Kerala High Court
Preetha.S vs The Secretary on 17 February, 2011
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10075 of 2009(D)
1. PREETHA.S., PRATHEEKSHA,
... Petitioner
Vs
1. THE SECRETARY, KERALA PUBLIC SERVICE
... Respondent
2. THE CHAIRMAN, KERALA PUBLIC
For Petitioner :SRI.P.T.DINESH
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :17/02/2011
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.10075/2009-D
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Dated this the 17th day of February, 2011
J U D G M E N T
This writ petition is filed by the petitioner aggrieved by the rejection of the application filed by the petitioner. The Public Service Commission rejected the application of the petitioner for appointment to the post of "Lecturer in Law" in Government Law Colleges.
2. Ext.P1 is the copy of the notification. Online application was filed by the petitioner as per the instructions contained therein. By Ext.P3, it was informed that the application is rejected since she does not have the necessary experience at the Bar. According to the petitioner, the year of enrolment entered by her was 2006 instead of 2003 and, actually, the date of enrolment is 26/10/2003 and, therefore, at the time of application, she had more than 5 years experience at the Bar whereas, 3 years experience at the Bar alone is required. Accordingly, she filed Ext.P4 representation.
W.P.(C). No.10075/2009 -:2:-
3. Ext.P5 is the enrolment certificate issued by the Bar Council of Kerala and, Ext.P6 is another certificate issued by the Bar Council showing that she continues to be in the roll of Advocates of the Bar Council. She thereafter filed an appeal as per Ext.P8 and failing to get any reply in the matter, this writ petition was filed.
4. As per interim order passed by this Court dated 07/04/2009, she was provisionally allowed to appear for the written test with a further direction that she shall also be interviewed if she was otherwise found eligible, but her name need not be included in the ranked list without further orders from this Court.
5. The petitioner mainly contends that the mistake occurred in the online entry as the number (6) was inserted instead of No.3. It is therefore contended in the writ petition that the application is liable to be accepted.
W.P.(C). No.10075/2009 -:3:-
6. The respondents have filed an affidavit. It is pointed out that in Ext.P1 notification, the qualification shown is.-
(1) Degree of Master of Law with at least 55% marks.
(2) Experience at the Bar for a period of not less than 3 years and;
(3) Must have passed a comprehensive test in the concerned subject specifically conducted for the purpose of UGC or any agency duly constituted by the State Government in this behalf. When qualifications are equal, preference shall be given to candidates who possess adequate knowledge in Malayalam.
Note (iv) therein requires that the experience certificate as Advocate issued by Bar Council of Kerala, or concerned Judicial Officer shall be produced.
W.P.(C). No.10075/2009 -:4:-
7. It is further pointed out that the petitioner did not produce the experience certificate of the concerned Judicial Officer to prove that she has three years experience. The certificate from the Bar Council of Kerala only states that she has been enrolled as an Advocate on 26/10/2003. This is not acceptable since mere enrolment does not prove that she has sufficient Bar experience and that has to be certified by a Judicial Officer concerned. It is further pointed out that the certificate produced by her from the Cochin University of Science & Technology shows that she is a Full Time Research Scholar with effect from 01/09/2006 which has been produced as Ext.R1(a). Therefore, it is submitted that she was not in active practice at that stage and Research period cannot be considered as experience. In the light of Ext.R1(a), it is pointed out that if the period is counted from 26/10/2003 it can be seen that she being a Research Scholar with effect from 01/09/2006, lacks 3 years experience at the Bar as an Advocate. Experience as Research Scholar W.P.(C). No.10075/2009 -:5:- cannot be treated as prescribed experience required for the post.
8. Ext.R1(a) certificate issued by the Cochin University of Science & Technology states that "she is a full time research scholar of this School with effect from 01/09/2006. As part of her research activities she also handles classes for the L.L.B students of this School." The last date of receipt of the application was 20/08/2008. Thus, if Ext.R1(a) is recognised as valid, she will not be having 3 years experience at the Bar.
