Kerala High Court
Mujeeb Rahman.A.K vs Sikhesh.V on 11 January, 2021
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
WA.No.1859 OF 2019
AGAINST THE ORDER/JUDGMENT IN WP(C) 27396/2017(Y) OF HIGH COURT OF
KERALA
APPELLANT:
MUJEEB RAHMAN.A.K
AGED 46 YEARS
LAB ASSISTANT, LBS CENTRE, NANDAVANAM,
THIRUVANANTHAPURAM - 695 033
BY ADVS.
SRI.PIRAPPANCODE V.S.SUDHIR
SMT.A.MEGHA
SMT.ALEENA K BABU
RESPONDENTS:
1 SIKHESH.V
S/O.KRISHNAN V.V., SAVIKRISHNA, MEDICAL COLLEGE P.O.,
KOZHIKODE - 673 008
2 MATHEWCHAN M.C.
S/O. MAMACHAN T., M6/23, K.S.H.B.COLONY, MALAPARAMBA
P.O., KOZHIKODE - 673 009
W.A.No.1859/2019 & con.case 2
3 THE LBS CENTRE OF SCIENCE AND TECHNOLOGY
REPRESENTED BY ITS DIRECTOR, NANDAVANAM,
PALAYAM, THIRUVANANTHAPURAM - 695 033
4 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM
- 695 001
5 SALEENAMMA JOSEPH
INSTRUCTOR, LBS CENTRE, KANNANALLUR, KOLLAM -
691 576
6 BINDU D.S.
INSTRUCTOR, REGIONAL LBS CENTRE, NANDAVANAM,
THIRUVANANTHAPURAM - 695 033
7 HAREEDA PUZHAKKAL
REGIONAL LBS CENTRE, OLD ENGINEERING COLLEGE
CAMPUS, S.N. PARK ROAD, KANNUR - 670 001
8 USHA KUMAR T.J.
INSTRUCTOR, REGIONAL LBS CENTRE, HARIPAD,
ALAPPUZHA - 690 514
9 RENJAN ABRAHAM
ETTUMANOOR LBS SUB CENTRE, PANDARASERIL
BUILDINGS, ETTUMANOOR, KOTTAYAM DIST. - 686 631
W.A.No.1859/2019 & con.case 3
10 RAJESH A.S.
INSTRUCTOR, REGIONAL LBS CENTRE, NANDAVANAM,
THIRUVANANTHAPURAM - 695 033
R1 BY ADV. SRI.V.T.MADHAVANUNNI
R1 BY ADV. SRI.V.A.SATHEESH
R3 BY SMT.SHAMEENA SALAHUDHEEN, SC, LBS CENTRE
FOR SCIENCE AND TECHNOLOGY
R4 SRI. T. RAJASEKHARAN NAIR - SR.G.P.
R5, R7-8 BY ADV. DR.V.N.SANKARJEE
R5, R7-8 BY ADV. SMT.M.SUSEELA
R10 BY ADV. DR.K.P.PRADEEP
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2020,
ALONG WITH WA.1905/2019, THE COURT ON 11-01-2021 DELIVERED
THE FOLLOWING:
W.A.No.1859/2019 & con.case 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
WA.No.1905 OF 2019
AGAINST THE JUDGMENT IN WP(C) 27396/2017(Y) OF HIGH COURT
OF KERALA
APPELLANT:
LBS CENTRE FOR SCIENCE AND TECHNOLOGY
NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM 695033
REPRESENTED BY ITS DIRECTOR
BY ADV. SMT.SHAMEENA SALAHUDHEEN, SC, LBS
CENTRE FOR SCIENCE AND TECHNOLOGY
RESPONDENTS:
1 SIKESH.V
AGED 49 YEARS
S/O.KRISHNAN V.V.SAVIKRISHNA, MEDICAL
COLLEGE.P.O., KOZHIKODE-673008
W.A.No.1859/2019 & con.case 5
2 MATHEWCHAN.M.C.
AGED 49 YEARS
S/O.MAMACHAN.T., M6/23, K.S.H.B COLONY,
MALAPARAMBA.P.O., KOZHIKODE-673009
3 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT
HIGHER EDUCATION DEPARTMENT,
THIRUVANANTHAPURAM-695001
4 SALEENAMMA JOSEPH
INSTRUCTOR, LBS CENTRE, KANNANALLUR, KOLLAM-
691576
5 BINDU.D.S.,INSTRUCTOR, REGIONAL LBS CENTRE,
NANDAVANAM, THIRUVANANTHAPURAM-695033
6 HAREEDA PUZHAKKAL,REGIONAL LBS CENTRE, OLD
ENGINEERING COLLEGE CAMPUS, B.N.PARK ROAD,
KANNUR-670001
7 USHA KUMARI.T.J.,INSTRUCTOR, LBS CENTRE,
HARIPAD, ALAPPUZHA-690514
8 RENJAN ABRAHAM,ETTUMANOOR LBS SUB CENTRE,
PANDARASSERIL BUILDINGS, ETTUMANOOR, KOTTAYAM
DISTRICT-686631
9 MUJEEB RAHAMAN.A.K.,LBS ASSISTANT, LBS CENTRE,
NANDAVANAM, THIRUVANANTHAPURAM-695033
W.A.No.1859/2019 & con.case 6
10 RAJESH.A.S.
INSTRUCTOR, LBS CENTRE, NANDAVANAM,
THIRUVANANTHAPURAM 695033
R1-2 BY ADV. SRI.V.T.MADHAVANUNNI
R3- SRI. T. RAJASEKHARAN NAIR - SR.G.P.
R4, R6-7 BY ADV. DR.V.N.SANKARJEE
R4, R6-7 BY ADV. SMT.M.SUSEELA
R9 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR
R10 BY ADV. DR.K.P.PRADEEP
R10 BY ADV. SMT.T.THASMI
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2020,
ALONG WITH WA.1859/2019, THE COURT ON 11-01-2021 DELIVERED
THE FOLLOWING:
W.A.No.1859/2019 & con.case 7
JUDGMENT
[ WA.1859/2019, WA.1905/2019 ] Dated this the 11th day of January 2020 Gopinath, J These appeals arise out of the judgment of a learned single judge of this Court in W.P(C). No. 27396 of 2017. The Writ Petition was filed challenging a selection conducted by the LBS Centre for Science and Technology (LBS for short) to the post of programmers. The writ petitioners contended that they were also fully eligible and entitled to be considered for selection and that they had been wrongly excluded from the process of selection. On a consideration of the matter, the learned single judge has set aside the select list (Ext.P.7) and has directed that a fresh selection shall be conducted treating the Writ petitioners also as being fully qualified for consideration. Aggrieved by the directions issued by the learned single judge, the LBS has preferred Writ appeal 1905 of 2019 while the 8th the respondent in the Writ petition (one of the selected candidates) has preferred Writ appeal 1859 of 2019.
2. The facts may be briefly noticed. The qualifications for the W.A.No.1859/2019 & con.case 8 post of programmer in the LBS is as follows:-
"Category : Programmer
Scale of pay : 1640-6-2600-75-2900
Qualifications : 1st Class MCA Degree.
Or
I Class PGDCA/PGDCE and
three years experience or I
class Post Diploma in
Computer Application with
four years experience as
Computer Programmer.
Method of Appointment : By selection from qualified Instructors and Lab Assistants with 3 years and 5 years experience respectively.
Or By direct recruitment."
On 7.12.2016, a selection committee was convened to select candidates for 4 posts of programmers which are stated to have arisen on 22.10.2001, 30.9.2012, 31.5.2015 and 7.12.2016. The committee noticed that there was some ambiguity in the Rules and decided to seek a clarification from the Government of Kerala. Following the receipt of the clarification, the selection committee conducted the selection and excluded the Writ petitioners on the ground that they had acquired the qualification of first- class MCA degree only on 21.4.2017 and therefore did not have the required experience in the feeder categories after the acquisition of W.A.No.1859/2019 & con.case 9 qualification. The committee was of the opinion that the provisions of Rule 10(ab) of Part-II of the Kerala State & Subordinate Service Rules, 1958 was attracted and therefore that the experience must be one gained after acquisition of the qualification. On an interpretation of the Rules, the learned single judge has concluded as follows: -
(i) A first-class MCA degree holder need not have any experience as per the Rules. A first-class PGDCA/PGDCE should have 3 years' experience as a computer programmer and a first-class post-
diploma in computer application must have 4 years' experience as a computer programmer;
(ii) Though the Rules prescribe the experience as one required in the post of computer programmer there is no post of computer programmer in the LBS and that this anomaly was noted by the selection committee prompting the request for clarification from the Government of Kerala;
(iii) That the Writ petitioners were excluded on the basis though they acquired the qualification of first-class MCA on 21.4.2017, they do not have the requisite experience after the acquisition of W.A.No.1859/2019 & con.case 10 qualification by applying Rule 10(ab) of Part-II of the Kerala State & Subordinate Service Rules, 1958 (The KS&SSR) and that the application of Rule 10(ab) of the KS&SSR was not called for as those Rules do not apply to the LBS;
(iv) On an application of the law laid down by the Supreme Court in Shailendra Dania v. S.P. Dubey, (2007) 5 SCC 535 & in K.K. Dixit v. Rajasthan Housing Board, (2015) 1 SCC 474, in considering the question as to whether the experience must be one gained after acquisition of the qualification or not has to be determined with reference to the scheme of the respective Rules and with reference to the question as to whether the distinction between persons holding different qualifications such as degree/diploma has been maintained in the feeder category as well as in the promotion posts;
(v) That it would be an anomalous situation if the Rules were interpreted to mean that a person with first-class MCA degree could be appointed by direct recruitment without the requirement of any experience qualification whereas the persons W.A.No.1859/2019 & con.case 11 in the feeder category were required to have the necessary experience that too after the acquisition of the basic qualification;
(vi) that on a combined reading of the qualification criteria in the Rules and the method of appointment it is clear that there is no stipulation that the experience must be one gained after acquisition of the qualification.
