Antony Dominic, J.
The first respondent in these appeals filed WP(C) No.25694/2005 disputing the eligibility of the appellant in WA No.737/10 for appointment to the post of Reader in Political Science in the Kerala University.
2. In the judgment under appeal, following the principles laid down by the Division Bench of this Court in Vijayachandran Pillai v. University of Calicut (2009(3) KLT 176) and Vasundhara v. Sallas Benjamin (2010(1) KLT 533), it was held that the experience prescribed should be one acquired after obtaining basic educational qualifications for the post and that since the appellant in WA No.737/10 did not possess the prescribed experience, his selection and appointment to the post of Reader in Political Science was illegal. In WA No.737/10, this judgment is challenged by the 4th respondent in the writ petition, whose appointment was set aside. WA No.987/10 is filed by the University of Kerala and the Selection Committee for appointment of teachers.
3. When the appeals were heard by a Division Bench, order dated 6/8/10 was passed doubting the correctness of the principles laid down in Vijayachandran Pillai's case (supra) and Vasundhara's case (supra) that for appointment to the post of Reader in Calicut University, the experience prescribed will be satisfied only if it was acquired after obtaining the basic educational qualifications. It is accordingly that these cases came up for consideration before a Full Bench.
4. In the Kerala University Act, 1974, (hereinafter referred to as 'the Act' for short), “teacher” has been defined in Section 2 (27) to mean Principal, Professor, Associate Professor, Assistant Professor, Reader, Lecturer, Instructor or such other person imparting instructions or supervising research in any of the colleges or recognised institutions and whose appointment has been approved by the University. In exercise of its powers under Section 83 of the Act, the State Government have made the Kerala University First Statutes, 1977. Chapter 3 of the First Statutes deals with teachers of the University. Statute 5 provides that no teacher shall be eligible for appointment in the University unless he possesses such qualifications as may be prescribed by the regulations made by the Academic Council. It is also provided that the applicants shall be required to possess the prescribed qualifications at the time of submitting their applications.
5. In exercise of its powers under Statute 5, the Kerala University Regulations relating to qualifications of teachers have been framed by the Academic Council. Regulation 2 prescribes the qualifications for Reader (Open), which, being relevant, is extracted below for easy reference;
“2. Reader (Open): Good academic record with a doctoral degree or equivalent published work. Candidates from outside the University system in addition shall also possess at least 55% marks or an equivalent grade at the Master's degree level. Eight years experience of teaching and/or research including upto 3 years for research degrees and has made some mark in the areas of Scholarship as evidenced by quality of publications, contribution to educational renovation, design of new courses and curricula.
Candidates from outside the University system means candidates working in institutions other than colleges and Universities, deemed Universities and Institutions which are imparting education beyond +12 schooling.”
6. In compliance with the above statutory provisions and specifying the aforesaid qualifications, the Kerala University issued notification dated 3/11/2004 inviting applications for the post of Reader in Political Science in the University. In the selection that followed, the appellant in WA No.737/10 was selected. The contention that was accepted by the learned single Judge was that since he had acquired the Degree of Ph.D only on 27/11/2004, he did not have the prescribed “8” years experience of teaching and/or research including upto 3 years for research degree” and hence, was ineligible.
7. This view taken by the learned single Judge is following the principles laid down by the Division Bench of this Court in Dr.Vijayachandran Pillai's case and Vasundhara's case (supra). In Dr.Vijayachandran Pillai's case (supra) and Vasundhara's case (supra), the dispute was regarding appointment to the post of Reader in Calicut University. In these cases, experience prescribed was five years of teaching and/or research excluding the period spent for obtaining research degree. Therefore, the difference in the prescription of experience between Kerala University and Calicut University is only that while in Kerala University, experience prescribed is of 8 years of teaching including upto 3 years for research degree; in Calicut University, the teaching experience prescribed is of 5 years and the period spent for obtaining the research degree is specifically excluded. This shows that the nature of teaching experience prescribed in both cases is similar and there is no qualitative difference in its prescription. Therefore, we shall examine whether for appointment to the post of Reader in Kerala University, the experience prescribed should be one gained after acquiring the basic educational qualifications and the answer to this question, would also be our answer to the question referred by the Division Bench.
