Sanjay
Kumar Manjul Vs. The Chairman, Upsc & Ors [2006] Insc 589 (13 September 2006)
S.B.
Sinha & Dalveer Bhandari
[Arising
out of SLP (Civil) No.26297 of 2005] W I T H CIVIL APPEAL NO. 4099 OF 2006
[Arising out of SLP (Civil) No.4976 of 2006] S.B. SINHA, J:
Leave
granted.
The
Archaeological Survey of India is a department of Archaeology of the Government
of India. The post of Superintending Archaeologist fell vacant. Sanjay Kumar Manjul
(Appellant) and Dr. S. Rajavelu, Respondent No.4 herein applied therefor. An
advertisement was issued for direct recruitment to the said post. 169
applications were received therefor. 16 applicants including that of Sanjay
Kumar Manjul were interviewed. Four of them had been selected on 04.08.2004.
Indisputably, the case of Dr. S. Rajavelu was not considered by the Union
Public Service Commission (for short, 'the Commission) on the premise that he
did not fulfill the essential qualifications requisite therefor.
An
original application was filed by some candidates before the Central
Administrative Tribunal, Principal Bench, New Delhi, marked as O.A. No. 1899 of 2004, which was dismissed by an order dated
15.07.2005.
Dr. S.
Rajavelu also filed an original application before the Central Administrative
Tribunal, Madras, which was marked as O.A. No.720 of
2004. By an order dated 28.04.2005, the said original application was also
dismissed.
Being
aggrieved by and dissatisfied therewith, he filed a writ petition before the
High Court of Madras. Even till the time of filing of the said original
applications and writ petition, selection process of the candidates was not
finalized and by an order dated 21.07.2005, the High Court passed an interim
order on the following terms :
".if
any appointment is made in the meantime, such appointment shall be subject to
result of the present writ petition and it shall be so indicated clearly in the
appointment order that if ultimately the petitioner succeeds in the present
writ petition, such appointment shall be liable to be quashed, returnable
within three weeks. Private notice is also permitted." The Archaeological
Survey of India, however, issued unconditional offer of appointment to the
selected candidates, inter alia, stating :
"I
am directed to inform that on the recommendations of the Union Public Service
Commission, the President is pleased to offer you the post of Superintending
Archaeologist (G.C.S. Group 'A' Gazetted) in the pay scale of Rs.10,000-15200/-
in the Archaeological Survey of India. Your pay will be fixed in accordance with
the normal rules or instructions issued by the Government and you will also be
entitled to draw dearness and other allowances at the rates admissible and
subject to the rules and orders governing the grant of such allowances, in
force, from time to time." The Appellant herein was not impleaded as a
party in the said writ petition. By reason of the impugned judgment, the writ
petition of the Fourth Respondent was allowed.
Before
the High Court as also before us, the question raised was as to whether experience
in Epigraphy may be considered to be 'field experience in Archaeology'.
Mr. Ranjit
Kumar, the learned Senior Counsel and Mr. Vikas Singh, the learned Additional
Solicitor General of India, appearing on behalf of the Appellants, in the
respective appeals, submitted that having regard to the extant rules, field
experience in Epigraphy would not satisfy the test of essential qualifications
for appointment to the post of the Superintending Archaeologist. The
expressions 'Archaeology' and 'Epigraphy', it was urged, mean two different
disciplines and in fact not only the scope of study thereof are different,
their cadres are also distinct and different.
It was
submitted that the Commission as also the Archaeological Survey of India being experts
bodies, the High Court should not have ordinarily interfered with the decision
taken by the department as 'Archaeology' and 'Epigraphy' constitute two
different disciplines.
In any
event, the Commission having short-listed the candidates providing for better
meritorious candidates, the writ petition of the Fourth Respondent should not
have been allowed. It was also urged that the Appellant having not been impleaded
in the writ petition, the same was not maintainable.
Mr.
K.V. Viswanathan, the learned counsel appearing on behalf of the Fourth
Respondent, on the other hand, would submit that :
-
The Appellant
having not been appointed on the date of filing of the writ petition and the
High Court having directed that his appointment would be subject to the result
of the writ petition, he was not a necessary party.
-
The Commission
undoubtedly had the jurisdiction to shortlist the candidates; but the same was
required to be done in terms of the rules.
