Arjun Thomas v State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE 30TH DAY OF JULY 2014/8TH SRAVANA, 1936 WP(C).No. 25362 of 2013 (U) ---------------------------PETITIONER(S): -------------ARJUN THOMAS,AGED 24 YEARS S/O.THOMAS M.M., HERBARIUM KEEPER, ST.ALBERT'S COLLEGE ERNAKULAM KOCHI-682018. RESIDING AT MALIYAKKAL HOUSE AMBEDKAR ROAD, ELOOR, UDYOGAMANDAL P.O.-683501. BY ADV. SRI.BENNY GERVACIS RESPONDENT(S): -------------1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO HIGHER EDUCATION (D) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM, PIN-682011. 4. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR MAHATMA GANDHI UNIVERSITY, ADIRUMPUZHA KOTTAYAM-686001. 5. ST.ALBERT'S COLLEGE, REPRESENTED BY ITS MANAGER, ST.ALBERT'S COLLEGE ERNAKULAM, KOCHI-682018. R5 BY ADV. SRI.P.GEORGE WILLIAM R4 BY ADV. DR.P.LEELAKRISHNAN, SC, M.G.UNIVERSITY R4 BY ADV.SRI.THARUN R2 BY GOVERNMENT PLEADER SRI.SOJAN JAMES R-R4 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25362 of 2013 (U) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------ P1: PHOTOCOPY OF THE NOTIFICATION PUBLISHED IN NEW INDIAN EXPRESS DATED 7.3.2012. P2: PHOTOCOPY OF THE PANEL OF CANDIDATES DATED 4.8.2012 SELECTED FOR NON-TEACHING STAFF VACANCIES INCLUDING THAT OF HERBARIUM KEEPER. P3: PHOTOCOPY OF THE APPOINTMENT ORDER DATED 10.8.2012. P4: PHOTOCOPY OF THE FORWARDING LETTER DATED 10.9.2012 FORWARDING THE APPOINTMENT ORDERS AND THE REQUISITE DOCUMENTS EVIDENCING THE QUALIFICATION OF THE CANDIDATES FORWARDED BY THE 5TH RESPONDENT. P5: PHOTOCOPY OF THE GOVERNMENT ORDER DATED 29.4.2013. P6:PHOTOCOPY OF THE GOVERNMENT ORDER DATED 17.9.2004 P7: PHOTOCOPY OF THE CERTIFICATE IN HERBARIUM KEEPING ISSUED BY THE BOTANICAL SURVEY OF INDIA, SOUTHERN REGIONAL CENTRE IN FAVOUR OF THE PETITIONER. P8: PHOTOCOPY OF THE PETITION DATED 30.6.2013 SUBMITTED BY THE 5TH RESPONDENT. P9: PHOTOCOPY OF THE COMMUNICATION DATED 23.9.2013 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. P10: PHOTOCOPY OF THE COMMUNICATION DATED 30.7.2013. P11: TRUE COPY OF THE RELEVANT EXTRACT OF THE SYLLABUS FOR B.SC.BOTANY IN MAHATMA GANDHI UNIVERSITY P12: TRUE COPY OF THE RELEVANT EXTRACT OF THE SYLLABUS FOR B.SC.BOTANY IN MAHATMA GANDHI UNIVERSITY RESPONDENT(S)' EXHIBITS:NIL ------------------------- //TRUE COPY// P.A TO JUDGE ## **A.K.JAYASANKARAN NAMBIAR, J.** **~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~** W.P.(C).No.25362 of 2013 **~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~ ~ ~ ~ ~ ~ ~ ~ ~ ~** Dated this the 30[th] day of July, 2014 ## **JUDGMENT** The petitioner had applied for the post of Herbarium Keeper in the 5[th] respondent College pursuant to Ext.P1 notification dated 07.03.2012. The petitioner possessed a B.Sc. Degree in Botany and, at the time of responding to Ext.P1 notification, he had completed the M.Sc. Course in Botany and, was awaiting the result of the examination conducted by the University. It is pointed out that subsequently the petitioner passed the M.Sc. Course in Botany as well. The prescribed qualifications for the post of Herbarium Keeper as discernible from the Mahatma Gandhi University Statutes Chapter 45 Part (C) and Statute 44 is as follows: "9.Herbarium Keeper (a) For Direct Recruitment SSLC with experience in Botany Laboratory (b) For promotion from VII Standard pass with Laboratory Assistants experience in Botany Laboratory. (Preference will be given to those with higher educational qualification)" 2. It is apparent that, for considering himself eligible to the post which was sought to be filled by direct recruitment, the petitioner had to be possessed of the minimum qualification of a pass in SSLC with experience in Botany Laboratory. The Selection 2 W.P.(C).No.25362 of 2013 Committee which met to consider applicants for the post of Herbarium Keeper recommended the petitioner for the said post and accordingly by Ext.P3 order, the petitioner was appointed as Herbarium Keeper with effect from 10.08.2012. Thereafter the 5[th] respondent College forwarded the papers relating to appointment of the petitioner to the 2[nd] respondent for its approval. By Ext.P5 communication, which is seen addressed to the 2[nd] respondent from the 1[st] respondent, the respondents did not choose to approve the appointment of the petitioner for the reason that he did not have the qualification prescribed in Ext.P6 Government Order dated 17.09.2004. The 5[th] respondent was also directed to expel the petitioner and appoint a new person in his place. Pursuant to Ext.P5, the 5[th] respondent informed the petitioner of the decision of the Government vide Ext.P9 letter dated 23.09.2013. On receipt of Ext.P9, the petitioner approached this Court through the present writ petition impugning Ext.P4 Order issued by the 1[st] respondent, to the extent it directed the nullification of the appointment of the petitioner as Herbarium Keeper. 