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CASE NO.:

Appeal (civil) 4098 of 2006

PETITIONER:

Sanjay Kumar Manjul

RESPONDENT:

The Chairman, UPSC and Ors.

DATE OF JUDGMENT: 13/09/2006

BENCH:

S.B. Sinha & Dalveer Bhandari

JUDGMENT:

J U D G M E N T

[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 :

"\005.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

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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 :

(i) 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.

(ii) The Commission undoubtedly had the jurisdiction to shortlist the

candidates; but the same was required to be done in terms of the rules.

(iii) 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.

(iv) 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 :

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"(i) 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;

(ii) 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.

(iii) 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 :

(a) Archaeological cadre

(b) Conservation cadre

(c) Science cadre

(d) Epigraphy cadre

(e) 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,

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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 \026 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 \026 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

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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 :

"\005The 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

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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 :

"\005An 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\005"

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 :

"\005This 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

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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\005"

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.