-
Eligible
candidates in the name of short-listing could not have been made ineligible
and, thus, non-consideration of the case of the Fourth Respondent herein by the
Commission violates his fundamental right under Article 16 of the Constitution
of India.
-
Study of
Epigraphy being a part of study of Archaeology, experience gained therein would
amount to experience in Archaeology. By way of an example, it was contended
that cardiology although is a speciality, the same has been held to be a part
of medicine by this Court in Dr. M.C. Gupta and Others v. Dr. Arun Kumar Gupta
and Others [(1979) 2 SCC 339].
The
requisite essential qualifications for recruitment to the post of
Superintending Archaeologist are as under :
-
" At least
a second class Master's Degree of a recognized University or equivalent in
Indian History/Archaeology/Anthropology with knowledge of Stone Age Archaeology
Geology with knowledge of Pleistocene Geology;
-
Diploma in
Archaeology from the Archaeological Survey of India with three years field
experience; OR Field experience of at least five years in Archaeology and
knowledge of Monuments and Antiquities.
-
Doctorate Degree
in any of the above subjects or equivalent published research work (evidence to
be furnished).
Desirable
Qualifications :
Knowledge
of Sanskrit, Pali, Prakrit, Persian or Arabic upto degree level. Age prescribed
for the post not exceeding 40 years on normal closing date relaxable for other
Backward Classes candidates upto 3 years in respect of the vacancies reserved
for them. Relaxable for Employees of Government of India and Union Territories upto 5 years." Entitlement of the Appellant herein for
consideration of the recruitment to the said post is not in dispute.
Archaeological Survey of India is a multi-faceted organization. Its technical
officers fall under the following separate cadres :
-
Archaeological
cadre
-
Conservation
cadre
-
Science cadre
-
Epigraphy cadre
-
Horticulture
cadre.
We are
concerned with the essential qualifications of EQ-II, namely, a diploma in
Archaeology with three years' field experience or field experience of at least
five years in Archaeology and knowledge of monuments and antiquities. In the
Post-Graduate Diploma in Archaeology, there are thirteen subjects, twelve being
theory papers and one practical.
Out of
total 2000 marks, Epigraph and Numismatics carries only 100 marks i.e. 50 marks
for Epigraph and 50 marks for Numismatics. The Post Graduate Diploma Course,
therefore, provides that Epigraphy forms only 2.5% of Archaeology.
So far
as PGDA Course is concerned, the qualifications therefor are as under :
"The
qualification for admission are Master's Degree in Ancient or Medieval Indian
History/Archaeology/Anthropology from a recognized University or equivalent
including Indian Classical languages such as Sanskrit, Pali, Prakrit, Tamil,
Arabic or Persian or Geology with knowledge of Pleistocene age with a minimum
of 55% marks in aggregate, relaxable by 5% in the case of SC/ST/OBC candidates
and candidates working in the Archaeological organization, Central/State
Government and University Departments." We may for the sake of clarity
refer to the dictionary meanings of the said terms :
Webster
American Dictionary :
"Archaeology
is the study of human history and pre- history through the excavation of sites
and the analysis of artifacts and other physical remains." Oxford Dictionary :
"It
is the study of human history and prehistory through the excavation of sites
and analysis of physical remains." Webster American Dictionary :
"Epigraphy
is the study and interpretation of ancient inscription; epigraphs collectively.
It is an inscription on a building, statue or coin; a short quotation or saying
at the beginning of a book or chapter, intended to suggest its theme." We
may usefully notice that in Advanced Law Lexicon, 3rd Edn., the term
'Archaeology' has been defined to mean : "A systematic description or
study of antiquities", whereas the term "Epigraph" has been
defined to mean "An old inscription of a durable material".
It is
also significant to notice that in 'The New Encyclopaedia of Britannica in 'The
Study of History', 'Archaeology' and 'Epigraphy' have been discussed
separately; both the subjects although have been put under a common heading,
namely, 'Ancillary Fields'. They have been dealt with separately. 'Epigraphy'
has been stated to be the study of written matter recorded on hard or durable
materials and is the prime tool in recovering much of the firsthand record of
antiquity.
