Kerala High Court
Mohamed Shafi Vadakke Peediyakkal vs The Kerala Public Service Commission on 14 August, 2012
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 14TH DAY OF AUGUST 2012/23RD SRAVANA 1934
WP(C).No. 35052 of 2010 (F)
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PETITIONER:
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MOHAMED SHAFI VADAKKE PEEDIYAKKAL
S/O.V.P.MOIDEENKUTTY, AGED 44 YEARS
RESIDING AT VADAKKE PEEDIYAKKAL, THOZHUVANUR.P.O.
MALAPPURAM DISTRICT. 676 552.
BY ADVS.SRI.K.M.FIROZ
SMT.M.SHAJNA
RESPONDENTS:
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1. THE KERALA PUBLIC SERVICE COMMISSION
PATTAM, PATTAM PALACE.P.O., TRIVANDRUM-695 004
REPRESENTED BY ITS SECRETARY.
2. THE DISTRICT OFFICER,
THE KERALA PUBLIC SERVICE COMMISSION
DISTRICT OFFICE, MALAPPURAM-676 505.
3. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT
DEPARTMENT OF CO-OPERATION, SECRETARIAT
TRIVANDRUM - 695001.
4. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
KERALA , THE OFFICE OF THE REGISTRAR
THIRUVANANTHAPURAM - 695001
WP(C).No. 35052 of 2010 (F)
5. THE MALAPPURAM DISTRICT CO-OPERATIVE
BANK LTD., HEAD OFFICE, MALAPPURAM-676 505.
R1 & R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
R3 & R4 BY GOVERNMENT PLEADER,
R5 BY ADVS. SRI.V.KRISHNA MENON
SMT.P.VIJAYAMMA
SMT.UMA GOPINATH
SRI.U.K.DEVIDAS
SRI.PRINSUN PHILIP
SRI.PILLAI JAYAPRAKASH RAVEENDRAN
BY SRI.ALEXANDER THOMAS,SC,KPSC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02-07-2012, THE COURT ON 14-08-2012 DELIVERED THE
FOLLOWING:
BP
WP(C).No. 35052 of 2010 (F)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF THE NOTIFICATION EXTRA ORDINARY DT 13/11/2009
(CATEGORY NO.405/2-009)
EXT.P2: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE
THE PSC.
EXT.P3: TRUE COPY OF THE RULE 186 OF THE CO-OPERATIVE SOCIETIES RULES.
EXT.P4: TRUE COPY OF THE LETTER DT 4/11/2010 ISSUED BY THE PSC TO THE
PETITIONER
EXT.P5: TRUE COPY OF THE NOTIFICATION DT 30/4/2010.
EXT.P6: TRUE COPY OF THE LETTER DT 21/7/2010 OF THE PSC TO THE PETITIONER
EXT.P7: TRUE COPY OF THE SERVICE CERTIFICATE DT 4/8/2010.
EXT.P8: TRUE COPY OF THE EXPERIENCE CERTIFICATE DT 4/8/2010 OF THE
PETITIONER
EXT.P9: TRUE COPY OF THE EXPERIENCE CERTIFICATE DT 4/8/2010 OF THE
PETITIONER
EXT.P10: TRUE COPY OF THE MBA CERTIFIACTE (PROVISIONAL) OF THE PETITIONER
EXT.P11: TRUE COPY OF THE REQUEST DT 4/8/2010 SUBMITTED BY THE PETITIONER
BEFORE THE PSC.
EXT.P12: A TRUE COPY OF THE GENERAL CONDITIONS PRESCRIBED BY PSC.
RESPONDENT'S EXHIBITS:
EXT.R4(a): CIRCULAR 20/11 DT 25/2/11.
//TRUE COPY//
P.A. TO JUDGE
BP
A.M.SHAFFIQUE, J
* * * * * * * * * * * * *
W.P.C.No.35052 of 2010
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Dated this the 14th day of August 2012
J U D G M E N T
This is a writ petition filed challenging Clause 7(2) of Ext.P1 notification to the extent that it insists on experience gained by the candidate after acquiring basic qualification prescribed for the post and for setting aside Ext.P4 rejecting the applications submitted by the petitioner as Ext.P2 in pursuance of Ext.P1 notification.