3. A counter affidavit has been filed on behalf of the 2[nd] respondent wherein it is stated at paragraph 2 and 3 as follows: "2. With regard to the averments made in Para 2, it is submitted that, the petitioner was 3 W.P.(C).No.25362 of 2013 appointed as Herbarium Keeper in St.Alberts College, Ernakulam w.e.f. 10.08.2012. As per the Mahatma Gandhi University Statute, the qualification for appointment to the post of Herbarium Keeper through direct recruitment is S.S.L.C with experience in Botany Laboratory and for promotion from Laboratory Assistant the qualification prescribed 7[th] standard pass with experience in Botany Laboratory. The experience for a work is obtained only through actually working in the said post. The petitioner has completed B.Sc. Botany and was undergoing M.Sc. Botany during the time of notification. Petitioner did not work in a Botany Laboratory as a Lab Assistant or the any other category. His experience in the Botany Laboratory was only as a student as part of his academic course, but not as a person who knows arranging Botany Lab for practicals and the same cannot be interpreted as his experience in Botany Laboratory. Besides Herbarium Keeping or arranging lab in Botany Department is entirely different from doing practicals in Botany Laboratory during under graduate and or post and its maintenance for hundreds of years. This maintenance techniques include prevention of insect infestation, freezing specimen. Preparation of cabinet shelves to keep Herbarium sheets, keeping specimens according to plant families etc. A Botany student doesn't have this type of practical experience. Also the academic experience through Botany practicals in Botany Laboratory as a part of academic course cannot be considered as the work experience in Botany Laboratory for the post of Herbarium Keeper. 3. With regard to the averments in Paras 6 of the W.P.(C)., it is respectfully submitted that, as per F.O.(Ms) No.119/04/H.Edn., dated 17.09.2004, for appointment to the post of Herbarium Keeper, the minimum educational qualification will be a pass in 12[th] standard with Biology as one of the subjects of study or 4 W.P.(C).No.25362 of 2013 equivalent qualification and Certificate Course in Herbarium Keeping. The petitioner doesn't possess the qualification as per Mahatma Gandhi University Statute and Government Orders. So the 1[st] respondent directed to nullify the appointment of petitioner as Herbarium Keeper and expel him from the post of Herbarium Keeper. Also Exhibit P1, it is stated that the age and qualification should be as per Government Rules/University Stautes. Then the argument of petitioner that the Government Orders are not applicable to him is fully baseless, invalid and illegal." 4. The case of the 2[nd] respondent essentially is that the petitioner did not possess the required qualification of having sufficient laboratory experience for the post of Herbarium Keeper under the University Statutes. It is further stated that at any rate, the petitioner did not have the qualification prescribed in Ext.P6 Government Order either and hence, on both counts, the petitioner was not qualified for appointment to the said post. In the reply affidavit filed by the petitioner to the counter affidavit filed on behalf of the 2[nd] respondent, the petitioner would point out that he had since acquired even the qualification of a Certificate Course in Herbarium Keeper as mandated under Ext.P6 Government Order and further that a perusal of the syllabi for the B.Sc Botany Course as also the M.Sc. Botany Course under the Mahatma Gandhi University would clearly indicate that he had sufficient experience in the Botany lab as mandated under the University Statute for the 5 W.P.(C).No.25362 of 2013 post in question. 5. I have heard Sri.Benny Gervacis, the learned counsel appearing on behalf of the petitioner as also Sri.Sojan James, the learned Government Pleader for the 2[nd] respondent and also Advocate Sri.Tharun appearing on behalf of the Mahatma Gandhi University. 