Jammu & Kashmir High Court - Srinagar Bench
Insha Sami Baba vs State Of Jk & Ors on 9 May, 2022
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 91/2019
CM No. 2908/2019
Reserved On: 5th of May, 2022
Pronounced On: 9th of May, 2022
Insha Sami Baba
... Appellant(s)
Through: -
Mr Jahangir Iqbal Ganai, Senior Advocate with
Mr Shah Faizan, Advocate.
V/s
State of JK & Ors.
... Respondent(s)
Through: -
Mr M. A. Chashoo, AAG for R-1 & 2; and
Mr Syed Sajad Geelani, Advocate for R-3.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Puneet Gupta, Judge.
(JUDGMENT)
Magrey-J:
01. This intra Court appeal is directed against the Judgment dated
28th of March, 2019 passed by the learned Single Judge in the Writ Petition
filed by the Appellant, being SWP No. 711/2017, whereby and whereunder
the said Petition stands dismissed.
02. The brief resume of the events leading to the filing of this
appeal is that vide advertisement notice No. 01 of 2015 dated 8th of January,
2015, the Respondent No.2-Director, SKIMS, Soura, Srinagar, invited
online applications from amongst the eligible candidates against various
posts, including the post of Diabetic Educator with the prescribed education
LPA No. 91/2019; CM No. 2908/2019
qualification as: (i) B. Sc (Home Science) with M. Sc Diabetics; and (ii) 03
months experience in patient care. The Appellant is stated to have
submitted her online application form in tune with the import and purport of
the advertisement notice, whereafter, in terms of notice dated 14th of April,
2017, a list of ineligible candidates is stated to have been published by the
Respondents with respect to the post of Diabetic Educator, wherein the
name of the Appellant figured at S. No. 3 with the remarks 'acquired
experience before completion of M. Sc.' Feeling aggrieved and dissatisfied,
the Appellant represented before the authorities for declaring her as
ineligible, but since no decision was taken on the said representation, so,
she, accordingly, approached the Writ Court with SWP No. 711/2017,
thereby challenging the impugned notice declaring her as ineligible for the
post in question. Besides, the Appellant also sought a direction in the name
of the Respondents for considering her candidature against the post of
Diabetic Educator. The learned Writ Court, on consideration of the matter
and in terms of interim Order dated 19th of April, 2017, directed the
Respondents to allow the Appellant to sit in the Written Examination.
Thereafter, one Ms Munaza Khurshid D/o Khurshid Ahmad Naqati R/o Lal
Bazar, Srinagar filed an application for seeking her impleadment as party
Respondent in the Writ Petition which was allowed and she was impleaded
as Respondent No.3 in the Writ Petition. Subsequently, the learned Single
Judge, considered the matter finally and in terms of the Judgment
impugned, dismissed the Petition filed by the Appellant on the ground that
the experience, as required by the advertisement notice, ought to have been
acquired after the acquisition of the qualification prescribed therein and,
LPA No. 91/2019; CM No. 2908/2019
therefore, the rejection of the candidature of the Petitioner/ Appellant herein
by the selection authority for the reason of experience cannot be faulted.
03. We heard the learned appearing Counsel for the parties,
perused the pleadings on record and have considered the matter.
04. The issue that arises for our consideration in this case is
whether the rejection of the candidature of the Appellant by the selection
authority on the ground of she having acquired the requisite experience
before acquisition of the qualification prescribed in the advertisement notice
can be justified or not. The Writ Court has held that the experience, as
required by the advertisement notice, ought to have been acquired after the
acquisition of the qualification prescribed therein and, thus the rejection of
the candidature of the appellant cannot be faulted.
05. In order to appreciate the aforesaid issue in its true and correct
perspective, it has become necessary to have a glance at the qualification
prescribed in the advertisement notification for the post in question, which
reads thus:
"i. B. Sc (Home Science) with M. Sc Dietetics; and
ii. 03 Months experience in patient care."
A plain reading of the above qualification prescribed for the
post of Diabetic Educator would make it clear that the 03 months
experience in patient care is in addition to the basic B. Sc (Home Science)
with M. Sc Dietetics. It does not appear from the advertisement notice that
the experience of 03 months in patient care should be after acquisition of
LPA No. 91/2019; CM No. 2908/2019
the basic decree. The provision regarding experience speaks only of 03
months experience in patient care and does not, in any manner, connect it
with the degree qualification, either before or after. A conscious omission
of the condition of experience after acquiring the basic degree of B. Sc.
(Home Science) with M. Sc. Dietetics supports this view that the 03
months' experience in patient care is sufficient and that it need not be after
completion of the basic degree.