2. The petitioner is employed as Senior Clerk in Kottakkal Co-operative Urban Bank Ltd. and while in service he applied for the post of Deputy General Manager in terms of Exts.P1 and P2 notifications. The qualification prescribed for the above mentioned post as per Rule 186 of the Co-operative Societies Rules is MBA degree or equivalent with experience of not less than 3 years in Managerial or Supervisory cadre in prescribed institutions. According to the petitioner, he is an MBA degree holder and has more than 7 years experience in Managerial/ Supervisory cadre and is eligible for appointment to the said post. The complaint of the petitioner is that while W.P.C.No.35052/2010 2 issuing Ext.P1 notification, Kerala Public Service Commission (KPSC) has prescribed an additional qualification which indicates that the experience prescribed shall be one gained by the candidate after acquiring the basic qualification prescribed for the post before the last date of application. The petitioner is therefore served with Ext.P4 letter by the KPSC stating that he had not obtained sufficient experience for three years after getting basic qualification of MBA degree.
3. It is the contention of the petitioner that when Rule 186 of the Co-operative Societies Rules does not prescribe such a restriction, the condition prescribed by KPSC in Ext.P1 notification which is the reason for rejection of his application by Ext.P4 is ultra vires the Rules. Hence he seeks the reliefs as prayed for.
4. Respondents 1 and 2 have filed counter affidavits inter alia contending that the qualification and other conditions prescribed for the posts were included in the gazette notification based on the Kerala Co-operative Societies Rules, 1969 Government Orders and the Relevant provisions in the Recruitment Rules of District Co-operative Banks which are W.P.C.No.35052/2010 3 related to the posts. In the application of the petitioner, he claimed that he has experience as Senior Clerk and Field Officer in Kottakkal Co-operative Urban Bank Ltd. The petitioner was called upon to produce self-attested copies of the documents and he produced documents to show that he has experience of nine years as a Field Officer in Kottakkal Co-operative Bank and Junior Clerk, for a certain period, as Lower Division Assistant, Senior Field Officer, Secretary of a Bank etc. They contended that the petitioner has passed MBA only in 2009 and as such he does not possess three years experience after acquiring basic qualification of MBA. They also referred to Rule 10(ab) of KS & SSR which mandates that experience prescribed as qualification shall be one gained by the candidate after acquiring the basic qualification for the post. Rule 10(ab) reads as under:
"Where the Special Rules or Recruitment Rules for a post in any service prescribed qualification of experience it shall, unless otherwise specified, the one gained by persons in 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 W.P.C.No.35052/2010 4 registered Private Sector undertaking after acquiring the basic qualification prescribed for the post. Provided that the experience gained as factory workers in daily wages of a permanent nature may be accepted, if the service is continuous and not of a casual nature."
5. They also refer to paragraph 21 of Part II General Conditions appended to the Gazette notification inviting applications for various posts which reads as follows:
"Unless otherwise specified, the experience prescribed as qualification for any post in Part-I of this notification shall be one gained by candidate holding temporary or regular appointments in Central or State Government Service or in Public Sector undertaking or Registered Private Sector undertaking, after acquiring the basic qualifications for the post. The experience gained as factory workers on daily wages of a permanent nature will also be accepted provided the service is continuous and not of a casual nature. Experience gained by candidates in the capacities of paid or unpaid apprentices, trainees and casual Labourers will not be accepted."
W.P.C.No.35052/2010 5
6. It is therefore contended that for all processes of selection when a basic qualification is prescribed, the experience gained should be after obtaining the basic qualification. They also refer to the judgment of this Court in Roy.K.George v. Kerala Public Service Commission [1999(2) KLT SN.4 Page4 = 1999(1) KLJ 586]. On that basis the respondent sought for dismissal of the writ petition.
7. 4th respondent also has filed a counter affidavit indicating that the qualification prescribed by KPSC was in accordance with the qualification prescribed under Section 186 of the Kerala Co-operative Societies Rules 1969. They justified the stand of the KPSC in rejecting the application of the petitioner. It is also contended that the experience of the petitioner was not enough for the experience in managerial or supervisory cadre as he was only a Senior Clerk in Kottakkal Urban Co-operative Bank which cannot be considered as experience in Managerial or Supervisory cadre.
8. Taking into account the contentions urged on behalf of the petitioner and the respondents, the point for consideration is whether Ext.P1 notification is in any way contrary to Ext.P3 W.P.C.No.35052/2010 6 notification. Ext.P3 extracts Rule 186 of the Kerala Co-operative Societies Rules for all posts to be filled up by direct recruitment under sub Rule 4 of Rule 185. The qualification prescribed is Master's Degree in Business Administration or other equivalent qualifications recognised by Universities in the State or membership of the Institute of Chartered Accountants of India with experience of not less than three years in managerial supervisory cadre in Co-operative Institutions/Scheduled Banks/Government/Quasi Government Institutions/Public Limited Companies. Therefore, it is not in doubt that the candidates should have Master's degree or any other equivalent qualification and also "with experience of not less than three years in managerial/supervisory cadre".
