Unknown vs Appellant/1St on 15 March, 2019

[Cites 4, Cited by 0]

Kerala High Court

Unknown vs Appellant/1St on 15 March, 2019

1. Appellant is the Kerala Public Service Commission. It filed the writ appeal assailing the judgment in W.P.(C).30203/2012 passed by a learned single judge of this court. The appellant was the 1 st respondent in the writ petition. Petitioners 1, 3 and 5 therein are respondents 1 to 3 herein. The 2nd respondent in the writ petition is the 4th respondent in the appeal. We refer to the parties as they are shown in the memorandum of appeal. The documents exhibitted in the writ petition are referred to as such in this judgment.

2. A few facts are admitted. Such facts which are relevant in deciding the appeal are stated below : The appellant issued Ext P1 notification inviting applications for appointment to the post of computer programmer and operator in the 4th respondent W.A.38/2015 3 corporation. The notification insisted on that the candidates should be persons having three years' experience in computer programming and operations under a public sector undertaking or an industrial undertaking recognized under the Companies Act. Another insistence in Ext P1 notification was that the experience certificates obtained from private institutions shall be attested by one authorized officer of the State or Central Government. The applications of respondents 1 to 3 and a few others were rejected by the appellant. The applications of respondents 1 to 3 were rejected on the ground that they did not have the minimum experience prescribed in Ext P1 notification.

3. Respondents 1 to 3 along with five others filed the writ petition. They requested to quash the proceedings which led to the issuance of the communications rejecting their applications. They requested further to direct the appellant to include their names also in the short list to be published.

4. The learned single judge categorized the writ petitioners into W.A.38/2015 4 three. The learned judge stated that the counter-affidavit filed by the appellant would reveal that the experience certificates produced by petitioners 2, 4 and 7 were accepted and that their names were included in the ranked list. Therefore it was found that no further grievance survived for consideration in the case of those petitioners. No relief was granted to petitioners 6 and 8 as they were found ineligible for the notified post. Finding that the four experience certificates produced by the 1 st respondent would satisfy the prescribed minimum experience of three years, the appellant was directed to consider her claim for inclusion in the ranked list in accordance with the relevant provisions of law. It was found that the rejection of the applications of respondents 2 and 3 was not sustainable. Therefore the appellant was directed to treat the experience certificates produced by them as valid and to proceed to consider their eligibility to get included in the ranked list in accordance with the relevant provisions of law. The appeal is filed challenging the reliefs granted to respondents 1 to 3.

5. Heard Sri.P.C.Sasidharan, the learned counsel for the appellant W.A.38/2015 5 and Sri.K.Sasikumar, the learned counsel for respondents 1 to 3.

6. We in this appeal are only concerned with the rejection of the applications of respondents 1 to 3. Their applications were rejected by the appellant. When such rejection is challenged, it is for the appellant to establish that the rejection was on a valid ground.

7. Ext P9 is the communication issued to the 1 st respondent intimating rejection of her application. The reason for rejection stated therein is that she did not have the required experience prescribed in the notification. She produced before the appellant four experience certificates. Those certificates are Exts P5 to P8. The experience prescribed in Ext P1 notification is three years and it should be in computer programming and operations under a public sector undertaking or an industrial undertaking recognized under the Companies Act. Exts P6 and P8 have been issued by one and the same institution and Exts P5 and P7 have been issued by two different institutions. The appellant has not taken any W.A.38/2015 6 objection in its counter-affidavit that the experience in the said three institutions would not be considered. The four certificates produced by the 1st respondent are referred to at paragraph 6 of the counter-affidavit. The certificates indicated with the numbers 1, 2, 3 and 4 at paragraph 6 of the counter-affidavit are Exts P6, P8, P7 and P5 respectively. Objection is taken in the counter- affidavit only against Ext P5. It is contended in the counter- affidavit, at paragraph 6, that the first three certificates (Exts P6, P8 and P7 respectively) do not satisfy the prescribed three years' experience. The contention is correct. For, those three certificates take in only a total period of one year, four months and 23 days in different spells. The length of experience certified in Ext P5 is two years, one month and seven days. If Ext P5 is also taken into account, three years' experience is satisfied; to be precise, three years and six months. According to the appellant, Ext P5 cannot be considered for counting three years' experience.

