Dinesh M. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934** **WP(C).No. 27653 of 2009 (B) ----------------------------------------** ## **PETITIONER:** ## **-------------------** **DINESH.M, S/O.LATE MADHUSUDHANAN, KUNNAM PARAMBU HOUSE, MATHUR (P.O), PALAKKAD-678 571.** ## **BY ADV. SRI.KALEESWARAM RAJ.** ## **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM.** **3. THE DISTRICT OFFICER, K.P.S.C, DISTRICT OFFICE, THE KERALA PUBLIC SERVICE COMMISSION, CIVIL STATION, PALAKKAD-678 001.** **4. THE DISTRICT OFFICER, K.P.S.C, DISTRICT OFFICE, THE KERALA PUBLIC SERVICE COMMISSION, CIVIL STATION, NEW BLOCK, MALAPPURAM-676 505.** ## **W.P.(C).NO.27653/2009-B** ## ***ADDL. R.5. IMPLEADED:** **5. DISTRICT CO-OPERATIVE BANK, PALAKKAD - 678 001, REPRESENTED BY THE GENERAL MANAGER IN CHARGE, DISTRICT CO-OPERATIVE BANK, PALAKKAD.** ***ADDITIONAL 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 18/02/11 IN I.A. 2448/11.** **R1 BY GOVERNMENT PLEADER SRI. D. SOMASUNDARAM, R2 TO R4 BY ADV. SRI.P.C.SASIDHARAN, S.C, K.P.S.C, ADDL. R5 BY ADV. SRI.M.P.ASHOK KUMAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-12-2011, THE COURT ON 21/05/2012 DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.27653/2009-B:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXT.P.1: COPY OF THE RELEVANT PORTION OF NOTIFICATION ISSUED BY THE R.2. DT. 14/02/2007.** - **EXT.P.2: COPY OF THE MBA DEGREE CERTIFICATE DT. 10/10/01 AWARDED BY BHARATHIAR UNIVERSITY, COIMBATORE.** - **EXT.P.3: COPY OF THE CONSOLIDATED STATEMENT OF MARKS DT. 13/07/2001 ISSUED BY THE BHARATHIAR UNIVERSITY.** - **EXT.P.4: COPY OF THE CERTIFICATE DTD. 12/04/2007 ISSUED BY THE UNIVERSITY OF CALICUT.** - **EXT.P.5: COPY OF THE CERTIFICATE OF EXPERIENCE DT. 23/03/2006 ISSUED BY SDF INDUSTRIES LIMITED, PALAKKAD.** - **EXT.P.6: COPY OF THE DETAILS TO SHOW THAT THE SDF INDUSTRIES LIMITED, PALAKKAD IS A PUBLIC LIMITED COMPANY, (DOWN LOADED FROM WEBSITE).** - **EXT.P.7: COPY OF THE NOTICE DT. 22/05/08 ISSUED BY THE R.3.** - **EXT.P.8: COPY OF THE NOTICE DTD. 22/10/07 ISSUED BY R.4.** - **EXT.P.9: COPY OF THE ORDER DTD. 05/11/08 ISSUED BY R.3.** - **EXT.P.10: COPY OF THE ORDER DTD. 22/08/09 ISSUED BY THE R.4.** - **EXT.P.11: COPY OF THE PROVISIONAL CERTIFICATE ISSUED TO THE PETITIONER ON 13/07/2011.** - **EXT.P.12: COPY OF THE GAZETTE NOTIFICATION WHICH APPEARED IN GAZETTE DTD. 27/02/2007 FOR CATEGORY NO.36/2007.** ## **RESPONDENTS' EXHIBIT:** - **EXT.R5.A: COPY OF THE RANK LIST PUBLISHED BY THE PSC IN CATEGORY 36/2007.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **P.N.RAVINDRAN, J.** ## **----------------------------------------W.P(C).No.27653 of 2009 ----------------------------------------Dated this the 21[st] day of May, 2012** ## **JUDGMENT** By Ext.P1 notification published in the Kerala Gazette dated 14.2.2007, the Kerala Public Service Commission (hereinafter referred to as “the Commission” for short) invited applications from eligible persons for appointment to the post of General Manager in the District Co-operative Banks at Palakkad and Malappuram. The number of vacancies notified was one each. 2. Pursuant to Ext.P1 notification the petitioner applied for appointment as General Manager in both the District Co-operative Banks. After the applications were submitted, the District Officer, Kerala Public Service Commission, Palakkad, issued Ext.P7 letter dated 22.5.2008 calling upon the petitioner to produce documents to prove his qualifications and date of birth and the experience possessed by him. Likewise, the District Officer, Kerala Public Service Commission, Malappuram, issued Ext.P8 letter dated 22.10.2007 calling upon him to produce documents to prove his qualifications and date of birth and the experience possessed by ## **W.P(C).No.27653 of 2009** -:2:- him within 15 days. The petitioner accordingly produced documents to prove his age, qualifications and experience. By Ext.P9 memo dated 5.11.2008, the District Officer, Kerala Public Service Commission, Palakkad, informed the petitioner that as he does not possess the experience qualification prescribed for the post, his application stands rejected. Later, by Ext.P10 memo dated 22.8.2009, the District Officer, Kerala Public Service Commission, Malappuram informed the petitioner that his application for appointment as General Manager in the District Cooperative Bank, Malappuram stands rejected for the reason that the experience certificate produced by him is not acceptable. The instant writ petition