order dated 6.11.2004, giving appointment to the petitioner also w.e.f. 6.8.2004. A copy of the order of the State Government dated 26.11.2009 has been brought on record as Annexure-1 to the Supplementary affidavit. 9. Sri R.N. Singh, learned Senior Advocate appearing for the respondent No. 5, submits that the petitioner cannot count his experience as professor earlier to 16.11.2004, when he joined as professor in pursuance of appointment letter dated 6.11.2004. It is contended that the experience as Professor can count only after joining on the post. He submits that there cannot be any deemed experience without actual joining on the post. The petitioner does not have experience as Professor for five years. It is contended that the experience as Professor can count only after joining on the post. He submits that there cannot be any deemed experience without actual joining on the post. The petitioner does not have experience as Professor for five years. It is further submitted that the petitioner accepted the delayed appointment and never agitated regarding issuance of the his delayed appointment letter and the petitioner was paid salary from the date of appointment. Sri P.S. Baghel, learned Senior Advocate appearing for the U.P. Public Service Commission has supported the order of Commission by submitting that the petitioner having not fulfilled the qualification of five years’ experience as professor, his candidature was rightly rejected by the Commission. Learned Counsel for the parties have also referred to and relied on various decisions of the Apex Court which shall be referred to, while considering their submissions in details. 10. The only issue which has arisen for consideration in the present case is as to whether the petitioner possesses experience of five years as professor, which was the qualification required for selection on the post of Principal. The petitioner’s case is that he being working as Head of the Department E.N.T. from 1.4.2004, he is entitled to reckon his experience from the date when he was declared selected as Professor by the U.P. Public Service Commission i.e. 21.7.2004. He submits that the petitioner was already working as Head of the Department E.N.T., when he was declared selected for the post of Professor and for all practical purpose issuance of the appointment letter and joining of the petitioner as Professor was mere formality hence, the working of the petitioner after 21.7.2004 has to be treated as working and experience on the post of Professor. Learned counsel for the petitioner submits that the fact that the State Government took unduly long time in issuing the appointment letter, cannot defeat the rights of the petitioner. Learned counsel for the petitioner has pleaded that the petitioner as well as Dr. S.P. Singh, who was also applicant for the post of Professor were interviewed by the Commission on the same date i.e. 17.7.2009 and results were declared on the same day i.e. 21.7.2004. The appointment letter was issued to Dr. Learned counsel for the petitioner has pleaded that the petitioner as well as Dr. S.P. Singh, who was also applicant for the post of Professor were interviewed by the Commission on the same date i.e. 17.7.2009 and results were declared on the same day i.e. 21.7.2004. The appointment letter was issued to Dr. S.P. Singh on 6.8.2004, and he having been treated as Professor from 6.8.2004 has been treated eligible for the post of selection in question and ultimately has been selected. It is submitted that the petitioner is entitled to be given the similar treatment regarding the counting of the experience as was done in the case of Dr. S.P. Singh. The petitioner has placed reliance on the judgment of the Apex Court in the case of Union of India v. Sadhana Khanna, (2008) 1 SCC (L& S) 308. In the case of Sadhna Khanna also she was selected as Assistant Grade but there was some delay in issuing the appointment letter dated 5.7.1983, while considering the next promotion 1.7.1983 was treated as the date of eligibility and the petitioner having not been there on 1.7.1983 was not treated eligible for consideration. Sadhna Khanna filed a claim petition before the Central Administrative Tribunal which was allowed. Union of India filed writ petition in Delhi High Court which was dismissed. Appeal was filed before the Apex Court which too was dismissed. Following was laid down by the ape Court in paragraph 11 : “11. It may be noted that the respondent was offered appointment vide letter dated 5-7-1983 which is after 1-7-1983 from which the eligibility was to be counted. Hence, it is the Department which is to blame for sending the letter offering appointment after 1-7-1983. In fact, some of the candidates who were juniors to the respondent were issued letters offering appointment prior to 1-7-1983. Hence it was the Department which is to blame for this. Moreover, in view of the Office Memorandum of the Department of Personnel and Training dated 18-3-1988 and 19-7-1989 the respondent was also to be considered, otherwise a very incongruous situation would arise namely that the junior will be considered for promotion but the senior will not.” 11. The present is a case where the petitioner was interviewed as a professor by the U.P. Public Service Commission along with other candidate namely; Dr. The present is a case where the petitioner was interviewed as a professor by the U.P. Public Service Commission along with other candidate namely; Dr. S.P.Singh on 17.7.2004, the result of which was declared on 21.7.2004, declaring both the persons selected on the post of professor. Appointment letter to Dr. S.P. Singh was given on 6.8.2004, whereas in the case of the petitioner appointment letter was issued on 6.11.2004. In the present case advertisement having been issued on 29.8.2009 and the last date for submitting the application being 22.9.2009, the eligibility had to be considered according to the advertisement. 