Gopakumar. P vs The Kerala Public Service Commission on 21 August, 2012

[Cites 5, Cited by 0]

Kerala High Court

Gopakumar. P vs The Kerala Public Service Commission on 21 August, 2012

The appellant, who is presently working as General Manager in the District Co-operative Bank, Wayanad, impugn the judgment of the learned Single Judge, refusing to interfere in Exhibits P11 and P13 by which the 4th respondent was ranked as No.1 in the rank list for the post of General Manager and Deputy General Manager of the District Co-operative Bank, Pathanamthitta.

2. Admitted facts are that both the appellant and the 4th respondent applied to the post of General Manager and Deputy General Manager, District Co-operative Bank, Pathanamthitta as per a notification published by the Kerala Public Service Commission (hereinafter referred to as "the Commission"). The notification of the Commission also included invitation to the post of General Manager of the District Co-operative Banks in all the 14 districts. Though a common written test was conducted, interview was conducted separately in all the 14 districts. The appellant was W.A.No.1664 of 2012 - 2 - appointed as the General Manager in the district of Wayanad, having been ranked as No.1 in the said list and is continuing so even now. The appellant claims that he was the 1st rank holder in the district of Pathanamthitta also and it was his option to have elected to join either of the said posts. He desires the post in the district of Pathanamthitta and, hence, contends that he has a legal claim to the said post by reason of his being ranked as No.1 and even having been advised for the same. It was after the advice, that the rank list for the post of General Manager, District Co-operative Bank, Pathanamthitta was revised and the 4th respondent placed at the 1st rank and the appellant shunted down as the 2nd person to rank No.1A. This was done without notice to the appellant and, hence, such shunting down is vitiated for reasons of violation of the principles of natural justice.

3. The learned Senior Counsel Sri.M.R.Rajendran Nair appearing on behalf of the appellant would contend that the appellant had placed sufficient material before the learned Single Judge to show that the 4th respondent was prima facie disqualified. The learned Single Judge did not advert to any of the said documents and dismissed the claim of the appellant on extraneous W.A.No.1664 of 2012 - 3 - reasons, is the argument advanced. The learned Senior Counsel also places heavy reliance on the judgment of a Division Bench of this Court in W.A.No.1265 of 2012 dated 17.7.2012. The learned Senior Counsel points out that in the said decision the Division Bench had upheld the rejection of the application of a similarly situated person for the very same post, viz., General Manager in a District Co-operative Bank. The Division Bench has laid down the principles on which a post of General Manager in a Co-operative Bank ought to be filled and it is the submission that the Commission cannot deviate from the same. This Court also is bound by the said precedent, is the submission of the learned Senior Counsel.

4. Briefly stated, the fact remains that the Experience Certificate, Exhibit P6 dated 12.01.2011 describes the designation of the 4th respondent in Reliance Life Insurance Co. Ltd. as one of Territory Manager (Branch Manager), which is specifically noticed as being supervisory in nature. It also indicates the total emoluments drawn by the 4th respondent as Rs.4,96,524/- per annum. The learned Senior Counsel would draw our attention to the documents received by the appellant under the Right to W.A.No.1664 of 2012 - 4 - Information Act, produced as Exhibits P8 and P15 series; to disprove the said claims.

5. Exhibit P8 is the Muster Roll of the establishment in which 4th respondent was allegedly employed and is of the months January, August and September of the year 2007. The 4th respondent has been shown as "SM" under the column "Nature of Work", which undisputedly indicates "Sales Manager". Exhibit P6 Experience Certificate shows him to be having held the post of Territory Manager on the date on which that Certificate was issued. It is also to be noticed that the Experience Certificate has been counter-signed by the Assistant Labour Officer and the District Labour Officer, who are the statutory authorities enjoined with the implementation of labour welfare measures in the establishment and empowered with statutory duties under the welfare legislations. This is in accordance with the general rules of recruitment published by the Commission and provides veracity to a certificate issued by a non-governmental organization. We immediately notice that Exhibit P1 notification stipulates experience in a managerial or supervisory capacity for not less than three years in a co-operative institution/ scheduled bank/ W.A.No.1664 of 2012 - 5 - Government or Quasi Government institutions/ public limited Companies. That the 4th respondent was employed in a public limited Company and had such experience of managerial/ supervisory capacity for more than three years from 28.3.2005 to 4.9.2009 is evident from Exhibit P6.

6. The reliance placed on the Income Tax Returns, according to us, is not at all significant for consideration of the 4th respondent's entitlement to apply for the post of General Manager as per Exhibit P1. Primarily we notice that Exhibit P1 does not require any minimum salary to be drawn in the managerial/supervisory capacity in which an applicant is working. The attempt of the Senior Counsel is to show that Exhibit P6 has been issued fraudulently. We cannot countenance such argument, especially since it has been counter-signed by the statutory authorities. If the 4th respondent or his employer has not disclosed his actual income, then that can only lead to appropriate proceedings under the Income Tax Act. We cannot infer anything from the documents produced in the writ petition said to have been obtained under the Right to Information Act; to dispel the claim of the 4th respondent.