was thereupon filed on 30.9.2009 challenging Exts.P9 and P10 and seeking the following reliefs:- _i. To issue a writ of certiorari quashing Exts.P9 and P10 as erroneous, illegal and arbitrary and unsustainable._ _ii. To issue a writ of mandamus directing the respondents to consider the petitioner for selection and appointment to the post of General Manager by treating him as duly qualified candidate as per Ext. P1 notification. iii. To issue a writ of mandamus directing respondents 2, 3 and 4 to advise the petitioner to the post of General Manager on_ ## **W.P(C).No.27653 of 2009** -:3:- _the basis of his position in the rank list which is to be prepared on the basis of interview and Ext.P1 notification._ 3. The main contention raised by the petitioner is that the rejection of his applications on the ground that he does not possess the prescribed experience is not tenable. Relying on Exts.P2 to P6 produced along with the writ petition it is contended that he had the required managerial experience as Sales Manager in a public limited company, namely SdF Industries Limited and therefore, the rejection of his applications is not in order. Pursuant to the interim order passed by this Court on 1.10.2009, the petitioner was permitted to participate in the interview that was scheduled to be held from 7.10.2009 onwards. Later, by order passed on 18.12.2009, a learned single Judge of this Court directed the respondents to declare the result and to include his name in the ranked list at the appropriate place. 4. Respondents 2, 3 and 4 have filed affidavits dated 17.11.2009, 4.3.2010 and an additional counter affidavit dated 11.4.2011. The learned counsel appearing for the additional 5[th] respondent has filed a counter statement dated 28.2.2011. The additional 5[th] respondent has also filed a counter affidavit dated 10.3.2011. In the affidavit dated 17.11.2009 the stand taken by ## **W.P(C).No.27653 of 2009** -:4:- respondents 2, 3 and 4 is that Ext.P5 experience certificate produced by the petitioner was not accepted for the reason that SdF Industries Limited is not a Public Limited Company and it does not belong to any of the categories of establishments mentioned in the notification. It was also stated that office management is not a supervisory post. The relevant averments in that regard are those contained in paragraphs 3 and 4 of the affidavit dated 17.11.2009, which are extracted below:- _“3. It is submitted that the petitioner Sri.Dinesh M. was an applicant to the above post in Palakkad and Malappuram districts. When the Commission directed the petitioner to produce documents to prove qualifications, experience etc. he produced an experience certificate in the cadre of Territory Sales Manager (Supervisory Cadre) issued by SdF Industries Limited, Palakkad to prove his experience. The Commission examined the acceptability of this experience certificate and decided not to accept the experience certificate produced by the petitioner from the SdF Industries Ltd., on the ground that Office Management is not a Supervisory post since this Company is not a Public Limited one in nature. Hence rejection memos were issued to the petitioner from the concerned District Offices._ _4. It is submitted that the Commission have_ ## **W.P(C).No.27653 of 2009** ## -:5:- _acted in accordance with the existing rules. In the notification for the above post one of the qualifications prescribed was “Experience of not less than three years in Managerial/Supervisory Cadre in Co-operative Institutions/Scheduled Banks/ Government/Quasi Government Institutions/Public Limited Companies”. But the experience certificate produced by the petitioner was from SdF Industries Limited and this company does not belong to any of the categories as prescribed in the notification. Hence the petitioner does not possess qualification of experience as prescribed in the notification for the above post and so his application was rejected. In this connection it may be noted that the petitioner has not submitted Ext.P6 copy of the company details downloaded from the website claiming that SdF Industries Limited is a Public Limited Company before the Commission along with the experience certificate or at any stage of selection for the above post in both the districts (Palakkad & Malappuram).”