12. Had the petitioner been issued appointment letter on 6.8.2004, when Dr. S.P. Singh was issued appointment letter, the petitioner would have completed five years’ experience as Professor even before the date of advertisement but the appointment letter was given to the petitioner on 6.11.2004. There are following two reasons for treating the petitioner fulfilling the experience of five years as Professor. (i) The petitioner was interviewed for the post of Professor by U.P. Public Service Commission on 17.7.2004 and was declared selected for the post of Professor on 21.7.2004. The petitioner was already working as Head of Department E.N.T. from 1.4.2004, there being no professor in the Department of E.N.T. after 31.3.2004. The petitioner was declared selected on 21.7.2004 as Professor and mere formal appointment letter by the State Government was to be issued which issuance took more than three months’ period. The petitioner, who was working as Head of Department after being declared selected as Professor on 21.7.2004 was performing teaching work, whose experience of teaching after declaration of his result declaring him selected as Professor, can very well be treated his experience as Professor. The judgment in the case of Union of India v. Sadhana Khanna (supra) fully suports the claim of the petitioner. The delay in issuance of the appointment letter in the case of the petitioner, cannot be allowed to defeat the rightful claim of the petitioner. Dr. S.P. Singh who was interviewed and selected on the same date, was issued appointment letter on 6.8.2004, whereas the petitioner was issued the appointment letter on 16.11.2004. (ii) The petitioner had represented to the State Government claiming him also to be treated to be appointed on the same day when Dr. Dr. S.P. Singh who was interviewed and selected on the same date, was issued appointment letter on 6.8.2004, whereas the petitioner was issued the appointment letter on 16.11.2004. (ii) The petitioner had represented to the State Government claiming him also to be treated to be appointed on the same day when Dr. S.P. Singh was appointed i.e. 6.8.2004, which representation has been allowed and the State Government has issued an order on 26.11.2009, also appointing the petitioner w.e.f. 6.8.2004, modifying the earlier order dated 6.11.2004. The order dated 26.11.2009 has been permitted to be brought on record after hearing the parties. The order of the State Government dated 26.11.2009, appointing the petitioner from 6.8.2004 has clearly made the petitioner eligible to count his experience of Professor from 6.8.2004. It is not disputed that counting the experience of Professor from 6.8.2004, the petitioner became eligible for the post of Principal. 13. Sri R.N. Singh, learned Senior Advocate appearing for the respondent No. 5 has placed reliance on the judgment of the Apex Court in (1994) 2 SCC 723 , U.P. Public Service Commission U.P. and another v. Alpana. In the above case, the Apex Court laid down that the relevant date for fulfilment of the eligibility conditions i.e. educational qualification is the last date of the receipt of the application by the U.P. Public Service Commission. It was held that subsequent attainement even before commencement of the written examination does not entitle the respondent to be appointed. There cannot be any dispute to the above proposition laid down by the Apex Court in Alpana’s case. In the present case, the petitioner fulfills all the eligibility of educational qualification before the last date of the receipt of the application. The judgment of the Apex Court in (1996) 9 SCC 209 , State of Haryana and others v. Balwant Singh and others was in a case where the Apex Court laid down that it is settled law that seniority of the candidate has to be reckoned from the date from which they join the services and started discharging the duties of the post to which they claim to be entitled. In the said case, the Apex Court laid down that seniority cannot be given with retrospective effect. There cannot be any dispute to the above proposition laid down by the Apex Court. In the said case, the Apex Court laid down that seniority cannot be given with retrospective effect. There cannot be any dispute to the above proposition laid down by the Apex Court. The present is not a case where the question of seniority is in issue or the date when the seniority is to be reckoned. Another case relied by counsel for the respondent No. 5 is (2000) 5 SCC 262 Bhupendrapal Singh and others v. State of Punjab and others. In the said case also the Apex Court considered the cut-off date for determination of eligibility. Advertisement was issued on 12.1.1996, inviting applications by 15.2.1996. Subsequently corrigendum was issued permitting the candidates who were 36 years of age as on 1.1.1996 to apply by 30.10.1996. The High Court held that State of Punjab was following a wrong practise for determining the eligibility conditions as on the date of interview. The Apex Court also approved the view of the High Court that determination of eligibility with regard to date of interview was a wrong practice. However, the Apex Court exercised its power under Article 142 of Constitution of India and saved the appointment. The issues which were there in Bhupender Pal’s case (supra) has no application in the facts of the present case. The last case relied by Sri R.N. Singh, learned Senior Advocate appearing for the respondent No. 5 is (2007) 10 SCC 269 , V.B. Prasad v. Manager P.M.D. Upper Primary School and others. In the above case, the Apex Court was considering the teaching experience under Kerala Education Rules. It was held that the condition of five years’ teaching experience after acquisition of B.Ed. Degree was also applicable to the candidates mentioned in the ‘Note’. It was held that teaching experience had to be actually teaching