9. According to the learned counsel for the petitioner, the words used as "with experience of not less than three years in managerial or supervisory cadre" do not mean that experience should be gained after obtaining the prescribed qualification of Master's Degree in Business Administration whereas it is enough that the candidate had the experience of not less than three years in managerial or supervisory cadre at any point of time W.P.C.No.35052/2010 7 that is even if the experience is before obtaining the basic qualification for the post, he is liable to be considered for the post. The argument is that, by specifically mentioning in Ext.P1 that the experience prescribed shall be one gained by the candidate after acquiring the basic qualification prescribed for the post and should be received before the last date fixed for the receipt of application is an addition to Rule 186 which cannot have any basis and has to be ignored for the purpose of considering the application.
10. Whereas, it was argued by the learned counsel for KPSC that the qualification prescribed being the minimum qualification for the post especially when the post applied is of Deputy General Manager namely a managerial post, the candidate should have the experience of the managerial or supervisory post after obtaining the degree failing which it may not be possible for obtaining a proper candidate to the said post. The learned counsel also contended that what has been stated in Clause 2 of the qualification criteria in Ext.P1 is only of a clarificatory nature and does not give a different intention to the Rules prescribed by the Kerala Co-operative Societies Rules. W.P.C.No.35052/2010 8
11. The learned counsel for the petitioner relied upon the judgment in Shaila Beegum v. Kerala Public Service Commission [1997(2) KLT 273(FB)] to bring home his proposition. The Full Bench, in fact, considered the case in which the petitioner applied for the post of Assistant Information Officer in Public Relations Department where the qualification prescribed were B.A., B.Sc. or B.Com Degree of any recognised university and two years experience in a Government Publicity Organisation or Publicity Department of a Private Organisation or firm or the Editorial Section of a daily news paper or news agency. She passed B.A degree examination on 01/01/1981 of Kerala University. She had experience as a Sub Editor in Jayaramam News Weekly for two years from 01/01/1981 to 05/09/1983. She was therefore qualified for the post applied for. Her application was rejected on the ground that she did not have the prescribed qualification. Subsequently the matter was reconsidered suo moto and she was called for an interview and thereafter she received an intimation that her name was deleted from the rank list on the ground that she did not acquire the experience qualification for two years at the time of application W.P.C.No.35052/2010 9 since according to the gazette notification, experience qualification should be two years after obtaining the basic qualification namely B.A degree. It was held that there was nothing in the notification to suggest that the experience should be obtained after obtaining the basic educational qualification. Still further, the Full Bench held that understandably it was to set right the controversy that there had been several instances wherein similar situations had occurred that new sub Rule (ab) inserted after the explanation of Sub Rule (aa) of Rule 10 Part II KS & SSR. The facts involved in the full bench judgment was apparently before the insertion of Rule 10(ab). This was clarified by a learned Single Judge in Roy K. George's case (supra).
12. In that view of the matter, I do not think that the full bench judgment will have any application to the facts of this case. In the present notification it is clearly indicated that the experience should be obtained after getting the basic qualification. Still further, as contended by PSC, there is a clear provision in Rule 10(ab) of KS&SR extracted above which indicates that where the Special Rules or Recruitment for a post in any service prescribes qualification of experience it shall, W.P.C.No.35052/2010 10 unless otherwise specified, be one gained by persons in temporary or regular appointment in capacities other than certain exempted categories after acquiring the basic qualification prescribed for the post.
13. Learned Counsel also relied upon the judgment in A.K.Raghumani Singh v. Gopal Chandra Nath [AIR 2000 SUPREME COURT 1580] to bring home the point that the word "with" used in the eligibility criteria only means that they should have the educational qualification of experience as well. Since I have already held that Ext.P1 notification is not contrary to Rule 186 of the Special Rules relating to the appointment and is only clarificatory in nature and when it is very clear that for the said post, the experience is required after obtaining Master's Degree, a different view cannot be taken in the matter.
In these circumstances, respondents 1 and 2 were justified in rejecting the application of the petitioner. I do not find any merit in the writ petition and the same is dismissed.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr