U.P.S.C. vs Sukanta Kar And Anr.
2005 Latest Caselaw 366 Del

JUDGMENT

B.A. Khan, J.

1. The eligibility of first respondent for the post of Deputy Adviser (Training) in Central Public Health and Environmental Organization of Urban Development Ministry is at the centre of controversy. He is ineligible according to petitioner (commission) but Tribunal has declared him eligible on interpretation of the relevant recruitment rules. The Second respondent (employer) is in agreement with the view taken by the Tribunal and maintains that he was eligible but petitioner (UPSC) has filed this petition to challenge the Tribunal order and wants him to be declared ineligible.

2. The Second respondent (Union) invited applications for filling up the posts of Deputy Adviser (Training) on deputation (including short term contract basis). The bio-data of six candidates including first respondent was forwarded to the Commission and it was informed that first respondent did not possess the essential educational qualifications i.e. degree in Civil Engineering from a recognized university or equivalent which was, however, relaxable at the discretion of the Commission. This was considered by the Commission and by letter dated 20.3.2002 short listed candidates excluding first respondent were required to appear for personal talk before the Commission. On 22.3.2002, second respondent (Union) forwarded a copy of representation of first respondent to petitioner (Commission) and requested that his case be reconsidered and he may be called for interview. The Commission replied to it by pointing out that he was lacking the essential qualification under Column 7 of the Schedule appended to the Recruitment Rules 1985 and was not thus eligible.

3. First respondent filed OA No.943/2002 to challenge this and pleaded that he was eligible for the post under special provision (Column 11 of the Schedule) of the Recruitment Rules. He obtained interim order from the Tribunal to appear before the Commission on 10.4.2002. He was permitted to appear and his assessment was kept in a sealed cover. Petitioner (Commission) ultimately contested this respondent's OA by invoking the relevant provisions of Rules and insisting that first respondent was ineligible for the post as he was not fulfillling the eligibility of essential educational qualification i.e. Degree in Civil Engineering from a recognized University or equivalent.

4. The stand of petitioner (Commission) did not find favor with the Tribunal which interpreted the relevant provisions of Rules to hold that first respondent was eligible for the post under Column 11 of the Schedule. The Tribunal also found that petitioner (Commission) had recommended him for appointment to the post on opening the sealed cover containing the result of Committee deliberations. On interpretation of Rules, the Tribunal held:-

The rule making authority being aware of the fact that in the case of the Departmental Scientific Officer who has been recruited under the 1984 Rules, there is no avenue of promotion, therefore, a specific provision for that officer has been provided in Column 11, Clause 2. A Departmental Scientific Officer with the requisite qualification of 5 years' regular service in the post will also be considered for selection and if he is appointed is deemed to have been filled by promotion and not by the other methods prescribed in the Rules i.e. direct recruitment/deputation or short term contract basis. If the intention of the rule making authority was to prescribe the same essential qualifications for direct recruits and promotees for this post, then there would have been no need to provide the specific condition applicable to a Departmental Scientific Officer with 5 years' regular service in that post. In column 10 of the Schedule which provides for promotion/transfer on deputation (including short term contract), the officers who are eligible for consideration have been given, including those who possess the educational qualifications and experience prescribed for direct recruits in Column 7. This provision is absent in the case of Column 11, clause () which deals with the Departmental Scientific Officer with 5 years regular service in the grade who if selected and appointed to the post of Deputy Adviser (Training) is deemed to have been filled by promotion. In the absence of any other essential qualification applicable to the Departmental Scientific Officer who can be considered for the post of Deputy Adviser (Training), it appears from the 1985 Rules that no other qualification is applicable except what appears in clause (2) of Column 11 of the Schedule, although the selection process may be treated as a promotion method. In our view, therefore, taking into account the specific provision of the Recruitment Rules of 1985 applicable to the facts of this case, it cannot be held that the applicant does not possess the requisite essential qualifications for making him eligible for consideration to the post of Deputy Adviser (Training).