_ 5. In the affidavit dated 4.3.2010, it is stated that pursuant to the interim order passed by this Court on 18.12.2009 whereby this Court directed declaration of the result and inclusion of the name of the petitioner in the ranked list, the petitioner's name has been included in the ranked list published on 1.1.2.2009 by assigning him rank No.3A for the post of Branch Manager in the ## **W.P(C).No.27653 of 2009** -:6:- District Co-operative Bank, Malappuram and rank No.2 in the ranked list published on 29.10.2009 for the post of General Manager in District Co-operative Bank, Palakkad. In the additional counter affidavit dated 11.4.2011 respondents 2 to 4 have raised an additional contention that the experience certificate produced by the petitioner is not in terms of the General Conditions attached to the notification. The relevant averments in that regard are extracted below:- _“4. The experience certificate produced is not one in terms of the General Condition in the notification and as per Rules. In terms of the General Conditions of the notification, the experience certificate should be one in the form prescribed. For convenience sake clause 22 of the General Condition is quoted hereunder:_ _“22. The certificate to be produced in proof of experience shall be in the Form given below:_ _Name of the Firm (Company/Corporation/ Government Department/ Co-operative Institutions etc.)_ _Register Number (SSI Registration or any other Registration Number and Date of Registration)_ _Authority issued Registration:_ ## **W.P(C).No.27653 of 2009** -:7:- ## _CERTIFICATE OF EXPERIENCE_ _Issued to (here enter Name and Address) ................................................._ _......................................................_ _This is to certify that the above mentioned person has worked/has been working in this institution as ........ (here enter the name of the post held and or the nature of assignment held in the capacity) on Rs. .......... per day/per mensem for a period of .... years ... months ... days from ......... to ........_ ## _Signature_ _Place:_ _Name and Designation of the Issuing Authority with Name of the Institution._ _(Office Seal)_ ## _CERTIFICATE_ _Certified that Sri./Smt............. mentioned in the above Experience Certificate has actually worked/is employment) in the above Institution during the period mentioned therein as per the entry in the above register maintained by the employer as per the provision of .......... Act (Name of the Act/Rules to be specified)._ _I am the authorized person to inspect the Registers kept by the employer as per the provision of the Act/Rules of .......... State/Central Act._ _Signature with date Name of Attesting Officer with Place: Designation and Name of Office Date: who is the notified Enforcement Officer as per the Act/Rules (Office Seal)_ _Note: 1. Please specify the post held or nature of assignment, Casual Labourer, Paid/unpaid Apprentice/Regular Worker or Temporary Worker._ -:8:- ## **W.P(C).No.27653 of 2009** _2. All experience Certificates shall be duly certified by the concerned Controlling Officer/Head of Office of the Government. The genuineness of the Certificate shall be subjected to verification and legal action will be taken against those who issue and produce bogus certificate.”_ _5. A casual perusal of Ext.P5 indicates it does not satisfy the requirement of Clause 22 of the General Conditions of notification. Further the attestation of experience certificate is also not in order and one not acceptable to the Commission in terms of the notification._ _6. It is submitted that conditions in the notification is binding both on the Commission as well as the candidates and this legal position needs no elaboration. The candidate applying to the post should strictly adhere to the stipulation contained in the notification and that no exception can be sought for by anyone._ _7. It is submitted that since the experience certificate is not one in accordance with the conditions of notification, this Hon'ble Court in exercise of the extra ordinary jurisdiction cannot compel the Commission to accept the same and treat the candidate as qualified.”