06. Testing the aforesaid point on the touchstone of the law
governing the subject, it will be profitable to quote Paragraph Nos. 19, 20
and 24 of the law laid down by the Supreme Court in case titled 'Anil
Kumar Gupta & Ors. v. Municipal Corporation of Delhi & Ors., AIR
2000 Supreme Court 659', hereinbelow, in verbatim:
"19. We may point out that in the present case, the relevant
provisions applicable and the notification dated 30-6-1989 inviting
applications refer to essential qualification as (i) Degree and (ii) 2 years
professional experience. As stated earlier, experience up to 2 years is the
minimum and those above 2 years, get ½ marks each year's experience
ranging between 3 to 12 years, the maximum marks being 5 for
experience.
20. We may at the outset state that the provision regarding
experience speaks only of 'professional experience' for two years and does
not, in any manner, connect it with the degree qualification. In our view,
the case on hand is similar to Subhash v. State of Maharashtra, 1995 (3)
SCC 332, where, while considering Rule 3(e) of the relevant Recruitment
Rules, namely, the Maharashtra Motor Vehicles Department (Recruitment)
Rules, 1991, this Court pointed out that the Rule 3(e) which required one
year experience in registered Automobile Workshop did not make any
difference between acquisition of such experience prior or after the
acquisition of the basic qualification.
24. Therefore, on the language of the notification dated 30-6-1989,
we are of the view that the 2 years professional experience need not
entirely be experience gained after obtaining the degree."
Applying the ratio of the law laid down above to the instant
case, the irrefutable conclusion that we arrive on is that unless and until the
advertisement notice does not specifically connect the experience with the
LPA No. 91/2019; CM No. 2908/2019
basic qualification, either prior or after, it cannot be presumed that the same
is intended to have been acquired only after completion of the basic
qualification. In that view of the matter, the finding of the learned Writ
Court that the Appellant ought to have acquired the 03 months' experience
in patient care after acquisition of the basic qualification prescribed in the
advertisement notice, in absence of any such specific provision in the
advertisement notice, cannot be upheld. The Writ Court has given its own
interpretation on the subject without taking into consideration the fact that
no such provision was incorporated in the advertisement notification which
would have rendered the Appellant ineligible. The observation of the Writ
Court that if the experience was to be gained during the course of internship
which forms a part of the curriculum, then the said requirement of
experience would be totally unnecessary is also neither countenanced by the
terms and conditions of the advertisement notice nor by any law governing
the subject to that effect.
07. Looking at the instant case from yet another perspective, it
needs must be said here that, in terms of Order dated 31st of March, 2022,
this Court had asked the Respondent No.2 to submit the records in relation
to the merit position of the Appellant. The Counsel for the Respondent No.2
has, in a sealed cover, submitted the requisite information drafted on 14th of
May, 2018, as communicated by the Administrative Officer (Policy) to the
Legal Section, SKIMS in terms of communication dated 11th of April, 2022,
whereby it is evident that the Appellant stands at the top of the list in the
final merit list of the candidates who appeared in the Written Test as well as
in the Interview/ Viva-Voce for the post of Diabetic Educator having
LPA No. 91/2019; CM No. 2908/2019
acquired overall merit of 76.80 points, followed by Respondent No.3 herein
who has secured 74.40 points. If that be so, the rejection of the candidature
of the Appellant on the ground of having acquired the prescribed 03 months
experience in patient care before acquisition of the basic prescribed degree
has also resulted in deprivation of the highest meritorious candidate for the
post in question, that too without the said rider having been incorporated in
the terms and conditions of the advertisement notice. The purpose and
object of any selection process relating to a public post/ position is to find
and select the highest meritorious candidate to man such post/ position and,
in the instant case, it is the Appellant who, upon culmination of the process
of selection, has admittedly emerged as the highest meritorious candidate.
In these circumstances and taking an overall view of the matter, we feel that
the Appellant could not have been declared ineligible for participation in
the process of selection against the post in question on a condition which
was not prescribed in the advertisement notice.
08. Viewed in the context of what has been said and done above,
we are of the considered opinion that the view of the learned Single Judge
in upholding the rejecting of the candidature of the Appellant by the
selection authority on the ground of experience acquired prior to the
acquisition of the basic qualification cannot be sustained. That being so, we
allow this appeal and set aside the impugned Judgment passed by the
learned Single Judge. Consequently, the Writ Petition filed by the Appellant
is allowed and, by a 'Writ of Certiorari', the impugned notification No.
SIMS:302-1318/Dia.Edu/2015-1036-37 dated 14th of April, 2017 to the
extent of the Appellant/ Writ Petitioner is quashed. The Appellant is
LPA No. 91/2019; CM No. 2908/2019
declared as eligible for the post of Diabetic Educator advertised vide Notice
No. 01 of 2015 dated 8th of January, 2015. The official Respondents are
directed to consider the case of the Appellant for the said post in tune with
the merit position obtained by her in the selection process.
09. Disposed of as above, along with the connected CM.
(Puneet Gupta) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
May 9th, 2022
"TAHIR"
i. Whether the Order is speaking? Yes.
ii. Whether the Order is reportable? No.
TAHIR MANZOOR BHAT
2022.05.09 17:07
I attest to the accuracy and
integrity of this document
