Through Mr. O.P. Gehlaut, Advocate v. DIRECTORATE (MEDICAL), DELHI E.S.I. CORPORATION NEW DELHI & ORS .

(iv) Archana [62 marks]

(v) Vandana Singla [60 marks]”

9. Accordingly, Geetanjali and Meenakshi Pal, who had secured 54 and 66 marks, respectively, were selected. Geetanjali and Meenakshi Pal were co-respondents before the Tribunal and have been impleaded as respondent Nos.[3] and 4 to the present writ petition. They have not entered appearance and contested these proceedings.

10. The aforesaid Rules were enacted 39 years back and hence make reference to matriculation or the equivalent. The school education system/pattern since then has changed, for the matriculation system was first replaced by Higher Secondary which in turn stands replaced by the Secondary and Senior Secondary system. When we read the Rules for the post of Librarian Grade-I and Librarian Grade-II, it is apparent and can be appreciated that a candidate with a one year degree or diploma in Library Science after graduation, is considered to be superior and higher qualified than matric with a two year diploma in Library Science. It is an accepted and admitted position that Librarian Grade-I is the immediate higher post in the hierarchy.

11. It is in these circumstances, we have to examine and consider the stand of the ESI Corporation that the petitioner does not meet and fulfil the essential eligibility qualification prescribed for Librarian Grade-II. If we accept the stand of the respondent ESI Corporation, the petitioner would fullfil and meet the eligibility qualifications for appointment as Librarian Grade-I, but would fall short and would not be eligible for appointment to the lower post of Librarian Grade-II.

12. In Commissioner of Income Tax, Bombay and Ors. Vs. Podar Cement Pvt. Ltd. and Ors (1997) 5 SCC 482, after referring to State Vs, S.J. Choudhary (1996) 2 SCC 428, and Statutory Interpretation by Francis Bennion, the Supreme Court elucidated upon the need to update the constructions of the words of a statute. The Court in S.J. Choudhary (supra) had observed that the interpreter should presume that the Parliament intended the Statute to be applied at any future time is such a way as to give effect to its true original intention.

13. In the present factual matrix, noticing that the Rules are archaic, we would adopt a pragmatic and realistic interpretation for the words "essential qualification", rather than follow and apply a pedantic and literal interpretation which would result in absurdities. We would hesitate and not re-write the Rules, but can interpret the essential qualification with a certain degree of flexibility to adapt the pre-dated rules in the contemporary context. A stricter approach would not only be counterproductive, but would be distinctly unjust and unfair. The fact that the authorities had not amended the rules over 37 years would indicate that, they perceived that the Rules were broad enough in their application to account for changes and modifications in the educational pattern. We must therefore interpret the Rule with such modification of the meaning of the language of a statute as is necessary to give effect to the legislative intent behind its enactment. The Recruitment Rules should be to read as laying down minimum educational qualification and not as postulating or stating that a candidate, who has higher qualifications, would be ineligible for he is overqualified. Over qualification may be contra indicative for some posts/ Recruitment Rules, but not in this case.

14. As we are taking a different view from the one expressed by the Tribunal, we would like to refer to the reasoning and the judgments in the impugned order. The Tribunal posed the question; whether an applicant who possess higher qualification than the required qualification or equivalent qualification prescribed, would be eligible and has answered the said question in negative i.e. if the applicant possesses higher qualification, he would be disqualified. It has been held that possessing higher qualification does not mean that the candidate possesses the minimum prescribed qualification. One year’s degree course in Library Information Science obtained by the petitioner cannot be treated as equivalent to a diploma in Library Science of two years after matriculation.

15. We would begin by referring to the decision in Yogesh Kumar and Ors.Vs. Government of NCT of Delhi & Ors. (2003) 3 SCC 548, wherein it has been held that:-

16. Similarly, in Dilip Kumar Ghosh and Ors. Vs. Chairman & Ors. (2005) 7 SCC 567, the appellants before the Supreme Court were holders of

Teacher, for the Recruitment Rules/advertisement had specifically prescribed JBT/PTTC certificate as the mandatory qualification. In paragraph 10, the Supreme Court observed that the B. Ed. curriculum did not have subjects like Child Psychology and the former course was generic in nature. The JBT/PTTC certificate was specifically for training candidates to teach in primary schools. The Supreme Court drew a distinction between teaching students at a primary level up to class IV and those in the higher classes, emphasising that for teaching at the primary level, knowledge of Child Psychology and development at a tender age was an essential pre-requisite. This judgment also refers to Yogesh Kumar (supra) and an earlier decision in P.M. Latha (supra). The latter decision dealt with candidates with B. Ed. Degree, who had been held to be eligible as lower primary and upper primary teachers in Government schools on the ground that they had B. Ed., a higher qualification than the TTC. The Supreme Court has held that B. Ed. Degree holders cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Further, whether the recruitment should be from the candidates with TTC certificate or B.Ed. qualification was a matter of recruitment policy and in the said case there was sufficient logic for the authorities to prescribe qualification for appointment as TTC only.