_ In para 8 of the counter affidavit dated 11.4.2011 it is stated that Ext.P6 cannot be relied on in support of the petitioner's contention that SdF Industries Limited is a public limited company. ## **W.P(C).No.27653 of 2009** -:9:- 6. In the counter statement dated 28.2.2011 filed by the learned counsel for the additional 5[th] respondent, it is stated that Sri.T.Unnikrishnan, rank No.1 in the ranked list for the post of General Manager, District Co-operative Bank, Palakkad was appointed as General Manager by order dated 15.1.2010, that he was directed to report for duty within 45 days from 15.1.2010, that Sri.T.Unnikrishnan thereafter requested for extension of joining time for a further period of three months for the reason that he was serving as Manager (Technical) at KINFRA, that the bank thereupon informed the Commission that Sri.T.Unnikrishnan has not joined duty pursuant to the appointment order within the stipulated time as per letter dated 10.3.2010 and that in response to the letter dated 17.12.2010 sent by the District Officer, Kerala Public Service Commission, Palakkad, the bank has sent a reply dated 23.12.2010 informing him that Sri.T.Unnikrishnan has not joined duty within the prescribed time limit. In the counter affidavit filed by the additional 5[th] respondent it is stated that the petitioner acquired the MBA degree only on 10.10.2001, that the experience certificate produced by him shows that he joined SdF Industries Ltd., before he acquired the basic educational qualification and therefore he does not have the required **W.P(C).No.27653 of 2009** -:10:- experience as prescribed in the notification. It is also contended that the experience certificate produced by the petitioner does not satisfy the requirement of clause 7 of Ext.P1. 7. The petitioner has filed a reply affidavit dated 20.11.2011 in reply to the counter affidavits filed by the Commission and produced along with it as Ext.P12, the full text of the notification dated 14.2.2007 issued by the Commission inviting applications for appointment to the post of General Manager in the District Co-operative Banks at Palakkad and Malappuram. He has in the reply affidavit contended that the general condition No.22 attached to Ext.P12 notification which relates to the post in question, is different from condition No.22 extracted in the counter affidavit dated 11.4.2011 filed on behalf of the Commission and that Ext.P5 certificate produced by him is in tune with condition No.22 which forms part of Ext.P12 notification. It is also contended that the stand taken by the Commission in the counter affidavit dated 11.4.2011 is not only incorrect but also false and malicious and unbecoming of a constitutional authority. 8. I heard Sri.Kaleeswaram Raj, learned counsel appearing for the petitioner, Smt.Anitha Ravindran, learned Government ## **W.P(C).No.27653 of 2009** -:11:- Pleader appearing for the State of Kerala, Sri.P.C.Sasidharan, learned standing counsel appearing for the Commission and Sri.M.P.Ashok Kumar, learned counsel appearing for the additional 5[th] respondent. I have also gone through the pleadings and the materials on record. Sri.Kaleeswaram Raj, learned counsel appearing for the petitioner, contended that the petitioner's applications for appointment as General Manager in the District Co-operative Banks at Palakkad and Malappuram were rejected by the impugned memos only on the ground that he does not possess the prescribed experience and that in the said memos the Commission had no case that the experience certificate produced by him is not in order or in the prescribed form. The learned counsel contended that Ext.P5, the experience certificate produced by the petitioner, is in the form prescribed in Ext.P12 notification which relates to the post in question and that the Commission has in the counter affidavit dated 11.4.2011 relied on a stipulation which does not find a place in Ext.P12 notification to contend that the experience certificate produced by the petitioner is not in order. The learned counsel contended that as SdF Industries Limited, where the petitioner was employed as Territory Sales Manager, is a public limited company, that the respondents have ## **W.P(C).No.27653 of 2009** -:12:- no case that it is not a public limited company and as he was engaged in a managerial capacity from 1.8.2001 to 15.10.2004, he is qualified and eligible to be appointed as General Manager in the District Co-operative Banks at Palakkad and Malappuram. The learned counsel further contended relying on Ext.P11 provisional certificate which was issued on 13.7.2001 that the petitioner appeared for the final examination which led to the award of the Degree of Master of Business Administration in April, 2001, that the results were published before 13.7.2001, that it was thereafter that he was appointed as Territory Sales Manager in SdF Industries Limited on 1.8.2001 and therefore, the contention that the experience which he had as Territory Sales