8. The sole attack in the counter-affidavit against Ext P5 is that it does not have a proper attestation. The contention is vague and W.A.38/2015 7 weak. The counter-affidavit does not state what is wrong with the attestation. The defect in the attestation should have been pointed out by the appellant if the attestation was defective or not proper. The vague contention is repeated in the memorandum of appeal (ground B) as well, but the defect is not disclosed yet. A contention is, however, seen taken at ground E of the memorandum of appeal that the certificate was to be attested by the director of industrial training, but it was attested by the inspector of industrial training. But no such contention was taken in the counter-affidavit. What is there in Ext P1 notification is that the experience certificates obtained from private institutions shall be attested by one authorized officer of the State government or the central government. The inspector of training who attested Ext P5 certified in it that he was the authorized person to inspect the registers kept by the employer. Ext P5 was produced along with the writ petition. Still, his competence to attest Ext P5 was not questioned or challenged in the counter-affidavit. The appellant cannot be allowed to take a new ground in appeal which was not even thought of while preparing the counter-affidavit. W.A.38/2015 8 The appellant discarded Ext P5 without any valid ground.

9. The learned single judge stated that although Ext P5 was produced along with the writ petition, nowhere in the counter- affidavit it was stated why Ext P5 should not be treated as a proper experience certificate. It is also stated in the impugned judgment that the counter-affidavit does not state why Ext P5 should be held a certificate lacking proper attestation. It was also found that Ext P5 certificate was issued in the prescribed format. The learned judge stated that there was no insistence in Ext P1 notification that three years' experience should be a continuous one or that it should be gained from a single institution. We are in complete agreement with the learned single judge.

10. The reason for rejecting the applications of respondents 2 and 3 is stated at paragraph 8 of the counter-affidavit of the appellant. The reason is that the experience certificates produced by both of them would show that they were working as guest lecturers on hourly basis. It is contended that the experience W.A.38/2015 9 gained on hourly basis cannot be accepted and therefore their applications were rejected.

11. Ext P12 is the experience certificate of the 2 nd respondent. It is certified therein that she worked as a guest lecturer in LBS Centre for Science and Technology for three years and nine months in four spells. Ext P12 suggests that she was being paid at the rate of Rs 65/- per hour. The learned single judge said that the reference in Ext P12 certificate to Rs 65/- per hour would only mean the mode of payment to the 2nd respondent and that it was not a good ground to reject her application. We support the said conclusion of the learned single judge unhesitatingly.

12. The ground stated in the counter-affidavit of the appellant for rejecting the application of the 3rd respondent is still worse. The ground stated is the same ground we mentioned in the immediately preceding paragraph. Ext P18 is the experience certificate produced by the 3 rd respondent. It is certified that she worked in LBS Centre for Science and Technology as a guest W.A.38/2015 10 lecturer for three years in three spells. As stated in the impugned judgment, nothing is stated in Ext P18 regarding the mode of payment. It is not known from where did the appellant get the information that the 3rd respondent was working on hourly basis. The ground stated in the counter-affidavit for the rejection of the application of the 3rd respondent is incorrect. The rejection of her application on the ground stated in the counter-affidavit of the appellant is not supportable. We confirm the similar finding of the learned single judge.

13. The learned counsel for the appellant submitted that respondents 1 to 3 had no eligibility to apply for the post notified in Ext P1 as they never worked as a computer programmer and operator. It was also submitted that the experience certificates produced by them would show that the 1 st respondent was working as an instructor on provisional basis and that respondents 2 and 3 were working as guest lecturers. The counsel argued that instructors who worked on provisional basis and guest lecturers were not eligible to apply. Another submission was W.A.38/2015 11 that an instructor or a lecturer would not be competent to hold the post of computer programmer and operator. According to the counsel, an instructor or a lecturer may be good at teaching, but not so to function as a computer programmer and operator for want of practical experience in the field. In support of his submissions, the learned counsel referred to rule 10 (ab) of Part-II of the Kerala State and Subordinate Services Rules, 1958 (for short the KS & SSR) and relied on the decision of this court in Vasundhara v. Sallas Benjamin (2010 (1) KLT 533). The above submissions were objected to by the learned counsel for respondents 1 to 3 on the ground of want of pleadings.

14. As is rightly contended by the learned counsel for respondents 1 to 3, the appellant has not taken a contention in its counter-affidavit that an instructor working on provisional basis or a guest lecturer is ineligible to apply for the post notified under Ext P1 or incompetent to hold that post. We have already referred to the contentions taken by the appellant and considered those contentions. The appellant is not entitled to travel beyond its W.A.38/2015 12 pleadings and it cannot take an altogether new case in the appeal. Therefore the submissions made by the counsel for the appellant, being without support from pleadings, are liable to be rejected.

