Ajith Prasad.K.K v. Tropical Botanic Garden and Research Institute, Palode, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 22ND DAY OF MAY 2013/1ST JYAISHTA 1935** ## **WP(C).No. 35187 of 2010 (W)** **----------------------------------------** **PETITIONER:** **-------------------** **AJITH PRASAD.K.K,CHAITHRAM, KUDUMBANOOR, PRAVACHAMBALAM, NEMOM, THIRUVANANTHAPURAM.** **BY ADVS.SRI.P.NANDAKUMAR, SMT.RESMI G. NAIR, SRI.BRIJESH MOHAN.** **RESPONDENT:** **----------------------** **TROPICAL BOTANIC GARDEN AND RESEARCHINSTITUTE, PALODE, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR, PIN-695 562.** **BY ADV. SRI.C.K.KARUNAKARAN, S.C.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.35187/2010-W:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1: COPY OF THE NOTIFICATION DTD. 06/01/2010.** - **EXT.P.2: COPY OF THE INTERVIEW LETTER ISSUED TO THE PETITIONER DTD. 19/05/2010.** - **EXT.P.3: COPY OF THE NOTIFICATION DTD. 07/06/2010.** **EXT.P.4: COPY OF THE INTERVIEW LETTER ISSUED TO THE PETITIONER DTD. 02/07/2010.** - **EXT.P.5: COPY OF THE APPLICATION DTD. 14/08/2010 UNDER R.T.I. ACT.** - **EXT.P.6: COPY OF THE REPLY GIVEN UNDER R.T.I ACT DTD. 15/09/2010.** - **EXT.P.6.A: COPY OF THE MINUTES OF INTERVIEW DTD. 31/05/2010.** - **EXT.P.6.B: COPY OF THE MARKS SHEET OF INTERVIEW DTD. 31/05/2010.** - **EXT.P.6.C: COPY OF THE MINUTES OF INTERVIEW DTD. 22/07/2010.** - **EXT.P.6.D: COPY OF THE MARKS SHEET OF INTERVIEW DTD. 22/07/2010.** ## **RESPONDENTS' EXHIBITS:** **EXT.R1.A: COPY OF THE GRADE PAY DTD. 19/07/2010 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.** - **EXT.R1.B: COPY OF THE BIO-DATA SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.** - **EXT.R1.C: COPY OF THE RULES FOR RECRUITMENT AND PROMOTION OF ADMINISTRATIVE STAFF OF THE T.B.G.R.I.** - **EXT.R1.D: COPY OF THE REVISED PAY SCALE DETAILS SUBMITTED BY THE PETITIONER WITH THE REMARKS MADE BY THE FORMER DIRECTOR OF THE INSTITUTE ON IT.** - **EXT.R1.E: COPY OF THE LIST OF APPLICATIONS RECEIVED AS PER THE READVERTISEMENT DTD. 09/06/2010.** - **EXT.R1.F: COPY OF THE LIST OF SELECTED CANDIDATES FOR INTERVIEW DTD. 01/07/2010.** - **EXT.R1.G: COPY OF THE PRESIDENTIAL ORDER APPOINTING THE PETITIONER AS A JUNIOR COMMISSIONED OFFICER FROM 01/09/1997.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.35187 of 2010 ---------------------------------------Dated this the 22[nd] day of May 2013 ## **J U D G M E N T** The petitioner has approached this Court challenging the action of the respondent in not completing the selection process and appointing the petitioner though he was rank No.1 to the post of Registrar which was notified in terms of Ext.P3 notification. 2. The facts involved in the case would disclose that the respondent had issued Ext.P1 notification on 06/01/2010 inviting applications to the post of Registrar and though the selection process was completed, no person was appointed. Subsequently, Ext.P3 dated 07/06/2010 came to be issued inviting candidates for the same post and persons who had applied earlier were also permitted to apply. There also, the petitioner was one of the applicants. There were 15 applicants, six were shortlisted and the interview was held on 22/07/2010. Since nothing was heard in the matter, the W.P.C.No.35187/2010 2 petitioner applied under the Right to Information Act for various particulars as per Ext.P5 and the answers were given in terms of Ext.P6. On the basis of answers given, the petitioner points out that he was rank No.1 as per Exts.P1 and P3 notifications. But the respondent had not appointed him which, according to the petitioner, is an arbitrary exercise of power which cannot be done by a public authority like the respondent. 3. Counter affidavit and additional counter affidavit are filed by the respondent inter alia contending that the petitioner was not qualified for the post of Registrar as he did not meet the qualification criteria in terms of Ext.P1 notification. One of the main reasons stated by the respondent is that the petitioner does not have 15 years of experience in a supervisory cadre which is a mandatory requirement for the post of Registrar. 4. Another contention urged is that the petitioner did not have a post graduate degree which is an essential W.P.C.No.35187/2010 3 qualification and he was only holding MBA. 5. Heard learned counsel for the petitioner and the learned counsel appearing for the respondent. 6. The learned counsel for the petitioner relies upon the information received by him under the Right to Information Act wherein the interview board had given certain marks to the candidates at the time of interview held as per Ext.P1 notification as well as Ext.P3 notification. It is stated that when 5 marks were given for educational qualification as per Ext.P1 notification, 10 marks were given as per Ext.P3 notification. In respect of experience also, there is considerable difference in the marks given which, according to the petitioner, shall not change at all. Therefore, it is contended that the interview board had not properly appreciated the qualification as well as experience of the petitioner in awarding the marks, and if the marks given by the interview board as per Ext.P1 notification is carried forward to the next interview in respect of W.P.C.No.35187/2010 4 experience, the petitioner would definitely have more than 60% of the marks. 7. It is also contended that there is no cut off marks fixed for the interview and no such information was given prior to the conduct of the interview. Cut off marks fixed is 60% as seen from the answer given by the respondent in Ext.P6, which is contrary to the law laid down by the Supreme Court and this Court in various judgments. The learned counsel for the petitioner also relies upon judgment of the Supreme Court in **Mohanan Pillai v. State of Kerala** _[2007(2) KLT 551 (SC)]_ and Full Bench judgment of this Court in **Ravidas v. Public Service Commission** _[2009(2) KLT 295 (FB)]_ . 