SHESHRAO JANGLUJI BAGDEversusBHAIYYA S/O GOVINDRAO KARALE AND ORS.

              SHESHRAO JANGLUJI BAGDE
                                                                              A
                           v.
      BHAIYY A S/0 GO VIND RAO KARALE AND ORS.

                        SEPTEMBER 18, 1990

          [V. RAMASWAMI AND M.M. PUNCHHI, JJ.]                                B

      Civil Services: Maharashtra Ground Water Service Class I
 (Recruitment) Rules, 1976: Rule 3( 1)-Senior Geologists-Promotion
.qs Deputy Director-Stipulated experience-Posterior to acquiring
necessary educational qua/ifii:ation-Validity of

      The appellant joined the Agricultural Department in 1963 with
                                                                              c
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.
                                                                              D
      In 1983, the State Public Service Commission called for applica-
tions for direct recruitment of Deputy Director in the Ground Water
Survey and Development Agency. The appellant 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 I 0 years practical
experience after acquiring the post-graduate degree. Aggrieved, the           E
appellant filed a Writ Petition before the High Court contending that
educational qualification and experience are two independent require-
ments 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.                     ·                                          F

      Against the said dismissal, the appellant preferred an appeal by
special leave which was granted, by this Court in 1984, with an observa-
tion 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          G
challenged by one of his colleagues by way of a Writ P-etition contending
that even for promotion, 10 years experie_!lce posterior to acquisition. of
post-graduate degree was essential. The High Court quashed the pro-
motion of the appellant. The appellant appealed against the said order
after obtaining special leave of this Court in 1987.
                                                                              H

                                    521
    522         SUPREME COURT REPORTS                I 1990] Supp. l S.C.R.
A        During the pendency of these two appeals the State Government
    amended Rule 3(l)(a) whereby the requirement of JO years experience
    mentioned in sub-clause (iii) was deleted in respect of appointment by
    promotion. According to the State Government since the said require-
    ment was redundant, it was deleted.
B
        Allowing the 1987 appeal, and dismissing the 1984 appeal, this
    Court,

          HELD: I.I. On the interpretation of Rule 3 of Maharashtra
    Ground Water Service, Class I (Recruitment) Rules, 1976 prior to its
    amendment, the view taken by the High Court on the Writ Petition filed
c   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 requi-
    red 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
D
    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 retros-
E
    pective operation there could be no doubt that it is retroactive. This
    amendment shall he deemed to apply to the present case as well espe-
    cially when the matter is pending in this Court and the appointment in
    question is by promotion. H 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
F
    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. 1336£-F J

         CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
    2166/87 & 2146/84.
G
         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.
H   Mudaliar for the Appellant.
                  SHESHRAO v. BHAIYYA [RAMASWAMI, J.}                  523

        S.B. Bhasme, Dr. N.M. Ghatate, S.V. Deshpande and A.S.
    Bhasme for the Respondents.                                                A

         The Judgment of the Court was delivered by

          V. RAMASW AMI, J. The interpretation of ·Rule "3 of the
    Maharashtra Ground Water Service, Class I (Recruitment) Rules.             B
    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 rele-
    vant 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 I shall be           C
               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;     D

                (b) by transfer of a suitable officer from the Department of
                Geology and Mining of Government;
                (c) by nomination from amongst the candidates who-
                (i) unless already in the service of Government are not        E
                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
               qualifications recognised by Government to be equivalent        F
               thereto, and
                (iii) have practical experience in the field of (a) carrying
                out systematic hydro geological surveys in ingeneous
                sedimentary and metamorphic terrains (b) ground-water .
                exploration and assessment by drilling and testing and (c) G
                processing, 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
                                                                               H
    the Senior Geologists under Sub-Clause (a) of Rule 3( I) of the Rules ..
    5.24        SUPREME COURT REPORTS                 I 1990] Supp. 1 S.C.R.

           fhe appellant herein joined in the Agricultural Department of
A   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
B   the seniority list of senior Geologists. He was also holding the addi-
    tional 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 governed by Rule 3(1)(c) of the Rules. In regard to
    the qualification for appointment the advertisement stated:
c
                "4. Qualifications: Candidates must possess:

                (i) A post-graduate degree in Geology or Applied Geology
                of a recognised University or Diploma in Applied Geology
D               of the Indian School of Mines, Dhanbad or any qualification
                recognised by Govt., to be equivalent thereto;

                (ii) IO years practical experience in the field of

                (a) Carrying out systematic hydrological surveys in ingen-
E               eous sedimentary and metamorphic terrains.

                (b) Ground water exploration and assessment by drilling
                and testing and-

                (c) Processing, interpretation of field data and in prepar-
F               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
                acquired upto the last date prescribed for receipt of appli-
G               cations 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 ·aate on which the result of the relevant
                examination is declared by the competent authority.
H
               · (3) Experience acquired after obtaining the prescribed
                  SHESHRAO v. BHAIYYA IRAMASWAMI. J.l                  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 and he does not possess the
    necessary qualification of 10 years practical experience after obtaining II
    the post-graduate degree. The appellant filed Writ Peiitioh No. 500 <it
     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 qualification of a post-gradu-
    ate degree in Geology and the insistence 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 C
    Rule 3(1) of the rules are two independent requirements, that they .
    have to be read disjunctively and the experience required under sub-
    clause (iii) need not be after possessing the basic educational qualifica-
    tion of a post-graduate degree in Geology. This contention was not
    accepted by a Division Bench of that Court and by order dated D
    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 Geolo- E
    gist. 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(l)(a) of the rules by the Selec-
    tion Committee. The appellant was selected and appointed 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 F
    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 10
    years experience posterior to such acquisition of post-graduate degree
    and that since the appellant does not have the necessary experience he
    is not qualified to be promoted under clause (a) of Rule 3(1) of the G
    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(l)(a) of the rules was also quashed. Against this judg-
    ment Civil Appeal 2166 of 1987 has been filed. When this appeal wa~
    pending the Government of Maharashtra amended Rule 3(1)(a) by H
    526          SUPREME COURT REPORTS                [ 1990] Supp. 1 S.C.R.

    substituting for the words "sub-clauses (ii) and (iii) of clause (c)", the
A
    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 appointment 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 subse-
B   quent 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 amended. However, in direct recruitment the 10
    years experience after acquiring the post-graduate qualification was
    retained. On the interpretation of the rule prior to its amendment
    which was relevant for considering Civil Appeal No. 2146 of 1984 we
    are of the view that the view taken by the Aurangabad bench does not
c   call for any interference. Normally when we talk of an experience,
    unless the context otherwise demands, it should be taken as experi-
    ence after acquiring the minimum qualifications required and, there-
    fore, necessarily will have to be posterior to the acquisition of the
    qualification. However, in the case of a promotion the same interpre-
D   tation 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 experience by
    the said Amendment. The Amendment was made on 16th February,
    1988 and published in the Gazetie on 24.3.1988. Though the Rule does
E   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 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
F   mentioned that 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. Jn the circums-
    tances we are of the view that the appeal against the decision in Writ
    Petition No. 216 I of 1986 will have to be allowed though Civil Appeal
G   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. 216 I of 1986.
    Civil Appeal No. 2146 of 1984 is however dismissed. There will be no
    order as to costs.
H   G.N.                                     CA No. 2166/87 allowed.
                                             and CA No. 2146/85 dismissed.