9. In the reply affidavit filed by the petitioner, the petitioner has produced Ext.P11, a letter of the Bar Council of Kerala stating that the Certificate of the Bar Council is in the usual format. According to her, Ext.R1(a) was produced before the Commission disclosing that she is a Research Scholar on the bona fide belief that credit would be granted for the same. The stand taken is that acquiring higher qualification of L.L.M or M.Phil in law or Ph.D in law W.P.(C). No.10075/2009 -:6:- are complimentary to judicial practice as well as for holding academic positions. It is further stated that the Cochin University Regulations only prohibit full- time research scholars from taking up employment. Professional practice cannot be equated to that of employment. It is explained that she was doing chamber work and attending courts along with her research work without receiving any remuneration. It is also pointed out that the Public Service Commission has been treating the period undergone for doing L.L.M as equivalent to court practice. The petitioner has produced Exts.P13 to P13(b) in support of her pleas and further points out that U.G.C also did not stipulate three years Bar experience for the post of Law Lecturers/Assistant Professors and the procedure followed by the Government of Kerala and Public Service Commission is contrary to the rules and regulations and notifications issued by the University Grants Commission and hence they are ultra vires and non- operative.
W.P.(C). No.10075/2009 -:7:-
10. At the outset, it can be seen that the qualification prescribed, namely, in the Special Rules for the Kerala Collegiate Education 1994 is not under challenge in this writ petition. Therein, to the post of Lecturer in Law, apart from the academic qualification experience at the Bar for a period of not less than three years have been specified. The petitioner has further produced along with I.A.No.30/2011, Exts.P14 to P17. Ext.P14 is the proceedings of the Cochin University of Science & Technology whereby she was granted Fellowship. Ext.P15 contains letter from the Registrar to the petitioner whereby it was informed that Vice Chancellor has granted her request for registration for full-time research for Ph.D Degree under the Faculty of Law. It is mentioned therein that her registration will be effective from 01/09/2006, the date from which provisional registration was granted. Ext.P16 is the regulations for the award of Ph.D prescribed by the Cochin University of Science & Technology and Ext.P17 is the guidelines of the UGC in the matter. W.P.(C). No.10075/2009 -:8:-
11. Along with I.A.No.546/2011, Exts.P18 to P21 have been produced which include regulations and Syllabi of L.L.M of Cochin University of Science & Technology and the Scheme of examination of L.L.M P.G course in Government Law College, Ernakulam as well as those of the NUALS. The Commission has filed an additional affidavit in the matter.
12. Heard the learned counsel for the petitioner Shri Dinesh P.T and the learned Standing counsel for the Public Service Commission Shri Alexander Thomas.
13. Shri Dinesh argued that the certificate issued by the Bar Council will show that the petitioner is having the required experience for 3 years and, therefore, any other certificate from the Judicial Officer concerned is not required, especially, in the light of note (iv) of Ext.P1 which shows that it is only alternative. It is further argued that the full- time Research Scholarship given to her will not prevent her from practicing in Law and, therefore, going by the dictum laid down in Madhavan Nair v. State of Kerala W.P.(C). No.10075/2009 -:9:- [1978 KLT SN. Pg.8 Case No.23], the application is liable to be allowed as valid. My attention was invited to various documents to contend for the position that there is no distinction between L.L.M and Ph.D programme and the student need not be a full-time Research fellow and the practice of Law is not prohibited.
14. The learned Standing Counsel for the Commission Shri Alexander Thomas submitted that Ext.R1
(a) shows that the fellowship granted is a full-time one. The documents produced by the petitioner evidently will show that she cannot practice as a Lawyer during the said period. The Certificate from the Bar Council is only an enrolment certificate and not the experience certificate and the Judicial Officer's certificate showing that she is actually practicing at the bar was therefore required.
