Page 1 of 13WP(C) No.115/2024 HIGH COURT OF JAMMU &KASHMIR AND LADAKHAT SRINAGAR Reserved on: 11.04.2025 Pronounced on: 10.07.2025 WP(C) No. 115/2024 UT OF J&K AND OTHERS …PETITIONER(S) Through: Mr. Faheem Nisar Shah, GA. Vs. IRFAN AHMAD HAKAK …RESPONDENT(S) Through: Mr. R. A. Jan, Sr. Advocate, with Mr. Shariq J. Reyaz, Advocate. Ms. Humaira Sajad, Advocate. CORAM:- HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE JUDGMENT Per OSWAL ‘J’ 1. In terms of Notification No. 01 of 2014 dated 13.08.2014, applications were invited from the eligible candidates for various State cadre posts including the State cadre post of “Librarian” in the Department of Law against item No. 5. The respondent participated in the selection process for the said post of “Librarian”. The select list was issued by petitioner No. 4 and one Murad Hussain Shah was selected for the post of “Librarian” in open merit category. The respondent was placed at serial No. 1 in the waiting list. 2. The selected candidate-Murad Hussain Shah, on being called to submit the requisite documents, failed to submit the documents and instead submitted an affidavit that he was not interested in joining the Page 2 of 13WP(C) No.115/2024 post of “Librarian”. Accordingly, petitioner No.3 vide communication dated 02.01.2019, requested petitioner No.4 to release the recommendation in favour of the candidate figuring in the waiting list. 3. The recommendation of the respondent was withheld and it was decided in 146th meeting of the Board of petitioner No.4 that the matter in respect of experience of the respondent be taken up with the Indenting Department, as the respondent had submitted two experience certificates i.e. the first certificate pertained to the period of one year with effect from 01.10.2011 to 30.09.2012, gained as a part-time while undergoing his M. Lib course and the second certificate pertained to the period 02 years and 03 months and 12 days with effect from 04.10.2012 to 15.11.2014 after completion of M. Lib course. The Deputy Legal Remembrancer of petitioner No. 3 vide communication dated 31.07.2019 requested petitioner No. 4 to release the recommendation in favour of the respondent, as the experience gained by the respondent in Lake City College of Education was purely a regular one and cannot be considered as part time. 4. Thereafter petitioner No. 4 sought clarification from the University of Kashmir in respect of course completion date and timing of attending the classes with effect from 01.07.2011 to 25.07.2012 regarding respondent. The University of Kashmir, in turn, vide its communication dated 05.10.2019, stated that the timing of the classes during the period as mentioned in the aforesaid communication from 01.07.2011 to 31.12.2011 was 10.00 AM to 3.50 PM and examination Page 3 of 13WP(C) No.115/2024 of core papers was conducted in the month of March, 2012 after the winter break. It was further stated that to complete the project, the students are not required to attend the classes, however, they are required to report to their concerned supervisors as and when need arises. 5. Again, the Deputy Legal Remembrancer of petitioner No.3 vide his communication dated 26.02.2020, requested petitioner No.4 to consider the release of recommendation in favour of the respondent. In the meantime, petitioner No.4 vide communication dated 17.02.2020 addressed to petitioner No.3, sought clarification regarding the duration of experience and its overlap with the academic calendar. The petitioner No.4 vide communication dated 13.05.2020 addressed to petitioner No.3 released the recommendation in favour of the respondent. However, vide communication dated 08.12.2020, it was stated that the respondent cannot be considered for appointment against the post of “Librarian”. 6. Thereafter, respondent filed a writ petition, impugning therein the communication dated 08.12.2020 and further sought directions to the petitioners, particularly petitioner Nos. 1 to 3, to appoint him against the post of “Librarian”. The said writ petition was subsequently transferred to the Central Administrative Tribunal, Srinagar Bench (for short “the Tribunal”) and was renumbered as TA No.62/3748 of 2021. The petitioner No.3 filed its response before the Tribunal stating therein that the respondent had furnished a certificate from the Lake View City Page 4 of 13WP(C) No.115/2024 College of Education, Srinagar, and the same was forwarded to the Service Selection Board vide communication dated 31.07.2019 and the Service Selection Board vide its communication dated 17.02.2020, sought clarification from the Department on the same issue and vide communication dated 13.05.2020, released the recommendation in favour of the respondent for his appointment as “Librarian”. The matter was submitted to the Hon’ble Lieutenant Governor through Chief Secretary for approval. However, the General Administration Department returned the file with an observation that the respondent has obtained his first experience certificate concurrently with the degree of M.LIS obtained by him, as such, is not in possession of the requisite length of experience as prescribed in the Recruitment Rules (03 years). It was further stated that the learned Advocate General had also opined that the experience gained by the respondent through part time mode while undergoing M. Lib studies, which otherwise was requisite for the purpose of eligibility against the post of “Librarian”, cannot be equated with the requisite experience as provided under the rules. 