Manager in SdF Industries Limited is not one gained by him after acquiring the MBA degree is without any merit and is liable to be rejected as plainly untenable. The learned counsel contended that as the first rank holder who was appointed pursuant to the inclusion of his name in the ranked list as General Manager in the District Cooperative Bank, Palakkad has not reported for duty and the vacancy exists, as the candidate ranked second in the ranked list, the petitioner is entitled to be appointed to the post. ## **W.P(C).No.27653 of 2009** -:13:- 9. Per contra, Sri.P.C.Sasidharan, learned standing counsel appearing for the Commission, contended that the experience certificate produced by the petitioner is not in order, that no scale of pay is mentioned therein, that it is not countersigned by the District Labour Officer and that there is no attestation by the attesting officer as stipulated in the model form of the certificate of experience prescribed in paragraph 22 of the general conditions extracted in the counter affidavit dated 11.4.2011. The learned standing counsel also contended that it is the primary duty of the candidate to produce documents to prove that he was employed in a managerial or supervisory cadre in a public limited company, that the petitioner has not produced any document to show that SdF Industries Limited is a public limited company, that the experience certificate produced by him is not in order and therefore the experience certificate produced by him was not acceptable. Sri.M.P.Ashok Kumar, learned counsel appearing for the additional 5[th] respondent contended that experience is not an empty formality, that the bank has about 300 employees and therefore the experience in a managerial cadre is required, that the petitioner acquired the degree in Master of Business Administration only on 10.10.2001, that the experience gained by ## **W.P(C).No.27653 of 2009** -:14:- him includes experience prior to the said date and therefore, he was ineligible to apply for the post. It was contended that the petitioner was not working in a scale of pay but only on a consolidated pay and therefore, for that reason also, the certificate of experience cannot be relied on. Relying on the decision of this Court in _**Jaya v Suchit,**_ 2010 (2) KLT 709 and the decision of the Apex Court in _**State of Orissa v. Mamata Mohanty**_ , (2011) 3 SCC 436, the learned counsel appearing for the additional 5[th] respondent contended that the qualification for appointment to a post has to be reckoned with reference to the last date fixed for receipt of applications unless otherwise prescribed and that the petitioner who lacks eligibility as per the rules cannot seek appointment as General Manager in the District Co-operative Bank, Palakkad. Relying on the decision of the Division Bench of this Court in _**Rangaswamy v. Kerala Public Service Commissio**_ n, 1982 KLT 547 learned counsel for the additional 5[th] respondent contended that as the experience certificate produced by the petitioner is not in tune with the stipulations in the General Conditions issued by the Commission, this Court cannot direct the Commission to treat the petitioner's application as one which is in order. Relying on the decision of the ## **W.P(C).No.27653 of 2009** -:15:- Apex Court in _**Pramod Kumar v. U.P.Secondary Education Services Commission,**_ (2008) 7 SCC 153, learned counsel for the additional 5[th] respondent contended that if the essential educational qualifications for recruitment to a post are not satisfied it cannot be condoned and the appointment made. 10. I have considered the submissions made at the Bar by the learned counsel on either side. I have also gone through the pleadings and the materials on record. Shorn of details, the contention now raised by the Commission is that apart from the fact that the petitioner does not possess the required experience qualification stipulated in the notification, he is also ineligible for the reason that the experience certificate produced by him is defective and not in the prescribed form. The stand taken by the additional 5[th] respondent is that the experience gained by the petitioner is one acquired by him before acquiring the basic educational qualification prescribed in Ext.P1 notification. By the impugned memos, the petitioner's applications were rejected on the ground that he does not possess the prescribed experience. In the counter affidavit it is also contended that the experience