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2011 DIGILAW 785 (GAU)

Prasanta Kumar Baruah & Anr. v. Assam Public Service Commission & Ors.

2011-09-20

A.K.GOEL, AMITAVA ROY

body2011
A.K. Goel, J.- Register this appeal. 2. This appeal has been preferred against the judgment of learned Single Judge quash­ing the selection process for appointment of Lecturers in Homeopathy Colleges in Assam and directing that fresh selection be conducted for such appointment. 3. Challenge in the writ petition was based on claim of eligibility of candidates for the post of Lecturer in Homeopathy who had the req­uisite qualification of Degree in Homeopathy but instead of four year of professional expe­rience after the degree, had such experience after their enrolment with the State Board of Homeopathy Council. This was opposed. According to the State, under the Rules, ex­perience of four years was required after the qualification. On interpretation of the Home­opathy (Minimum Standards of Education) Regulations, 1983 framed under the Home­opathy Central Council, Act 1973, learned Single Judge upheld the plea of the writ petitioners. 4. We have heard Mr. M. Bhuyan, learned counsel for the appellants, learned State counsel and learned Standing Counsel, APSC for the respondents. 5. It has been submitted that interpreta­tion of Rule-6, in the impgned judgment, is not justified. Rule -6 provides for "Degree in Homeopathy with four years of professional experience" which means the professional experience should be after the Degree. The Rule is reproduced below: "6. Lecturer in Homeopathic Subjects A. Essential Qualification Post Graduate qualification in Homeopathy or a Degree in Homeopathy with four years of professional experience. The qualification shall be the one included in Second Schedule of Homeopathy Central Council Act, 1973. Age: Nor more than 35 years as on the last date of receipt of application for the post. Age is relaxable by 5 years maximum for exception­ally qualified persons with prior approval of the University concerned." 6. The Hon'ble Supreme Court in Sheshrao Jangluji Bagde Vs. Bhaiyya S/o Govindra Karali & Ors.: 1991 Supp (1) SCC 367 while interpreting the Maharshtra Ground Water Service, Class (Recruitment) Rules, 1976, observed.: "Normally when we talk of an experience, unless the context otherwise demands, it should be taken as experience after acquiring the mini­mum qualifications require and, therefore, nec­essarily will have to be posterior to the acquisi­tion of the qualification." 7. Learned Single Judge distinguished the above judgment on the ground that the ex­pression "and" was used in the said Rule which was not used in the present Rule. Learned Single Judge concluded: "45. Learned Single Judge distinguished the above judgment on the ground that the ex­pression "and" was used in the said Rule which was not used in the present Rule. Learned Single Judge concluded: "45. As in the case of A. K. Raghumani Singh (supra), even at a point of principle, it would be unreasonable to distinguish between profes­sional experience gained after DHMS or BHMS, inasmuch as, as in the said case in the instant case also, no such distinction has been made out. It is not the case of the private respon­dents that the professional experience gathered after registration on the basis of DHMS is quali­tatively different from that of the professional experience acquired by the DHMS practitioner. Had it been the intention of the legislature to qualify 4 (four) years professional experience after BHMS, it would have been spelt out and thus, this Court would not be justified in read­ing the interpretation sought to be given by the private respondents and/or the professional experience of 4(four) years into the conjunctive word and imply the work "after BHMS": after the word "with 4(four) years of professional experience. 46. The petitioners obtained then- registra­tion on the basis of their qualification of DHMS. Thereafter, they also obtained the degree quali­fication of BHMS. The prescribed qualification is post-graduate qualification in Homeopathy or a degree in Homeopathy with 4(four) years of professional experience. This expression "with" conforms with the definition referred to in A.K. Raghumani Singh (supra), which is "Ac­companied by; having as an addition or accom­paniment", frequently used to connect two nouns in the sense "and"- "as well". It will be inappropriate for this Court to interpret the same otherwise than the clear meaning it conveys. Same will also have to be considered in the background of the fact-situation and in the context in which the same has been applied.1" 8. We are of the view that the qualification of the experience prescribed under Rule-6 has to be read as post-degree experience and not pre-degree experience. In our view, the lan­guage of the Rule as interpreted by the Hon'ble Supreme Court and the Rule with which we are concerned is almost identical. 9. Accordingly, we respectfully disagree with the view taken by the learned Single Judge. 10. In our view, the lan­guage of the Rule as interpreted by the Hon'ble Supreme Court and the Rule with which we are concerned is almost identical. 9. Accordingly, we respectfully disagree with the view taken by the learned Single Judge. 10. This appeal will stand allowed with declaration that only those candidiates who have four years of professional experience after Degree in Homeopathy will be consid­ered as eligible for appointment as Lecturer in Homeopathy Colleges. This order, how­ever, will be confined only to the selections to be held hereafter and the selections or ap­pointments already made will not be affected. 28. In the case reported in (1996) 2 SCC 12 : Additional District Magistrate Vs. Prabhakar Chaturvedi & Anr. the Apex Court emphasizing on the probative value in­volved in a departmental enquiry held that the delinquent involved in the said case having voluntarily admitted the fact of non-deposit of the amount of Rs. 21,000/-, the charge against him already stood proved. In the case reported in AIR 2005 SC 2090 : Canara Bank Vs. V. K. Awasthy, the Apex Court dealing with the proportionality of punishment imposed on a delinquent bank employee, held that the action of the delinquent being preju­dicial to the bank's interest, dismissal from service was proper. 29. The basic fact, which cannot escape the notice of any prudent man are that the vehicle in question was not under any insur­ance coverage when the same was allegedly inspected at 10:20 A.M. of 10.10.1996. However, according to the petitioner, no in­surance coverage could be provided in ab­sence of the premium amount. Later on, a representative of the insurer allegedly came to the office at 3:45 P.M. and deposited the same and the petitioner without any narther inspection of the vehicle accepted the same and issued the cover note No. 00964 after striking out the earlier cover note bearing No. 00963. Certain amount of overwriting in a document is understandable, but when the enquiry report itself reveals that there was numerous over-writings on vital pages of the cover note, it could not have simply brushed the same by saying that the earlier cover note had to be cancelled because of overwriting etc. The matter does not end here. The pre­mium amount was deposited only on 14.10.1996 and too with certain mistakes, about which the petitioner himself has stated in the writ petition. The matter does not end here. The pre­mium amount was deposited only on 14.10.1996 and too with certain mistakes, about which the petitioner himself has stated in the writ petition. The money receipt was also generated in the computer and issued on 14.10.1996. The policy records were gen­eral in the computer with correction of cer­tain errors by using pen. The said error was in respect of the effective time. 30. All the above aspects of the matter will go the show the manner and method in which the insurance coverage was made through the process of manipulation. Unlike a criminal case, a charge in a departmental proceeding can be sustained with the prepon­derance and probability, which are evident on the basis of the records, which in the instant case stare on the face of it. 31. For all the aforesaid reasons, I do not find any infirmity in the impugned order and consequently no relief can be granted to the petitioner. 32. The writ petition is dismissed, with­out, however, any order as to costs.