8. The contention that led to the reference order was that while deciding these cases, the Division Benches did not dissect or try to understand the exact meaning of the prescription of experience and that instead, the Benches proceeded to assume that since Ph.D is the prescribed educational qualification for Reader post, the teaching experience should be one obtained after getting Ph.D degree.
9. We heard the learned counsel for the appellants and the learned counsel appearing for the respondents.
10. Learned counsel for the appellants reiterated their contention that it was not the intention of the University that the experience should be one acquired after the qualification. According to them, teaching experience gained by a teacher having approved service, irrespective of whether it is before obtaining Ph.D or after obtaining Ph.D, is sufficient to satisfy the prescription contained in the Rule. On the other hand, learned senior counsel appearing for the 1st respondent contended that the issue has been correctly decided by the two Division Benches of this Court and that there is absolutely no warrant for taking a different view.
11. We have anxiously considered the submissions made by both sides.
12. The qualifications prescribed for appointment as Reader consist of the following;
(1) Good academic record with a doctoral degree or equivalent published work.
(2) If candidates are from outside the University system, they shall also possess at least 55% marks or an equivalent grade at the Master's Degree level.
(3) 8 years experience of teaching and/or research including upto 3 years for doctoral degree.
(4) Should have made some mark in the areas of scholarship as evidenced by the quality of publications, contribution to educational renovation, design of new courses and curricula.
13. The debate before this Court was concerning the nature of the experience of teaching prescribed for the post of Reader. Before we proceed further with the rival contentions, we shall again refer to the teaching experience prescribed for that post, which is as follows:
“Eight years experience of teaching and/or research including upto 3 years for research degree”.
14. In this context, it is to be noticed that the expression used in the prescription of experience is “and/or”. This legal phrase has been taken as indicating that the choice can either be between the two alternatives or that both can be chosen. It has been held that when and/or is used, they are to be read either disjunctively or conjunctively and it means either or both of.
15. However, this usage has been severely criticized on various instances. Viscount Simon LC has, in Bonitto v. Fuerst Brothers {1944 A.C. 75 (House of Lords)}, described this usage as the “bastard conjunction” which was the “commercial courts contribution to basic English”. In “Legal Drafting in Plain Language (3rd Edition)”, Robert C. Dick has commented, “the eye tends to trip and stumble over this symbol. It has been promulgated largely by those who either have not taken the trouble to decide, or cannot make up their minds, which of the two words they mean”. Again, in Employees Mut Liability Co.
v. Tollefsen (263 NW 376), the phrase and/or has been criticized as “that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean”.
16. It is despite all these disapprovals that the framers of the University Statutes and the Regulations have chosen to lavishly use the expression “and/or”, which itself has the potential to draw the University to unnecessary litigations.
17. The experience prescribed can be dissected into the following:-
(1) 8 years of experience of teaching.
(2) 8 years of experience of teaching and research.
(3) 8 years of research.
18. However, in so far as research is concerned, there is a further condition that it shall be only upto 3 years for research degree.
19. In so far as the facts of these cases are concerned, appellant in WA No.737/10 is a candidate who claimed appointment on the basis of good academic record, with a doctoral degree and 8 years of experience. In other words, he is not one claiming appointment on the basis of equivalent published work which is also a qualification prescribed in the rules or experience in research alone.
20. Statute 10 of Chapter 3 of the First Statutes, 1977 deals with applicability of certain rules to University teachers. This statute is extracted below for reference.
“10. Applicability of certain Rules to University Teachers - Subject to the provisions of the Kerala University Act, 1974 and the Statutes' issued thereunder, the Kerala Service Rules, the Kerala Sate and Subordinate Service Rules and the Kerala Government Servants Conduct Rules for the time being in force as amended from time to time shall mutatis mutandis apply to the teachers of the University, with such modifications as the context may require and the expression “Government” in those Rules shall be construed as a reference to the “University”.