certificate is not in order. It is relying on General Condition No.22 which is extracted in the counter affidavit dated 11.4.2011 filed on ## **W.P(C).No.27653 of 2009** -:16:- behalf of respondents 2 to 4 that such a contention is raised. The stand taken by the petitioner is that the certificate required to be produced is not as per the form set out in para 4 of the counter affidavit dated 11.4.2011 filed on behalf of respondents 2 to 4. In Ext.P1 notification, the full text of which has later been produced as Ext.P12, the qualifications prescribed for the post are set out as follows:- _“7. Qualifications:- (1) Master's Degree in Business Administration or any other equivalent qualification recognised by the Universities in the State_ _OR_ _Membership of the Institute of Chartered Accountants of India._ _(2) Experience of not less than Three years in Managerial/Supervisory Cadre in Cooperative Institutions/Scheduled Banks/Government/Quasi Government Institutions/Public Limited Companies. (The experience prescribed as qualification shall be one gained by the candidate after acquiring the basic qualifications prescribed for the post and should be received before the last date fixed for receipt of applications.)_ _Note:-1. The existing employees who possess MBA/CA qualification will be allowed age relaxation of 5 years to apply for direct recruitment.”_ 11. It is not in dispute that the petitioner possesses a Master's Degree in Business Administration. Exts.P2 and P4 establish the fact that the petitioner possesses a Master's degree **W.P(C).No.27653 of 2009** ## -:17:- in Business Administration awarded by the Bharathiar University, which is recognised as equivalent to the MBA degree awarded by the University of Calicut. The learned counsel appearing for the 5[th] respondent however, contended that as the petitioner acquired the MBA degree only on 10.10.2001, namely the date on which the degree certificate was issued, he did not possess three years experience as on the last date stipulated for submission of applications, namely 14.3.2007. Ext.P2 degree certificate discloses that the petitioner appeared for the examination leading to the award of Masters degree in Business Administration in April, 2001. Ext.P2 degree certificate is dated 10.10.2001. Even if 10.10.2001 is taken as the date on which the petitioner acquired the qualification the respondents are not right in contending that he did not possess three years experience. Ext.P5 certificate is to the effect that the petitioner had worked as Territory Sales Manager (regular employee in supervisory cadre) during the period from 1.8.2001 to 15.10.2004. If as contended by the respondents the petitioner acquired the basic educational qualification only on 10.10.2001, even then, he will have experience from 10.10.2001 to 15.11.2004, which covers a period of more than three years. In any case it is evident from ## **W.P(C).No.27653 of 2009** -:18:- Ext.P11 provisional degree certificate issued by the Bharathiar University produced along with I.A.No.18540 of 2011, that the provisional degree certificate was issued on 13.7.2001. The provisional degree certificate would have issued only after the result of the examination was published. If that be so, it cannot be disputed that the petitioner gained experience as Territory Sales Manager after he passed the MBA degree examination. I therefore, find no merit in the contention of the respondents that the experience gained by the petitioner is not one gained after acquiring the basic educational qualification prescribed for the post. The said contention is plainly untenable,. 12. That takes me to the question whether the rejection of the petitioner's application on the ground stated in the impugned memos is tenable. Incidentally the question whether the experience certificate produced by the petitioner is in the prescribed form also arises for consideration. Ext.P5 experience certificate is attacked on various grounds. The first of the contentions is that the petitioner was not appointed on a scale of pay. The second contention is that it is not in the prescribed form and has not been countersigned. In Ext.P12, the notification inviting applications, it is stipulated that the experience certificate -:19:- ## **W.P(C).No.27653 of 2009** should be countersigned by the concerned Controlling Officer. Paragraph 7(2) of Ext.P12 in so far as it is relevant, is extracted below:- - _“7.2. The experience certificate shall be countersigned