8. On the other hand, the learned counsel for the respondent relying upon the counter affidavit submits that the petitioner does not have the essential qualification even going by the findings of the Managing Committee. After the interview, the Managing Committee of the respondent had W.P.C.No.35187/2010 5 considered the qualification of the petitioner and it was found that he was not having the required experience and he did not have the requisite post graduate degree also. This being the situation, even though the petitioner was rank No.1, he could not have been appointed to the said post. 9. Reliance is also placed by the learned counsel for the respondent on the judgment of the Supreme Court in **Dr.Prit Singh v. S.K.Mangal and Others** _[1993 Supp (1) SCC 714]_ . Reference is made to paragraphs 11 and 12 which reads as under: _“_ _**11.** It need not be pointed out that the Degree of Master of Arts is an academic qualification, whereas Degree of Master of Education is a professional qualification. According to us, when the qualifications required “a consistently good academic record with first or high second class (55% marks/grade B in the seven point scale) Master's Degree in any subject”; (emphasis added) it shall mean an academic qualification like Master of Arts. The said_ W.P.C.No.35187/2010 6 _requirement was prescribed with “a consistently good academic record”. That Master's Degree shall mean Degree of Master of Arts in any subject, is apparent also from the fact that apart from that degree the candidate was required to possess also “Degree in Education” which will mean B.Ed. or M.Ed. Normally if the expression “Master's Degree” was to include even the Master's Degree in Education (M.Ed.) there was no necessity of prescribing the third requirement of a “Degree in Education”._ _**12.** If the claim of the appellant that “Master's Degree” shall include a Degree of Master of Education, is accepted, it will lead to an anomalous position. A person having secured third division in M.A. who cannot be considered by any University even for the post of Lecturer, will become qualified for being appointed as a Principal of any College, if later he secures a high second class marks in M.Ed. Examination by completing a course of one year. It need not be pointed out that_ W.P.C.No.35187/2010 7 _the sole object of prescribing qualification that the candidate must have a consistently good academic record with first or high second class Master's Degree for appointment to the post of a Principal, is to select a most suitable person in order to maintain excellence and standard of teaching in the institution apart from administration. In the present case there is no dispute that in the Master of Arts Examination, the appellant secured only 47.1% marks which is not even a second division. We were informed that in the concerned University, second division is 50% and above. The appellant had not secured even second class marks in his Master of Arts Examination whereas the requirement was first or high second class (55%). The irresistible conclusion is that on the relevant date the appellant did not possess the requisite qualifications.”_ 10. The first question to be considered is whether the petitioner is having the requisite experience for the said W.P.C.No.35187/2010 8 post. In the counter affidavit filed by the respondent, it is inter alia stated that it has been noticed from the bio-data of the petitioner that the petitioner was enrolled in Inidan Army as Havildar (Clerk) in 1986 and was promoted to the post of Naik Subedar (JCO) on September 1, 1997. The petitioner left from Army service after rendering a total service period of 15 years in June 2001 and joined Rural Health Service, Kerala as senior Administrative Consultant on deputation. One fact which is highlighted is that the petitioner was a Havildar from 1986 in the Indian Army till he was promoted to the post of Naik Subedar on 01/09/1997. The argument of the learned counsel for the petitioner is that the post of Havildar also is a supervisory post which can be counted for the experience of the petitioner. 11. This, according to the respondent, is not the correct approach. According to the respondent, the post of Havildar or the post of Naik Subedar does not amount to supervisory cadre and therefore even assuming for the sake W.P.C.No.35187/2010 9 of argument that the service of the petitioner after June 2001 can be taken as supervisory cadre, he does not have the requisite 15 years experience. Therefore, the petitioner is not qualified. 12. The Managing Committee of the respondent had formed an opinion that the post of Havildar as well as Naik Subedar cannot be taken as supervisory cadre. When such a view is taken, I do not think that this Court will be justified in interfering with any such finding of fact unless it is otherwise shown. At any rate, the nomenclature of the post of Havildar from 1986 to 01/09/1997 can never be treated as a supervisory cadre. That being the situation, even assuming for the sake of argument that the service from 01/09/1997 as Naik Subedar can be taken as supervisory cadre, the petitioner will not have the requisite 15 years experience. Such being the situation, since essential experience required as per the notification is not met by the petitioner I do not think that the petitioner is entitled to seek W.P.C.No.35187/2010 10 appointment in terms of Ext.P3. Hence there is no necessity to consider the other issues raised by the petitioner. Accordingly, writ petition is dismissed. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.35187/2010 11 W.P.C.No.35187/2010 12