5. Both sides have repeated their respective stands in this writ petition. The petitioner (Commission) claims that Tribunal had fallen in error in interpreting the relevant provisions of the Recruitment Rules and by not appreciating that Column 11(2) of the Schedule would come into force only if the departmental Scientific Officer possessed the requisite educational qualification of a Degree in Civil Engineering from a recognized university or equivalent or other qualifications in the alternative. It is submitted that Tribunal had read this provision excluding the provisions of Columns 7, 8 and 10 and all the three were required to be read and that the provisions of this column had to be read as an exception to the provision contained in Column 8 of the Schedule.

6. First respondent, in his counter, has explained that he was holding the degree of Master of Sciences and that he could not be expected to hold the degree in Civil Engineering after rendering 5 years service as a Scientific Officer for which this educational qualification was not required under the old Rules. That is why, the special provision had been made in Column 11(2) providing for the only requirement of five years' regular service by the departmental Scientific Officer. It is pointed out by him hat Column 12 of the Recruitment Rules for the post of Deputy Adviser (Training) had indicated composition of Departmental Promotional Committee (DPC) for the purpose of considering confirmation i.e. for confirmation of service of Deputy Adviser (Training). Therefore, the intention of the rule framing authority was that departmental Scientific Officer be promoted to this post provided he had five years' of regular service in the grade and was selected for the post and if all provisions of were real harmoniously, the only conclusion would be that a departmental Scientific Officer was not to fulfilll the essential educational qualification of a degree in Civil Engineering or equivalent prescribed in Columns 7, 8 and 10.

7. Respondent-2 (Union) has interestingly supported the case of first respondent in its counter and has also accepted the interpretation placed by the Tribunal on the provisions of Recruitment Rules.

8. It is submitted that educational qualification for the post of Scientific Officer are different than those prescribed for the post of Deputy Adviser (Training) and if the requirement of essential educational qualification for the later post was insisted upon by the departmental Scientific Officer also, there was no likelihood of a Scientific Officer applying for the post. That is why a special provision was made in Column 11(2) of the Schedule providing for requirement of five years' regular service by a Scientific Officer to make him eligible for the post of Deputy Adviser (Training). The intention of the Recruitment Rules was, therefore, not to require a departmental Scientific Officer to have the essential qualification prescribed for the post in the Recruitment Rules.

9. This respondent has also referred to departmental communications addressed to petitioner (UPSC) to show that the Commission was required to reconsider the matter and consider first respondent for appointment to the post.

10. We are unable to appreciate the hair splitting undertaken by the petitioner (UPSC) on the interpretation of the relevant rules. When second respondent (employer) - the competent authority to prescribe the eligibility and to interpret it clarifies that under Column 11(2) the departmental Scientific Officer was only to have five years' regular service in the grade and not the prescribed essential qualifications under Column 7 or 8, the controversy should have ended there. Be that as it may, and without going into the locus of petitioner (Commission) to file this petition in the circumstances, the relevant Rule position is required to be examined only to ascertain if first respondent was ineligible for the post of Deputy Adviser (Training). The relevant Rules would have to be reproduced to appreciate the contentions raised by both sides.

11. Column 7 of the schedule of Recruitment Rules:-

Educational and other qualifications required for direct recruits:-

Essential':

(i) (a) Degree in Civil Engineering of a recognised University or equivalent.

(b) Degree of Diploma in Public Health Engineering of a recognised University/Institution or equivalent or Master's degree in Chemistry/Bi-Chemistry/Biology/Bacteriology of a recognised University or equivalent; or Master's degree in Environmental Chemistry/Biology or a recognised University or equivalent or Associateship or Diploma of institution or Chemists (India) or equivalent.

(ii) 10 years' experience in the field of Public Health Engineering, Water Supply and Sanitation, out of which 3 years' experience should be in the organizing and conducting training programmes and/or research and development activities.