21. Thus by Statute 10 of Chapter 3 of the First Statutes, 1977, the University has adopted the provisions of Kerala State and Subordinate Service Rules (hereinafter referred to as 'the K.S. & S.S.R.' for short) and made it applicable to teachers. This provision also clarifies that the provisions of K.S. & S.S.R. would stand modified in its application to the teachers of the Kerala University only if the context so requires.
22. Rule 10 of Part II K.S. & S.S.R. provides for the educational qualifications for appointment to State and Subordinate Services. Rule 10(ab) was inserted by GO(P) No.10/93/PA&ARD. dated 27/1/93. This sub rule, being relevant, reads thus;
“10(ab) Where the Special Rules or Recruitment Rules for a post in any service prescribe qualification of experience, it shall, unless otherwise specified, be one gained by persons on temporary or regular appointment in capacities other than paid or unpaid apprentices, trainees and Casual Labourers in Central or State Government Service or in Public Sector Undertaking or Registered Private Sector Undertaking, after acquiring the basic qualification prescribed for the post:”
23. Reading of the sub rule shows that where recruitment rules for a post prescribe qualification of experience, it shall, unless otherwise specified in the rules, be one gained after acquiring the basic qualification prescribed for the post.
24. As already detailed above, by virtue of Statute 10 of the First Statutes, K.S.& S.S.R has been adopted by the University and is made applicable to the teachers in the University. As per Rule 10(ab) of Part II K.S. & S.S.R, for direct recruitment, when qualification of experience is prescribed in the Rules, it shall, unless otherwise specified in the recruitment rules, be gained after acquiring the basic educational qualifications prescribed for the post. One of the qualifications for appointment to the post of Reader prescribed in the regulations is 8 years experience. Regulations do not specify that the experience need not be one acquired after acquiring the basic educational qualification. Therefore, there is no indication in the Regulation whatsoever that the experience gained before acquiring the educational qualification would suffice. If that be so, if the provisions of the regulations prescribing the educational qualification and experience prescribed for the post of Reader are read in the light of Rule 10(ab) of Part II K.S. & S.S.R., conclusion is irresistible that the experience prescribed in the regulations should be one gained after acquiring the basic educational qualifications prescribed.
25. We are fortified in our above conclusions by two judgments of this Court. A Division Bench of this Court in Sirajudheen v. Kerala Public Service Commission (2001 (2) KLT 268) considered this very question in the context of recruitment to the post of Assistant Motor Vehicle Inspectors. In that case, the Division Bench held that the experience gained must be after acquisition of the basic qualification and this judgment was rendered referring to the provisions of Rule 10(ab) of Part II K.S. & S.S.R.
26. Subsequently, in Dr.Marykutty Joseph v. State of Kerala (2008 (1) KLJ 312), dealing with promotion to the post of Assistant Professor in the Kerala Dental Education Service, a Division Bench of this Court held that teaching experience of three years should be gained by a candidate after acquiring post graduate degree in the subject. Here also, the Division Bench drew support to its conclusions from Rule 10(ab) of Part II K.S.& S.S.R.
27. We shall now proceed to examine the manner in which similar prescription of experience has been understood by Courts. The question whether experience should be gained after acquisition of educational qualification arose for consideration in P.K.Ramachandra Iyer v. Union of India (AIR 1984 SC 541), where the Supreme Court held that “it is well settled that experience to be of value and utility must be acquired after the educational qualification is obtained and not while acquiring the post graduate qualification. In the case of Ph.D degree awarded on research the situation may be different.” That observation was made in the context of recruitment to the post of Senior Bio Chemist in IARI and the qualifications prescribed were Doctorate in Biochemistry or Organic Chemistry or Agricultural Chemistry and 10 years' research experience in the field of Nutrition with particular reference to quantity and quality of protein in foodgrains as evidenced by published work.
28. The Supreme Court again considered the issue in Sheshrao Jangluji Bagde v. Bhaiyya (AIR 1991 SC 76) and it was held that “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”.