17. The aforesaid decisions, in our opinion, would not be applicable. In the said decisions, it was held that the B.Ed. Degree cannot be treated and equated with TTC or TBT or PTTC as their curriculum and course material was entirely different. The latter were specific certificate courses for teaching at the primary level, whereas the B.Ed. is a general teaching course for teaching at higher levels.

18. We have, in paragraph 13 above, observed that over qualification may be contraindicative for some posts but not in the present case. Lest there be any confusion and incertitude, we would elaborate on the said aspect. Recruitment Rules and Executive Instructions are framed to prescribe minimum eligibility qualifications and requisite experience. This ensures transparency and uniformity, and curtails the scope of discretion and nepotism in the selection process. There may be certain posts where over qualification may amount to disqualification or ineligibility, for such candidates would be unsuitable for the nature of work involved as they would not require the skill and qualifications the over qualified possess. This is not the position in the present case.

19. Educational curriculum and subjects are constantly evolving with changes and modifications to suit the present day needs. Therefore, the eligibility requirements should also be updated as and when required to fit the present day needs and context. Courts cannot prescribe the eligibility or experience qualifications as these are matters of policy best left to the Executive. However, when the recruitment rules are not modified and updated to keep up with the times, the Courts may intervene to interpret the antiquated provisions with a degree of flexibility to prevent injustice and ensure that a more qualified and better suited candidate is not denied selection on account of senescent rules.

20. A Division Bench of this Court in Manju Pal Vs. Government of National Capital Territory of Delhi and Anr. (2002) 61 DRJ 58, had dealt with a case of appointment to the post of Assistant Primary Teacher. The essential qualifications prescribed for the said post were that the candidate should have studied Hindi at the Secondary or Senior Secondary level. The petitioner therein had a Bachelor of Arts Degree in Hindi but was declared ineligible for the post by the authorities on the ground that it was a higher qualification. The Court rejected the stand of the authorities observing that a candidate having higher qualification like a B.A. or M.A. Degree in Hindi could not be declared as less qualified or lacking competence, for it had not been shown that the study of Hindi at the Secondary or Senior Secondary level was more helpful for teaching primary level students.

21. Reference must also be made to the decision of dated 26th May, 2016 of a Division Bench of this Court in W.P. (C) 8089/2015 titled Government of National Capital Territory of Delhi Vs. Monika Sharma. The respondent therein had been denied appointment as a Post-Graduate Teacher (Sociology) despite having a B.El.Ed and M.Ed Degree in Sociology, for the reason that B.El.Ed degree could not be equated with a B.Ed degree which was the essential qualification. Dealing with the question of over qualification, the Division Bench observed as under:-

of J&K Forest Service Range Officers Grade-I (Forest) was a B.Sc (Forestry) or an equivalent degree from any University recognized by the ICAR, a candidate with a higher qualification was equally eligible. Thus a B.Sc candidate with Forestry as a major subject and M.Sc. in Forestry was eligible. It was observed:-

21. A Full Bench of the Punjab and Haryana High Court in CWP No.451/2008 Manjit Singh vs. State of Punjab & Ors. after extensively referring to case law, has held that a candidate possessing a higher degree in the same line cannot be denied consideration for selection, though he does not hold the lower qualification."

22. In view of the aforesaid discussion, the impugned order of the Tribunal dated 2nd September, 2014 dismissing OA No. 1058/2013 is set aside. The respondent-ESI Corporation would accordingly process the case of the petitioner for appointment to the post of Librarian Grade-II, as per the marks and merit position secured by him. If qualified as per marks, a letter of appointment will be issued in favour of the petitioner within two months from the date of receipt of a copy of this order by the ESI Corporation. The petitioner would not be entitled to payment of back wages. However, his pay will be fixed notionally as if he was appointed on the date on which his immediate junior had joined. The seniority of the petitioner will also be determined on the basis of the merit list and he would be entitled to all consequential benefits including length of service for promotion.

23. There will be no order as to costs. -sd- (SANJIV KHANNA) JUDGE -sd- (CHANDER SHEKHAR)

JUDGE MARCH 15, 2017 NA