15. However, in order to complete this judgment, we are prepared to go into the merits of the submissions made by the learned counsel for the appellant. What Ext P1 states is only that the candidates shall have experience in computer programming and operations under a public sector or an industrial undertaking recognized under the Companies Act. There is no insistence at all in Ext P1 that the candidates should gain experience of three years in computer programming and operations by working in the post of computer programmer and operator in public sector or industrial undertaking. We are unable to underestimate an instructor or a guest lecturer, who teaches computer programming and operations, as a person having only a theoretical knowledge without any practical experience in the field. Such an instructor or lecturer cannot be considered unfit to hold the post of computer programmer and operator. No W.A.38/2015 13 instructor or lecturer can teach computer programming and operations without theoretical and practical knowledge. Ext P5 states that the 1st respondent was an instructor in computer operations and programming. Exts P6 to P8 also suggest so. Exts P12 and P18 certify that respondents 2 and 3 had handled classes for various programming and also guided many projects. We are unable to accept the proposition that respondents 1 to 3 are persons ineligible to apply for the post and unfit to hold the post. Whatever it be, their applications were rejected not on the grounds highlighted at the appellate stage.

16. We shall next consider the submission that an instructor who is working, or who has worked, on a provisional basis or a guest lecturer is ineligible to apply for the post and incompetent to hold the post. The learned counsel for the appellant submits that it is so provided in rule 10(ab), Part-II, KS & SSR. According to the learned counsel, the rule provides the eligibility and qualification and it was not necessary to incorporate the rule in the notification. Rule 10(ab), Part-II, KS & SSR is extracted below : W.A.38/2015 14

"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."

Unless it is otherwise specified, rule 10(ab) takes care of persons who had gained experience even on temporary appointment in capacities other than apprentices, trainees and casual labourers in a registered private sector undertaking. We are not shown that it is otherwise specified elsewhere. Respondents 1 to 3 were not apprentices, trainees or casual labourers. A person teaching computer programming and operations or a person working on computer cannot be treated as a labourer. We do not see anything in rule 10(ab) favourable to the appellant for it to contend that respondents 1 to 3 had no eligibility to apply for the post in question or to hold that post.

17. Vasundhara (supra) was relied on by the appellant. The W.A.38/2015 15 question considered therein was whether teaching experience of a guest lecturer could be taken as teaching experience prescribed for appointment to the post of reader in Calicut University. It was held that the teaching experience of a guest lecturer could not be taken into account. In order to hold so it was said that when the regulations spoke of teaching experience, it must be the experience gained by a teacher as defined in the Calicut University Act. It was also stated that a guest lecturer could not be treated as a teacher going by the definition of 'teacher' contained in Sec.2(27) of the said Act. The fact situation is entirely different in the present case. Rule 10 (ab) of Part-II of KS & SSR recognizes the experience gained by persons working on temporary basis too if they were not apprentices, trainees or casual labourers. The decision in Vasundhara (supra) is of no aid to the appellant.

18. As we have already stated, the submissions of the learned counsel for the appellant, which have been mentioned at paragraph 13, are not backed by the pleadings in the counter- affidavit. That apart, no such submission was made on the side of W.A.38/2015 16 the appellant before the learned single judge. In this context, we find it appropriate to quote a portion from paragraph 11 of the judgment in Vasundhara (supra).

"........................................................................................ ...................................... We find considerable force in the submission of the learned counsel for the 1 st respondent that the alleged lack of qualification of the said respondent was not argued before the learned Single Judge. If it was argued and the same was not considered, at least there should be a pleading in the appeal memorandum that the said point was argued but it was not considered by the learned Single Judge. In the absence of such a pleading, the technical contention that the 1 st respondent was not qualified and therefore, at his instance the validity of the selection should not have been reviewed, cannot be accepted".

The submissions made without pleadings and not urged before the learned single judge cannot be considered by us in the appeal. There is no whisper in the memorandum of appeal that any argument raised by the appellant was not considered by the learned single judge.

W.A.38/2015

19. We conclude. We find no merit in the appeal. It fails. What it deserves is only a dismissal.

20. Dismissed.

Sd/-

V.CHITAMBARESH Judge Sd/-

A.M.BABU Judge Mrcs/11.3.

True copy P.S.To Judge

Unlock Advanced Research with PRISMAI

Kerala High Court