It is
interesting to note therein that 'Archaeology' and 'Epigraphy' have been
distinguished, stating :
"Strictly
speaking, archaeology is not concerned with the analysis and interpretation of
the bones of ancient man himself whether fossilized or not. The study of the
skulls and skeletons of ancient man is the concern of the physical
anthropologist or human paleontologist. Neither is the archaeologist normally
prepared to decipher or interpret the writings of ancient man this is the
specialty of the epigraphist and philologist." The question as to whether
Archaeology is a compendious expression, as was urged by Mr. Viswanathan, has to
be considered in the aforementioned backdrop.
'Epigraphy'
is a study of inscription is not denied or disputed. There are persons who have
expertise in different parts of Epigraphy. Persons may acquire expertise in the
study of inscription in different languages. The Fourth Respondent is an expert
in respect of inscription only in the language of Tamil.
The
qualifications for recruitment to a post are laid down in terms of the
statutory rules. The Fourth Respondent raised a contention before the Tribunal
that several persons named in Ground 'G' of the writ petition had occupied the
very post in the Archaeological Department, although they were experts in
Epigraphy.
The
aforementioned contention of the Fourth Respondent herein has specifically been
denied and disputed. It has been contended that recruitment rules of the Deputy
Superintending Archaeologist are different from the Superintending
Archaeologist. Whereas in the case of the former, two years' research
experience in various subjects including Epigraphy was considered to be
sufficient, in the case of latter, what was necessary was field experience of
five years in Archaeology and knowledge of monuments and antiquities.
The
statutory authority is entitled to frame statutory rules laying down terms and
conditions of service as also the qualifications essential for holding a
particular post. It is only the authority concerned who can take ultimate
decision therefor.
The
jurisdiction of the superior courts, it is a trite law, would be to interpret
the rule and not to supplant or supplement the same.
It is
well-settled that the superior courts while exercising their jurisdiction under
Articles 226 or 32 of the Constitution of India ordinarily do not direct an
employer to prescribe a qualification for holding a particular post.
What
was, therefore, permissible for recruitment to the post of Deputy
Superintending Archaeologist need not necessarily be held to be permissible for
recruitment of Superintending Archaeologist. Once a person holds the post of Deputy
Superintending Archaeologist, keeping in view the decision of this Court in Roshan
Lal Tandon v. Union of India [(1968) 1 SCR 185], he may be treated identically;
but then it would not mean that while making a direct recruitment to a higher
post, the Commission must have jurisdiction to relax the rules The power of
relaxation, it is well-settled, must also be expressly conferred.
In
this case both the Commission as also the Archaeological Survey of India
categorically opined that the requirements for both the posts are different.
The Commission categorically stated :
"The
experience in Epigraphy cannot be construed as experience in Archaeology.
Similarly his experience as Sub Editor cannot be considered as field experience
in Archaeology. Hence, he does not possess the required experience under
educational qualification (ii) and hence he is ineligible for the post."
Archaeological Survey of India in its Counter Affidavit also took the same
plea, stating :
"Epigraphy
is a separate Branch of Archaeology Survey of India and constitutes a separate
cadre, which is distinct and different from that of the archaeological
cadre." Strong reliance, as noticed hereinbefore, has been placed by Mr. Viswanathan
on Dr. M.C. Gupta (supra). Therein, this Court was considering the definition
of the word 'medicine' contained in Section 2(f) of the Indian Medical Council
Act, 1956. It was held to mean modern scientific medicine in all its branches
and includes surgery and obstetrics, but does not include veterinary medicine
and surgery. The Court although opined that it was too wide a definition, but
proceeded to consider the question having regard to the regulations operating
in the field. While holding that teaching experience in the subject forms part
of general medicine, it was opined that keeping in view the regulations
operating in the field, the Commission was amply justified in reaching at the
conclusion that the Appellant therein possessed the requisite teaching
qualification.
We
may, however, notice that the aforementioned opinion was arrived at keeping in
view the expert opinion as also the opinion of the Medical Council of India in
that behalf in the following terms :
"An
extreme argument was urged that in adopting this approach it may be that
somebody may be working in different specialist branches such as neurology,
gastroenterology, psychiatry, etc. and each one would qualify for being
appointed as Professor of Medicine without having even a tickle of experience
on the subject of general medicine. This wild apprehension need not deter us
because it should be first remembered that any one going into specialist branch
under medicine has to be M.D. (Medicine). Thereafter, if he wants to become a
professor in the specialist branch such as cardiology, the academic
qualification required is to hold a degree of D.M. in the specialist branch.