by the concerned Controlling Officer noted below:_ - _(a) Co-operative Institution : Joint Registrar of Co-operative Societies in the respective District._ - _(b) Scheduled Banks : Not below the rank of Regional Manager of the concerned Bank._ - _(c) Government : District Officer of the concerned Department._ - _(d) Quasi Government Institution/ Public Limited Companies : District Officer (concerned) of the Industries Department/Labour Department._ _(The genuineness of the Experience certificate shall be examined and action as per rules will be taken against those who issue Bogus Certificate and those candidates who produce such certificate)._ _The certificate to be produced in proof of experience shall contain the following details:_ _1. Name of the Firm/Company/ Government Department/Co-operative Institution (Registration Number and Date of registration etc.)_ _2. Name and address of the employee._ _3. Designation (Please specify the post held/nature of assignment, paid/unpaid_ ## **W.P(C).No.27653 of 2009** ## -:20:- _apprentice/regular worker or temporary worker)._ _4. Scale of pay. 5. Duration of experience (from..... to ........) 6. Signature, Name and Designation of issuing authority._ _7. Place and date of issue. 8. Counter signature.”_ A mere look at Ext.P5 experience certificate is sufficient to show that it has been countersigned by the District Labour Officer, Palakkad within whose territorial limits the registered office of SdF Industries Limited is situate. The stipulation in Ext.P12 is that in the case of public limited companies the District Officer in the Labour Department should countersign the experience certificate. The Commission has no case that the original of Ext.P5 has not been countersigned by the District Labour Officer. Therefore, the said contention is without merit. That takes me to the question whether as contended by the learned counsel appearing for the 5[th] respondent, the certificate lacks the details set out in paragraph 7.2 of Ext.P2. Ext.P5 sets out the name of the public limited company, its registration number and date of registration, the name and address of the employee, his designation, the duration of his experience, the signature, name and designation ## **W.P(C).No.27653 of 2009** ## -:21:- of the authority who issued it, the place and date of issue. It is also countersigned by the District Labour Officer. The learned counsel for the 5[th] respondent however, contended that as only a consolidated pay is mentioned and no scale of pay is specified, the experience certificate cannot be relied on. The said contention is, in my opinion, plainly untenable and without any merit. Ext.P12 does not stipulate that the experience gained after acquiring the basic educational qualification should be in a managerial or supervisory post which carries a scale of pay. The word “scale of pay” in my opinion is not determinative of the nature of experience which an applicant possesses. It is not stipulated in Ext.P12 that only persons who are working in a scale of pay are eligible to apply. That apart, what is stipulated in Ext.P12 is that the experience prescribed as a qualification shall be one gained after acquiring the basic qualification for the post. Therefore, the mere fact that the applicant was not working in a scale of pay but only on a consolidated pay and allowances cannot be a reason to hold that he does not possess the required experience. The stipulation in paragraph 7.2 of Ext.P12 that the experience certificate should contain the scale of pay is not mandatory. The form presented by the Commission in paragraph **W.P(C).No.27653 of 2009** -:22:- 22 of Ext.P12 notification does not use the expression scale of pay. In the absence of any stipulation in the notification to the effect that employees of the public limited companies appointed only on a scale of pay and not on a consolidated pay can apply, I am of the opinion that no reliance can be placed on the words “scale of pay” to hold that a candidate who was not working on a scale of pay but only on a consolidated pay is ineligible to apply for appointment pursuant to Ext.P12. As a matter of fact, the format of the certificate set out in paragraph 22 of Ext.P12 contemplates experience gained even while working on daily wage basis. I accordingly overrule the said contention as well. 13. That takes me to the question whether Ext.P5 certificate of experience is in the prescribed form. It is relying on condition No.22 extracted