7. The learned Tribunal vide order dated 13.06.2023 allowed the application of the respondent and directed the petitioners to offer the post of “Librarian” to respondent within two weeks and to give all consequential service benefits like seniority and pay fixation to the respondent from the date when the last candidate among the candidates in pursuance of Advertisement No.01/2014 (except on orders of Courts) was appointed. Page 5 of 13WP(C) No.115/2024 8. The petitioners have impugned the order dated 13.06.2023 on the ground that the learned Tribunal, without considering the objections of the petitioners in its right perspective, has passed the order impugned, as the respondent was not having the requisite experience of three years for appointment as “Librarian”. 9. Mr. Faheem Nisar Shah, learned GA, has argued that the experience gained by the respondent while undergoing M. Lib course cannot be included while determining his overall experience, as such, the learned Tribunal has erred in allowing the application filed by the respondent. He has further argued that the learned Advocate General had also opined in similar manner but the learned Tribunal has not considered the same. 10. Per contra, Mr. R. A. Jan, learned senior counsel appearing for the respondent, has argued that the learned Advocate General was not correct in placing reliance upon the Jammu & Kashmir Medical Education (Gazetted) Service Recruitment Rules, for the purpose of opining that the experience gained by the respondent while undergoing M. Lib studies cannot be equated with the requisite experience as provided under the rules. He has placed much reliance upon the judgment passed by the Hon’ble Supreme Court in the case of Anil Kumar Gupta and others vs. Municipal Corporation of Delhi and others, (2000) 1 SCC 128. 11. Heard and perused the record. Page 6 of 13WP(C) No.115/2024 12. The perusal of the Advertisement Notification No.01 of 2014 dated 13.08.2014 reveals that following qualification had been prescribed for the post of “Librarian” in the Law Department : “Graduation with M. Lib having three years experience” 13. Now the moot question which arises for consideration of this Court is as to whether the threeyears’ experience mentioned in the notification is post qualification or not? As per the experience certificates submitted by the respondent, it is evident that the respondent had gained the first year of his experience w.e.f. 01.10.2011 to 30.09.2012, from Lake City College of Education, while the respondent was undergoing his M. Lib course. 14. The petitioners have relied upon the observations made by petitioner No.2 that the experience gained by the respondent while he was undergoing M. Lib course, cannot be considered for the purpose of determining the total experience earned by the respondent. The petitioners have also relied upon the opinion of the learned Advocate General that the experience gained by the respondent during the period, he was undergoing M. Lib course cannot be equated with the requisite experience as provided under the rules. While furnishing this opinion, the learned Advocate General has relied upon the Jammu & Kashmir Medical Education (Gazetted) Service Recruitment Rules in terms of SRO 225 dated 29.06.1988. In the aforesaid Rules, there was specific provision that the teaching experience, if any, gained before or during the post-graduation studentship, shall not be considered while Page 7 of 13WP(C) No.115/2024 determining the eligibility for the post of Lecturer. So far as the present case is concerned, there was no such stipulation in the advertisement notification. The reliance placed upon the Jammu & Kashmir Medical Education (Gazetted) Service Recruitment Rules by the learned Advocate General for opining that the experience gained by the respondent while undergoing M. Lib studies cannot be equated with the requisite experience is misplaced. 15. The qualification prescribed for the post of “Librarian” is ‘Graduation with M. Lib having three years’ experience.” The three years’ experience has direct nexus with the educational qualification of M.Lib prescribed for the post of “Librarian” and the experience of three years cannot be gained without acquiring qualification of M. Lib for the post of “Librarian”. In Sheshrao Jangluji Bagde v. Bhaiyya, 1991 Supp (1) SCC 367, the Hon’ble Supreme Court of India has observed as under: 3.----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, therefore, necessarily will have to be posterior to the acquisition of the qualification. However, in the case of a 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.-----" (emphasis added) 16. The co-ordinate Bench of this court in case titled ‘Sajad Ahmad Bhat Vs. Union Territory& Ors., bearing WP(C) 1934/2023” decided on 04.06.2025, in para-10 of the judgment has observed as under: Page 8 of 13WP(C) No.115/2024 “It is well settled that in cases where the experience required has direct nexus with the educational/professional qualification prescribed and in such a situation it is trite that such experience must be gained after acquiring the said qualification. However, where the experience prescribed is capable of being acquired even without a particular educational qualification, in such a situation the experience acquired prior to acquiring the educational/professional qualification can hold good. --------." (emphasis added) 17. Learned senior counsel for the respondent has relied upon the judgment of the Hon’ble Supreme Court of India in the case of Anil Kumar Gupta and others vs. Municipal Corporation of Delhi and others (supra), wherein it has been held that as the advertisement prescribed two years’ professional experience without linking it with the degree qualification, therefore, two years professional experience need not entirely be experience gained after obtaining the degree. It would be apt to quote paras 19, 20, 23 and 24 of the said judgment as under: “19. We may point out that in the present case, the relevant provisions applicable and the notification dated 30.6.89 inviting applications refer to essential qualification as (i) Degree and (ii) 2 years' 'professional' experience. As stated earlier, experience upto 2 years is the minimum and those above 2 years, get 1/2 marks each year's experience ranging between 3 to 12 years, the maximum marks being 5 for experience. 