This becomes clear from a perusal of the regulations. It is not necessary,
therefore, to go into the dictionary meaning of the expression
"medicine" to determine whether it includes cardiology.
The
Medical Council of India, a body composed of experts have in the regulations
clearly manifested their approach when they said that cardiology is a
specialist branch under medicine. Ipso facto, medicine includes cardiology. It
was not disputed that one qualifying for M.D. (Medicine) has to learn the
subject of cardiology.
And it
must be remembered that the four experts aiding and advising the commission
have considered teaching experience in cardiology as teaching experience in
medicine. The counter-affidavit on behalf of the Commission in terms states
that medicine is a wide and general subject and includes cardiology whereas for
the post of Professor of Cardiology a further two years' special training in
cardiology or D.M. in cardiology after M.D. in medicine has been laid down as a
requisite qualification by the Medical Council. It is further stated that
teaching experience in cardiology will make the person eligible for the post of
Professor of Medicine.
That
was the view of the experts who assisted the Commission" The opinion of
experts in this case is just the converse. In an academic field, apart from Dr.
M.C. Gupta (supra), the court would normally be governed by the opinion of the
experts in the field particularly in the academic field.
The
said decision does not help the case of the Fourth Respondent.
The
situation therein was entirely different. Opinions of the experts were duly
considered in arriving at the decision.
In Tariq
Islam v. Aligarh Muslim University and Others [(2001) 8 SCC 546], this
Court stated the law thus :
"This
Court stated that normally, it is wise and safe for the courts to leave the
decision of academic matters to experts who are more familiar with the problems
they face than the courts generally are. Area of interference by courts would
be limited to whether the appointment made by the academic body had contravened
any statutory or binding rule and while doing so, the court should show due
regard to the opinion expressed by the experts and on whose recommendations the
academic body had acted and not to treat such expert body as a quasi-judicial
tribunal, deciding disputes referred to it for decision.
Equivalence
of a qualification pertains purely to an academic matter and courts would
naturally hesitate to express a definite opinion, particularly, when it appears
that the experts were satisfied that the equivalence has already been
considered and declared by it" Mr. Viswanathan relied on N. Suresh Nathan
and Another v. Union of India and Others [(1992) Supp. 1 SCC 584] for the
proposition that construction in consonance with the long standing practice is
permissible.
There
is no dispute with regard to the aforementioned proposition of law.
What,
however, is necessary for applying the principle of interpretation of statute
is to take recourse to the literal interpretation and only when the same would
result in absurdity or anomaly, other principles, depending upon the nature of
the statute, may be applied. It is not a case where the terms are statutorily
defined. The dictionary meaning or the meaning attached to the expression in
the context of the rules, therefore, must be given effect to not only having regard
to the purport and object thereof but also the opinion of the experts in the
field.
We
have noticed hereinbefore that even in common parlance Archaeology and
Epigraphy contain two different disciplines. It is used both in the broader and
narrower sense. Although the term 'Archaeology' may include a science of
Epigraphy, for the purpose of the Ancient Monuments and Archaeological Sites and
Remains Act, 1958 and the regulations framed thereunder, essential
qualifications required for holding the post may have to be construed
differently.
Upon
interpretation of the terms, this Court is satisfied that the Fourth Respondent
did not hold the requisite essential qualifications and, thus, was not eligible
to hold the post. Furthermore, we do not have sufficient materials to hold as
to on what basis, the Archaeological Survey of India opined differently in the
cases of persons named in Ground 'G' of the writ petition of the First
Respondent. We may, however, notice that the same has been explained. Mr. Viswanathan
submitted that no explanation has been offered in respect of Dr. Ramesh. We
refrain ourselves from going into the said question, simply on the proposition
that Article 14 of the Constitution of India carries with it a positive concept
and the equality clause contained therein cannot be said to have any
application in a case of illegality.
For
the views we have taken, we are of the opinion that it is not necessary for us
to advert to the other contentions raised by the learned counsel.
For
the reasons aforementioned, the impugned judgment of the High Court cannot be
sustained, which is set aside accordingly. The appeals are allowed. No costs.
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