Full Judgment Text
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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