in the additional counter affidavit dated 11.4.2011 filed on behalf of respondents 2 to 4 that such a contention is raised. The petitioner has filed a reply affidavit and produced the full text of the notification to contend that condition No.22 of the General Conditions which is extracted in the counter affidavit dated 11.4.2011 does not conform to paragraph 22 of Ext.P12. I have also called for and verified Ext.P12 with the original of the gazette publication. It is relying on General ## **W.P(C).No.27653 of 2009** -:23:- Condition 22 extracted in para 4 of the counter affidavit dated 11.4.2011 that it is contended that the attesting officer has not attested the certificate after inspecting the registers kept by the employer and therefore, the experience certificate cannot be relied on. On the other hand, paragraph 22 of Ext.P12 notification which sets out the form in which the certificate is to be issued, does not contain such a stipulation. Paragraph 22 of Ext.P12 notification is extracted below in full:- _“22. The certificate to be produced in proof of experience shall be in the Form given below:-_ _(Name of the Firm/Company/Corporation etc./ Government Department/Co-operative Institution etc.)_ _(Register Number of SSI Registration, Name of Firm, Registration No., Date of Registration etc., or any other Registration with date of Registration)._ _CERTIFICATE OF EXPERIENCE Issued to (here enter name and address)_ _......................................_ _......................................_ _......................................_ _This is to certify that the above mentioned person has worked/has been working in this institution as .............. (here enter the name of the post held* and/or the nature of assignment) held in capacity on Rs.............. per day/per mensem for the period of ............. years ........... months ......... days from ........... to .........._ _Signature, Name Designation of the Issuing Authority_ _Place : Date of issue:_ _(Seal of Office)_ ## **W.P(C).No.27653 of 2009** ## -:24:- _*Note.-- Please specify the post held or nature of assignment casual labourer, paid/unpaid apprentice/regular worker or temporary worker.”_ 14. Unlike General Condition No.22 which is relied on in the counter affidavit dated 11.4.2011 filed on behalf of respondents 2 to 4, paragraph 22 of Ext.P12 notification (the relevant notification in the case on hand) does not stipulate that the experience certificate should be attested by an attesting officer after inspecting the registers maintained by the employer. In the absence of any stipulation in the notification to that effect, I am of the opinion that the contention in para 4 of the additional counter affidavit dated 11.4.2011 that Ext.P5 certificate is not in the form prescribed in General Condition No.22 of the notification cannot be sustained. I accordingly hold that the rejection of the petitioner's application for appointment to the post of General Manager in the District Co-operative Banks at Malappuram and Palakkad was illegal. 15. It is now not in dispute that the petitioner has been ranked second in the ranked list published on 29.10.2009 for appointment to the post of General Manager in the District Cooperative Bank, Palakkad. It is also not in dispute that Sri.T.Unnikrishnan, the first rank holder, did not join duty though ## **W.P(C).No.27653 of 2009** -:25:- he was appointed, within the stipulated time and that the Commission has also been informed of the fact that Sri.T.Unnikrishnan has not joined duty. As the candidate ranked second in the ranked list, the petitioner is therefore, entitled to be appointed. For the reasons stated above I allow the writ petition, quash Exts.P9 and P10 and declare that the petitioner's application was in order. I also direct respondents 2 and 3 to advise the petitioner for appointment as General Manager in the District Co-operative Bank, Palakkad. The needful in the matter shall be done and the advice memo issued within one month from the date on which the petitioner produces a certified copy of this judgment before the third respondent. The additional 5[th] respondent shall, upon receipt of the advice memo, forthwith issue an order appointing the petitioner as General Manager in the District Co-operative Bank, Palakkad. The parties shall bear their respective costs. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P(C).No.27653 of 2009 ----------------------------** ## **JUDGMENT** **21[st] May, 2012**