Desirable;

Doctorate degree in the relevant subject from a recognised University or equivalent

12. Column 8 of the Schedule of Recruitment Rules:

Whether age and educational qualification prescribed for direct recruits will apply in the case of promotees.

Age : No.

Educational Qualifications : Yes

13. Column 10 of the Schedule of Recruitment Rules:

The method of recruitment for the post is By promotion/ transfer on deputation including short term contract failing which by direct recruitment.

14. Column 11 of the Schedule of Recruitment Rules:

"Promotion/Transfer on Deputation (including short-term contract):

1. Officers under the Central/State Governments/Public Sector Undertakings/Recognised Research Institution/ semi-Government Statutory or Autonomous Organisations:-

(a) (i) holding analogous pots; or

(ii) with 5 years' service in the posts in the scale of Rs. 1100-1600 or equivalent; and

(b) possessing the educational qualifications and experience prescribed for direct recruits in column 7.

2. The Departmental Scientific Officer with 5 years' regular service in the grade will also be considered and in case he is selected for appointment to the post, the same shall be deemed to have been filled by promotion.

15. It is on the harmonious interpretation and reading of these provisions that the issue of eligibility of first respondent can be resolved. There is no dispute that under Column 7 of the Schedule, the essential educational qualification for the post of Deputy Adviser (Training) is a Degree in Civil Engineering of a recognized university or equivalent and some other qualifications. It is also equally correct that Column 8 provides that educational qualifications prescribed for direct recruits will apply in the case of promotees also. The Rule thereafter provides for the method of recruitment. Column 10 lays down that method of recruitment for the post was by promotion/transfer on deputation including short term contract failing which by direct recruitment. Column 11, however, extends it by deleting direct recruitment and provides that it could be by promotion/transfer on deputation (including short term contract) from officers under the Central/State government/public sector undertakings/recognized research institutes/semi-Government statutory autonomous organizations holding analogous posts or with five years' service in the posts in the scale of Rs.1100-1600 or equivalent. This provision significantly provides that those officers must assess the educational qualification and experience as prescribed by Column 7 which includes essential qualification of Degree in Civil Engineering or equivalent and other qualifications. Clause 2 of Column 11, however, creates a third category of a departmental Scientific Officer from whom the post could be filled up if he had five years' regular service in the grade and in case he was selected, his appointment would be deemed to be by promotion.

16. It is this clause (2) which carves out an exception to the general rule contained in provisions of Columns 7, 8 and even 11(1) and the rationale behind seems to be that since this was the only post in the feeder grade when the 1985 Recruitment Rules were framed composite method was prescribed in these rules for filling up the post of Deputy Adviser (Training) and the intention behind making a special provision under clause 2 of Column 11 was to provide a promotional avenue to the departmental Scientific Officer. And since under the old Rules, the qualification of a Degree in Civil Engineering or equivalent was not prescribed for the post of Scientific Officer, there was no way for him to acquire this qualification during service and that explains why sub-clause 2 of Column 11 made him eligible for consideration after he had put in five years' service in the grade though he did not possess the essential educational qualification under Column 7 and 8 and even under clause 1 of Column 11. The purpose of this special provision contained in Sub clause 2 would be defeated if the essential educational qualification was required of a departmental Scientific Officer also. That would make this provision redundant which could not have been the intention of the rule making authority. Therefore, on a harmonious reading and interpretation of different provisions of Columns 7, 8 and 11 and taking in regard the background and the rationale behind enactment of clause 2 of Column 11, there is no option but to go by the interpretation placed by the Tribunal on these provision and to hold that first respondent was eligible for the post of Deputy Adviser (Training) and that since he was recommended by the petitioner (Commission) itself, there was no impediment in his appointment to the post.

17. The Tribunal order is accordingly affirmed and the union respondent is directed to act upon the recommendation of petitioner and to appoint the first Respondent to the post of Deputy Advisor (Training) forthwith, if not already appointed under the Tribunal order.

18. The writ petition is dismissed.