6. After hearing the submissions on either side, I find that the reasons stated in Ext.P5 communication from the 1[st] respondent to the 2[nd] respondent for not approving the appointment of the petitioner as Herbarium Keeper, is the non-possession by the petitioner of the qualifications prescribed in Ext.P6 Government Order dated 17.09.2004. Ext.P5 communication does not indicate the existence of any other reason for the decision of the respondents to not approve the appointment of the petitioner. What has to be examined is whether the reasons stated in Ext.P5 are such as would justify the non-approval of the appointment of the petitioner as Herbarium Keeper. As already noted, as per the University Statutes, the qualification that is required for a person seeking direct recruitment as Herbarium Keeper is only S.S.L.C with experience in Botany Laboratory. In the absence of any amendments to the said statutory provision, I am of the view that 6 W.P.(C).No.25362 of 2013 the qualifications prescribed in Ext.P6 Government Order cannot be held against the petitioner to disentitle him from an approval of the appointment that was offered to him. If the respondent Government wants to rely on the qualifications mentioned in Ext.P6 then it is for the Government to first get an amendment done to the Statute in question, namely the Mahatma Gandhi University Statute 1997, and then place reliance on the amended provisions of the statute to make appointments in terms of the Statute. In the absence of any amendments to the Statute in question, the petitioner's appointment would be governed by the provisions of the statute, as they presently stand, that deal with the qualifications to be possessed by a candidate seeking appointment to the post of Herbarium Keeper. Since Ext.P5 communication seeks to rely solely on the absence of qualification as prescribed in Ext.P6 Government Order, while denying approval of the appointment of the petitioner, the finding above, with regard to the non-relevance of the said qualifications in the matter of appointment of the petitioner, would suffice to decide the issue regarding the eligibility of the petitioner, to the post of Herbarium Keeper under the 5[th] respondent College, in his favour. 7. The 2[nd] respondent, however, in its counter affidavit points out that the petitioner did not also have the required experience in 7 W.P.(C).No.25362 of 2013 a Botany lab as was contemplated under the Mahatma Gandhi University Statutes, 1997. This ground is raised for the first time in the counter affidavit filed by the 2[nd] respondent and, as such, cannot be relied upon by the 2[nd] respondent to support the decision in Ext.P5 going by the well settled principles laid down in **Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi and Others** (1978 AIR SC 851). That apart, the counter affidavit of the 2[nd] respondent does not disclose the basis on which it states that the experience in Botany lab that is contemplated under the University Statute is one that is in the nature of work experience and not that which can be possessed by a person who undergoes a graduate or a post graduate programme in Botany. The contentions in the counter affidavit also defy reason since the minimum qualification that is prescribed under the University Statute, when it speaks of experience of Botany Laboratory, is one that has to be possessed by a person who has only an S.S.L.C qualification. In the absence of any data such as opinions of experts in the field, which suggests that the experience in Botany Laboratory must be of any particular kind, it is not for this Court to speculate on the nature of the experience that is contemplated under the Statute. In the absence of any indications to the contrary one must presume that an experience in the Botany lab as part of the Curriculum for the B.Sc. Botany Course or the 8 W.P.(C).No.25362 of 2013 M.Sc.Botany Course would also suffice as necessary experience for the purposes of the University Statute. In the result, I find that the reasons that weighed with the 1[st] and 2[nd] respondents while choosing to deny approval to the appointment of the petitioner to the post of Herbarium Keeper in the 5[th] respondent College cannot be legally sustained. Ext.P5 communication is hence quashed. Needless to say, Ext.P9 communication which is based on Ext.P5, cannot also be legally sustained and the same is also quashed. The 2[nd] respondent is directed to approve the appointment of the petitioner as Herbarium Keeper in the 5[th] respondent College with effect from 10.08.2012 and disburse the arrears of salary and other monetary benefits that are due to him pursuant to the said appointment. This shall be done within an outer limit of three months from today. No order as to cost. **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/