W.A.No.1664 of 2012 - 6 -

7. The learned Senior Counsel also places reliance on the counter affidavit filed by the Commission in a writ petition filed by the 4th respondent. We notice that initially the 4th respondent's application was not accepted by the Commission. He approached this Court by a writ petition, numbered as W.P.(C).No.12895 of 2011, in which he also initially obtained an order dated 27.5.2011, wherein the vacancy of General Manager in District Co-operative Bank, Pathanamthitta was directed not to be filled up until further orders; if the same has not been done on a regular basis. In the writ petition the Commission did file a counter affidavit, produced as Exhibit P5, in which it had taken a specific contention that the 4th respondent is not entitled to be considered for the post of General Manager in the District Co-operative Bank. We extract below paragraphs 5 and 6 of the counter affidavit:

"5. The interview for selection to the post of General Manager in the District Co-operative Bank, Pathanamthitta District, was held on 18.1.2011. Sri.Roy.T.K. (Sl.No.1) was admitted provisionally for the interview since his MBA was a part time course. His experience proved was as "Territory Manager in Reliance Life Insurance Co. Ltd." for a period of 4 years, 5 months and 8 days. The candidate had produced the equivalency certificate of MBA within the time granted by the interview board. His admission to the interview was W.A.No.1664 of 2012 - 7 - provisional subject to scrutiny of applications. The Commission examined the acceptability of the experience of the candidate and has decided not to accept same since the experience as Territory Sales Manager in Reliance Life Insurance Co. Ltd. is not acceptable as Managerial/ Supervisory experience prescribed as per the Gazette notification issued for selection to the post.

6. The experience certificate produced by him were duly examined, that experience as Sales Manager cannot be equated with experience in Managerial/ Supervisory cadre and it cannot be said that he was working in Manager/ Supervisory Cadre in any banking institutions. The post for which selection was made was for General Manager, which is one of top Managerial Post in the District Co-operative Bank. The experience acquired by the petitioner has nothing to do with the job of a General Manager in the Bank. The petitioner is not having sufficient experience as per the notification issued by the Commission".

8. It is the submission of the learned Standing Counsel for the Commission that later, on a re-examination of the issue, it was decided that there was absolutely no reason why the 4th respondent could not be considered. Hence, his application was also directed to be considered and the 4th respondent having found to have obtained more marks in the test and interview for the post of General Manager, District Co-operative Bank, Pathanamthitta, was placed above the appellant herein. There cannot be any W.A.No.1664 of 2012 - 8 - dispute raised as to the 4th respondent having obtained more marks in the test and interview. The appellant's contention seems to stem from the fact that the Commission having decided on the disentitlement of the 4th respondent, could not do a volte-face and hold him to be entitled, especially in the teeth of the statements contained in paragraphs 5 and 6 of the counter-affidavit extracted above.

9. Looking at paragraph 5, we see that the Commission rejected the experience of the candidate on the ground that the experience as Territory Manager in Reliance Life Insurance Co. Ltd. is not a managerial or supervisory experience prescribed as per the gazette notification for selection to the post. We do not find any such restriction in Exhibit P1 notification, which is the notification issued for selection to the post. But for prescribing the period of and the institutions in which experience is to be shown; the notification only speaks of experience in a supervisory or managerial capacity. In paragraph 6 too, the Commission contends that the experience said to have been acquired by the 4th respondent cannot be equated with the managerial/ supervisory cadre in a banking institution. The experience acquired was found W.A.No.1664 of 2012 - 9 - to be alien to the job of a General Manager in a Bank. This opinion, admittedly, was revisited by the Commission and recalled.

10. We are looking at the reasonableness in reviewing such a decision in the context of the apparent and obvious experience of the 4th respondent as revealed from the records. We have noticed earlier that the 4th respondent was working in a Managerial/Supervisory capacity. Exhibit P1 notification stipulated experience in a managerial or supervisory capacity for not less than three years in a co-operative institution/scheduled bank/ Government or Quasi Government institutions/public limited Companies and did not confine the experience to a banking institution alone. Admittedly the 4th respondent was working in a Public Limited Company, which was dealing in insurance; which would come within the general nomenclature of a "financial institution"; though not under banking. We again reiterate that Exhibit P1 did not confine the experience to the field of banking alone. We are unable to hold that the Commission having stated before this Court that the 4th respondent was not entitled to be considered for selection by a counter affidavit, was precluded from looking at the issue again and reviewing the same. On reviewing W.A.No.1664 of 2012 - 10 - the same, the 4th respondent had also withdrawn the writ petition. Having taken a stand before this Court, it cannot be gainsaid that the Commission ought to wait for a judgment of this Court. The Commission could, in its wisdom, review its decision subject however to the action being laid bare for judicial scrutiny. That is the exercise we are called upon to undertake in the present appeal.