15. Evidently, going by the notification and as per the Special Rules, what is required is "experience at the Bar for a period of not less than 3 years". W.P.(C). No.10075/2009 -:10:- Even if the contention, that the petitioner made a mistake in the entry in the year, is accepted as valid even then it will have to be considered in the light of Ext.R1(a) whether she is actually practicing in the Bar to enable the P.S.C to accept the application. Evidently, the certificate produced by the petitioner from the Bar Council Ext.P6 only refers to the date of enrolment and the experience is not certified. The petitioner herself has produced Ext.R1(a) before the P.S.C. It shows that "she is a full-time Research Scholar". It also shows that as part of Research, she also handle classes for the students of school of Legal Studies. From the pleadings the details as to the experience gained by her at the Bar are not evident. She has not referred to any particular Bar wherein she has been practicing and the Courts before which she has appeared. Such details have not been furnished in the reply affidavit also even though it is stated in paragraph (4) of the reply affidavit that she was doing chamber work and attending courts along with her research work without receiving any remuneration. W.P.(C). No.10075/2009 -:11:-
16. Ext.P14 relied on by the petitioner is an important document to be considered. It informs the petitioner that the U.G.C had accorded formal sanction for the payment of UGC-JRF to the petitioner with effect from 01/09/2006. Accordingly, sanction is accorded by the Vice Chancellor to the petitioner being paid fellowship at Rs.10,000/- per month with effect from 01/09/2006 and a Contingency Grant (CG) of Rs.12,000/- per annum initially for a period of two years with effect from 01/09/2006. Paragraph (3) therein states as follows:-
"The fellow shall not accept or hold any appointment paid or otherwise or receive any emoluments, salary, stipend etc. from any other sources during the tenure of the award."
Thus it can be seen that there is clear prohibition for receiving any remuneration from any sources during the tenure of the award. Evidently, she is being paid fellowship on a monthly basis and a contingency grant W.P.(C). No.10075/2009 -:12:- on an annual basis. Ext.P14 also requires submission of progress reports for continuance of the arrangement.
17. Ext.P15 also will show that the petitioner is granted registration for full-time research for Ph.D Degree under a Research Guide. The next important document is Ext.P16 which is the Regulations for the award of Ph.D Degree and L.L.D of the Cochin University.
18. Paragraph (1) of Ext.P16 shows that the candidates will have to seek registration as a full- time or part-time research student of the University Department of study or in other institutions. Herein, she has acquired registration as a full-time research student.
19. Learned Standing Counsel for the Public Service Commission invited my attention to various clauses therein to show that it is a full-time programme and paragraph (16) shows that a student registered as full-time research student will be required to have at least 80% attendance in every W.P.(C). No.10075/2009 -:13:- semester failing which his/her name shall be removed from the rolls of the University subject to sub-clauses
(iv), (v) and (vi) of the said paragraph. Sub clause
(iv) shows that a research student will be eligible to attend conferences/seminars/specialised training programmes connected with his/her area of research or participate in research cruises or visit other places for collecting data, and such days when they were away from the Department also will count for attendance. Sub clause (v) shows that a candidate can avail leave for 30 days in one calendar year and maternity leave as per University rules along with some other leaves also. Paragraph (17) shows that the candidate will have to pass a qualifying examination which shall be conducted by the University Department or Recognised Institution without which he/she will not be considered qualified to submit his/her thesis for the award of the Ph.D Degree. The details of marks are also stated therein. Ext.P17 is the guidelines issued by the U.G.C. It shows that the fellowship is initially for two years under the JRF Scheme and upon expiry of this period, W.P.(C). No.10075/2009 -:14:- the work of the fellow will be evaluated by experts (para 4). Provision is there for House Rent Allowance, Medical Assistance and Leave. Paragraph (7) therein concerns procedure for release of grants by the U.G.C and paragraph (8) contains procedure for monitoring the progress of the scheme. Therein, it is further stated as follows:-
"The concerned departments are expected to monitor the work of the Fellow continuously. He/she shall not accept or hold any position, paid or otherwise or receive emoluments, salary, stipend etc. from other sources during the tenure of the award."
