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PETITIONER: SHESHRAO JANGLUJI BAGDE

       Vs.

RESPONDENT: BHAIYYA S/O GOVINDRAO KARALE AND ORS.

DATE OF JUDGMENT18/09/1990

BENCH: RAMASWAMI, V. (J) II BENCH: RAMASWAMI, V. (J) II PUNCHHI, M.M.

CITATION:  1991 AIR   76            1990 SCR  Supl. (1) 521  1991 SCC  Supl.  (1) 367 JT 1990 (4)   515  1990 SCALE  (2)600

ACT:     Civil Services: Maharashtra Ground Water Service Class I (Recruitment)     Rules,     1976:     Rule     3(1)--Senior Geologists--Promotion as Deputy Director--Stipulated experi- ence--Posterior to acquiring necessary educational  qualifi- cation--Validity of.

HEADNOTE:     The appellant joined the Agricultural Department in 1963 with  B.Sc.  (Geology). Later, in 1979 he  was  promoted  as Senior Geologist. In 1982 he passed his M.Sc. (Geology)  and stood first in the University. Sometime in 1982 he was  also holding additional charge as Deputy Director.     In 1983, the State Public Service Commission called  for applications  for direct recruitment of Deputy  Director  in the  Ground Water Survey and Development Agency. The  appel- lant applied in response to the said advertisement, but  was not  called  for interview, on the ground that  he  did  not possess  the necessary qualification of 10  years  practical experience  after  acquiring the post-graduate  degree.  Ag- grieved, the appellant filed a Writ Petition before the High Court contending that educational qualification and  experi- ence  are two independent requirements and have to  be  read disjunctively and the experience required need not be  after possessing  basic  educational qualification.  However,  the High  Court did not agree with the contention and  dismissed the Writ Petition.     Against  the said dismissal, the appellant preferred  an appeal by special leave which was granted, by this Court  in 1984, with an observation that the petitioner should not  be reverted.  However,  he was reverted to the post  of  Senior Geologist but subsequently promoted as Deputy Director in  a new  post created. The appellant’s promotion was  challenged by one of his colleagues by way of a Writ Petition  contend- ing  that even for promotion, 10 years experience  posterior to  acquisition of post-graduate degree was  essential.  The High  Court  quashed  the promotion of  the  appellant.  The appellant  appealed against the said order  after  obtaining special leave of this Court in 1987. 522     During  the  pendency  of these two  appeals  the  State

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Government  amended Rule 3(1)(a) whereby the requirement  of 10 years experience mentioned in sub-clause (iii) was delet- ed in respect of appointment by promotion. According to  the State  Government since the said requirement was  redundant, it was deleted.     Allowing  the 1987 appeal, and dismissing the  1984  ap- peal, this Court,     HELD: 1.1. On the interpretation of Rule 3 of  Maharash- tra Ground Water Service, Class I (Recruitment) Rules,  1976 prior to its amendment, the view taken by the High Court  on the Writ Petition filed by the appellant, does not call  for any  interference.  Normally when one talks  of  experience, unless the context otherwise demands, it should be taken  as experience  after acquiring the minimum  qualifications  re- quired and, therefore, necessarily will have to posterior to the  acquisition of the qualification. However, in the  case of  promotion  the same interpretation may not  be  just  or warranted.  It  would depend on the relevant  provisions  as also  the particular type of experience which  is  required. [336C-D]     1.2.  The requirement of experience has been omitted  by an  amendment made on 16th February, 1988 and  published  in the  Gazette  on  24.3.1988. Though the Rule  does  not  say anything about its retrospective operation there could be no doubt that it is retroactive. This amendment shall be deemed to  apply  to the present case as well especially  when  the matter  is  pending  in this Court and  the  appointment  in question  is by promotion. It is true that at the time  when the  appellant was promoted, the Rule had not been  amended. However,  the appellant is the senior most among the  Senior Geologists  and even if he is to be considered  again  under the amended rules he shall have to be appointed and  nothing is  stated in these proceedings which would  disqualify  him even now. [336E-F]

JUDGMENT:     CIVIL   APPELLATE  JURISDICTION:  Civil  Appeal  Nos.  2 166/87 & 2 146/84.     From  the Judgment and Order dated 26.6. 1987  &  16.11. 1983  of the Bombay High Court in W.P. Nos. 2161/86 and  500 of 1983.     V.A.  Bobde.  R.N. Keshwani, A.G. Ratnaparkhi  and  S.D. Mudaliar for the Appellant. 523     S.B.  Bhasme, Dr. N.M. Ghatate, S.V. Deshpande and  A.S. Bhasme for the Respondents. The Judgment of the Court was delivered by     V.  RAMASWAMI,  J. The interpretation of-Rule 3  of  the Maharashtra  Ground  Water Service,  Class  I  (Recruitment) Rules.  1976  (hereinafter  called ’the  rule’)  arises  for consideration  in  these appeals. That Rule related  to  the appointment to the post of a Deputy Director in  Maharashtra Ground  Water Service, Class I and the relevant portions  of it as is stood in 1983 read as follows: "3.(1)  Appointment to the post of a Deputy Director in  the Maharashtra  Ground  Water  service Class 1  shall  be  made either-- (a)  by  promotion  from amongst Senior  Geologists  in  the Ground  Water Surveys and Development Agency of  Government, possessing the qualifications mentioned in sub-clauses  (ii) and (iii) of Clause (c) of this sub rule; (b) by transfer of a suitable officer from the Department of Geology and Mining of Government;

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(c) by nomination from amongst the candidates who-- (i) unless already in the service of Government are not more than 45 years of age on the first day of the month in  which the post is advertised, and (ii)  Possess a post graduate degree in Geology  or  Applied Geology  of  a recognised University or Diploma  in  Applied Geology of the Indian School of Mine, Dhanbad, or any quali- fications recognised by Government to be equivalent thereto, and (iii) have practical experience in the field of (a) carrying out  systematic hydro geological surveys in ingeneous  sedi- mentary  and metamorphic terrains (b) ground-water  explora- tion and assessment by drilling and testing and (c) process- ing,  interpretation  of  field date and  in  preparing  and editing  technical reports for a total period of  ten  years out of which three years. experience shall be in organising. supervising and guiding field units."     We  are  now concerned with the case of  promotion  from amongst  the Senior Geologists under Sub-Clause (a) of  Rule 3(1) of the Rules. 524     The appellant herein joined in the Agricultural  Depart- ment  of  the State some time in the year 1963 and  at  that time he possessed the qualification of B.Sc. with Geology as a principal subject. He was promoted as Senior Geologist  on 25.6. 1979. He passed his M.Sc. (Geology) in 1982 with first class and he was also first in the Nagpur University in  the subject  of pure Geology. He is also the senior most in  the seniority list of senior Geologists. He was also holding the additional  charge  as Deputy Director from 16.6.  1982  for quite  some time. The Maharashtra Public Service  Commission by the notification dated 21st May. 1983 called applications for direct recruitment to the post of Deputy Director in the Ground  Water Survey and Development Agency. which  is  gov- erned by Rule 3(1)(c) of the Rules. In regard to the  quali- fication for appointment the advertisement stated: Qualifications: Candidates must possess: (i) A post-graduate degree in Geology or Applied Geology  of a recognised University or Diploma in Applied Geology of the Indian School of Mines, Dhanbad or any qualification  recog- nised by Govt., to be equivalent thereto; (ii) 10 years practical experience in the field of (a) Carrying out systematic hydrological surveys in  ingene- ous sedimentary and metamorphic terrains. (b) Ground water exploration and assessment by drilling  and testing and-- (c) Processing, interpretation of field data and in  prepar- ing  and  editing technical reports, of which  three  years’ experience  shall be in organising supervising  and  guiding field units. N.B.   (1)  The academic qualifications and  experience  ac- quired upto the last date prescribed for receipt of applica- tions  alone will be taken into account in  determining  the eligibility  of candidates for the posts and  for  selecting them for the interview. (2)  Academic  qualification shall be deemed  to  have  been acquired  on  the date on which the result of  the  relevant examination is declared by the competent authority. (3) Experience acquired after obtaining the prescribed 525 academic   qualifications   only    will   be   taken   into account." The  appellant applied to the Service Commission but he  was not  called for an interview on the ground that he  acquired the  post-graduate degree in Geology only in the  year  1982

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and  he does not possess the necessary qualification  of  10 years practical experience after obtaining the post-graduate degree.  The appellant filed Writ Petition No. 500  of  1983 before the High Court of Judicature of Bombay at  Aurangabad contending  that rule 3(1)(c) of the Maharashtra rules  does require the practical experience after obtaining the  quali- fication  of a post-graduate degree in Geology and  the  in- sistence  on such experience after obtaining the  prescribed academic  qualification was illegal. In this  connection  he contended  that sub-clauses (ii) and (iii) of clause (c)  of Rule  3(1)  of the rules are two  independent  requirements, that  they have to be read disjunctively and the  experience required under subclause (iii) need not be after  possessing the  basic  educational  qualification  of  a  post-graduate degree  in  Geology. This contention was not accepted  by  a Division Bench of that Court and by order dated 16. 11. 1983 Writ  Petition No. 500 of 1983 was dismissed.  Against  that judgment  the appellant has preferred Civil Appeal No.  2146 of  1984.  While granting special leave this  Court  in  its order dated 16.4. 1984 observed "The Government will  decide itself as to whether the petitioner should or should not  be reverted". However it appears the petitioner was reverted on 4.7. 1985 to the position of Senior Geologist.  Subsequently the Government created a new post of Deputy Director  Ground Water  Survey  at  Aurangabad. This post was  sought  to  be filled  by promotion under Rule 3(1)(a) of the rules by  the Selection Committee. The appellant was selected and appoint- ed  as Deputy Director on 14.12. 1986. This appointment  was challenged under Writ Petition No. 2161 of 1986 on the  file of Nagpur Bench of the Bombay High Court by one Bhaiyya  s/o Govindrao Karale on the ground that even for promotion  from amongst  the Senior Geologists the candidate should  possess not only a post-graduate degree in Geology but also IO years experience  posterior to such acquisition  of  post-graduate degree and that since the appellant does not have the neces- sary  experience  he is not qualified to be  promoted  under clause  (a) of Rule 3(1) of the rules. This  Division  Bench also  took  similar view as in the earlier case  and  by  an order  dated 26th June, 1987 the writ petition  was  allowed and  the selection and promotion of the appellant as  Deputy Director  under Rule 3(1)(a) of the rules was also  quashed. Against  this judgment Civil Appeal 2 166 of 1987  has  been filed. When this appeal was pending the Government of  Maha- rashtra amended Rule 3(1)(a) by 526 substituting  for the words "sub-clauses (ii) and  (iii)  of clause (c)", the words "sub-clause (ii) of clause (c)". Thus the  requirement  of 10 years experience mentioned  in  sub- clause  (iii)  of clause (c) was deleted in respect  of  ap- pointment  by promotion. In the counter affidavit  filed  by the State Government it is stated that this was done because in  the  case  of a promotion the requirement  of  10  years experience  subsequent to the acquisition  of  post-graduate degree  in Geology was redundant and, therefore. should  not be insisted upon and it is in that view the rule was  amend- ed.  However, in direct recruitment the 10 years  experience after  acquiring  the post-graduate  qualification  was  re- tained.  On  the  interpretation of the rule  prior  to  its amendment  which was relevant for considering  Civil  Appeal No. 2 146 of 1984 we are of the view that the view taken  by the  Aurangabad  bench does not call for  any  interference. Normally  when we talk of an experience, unless the  context otherwise  demands, it should be taken as  experience  after acquiring  the minimum qualifications required  and.  there- fore. necessarily will have to be posterior to the  acquisi-

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tion of the qualification. However, in the case of a  promo- tion  the same interpretation may not be just or  warranted. It  would  depend  on the relevant provisions  as  also  the particular  type of experience which is  required.  However. this  need not detain us because as we have  already  stated the  Government have now omitted the requirement of  experi- ence  by the said Amendment. The Amendment was made on  16th February.  1988 and published in the Gazette on 24.3.  1988. Though  the Rule does not say anything about its  retrospec- tive  operation there could be no doubt that it is  retroac- tive. This amendment shall be deemed to apply to the present case  as well especially when the matter is pending in  this Court  and this appointment is with reference to a  case  of promotion and appointment, It is true that at the time  when the  appellant was promoted the Rule had not  been  amended. However  it may also be mentioned that the appellant is  the senior most among the Senior Geologists and even if he is to be  considered again trader the amended rules he shall  have to  be appointed and nothing is stated in these  proceedings which would disqualify him even now. In the circumstances we are of the view that the appeal against the decision in Writ Petition  No.  2161 of 1986 will have to be  allowed  though Civil Appeal No. 2146 of 1984 will have to be dismissed.     Accordingly  we allow Civil Appeal No. 2166 of 1987  set aside  the judgment of the Division Bench in  Writ  Petition No.  2161 of 1986. Civil Appeal No. 2146 of 1984 is  however dismissed. There will be no order as to costs. G.N.                       CA No. 2166/87 allowed.                            and CA No. 2146/85 dismissed. 527