11. We would also consider the issue of non-compliance of the principles of natural justice raised by the appellant in placing the 4th respondent above the appellant, after even an advice was issued in his name. We have to view it in the perspective of a valid challenge having been raised by the 4th respondent, who was denied eligibility at the first instance and the Commission having looked into the matter again deciding to consider the application of the 4th respondent too. Admittedly the 4th respondent had more marks than the appellant and the place at the 1st rank could be denied to him only on the basis of the finding that he is not eligible to apply for the post on a reference to the essential basic qualifications prescribed by Exhibit P1 notification. That substratum was removed by the review by the Commission. W.A.No.1664 of 2012 - 11 - We have already found that the review made by the Commission is a decision which is eminently sustainable. In such circumstance what purpose would be served in issuing a notice to the appellant and would it not be a "useless formality" is the question to be considered by us.

12. As noticed earlier, the 4th respondent was more meritorious than the appellant. What remained was his entitlement. On a review of his eligibility to be considered for the post, the Commission found his experience to be one coming within Exhibit P1 notification. The review of the earlier decision, to disentitle the 4th respondent from consideration under Exhibit P1 notification, was not an issue in which the appellant could be issued with any notice. The appellant, in so far as the issue of entitlement or eligibility of the 4th respondent is concerned, is not a necessary party and is a rank outsider. On such decision being arrived at, what remained was only the comparison of relative merit, which again is discernible from the marks obtained by the respective candidates in the test and interview. That gives rise to no dispute. The 4th respondent, by virtue of the marks obtained, stands above the appellant and no useful purpose would be served in issuing a W.A.No.1664 of 2012 - 12 - notice to the appellant before a revised rank list is published. In taking this view, we are supported by the decision of the Supreme Court reported in Aligarh Muslim University & Others v. Mansoor Ali Khan, 2000 (7) SCC 529.

13. Now we come to the decision of the Division Bench placed before us. We observe that though the Division Bench was considering the selection to the post of General Manager of a District Co-operative Bank in the said case also; the similarity stops there. The question that arose for consideration and which was decided was whether a school teacher, by virtue of his past experience as Sales Supervisor in a liquor Company for three years, is eligible to be appointed as General Manager of a large District Co-operative Bank. The Division Bench specifically noticed the contention of the Standing Counsel for the appellant-Bank and also the Standing Counsel for the Commission, that the experience required for being considered to the post of General Manager in a District Co-operative Bank is not that in a liquor Company, but in a Co-operative or financial institution or public sector Companies, which implies that experience required is in "finance". In the instant case, there cannot be any dispute that the insurance business W.A.No.1664 of 2012 - 13 - would come within the broad nomenclature of "finance". It is also pertinent that the Division Bench, considering the role of the recruiting agency, i.e, the Commission, found that scrutinizing the eligibility of the candidate is not a mere clerical work of accepting the certificates on face value. We are of the opinion that the rejection of the 4th respondent's application at the first instance was on a mere mechanical consideration of the Experience Certificate without looking into the details. The Commission would have been considerably swayed by exhibit P17 too, which it is submitted is no more in force.

14. On a valid challenge being raised by the 4th respondent before this Court, the Commission attempted a review, which resulted in a scrutiny of the eligibility of the candidate with reference to Exhibit P1 notification and with reference to the experience gained in the earlier employment and the expected duties as a General Manager in the District Co-operative Bank. The decision taken in the case of the 4th respondent after even a counter affidavit was filed, affirming his disentitlement, in our opinion, is in consonance with the decision of the Division Bench, which declared that the experience for a General Manager of a W.A.No.1664 of 2012 - 14 - Co-operative Bank should be in the line of banking or financing, like investment Companies, Mutual Funds, etc. and not in trading Companies engaged in marketing of products. What was held in the said decision is that though Rule 186(1)(b) does not stipulate that experience should be in banking or financing, the Commission while scrutinizing the application can certainly appreciate the experience with reference to the post to which the selection is made and in the context of their finding that the appellant's experience is not suitable for the employment, the Commission was definitely entitled to reject the application. As a corollary, on such experience being considered by the recruiting agency to be in consonance with the work and duty enjoined upon the post to which the selection is made; the recruiting agency is definitely entitled to consider a person for recruitment, despite his having been found to be disentitled at a preliminary stage on a mere prima facie consideration. We are afraid that the judgment of the Division Bench does not at all advance the case of the appellant herein.

For the cumulative reasons stated above, we are of the opinion that the facts revealed in the case and the law on the subject does not persuade us to interfere with the findings entered W.A.No.1664 of 2012 - 15 - upon by the learned Single Judge. The recruiting agency definitely should be given an amount of leeway in scrutinizing the applications and this Court cannot sit in judgment of every decision taken with respect to the entitlement or disentitlement to apply, on the terms of a notification, presumably on a more reasonable approach as the Court may deem fit. Nor can it be said that a more reasonable view is possible. We refuse to interfere with the decision of the recruiting agency on the ground of absence of irregularity, irrationality or illegality in the decision taken. The judgment of the learned Single Judge is confirmed and the Writ Appeal is dismissed, however, with no order as to costs.

Sd/-

Manjula Chellur, Chief Justice Sd/-

                                           K.Vinod Chandran,
vku/                                            Judge

                          - true copy -

Unlock Advanced Research with PRISMAI

Kerala High Court