29. In Indian Airlines Ltd v. S.Gopalakrishnan {(2001) 2 SCC 362}, dealing with the qualifications prescribed for the post of Junior Operator in Indian Airlines Limited, the Supreme Court held that when in addition to qualification, experience is prescribed, it would only mean acquiring experience after obtaining the necessary qualification and not before obtaining such qualification. This judgment has been followed by the Supreme Court in Shailendra Dania v. S.P.Dubey {(2007) 5 SCC 535}. Though that was a case of promotion in the Delhi Development Authority, the Supreme Court concluded in para 45 of the judgment that the diploma-holder Junior Engineers who have obtained a degree in Engineering while in service, shall 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. Following the principles laid down in the judgment in Shailendra Dania (supra), the Apex Court in K.K.Dixit & Ors. v. Rajasthan Housing Board (JT 2014(10) SCC 118) again held that when graduation in Engineering with 3 years experience is prescribed for promotion in graduate quota, the candidate should have gained experience after graduation.
30. However, the learned counsel for the University placed considerable reliance on the Full Bench judgment of this Court in Shaila Beegum v. Kerala Public Service Commission (1997 (2) KLT 273). That was a case where the PSC invited applications for recruitment to the post of Assistant Information Officer in the Public Relations Department. The qualifications prescribed for the post were, apart from educational qualification, two years experience in a Government Publicity Organization or Publicity Department of a Private Organization or firm or the Editorial Section of daily newspaper or agency. Petitioner therein, who had the educational qualifications and also experience as a Sub Editor, submitted her application on 5/9/1983. That application was rejected on the ground that her experience was not one acquired after obtaining the basic qualification viz., B.A. That was challenged before this Court and the Full Bench held thus;
“There was nothing in the notification, by which the parties are bound, to suggest that the experience to count will only be such as had been obtained after obtaining the basic educational qualification. We cannot import into the notification anything that is not warranted by its terms. We cannot also accept or permit a departure from its terms on any “practice” of the first respondent about its construction to the detriment of a candidate”.
31. The Full Bench also referred to Rule 10(ab) introduced subsequent to the notification and the Apex Court judgments in Subhash v. State of Maharashtra (1995 Supp (3) SCC 332) and Sheshrao Jangluji Bagde's case (supra). Accordingly, it was concluded that the petitioner had satisfied the qualifications prescribed for the post and allowed the writ petition.
32. However, this judgment cannot govern the issue before us because Statute 10 of Chapter 3 of the First Statutes extracted above shows that subject to the provisions of the Kerala University Act and the Statutes' issued thereunder, Kerala State and Subordinate Service Rules, for the time being in force and as amended from time to time, shall mutatis mutandis apply to the teachers of the University, with such modifications as the context may require and the expression “Government” in those rules shall be construed as a reference to the “University”. The Full Bench in Shaila Beegum's case (supra) was dealing with a case to which provisions of Rule 10(ab) were inapplicable. Therefore, that judgment cannot govern the case of the appellant in WA No.737/10.
33. Counsel for the University placed reliance on the Apex Court judgment in Dr.Kumar Bar Das v. Utkal University {(1999) 1 SCC 453}. In that case, the issue considered by the Apex Court was in relation to the post of Professor, the essential qualification of which, included about 10 years' experience of teaching and/or research and experience of guiding research at doctoral level. The issue considered by the Apex Court was not whether the experience prescribed should be one acquired after acquisition of the educational qualification, but was whether the experience gained while doing research as Junior Research Fellow could be clubbed with the teaching experience. Therefore, this judgment cannot be of any relevance to the case in hand.
34. Counsel then placed reliance on the judgment of the Apex Court in G.N.Nayak v. Goa University {(2002 2 SCC 712}. That case was concerning appointment to the post of Professor in the Goa University and the qualification prescribed included 10 years' experience in post graduate teaching and/or research at the university/national level institution including experience of guiding research at doctoral level. The appellant before the Apex Court claimed that if research conducted by him for three years in connection with his doctoral degree was counted in addition to his teaching experience, he is qualified. The question considered was whether the pre-doctoral research could be counted towards the experience prescribed. Analysing the recruitment rules, the Apex Court held that the University had intended, understood and consistently proceeded on the basis that pre-doctoral research could be counted towards the prescribed ten years' experience and accordingly, the appellant was held eligible for the post. This judgment also cannot support the appellants.