20. We may at the outset state that the provision regarding experience speaks only of "professional experience" for two years and does not, in any manner, connect it with the degree qualification. In our view, the case on hand is similar to Subhash Vs. State of Maharashtra (1995 Supp.(3) SCC 332) where, while considering Rule 3(e) of the relevant Recruitment Rules, namely, the Maharashtra Motor Vehicles Department (Recruitment) Rules, 1991, this Court pointed out that the rule 3(e) which required one year experience in registered Automobile Workshop did not make any difference between Page 9 of 13WP(C) No.115/2024 acquisition of such experience prior to or after the acquisition of the basic qualification. 23.The above ruling in M.B.Joshi was followed in D.Stephen's case. In that case, this Court again distinguished N.Suresh Nathan's case. This Court however cautioned that any practice which was de hors a Rule could be no justification for the department to rely upon. Such past practice must relate to the interpretation of a rule in a particular manner. This Court then followed M.B.Joshi's case as being one where the language of the rule was specific that "if a particular length of services in the feeder post together with educational qualification enables a candidate to be considered for promotions, it will not be proper to count the experience only from the date of acquisition of superior educational qualification because such interpretation will violate the very purpose to give incentive to the employee to acquire higher education". This decision in D.Stephen's case also supports the case of the respondents. 24.Therefore, on the language of the notification dated 30.6.89, we are of the view that the 2 years professional experience need not entirely be experience gained after obtaining the degree. (emphasis added) 18. In ‘Shailendra Dania v. S.P. Dubey, (2007) 5 SCC 535’, the rule provided for filling up of 1/2 of the promotional quota for the post of Assistant Engineer by promotion of Junior Engineers, who were degree holders with 3 years’ qualifying service. Matter before the Hon’ble Supreme Court was in respect of degree holder Junior Engineers, who obtained degree while in service and the question was whether they were eligible for promotion on completion of 3 years’ service after obtaining the degree or the service rendered before obtaining the degree could also have been counted. After taking note of various its earlier pronouncements including the judgment in case titled Anil Kumat Gupta )supra), it was held and observed as under: “33. In Anil Kumar Gupta v. Municipal Corpn. of Delhi the relevant rules which came up for consideration provided for essential qualification for appointment viz. (a) degree in Civil Engineering; and (b) two years' professional Page 10 of 13WP(C) No.115/2024 experience. The age was not to exceed 30 years (relaxable for government servants and MCD employees). The applications were received for appointment to the post of Assistant Engineer (Civil) in the Engineering Department of MCD. The applications were received from the departmental candidates as well as others. The Selection Board of MCD had prescribed the norms for awarding marks. So far as the experience part was concerned, break-up was: up to two years' experience — “no marks”; 3 to 12 years' and above experience at the rate of ½ mark i.e. for 10 years — 5 marks; and viva voce — 15 marks. The question for consideration was whether the pre-degree experience of the candidates can be taken into consideration for awarding the marks or whether the candidate's experience gained after obtaining the degree is to be taken into consideration for awarding the marks. In para 20 of the judgment, the Court has said that the provision regarding experience speaks only of professional experience of two years and does not, in any manner, connect it with the degree qualification. Further, the Court has considered N. Suresh Nathan case and said in para 22 that N. Suresh Nathan case was based initially on the practice followed in the Department over a long number of years when the rules were understood as full service of three years after obtaining the degree and on that basis it was held that the service was not to include the service while holding a diploma. In para 23, the Court cautioned that any practice which is dehors the Rules can be no justification for the Department to rely upon. Such past practice must relate to the interpretation of the Rule in a particular manner and while interpreting the language of the notification, the Court held that two years' professional experience need not entirely be the experience obtained after obtaining the degree. Requirement is only degree and two years' professional experience and not the experience as degree-holder. We are afraid that the observation of the Court that N. Suresh Nathan case was decided mainly on the past practice followed in the Department, would not be a correct reading of N. Suresh Nathan case . This case was essentially decided on the interpretation of the Rule and the Court found support to that interpretation from the past practice followed in the Department. Thus, it appears from this judgment that essentially N. Suresh Nathan case was not followed on the interpretation of the Rule, which came in question for consideration before the Court and it was held that the professional experience required cannot be read to have any connection with the degree in Civil Engineering and, therefore, the professional experience in service irrespective of a degree in Civil Engineering would be considered for allotting marks by the Selection Board. 