On the basis of the findings as above, the learned single judge concluded that the selection conducted by excluding the Writ petitioners is bad in law and directed that a fresh selection be conducted treating the Writ petitioners as fully qualified for being considered for promotion to the post of programmer.
3. We have heard the respective counsel and perused the records. At the outset, we must observe that the relevant recruitment Rules are totally vague and lack the clarity and the precision which is expected of such Rules. In the case of appointment/promotion to the post of programmer, it is to be noticed that the Rules do not prescribe any quota between direct recruitment and promotion. It does not also say that direct recruitment is W.A.No.1859/2019 & con.case 12 to be resorted to only in the absence of eligible candidates for promotion. As noticed by the learned single judge the interpretation placed on the Rules by the LBS will result in a situation where a person applying for direct recruitment and having first-class MCA degree need not have any experience however that a person with the same qualification and included in the feeder categories would require the experience prescribed under the head "Method of appointment". The Rules, obviously, require a thorough review. Rules such as those in question, if vague, results in different interpretations being placed on them by the administrator and may at times result in arbitrariness and discrimination.
4. The notification (calling for exercise of option) for filling up the 4 posts of programmer was issued on 21.6.2016. The selection committee, for reasons already noticed, decided to seek a clarification from the Government which is evident from the minutes of the selection committee dated 7.12.2016 [See Exhibit R1(b)]. In reply, the Government issued Exhibit R1(d) letter dated 31.3.2017. We must say that there is nothing in Exhibit R1(d) that gives any clarity to the issues relating to the lack of clarity in the Rules, flagged in the judgement of the learned single judge and the issues noticed by us above. In our opinion, the only reasonable interpretation that can be placed on the Rules as they W.A.No.1859/2019 & con.case 13 stand at present is as follows: -
(i) Direct recruitment shall be resorted to only in the absence of eligible candidates in the feeder categories of instructors and laboratory assistants (lab assistants);
(ii) The experience qualifications prescribed under the head of 'qualifications' for those who do not have first-class MCA degree relate to those applying for direct recruitment with qualifications other than first-class MCA degree;
(iii) For promotion to the post of programmer those having first-
class MCA degree, first-class PGDCA/PGDCE or first-class post- diploma in computer application are qualified provided they have either 3 years' experience as an instructor or 5 years' experience as a laboratory assistant. As observed by the learned single judge, this is an anomalous situation in as much as those having first-class MCA degree and applying for direct recruitment, in the event of the absence of qualified candidates in the feeder categories, can aspire to be considered for selection and appointment without the experience qualification whereas those having the same qualification and W.A.No.1859/2019 & con.case 14 working in the feeder categories will be considered for promotion only if they have the necessary experience in the manner noticed above.
5. However, the fact that there is an anomalous situation created by the Rules is not, in our opinion, a ground to set aside the entire selection at the instance of the Writ petitioners. It is not disputed before us that a selection committee was constituted in the year 2016 for considering the eligible and qualified persons in the feeder categories mentioned in the Rules for filling up 4 posts of programmers. It is also not disputed before us that the Writ petitioners acquired MCA qualification only on 21.4.2017. The minutes of the selection committee which have been placed before us as Annexure A1 in Writ appeal 1905 of 2019 shows that the 4 vacancies of programmers which were sought to be filled up arose on 22.10.2001, 30.9.2012, 31.5.2015 and 7.12.2016. Therefore, the Writ petitioners admittedly did not have the necessary qualification either on the date of occurrence of vacancies or the date on which the decision was taken by LBS to fill up the aforesaid 4 vacancies. We are, therefore, of the opinion that the judgement of the learned single judge to the extent it sets aside the selection already made and to the extent, it directs a fresh selection to be carried out treating the Writ petitioners also as fully qualified requires W.A.No.1859/2019 & con.case 15 to be set aside. The finding of the learned single judge that Rule 10(ab) of Part-II of the Kerala State & Subordinate Service Rules, 1958 was not applicable to LBS (as the Rules stand at present) is correct in law and does not require any interference.