35. Counsel then relied on the Apex Court judgment in B.C.Mylarappa v. Dr.R.Venkatasubbaiah {(2008) 14 SCC 306}. That also was a case relating to the appointment of Professor and one of the eligibility conditions for appointment was ten years of experience of post graduate teaching, and/or experience in research at the university/national level institutions including experience of guiding research at doctoral level. Reading of the judgment shows that the issue that was considered by the Apex Court was whether experience as Research Assistant could be taken as teaching experience. This judgment also, in our view, is not of any relevance to the controversy arising in these cases.
36. Counsel then made reference to the judgment of this Court in Sugunan v. University of Kerala (1984 KLT 1086). That again was a case where the issue considered was whether post doctoral research experience can be considered as teaching experience. Taking into account the terms of the notification and the fact that the post doctoral research involved teaching work also, the Division Bench of this Court upheld the contention.
37. Therefore, none of these judgments relied on by the learned counsel for the appellants support their contention that the requirement of the Rule would be satisfied if the experience gained by a candidate is prior to acquisition of the educational qualifications prescribed for the post of Reader.
38. Learned counsel then relied on the Apex Court judgments in Subhash's case (supra) and A.K.Raghumani Singh v. Gopal Chandra Nath {(2000) 4 SCC 30} to contend that the rule should be understood in the light of the plain language used by the rule making authority. We have no quarrel with the proposition canvassed by the learned counsel. We have already found that the prescription of the rule will be satisfied only if the candidate claiming eligibility to the post of Reader advertised for direct recruitment, has experience after acquisition of educational qualification.
39. Learned counsel for the University contended that the practice in the University was always to recruit candidates to the post of Reader taking into consideration teaching experience acquired prior to acquiring Ph.D also. According to him, the past practice in the University has to be respected and recognised by this Court. It is true that while interpreting rules, practices prevailing in the concerned establishment are entitled to due weight and consideration. But if such practice is dehors the rules, the practice cannot prevail over the rules. See in this context paragraph 33 of Shailendra Dania's case (supra).
40. Turning again to the cases of Dr.Vijayachandran Pillai (supra) and Vasundhara (supra), both these cases arose in the context of appointments to the post of Reader in Calicut University. The educational qualifications are similar in all respects and the experience prescribed was 5 years teaching experience excluding research. It was in this background, the Division Bench considered the question whether the teaching experience should be one acquired after acquiring the basic educational qualification. Statute 9 in Chapter 3 of the Calicut University First Statutes, 1977, showed that the Calicut University has also adopted K.S & S.S.R. Therefore, Rule 10(ab) of Part II K.S. & S.S.R. will apply in the case of teachers of Calicut University also. In these cases, the University contended that experience should be one acquired after acquiring the basic educational qualifications. Even apart from that, since the statutory provisions and the prescription of experience are in similar terms, in view of our conclusions in WA Nos.737 & 987/10, the finding of the Division Bench that the experience should be one gained after obtaining the basic educational qualification for the post is liable to be affirmed.
41. We, therefore, affirm the view taken by the Division Bench of this Court in Dr.Vijayachandran Pillai's case (supra) and Vasundhara's case (supra) and the learned single Judge has also correctly decided the case by holding that the experience prescribed should be one acquired after acquisition of the basic educational qualifications prescribed for the post of Reader when the vacancies were notified for direct recruitment. The question referred to the Full Bench, is answered as aforesaid. However, it is clarified that the findings in the judgment will not be used to re- open or invalidate any other appointment already made in the services of the University.
42. For all these reasons, we do not find any illegality in the conclusion of the learned single Judge that the appellant in WA No.737/2010 (4th respondent in WP(C) No.25694/2005) was not eligible to be considered for appointment to the post of Reader in Political Science as per notification dated 3/11/2004 issued by the Kerala University and these appeals, therefore, are only to be dismissed.
The appeals are accordingly dismissed.
Sd/-
ANTONY DOMINIC, JUDGE
Sd/-
K.RAMAKRISHNAN, JUDGE
Sd/-
ANIL K. NARENDRAN, JUDGE
Rp