Certain other conditions are provided in paragraph (9) which states that the fellow, with the consent of the guide/head of department, may assist the university/institution in its academic work, including tutorials, evaluation of the test papers, laboratory demonstration, supervision of fieldwork, library activities like group seminars and symposia, provided W.P.(C). No.10075/2009 -:15:- such work is not likely to hinder the research programmes on hand. The total amount of time to be spent on such activities should not exceed ten hours a week.
20. These conditions therefore, will conclusively show that it is a full-time fellowship and the petitioner cannot be expected to have the avocation as a lawyer. The conditions will be violated if other avocations are pursued. The important clause in Ext.P14 is in paragraph (3) whereby sanction given by the University to the petitioner does not allow her to have any other appointment, prohibits her from receiving any emoluments, salary, stipend etc. from any other sources during the tenure of the award. Therefore, the petitioner cannot have any other avocation which normally will include practice at the Bar also. The same will amount to an express prohibition to practice as a lawyer since the research work will be affected.
W.P.(C). No.10075/2009 -:16:-
21. The important conditions under the various documents above show that she is given a fellowship on a full-time basis. The provisions for grant of leave and other conditions as quoted above will show the way in which it has been framed. The programme being of continuance of research work, that too on a full-time basis and the fact that 80% attendance should be there for its continuance, it cannot be contended that the candidate can really practice as a lawyer before various courts.
22. The learned counsel for the petitioner relying upon the documents produced as Exts.P18 to P20 contends that as far as L.L.M course is concerned, similar stipulations are there and therefore since there is no bar with regard to a L.L.M student to count the said period as part of experience, the same yardstick may have to be applied to the petitioner also. With regard to the same, this Court in Madhavan Nair v. State of Kerala [1978 KLT SN. Pg.8 Case No.23], held as follows:-
W.P.(C). No.10075/2009 -:17:-
"There is no provision either in the Advocates Act or in the Rules framed by the Bar Council, Central or Kerala, which requires an advocate to suspend his practice when he joins the post-graduate course in law like L.L.M. In the absence of such a provision it is difficult to agree with the contentions of the petitioner."
As rightly pointed out by the learned Standing Counsel for the P.S.C, this Court took the view therein in the light of absence of any provision under the Advocates Act or the Rules framed by the Bar Council. Herein the situation is not identical. The conditions provided in the regulations as well as in the orders issued to the petitioner will not enable her to have any other avocation, they prohibit her from receiving any remuneration and she is in receipt of the various amounts as per the scheme.
23. In that view of the matter, no parallel can be drawn with the L.L.M Scheme.
W.P.(C). No.10075/2009 -:18:-
24. The contention that the U.G.C Regulations do not provide experience at the Bar also cannot be accepted. Herein, the Special Rules provide for an experience of not less than 3 years as a condition provided as one of the qualification. There is no challenge against the same. Further until and unless the Special Rules are specifically amended by the State Government, the conditions under the U.G.C regulations regarding qualifications may not apply for the selection process and this aspect has been succinctly laid down by a Division Bench of this Court in S.N.College v. N.Raveendran [2001 (3) KLT 938]. In that view of the matter, the said contention also cannot be accepted.
25. Therefore, the rejection of the application of the petitioner xcannot be said to be wrong. The certificates produced by the petitioner only shows the date of enrolment. In the light of the fact that the petitioner has joined as a full-time Research student W.P.(C). No.10075/2009 -:19:- as evident from Ext.R1(a), the contentions otherwise made cannot be accepted.
Hence, I do not find anything wrong with the action taken by the P.S.C. The writ petition is, therefore, dismissed. No costs.
Sd/-
(T.R. Ramachandran Nair, Judge.) ms