44. After having an overall consideration of the relevant Rules, we are of the view that the service experience required for promotion from the post of Junior Engineer to the post of Assistant Engineer by a degree-holder in the limited quota of degree-holder Junior Engineers cannot be equated with the service rendered as a diploma-holder nor can be substituted for service rendered as a degree-holder. When the claim is Page 11 of 13WP(C) No.115/2024 made from a fixed quota, the condition necessary for becoming eligible for promotion has to be complied with. The 25% specific quota is fixed for degree-holder Junior Engineers with the experience of three years. Thus, on a plain reading, the experience so required would be as a degree-holder Junior Engineer. 25% quota for promotion under the rule is assigned to degree-holder Junior Engineers with three years' experience, whereas for diploma-holder Junior Engineers eight years' experience is the requirement in their 25% quota. Educational qualification along with number of years of service was recognised as conferring eligibility for promotion in the respective quota fixed for graduates and diploma-holders. There is watertight compartment for graduate Junior Engineers and diploma-holder Junior Engineers. They are entitled for promotion in their respective quotas. Neither a diploma- holder Junior Engineer could claim promotion in the quota of degree-holders because he has completed three years of service nor can a degree-holder Junior Engineer make any claim for promotion quota fixed for diploma- holder Junior Engineers. Fixation of different quota for promotion from different channels of degree-holders and diploma-holders itself indicates that service required for promotion is an essential eligibility criterion along with degree or diploma, which is service rendered as a degree- holder in the present case. The particular years of service being the cumulative requirement with certain educational qualification providing for promotional avenue within the specified quota, cannot be anything but the service rendered as a degree-holder and not as a diploma-holder. The service experience as an eligibility criterion cannot be read to be any other thing because this quota is specifically made for the degree-holder Junior Engineers. 45. As a necessary corollary, we are of the view that the diploma-holder Junior Engineers who have obtained a degree in Engineering during the tenure of service, would be required to complete three years' service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diploma-holder Junior Engineers for promotion to the post of Assistant Engineers.” (emphasis added) 19. In K.K. Dixit v. Rajasthan Housing Board, (2015) 1 SCC 474, the judgment in Shailendra Dania’s case, was followed and it was held as under: “-----the word “with” occurring before the words, “three years' service” or “seven years' service” has to be given a Page 12 of 13WP(C) No.115/2024 natural meaning as understood in the common parlance and in the light of two watertight compartments created for the two classes for promotion with respective quotas of 20% and 30%, it must be held that three years' total experience of service must be service as a degree-holder. This view is fortified by the provision in the Regulations that for similar promotion a diploma-holder has to have seven years' total experience of service. The relevant regulation does not contemplate any reduced total experience for promotion for a diploma-holder who may acquire degree or AMIE qualification while in service. Even on acquiring such higher qualification the diploma-holder concerned is neither given any advantage vis-à-vis other diploma-holders nor is he ousted from the right of consideration against 30% quota provided for diploma-holders. In such a situation in order to enter into the watertight compartment of 20% quota for the degree-holders with three years' experience of service, a diploma-holder with AMIE qualification must show that he fulfils the entire eligibility criterion i.e. he is a degree-holder with three years' experience of service as a degree-holder.---" (emphasis added) 20. We have examined the order passed by the learned Tribunal. The learned Tribunal has observed that it is nowhere mentioned that experience cannot be acquired while pursuing M. Lib and thereafter proceeded to allow the application of the respondent. The post in question is “Librarian” and the essential qualification prescribed is M. Lib having three years’ experience and it cannot be said that the experience contemplated has no relation/nexus with the qualification of Masters’ Degree. We find that the learned Tribunal has not considered the fact that the experience was related to educational qualification for the post of “Librarian” and could have been acquired by the candidate only after having the requisite educational qualification of M. Lib. 21. In view of the above, we find merit in this writ petition preferred by the petitioners and the same is, allowed, and as a consequence Page 13 of 13WP(C) No.115/2024 thereof, the order dated 13.06.2023 passed by Central Administrative Tribunal. Srinagar Bench in T.A No. 62/3748 of 2021 is set aside and T.A No. 62/3748 of 2021 is dismissed. 22. Allowed. (RAJESH SEKHRI) (RAJNESH OSWAL) JUDGE JUDGE Srinagar 10.07.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No