6. We have observed that the Rules framed by LBS to the extent they relate to the post of a programmer are totally vague and ambiguous. We have not examined the question as to whether the Rules, in so far as they relate to other posts are equally vague and ambiguous for, we are not called upon to do so in these proceedings.
7. In the light of the above findings these Writ appeals are disposed of in the following manner: -
(a) The judgment of the learned single judge to the extent it interferes with the selection of respondents 5, 8, 9 and 10 in Writ appeal No.1905 of 2019 will stand set aside;
(b) The Director of the LBS Centre for Science and Technology shall, in the light of the observations in this Judgment, take necessary steps to conduct a thorough review of the Rules to ensure that they are not vague, ambiguous or anomalous in any manner. Though we have found that Rule 10(ab) of Part-II of the Kerala State & W.A.No.1859/2019 & con.case 16 Subordinate Service Rules, 1958 is not applicable to LBS, the competent authority undertaking a review of the Rules as directed above may, if so advised, make provision for adopting the provisions of the said Rules.
(c) In the facts and circumstances of the case, there will be no order as to costs.
sd/-
A.M.SHAFFIQUE JUDGE sd/-
GOPINATH P. JUDGE acd W.A.No.1859/2019 & con.case 17 APPENDIX OF WA 1859/2019 PETITIONER'S/S EXHIBITS:
ANNEXURE I TRUE COPY OF THE RELEVANT EXTRACT OF THE PROVISIONAL RANKED LIST OF INSTRUCTOR, PUBLISHED BY THE 3RD RESPONDENT.
ANNEXURE II TRUE COPY OF THE CERTIFICATE NO.
B2/589/1997 DATED 23/07/1998, ISSUED BY THE DIRECTOR OF LBS CENTRE FOR SCIENCE AND TECHNOLOGY.
ANNEXURE III TRUE COPY OF THE GO(MS)
NO.614/2013/H.EDN. DATED 11/09/2013
ALONG WITH THE STAFF PATTERN OF LBS
CENTRE, AS APPENDED TO IT.
ANNEXURE IV TRUE COPY OF THE CIRCULAR DATED
21/06/2016 ISSUED BY THE 3RD
RESPONDENT.
ANNEXURE V TRUE COPY OF THE LETTER DATED
25/06/2016 OF THE 1ST RESPONDENT.
ANNEXURE VI TRUE COPY OF THE LETTER DATED
25/06/2016 OF THE 2ND RESPONDENT.
ANNEXURE VII TRUE COPY OF THE LETTER NO. P1-06/2016
DATED 25/06/2016 OF THE ASSISTANT
DIRECTOR.
W.A.No.1859/2019 & con.case 18
ANNEXURE VIII TRUE COPY OF THE CIRCULAR NO.
B2/5372/2016 DATED 17/05/2019 OF THE
3RD RESPONDENT.
ANNEXURE IX TRUE COPY OF THE REPRESENTATION DATED
15/05/2017 OF THE 1ST RESPONDENT.
ANNEXURE X TRUE COPY OF THE REPRESENTATION DATED
15/05/2017 OF THE 2ND RESPONDENT.
ANNEXURE XI TRUE COPY OF THE REPRESENTATION DATED
05/06/2017 GIVEN BY THE 1ST RESPONDENT.
ANNEXURE XII TRUE COPY OF THE REPRESENTATION DATED
05/06/2017 GIVEN BY THE 2ND RESPONDENT.
ANNEXURE XIII TRUE COPY OF THE RELEVANT EXTRACT OF
THE AGENDA ITEMS AND THOSE CONCERNING
THE SELECTION TO THE POST OF
PROGRAMMERS, DETAILS OF CANDIDATES WHO
HAVE ACQUIRED MINIMUM QUALIFICATION TO
THE SAID POSTS, FROM BOTH THE
INSTRUCTORS AND LAB ASSISTANTS, THE
TOTAL NUMBER OF POSTS, AND THE PROPOSED
SELECTION LIST, RECEIVED UNDER THE
RIGHT TO INFORMATION ACT.
ANNEXURE XIV TRUE COPY OF THE MINUTES OF THE
SELECTION COMMITTEE MEETING HELD ON
22/06/2017 APPROVING THE PROPOSED
SELECT LIST FOR THE POST OF PROGRAMMERS
AND THE POST OF PERSONNEL SECRETARY.
W.A.No.1859/2019 & con.case 19
APPENDIX OF WA 1905/2019
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 A TRUE COPY OF THE MINUTES OF THE
SELECTION COMMITTEE