experience and not deemed teaching experience. The candidates mentioned in the ‘Note’ did not have five years’ experience therefore, they were not eligible for appointment as headmaster. It was further held that study leave period in fact did not count towards experience. Paragraphs 8 and 9 of the aforesaid judgment being relevant are quoted herein below : “8. Before embarking upon the contentions raised by the learned counsel for the parties, we may notice the admitted fact. Respondent No. 2 joined the School on 16.7.1969. It was further held that study leave period in fact did not count towards experience. Paragraphs 8 and 9 of the aforesaid judgment being relevant are quoted herein below : “8. Before embarking upon the contentions raised by the learned counsel for the parties, we may notice the admitted fact. Respondent No. 2 joined the School on 16.7.1969. Appellant herein joined the school as a Drawing teacher on 17.7.1978 and has been working on a regular basis only with effect form 2.6.1980. He was declared a protected teacher from 1.6.1989. While discharging his duties as a teacher, Appellant applied for and granted study leave for higher studies for two years with effect from 1.6.1991. He remained on leave upto 28.2.1993. It is accepted that he was not a candidate who was considered for appointment to the post of Headmaster. He indisputably gave consent for appointment of Respondent No. 2. His case, therefore, never fell for consideration either by the management of the school or by the Government or by the High Court. Rule 45 of the Kerala Education Rules in the aforementioned context, interpretation whereof falls for our consideration may now be noticed : “45. Subject to rule 44, when the post of Headmaster of complete U.P. School is vacant or when an incomplete U.P. School becomes a complete U.P. School, the post shall be filled up from among the qualified teachers on the staff of the school or schools under the Educational Agency. If there is a Graduate teacher with B.Ed. or other equivalent qualification and who has got at least five years’ experience in teaching after acquisition of B.Ed. degree he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the senior most undergraduate teacher. If graduate teachers with the aforesaid qualification and service are not available in the school or schools under the same Educational Agency, the senior most primary school teacher with S.S.L.C. or equivalent and T.T.C. issued by the Board of Public Examination, Kerala or T.C.H. issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre-degree Examination with pedagogy as an elective subject conducted by the University of Kerala or any other equivalent training qualification prescribed for appointment as primary school assistant may be appointed. Note : The language/specialist teachers, according to their seniority in the combined seniority list of teachers shall also be appointed as Headmaster of U.P. School or Schools under an Educational Agency provided the teacher possesses the prescribed qualifications for promotion as Headmaster of U.P. School on the date of occurrence of vacancy.” The said rule, thus, provides for essential qualification. Rule 45 is in three parts. The first part provides for the qualification of a teacher who can be appointed in the post of Headmaster. He must be graduate with B.Ed. or other equivalent qualification and must have at least five years’ experience in teaching after acquisition of B.Ed. degree. The second part of the rule provides for consideration of such teachers only in the event a graduate teacher is not available. Indisputably, Respondent No. 6 fulfils the educational qualification as also five years’ experience in teaching after acquisition of B.Ed. degree. Ignoring her claim, Respondent No. 2 was appointed whose case comes within the purview of the second part of Rule 45, as she did not have the qualification specified in the first part thereof. Appellant was a Drawing teacher. He, therefore, was a specialist teacher. According to him his case comes within the purview of the ‘note’ appended to Rule 45. 9. For the time being, we may assume that in view of fact that he had also acquired the qualification of B.Ed. in April 1989, his case also could be considered in terms of Rule 45; although it is well-settled principles of law that the note appended to a statutory provision or the subordinate legislation must be read in the context of the substantive provision and not in derogation thereof. Five years’ teaching experience for appointment to the post of Headmaster was a sine qua non. Such teaching experience was to be ‘teaching experience’ and not a deemed teaching experience.” 14. In the facts of the present case, it is not the case of the respondents that there was any other professor after 1.4.2004 from which date, the petitioner was working as Head of Department E.N.T. After selection of the petitioner on 21.7.2004 by the U.P. Public Service Commission on the post of Professor, the petitioner was discharging all the duties including the teaching of the medical college. It is not the case of the respondents that on the date when the petitioner was declared selected as Professor or thereafter the petitioner was not performing teaching work. The above case is thus, clearly distinguishable from the facts of the present case. 15. Taking into consideration over all facts and circumstances of the present case and discussions made as above, we are satisfied that the petitioner fulfils the eligibility for the post of Principal and was entitled to be considered for selection by the Commission, which Commission has actually done after an interim order of this Court. As noted above, the petitioner has already been selected on the post of Principal. 16. In the result, the writ petition is allowed. The impugned order dated 8.10.2009 is set aside. However, the parties shall bear their own costs. ————