Jayan Padasseri v. Kerala Public Service Commission & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 8[TH] DAY OF JUNE 2023 / 18TH JYAISHTA, 1945 WP(C) NO. 14279 OF 2021** ## **PETITIONER:** JAYAN PADASSERI AGED 45 YEARS S/O.RAGHAVAN, D-18 QUARTERS, CALICUT UNIVERSITY CAMPUS, CALICUT UNIVERSITY P.O., MALAPPURAM - 673 635. BY ADVS. T.B.HOOD AMAL KASHA M.ISHA ## **RESPONDENT/S:** 1 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, THULASI HILLS, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695004. 2 UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY P.O., MALAPPURAM - 673 635. 3 VICE CHANCELLOR UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM - 673 635. BY ADVS. SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.14279/2021 2 ## **JUDGMENT** The writ petitioner is presently working as Executive Engineer (Civil) at the University of Calicut. In the year 1994, the petitioner was awarded a Diploma in Civil Engineering from the University of Calicut. On 6.12.1996, he entered service of the Calicut University as an Overseer (Civil). On 16.6.2000, the petitioner was promoted to the post of Assistant Engineer (Civil). On 7.5.2011, the petitioner was promoted to the post of Assistant Executive Engineer (Civil) and on 23.12.2019, the petitioner was promoted to the post of Executive Engineer (Civil). The petitioner obtained a B.Tech Degree in Civil Engineering on 28.12.2017. 2. The Government of Kerala, through Ext.P10 Government Order dated 6.11.2020, fixed the qualifications for appointment, method of recruitment etc., to certain non-teaching posts in the various Universities in Kerala. Under Ext.P.10, the post of University Engineer was to be filled up by direct recruitment. The qualifications prescribed are:- ## _i) Degree or equivalent qualification in Civil Engineering;_ _ii) 10 years working experience in the post of Assistant Engineer (Civil) or above in Government/Public Sector/Semi Government/Autonomous Institutions._ W.P.(C)No.14279/2021 3 By Ext.P11 notification dated 16.6.2021, the Kerala Public Service Commission invited applications for filling up the post of University Engineer to ‘ _Universities in Kerala’_ . The dispute, in this case, is whether the petitioner is entitled to apply for the post of University Engineer in terms of the qualifications prescribed in Ext.P10 Government Order and Ext.P11 notification. While the petitioner asserts that the petitioner is fully qualified, the Public Service Commission rejected the application filed by the petitioner on the ground that the experience claimed by the petitioner was not one gained after acquisition of the basic qualification for the post of University Engineer, which was B.Tech in Civil Engineering. 3. Sri.T.B.Hood, the learned counsel appearing for the petitioner, would contend that in terms of the provisions contained in Statute 2 of Chapter IV of Calicut University First Statutes, 1977 (hereinafter referred to as 'First Statutes'), the provisions of the Kerala State and Subordinate Services Rules, 1958 (the ‘KS & SSR’) would apply only to service conditions of University employees and the provisions of Statue 8 of Chapter IV indicate that, in the matter of recruitment only the provisions of clauses (a), (b) and (c) of Rule 14 and Rules 15, 16 and 17 of the KS & SSR will be applicable. In other words, it is the case of the learned counsel for the petitioner that the provisions of Rule 10 (ab) of the KS & SSR, which prescribes that where the special W.P.(C)No.14279/2021 4 rules or recruitment rules for any post, in any service, prescribe a qualification of experience, it shall, unless otherwise specified, be one gained by persons after the acquisition of the basic qualification prescribed for the post, is not applicable and that the experience gained by the petitioner even before acquisition of B.Tech Degree in Civil Engineering must be counted as experience for the post of University Engineer. The learned counsel appearing for the petitioner places reliance on the judgments of the Supreme Court in _**Anil Kumar Gupta and others v. Municipal Corporation of Delhi; (2000) 1 SCC 128**_ and _**A.K. Raghumani Singh and others v. Gopal Chandra Nath and others; (2000) 4 SCC 30**_ to contend for the position that experience gained even before acquisition of the basic qualification can also be counted as sufficient experience. He also contends on the strength of the decision in _**Ravidas v. Public Service Commission; 2009 (2) KLT 295**_ that the Public Service Commission cannot prescribe any additional qualification other than the qualification prescribed by Ext.P10 Government Order and the provisions of the First Statutes which have already been referred to above. 4. Sri. P.C. Sasidharan, the learned counsel appearing for the Calicut University, would contend that the judgment of the Supreme Court in _**Sheshrao Jangluji Bagde v. Bhaiyya, s/o. Govindrao**_ W.P.(C)No.14279/2021 5 _**Karale and others; 1991 Supp (1) SCC 367**_ is the authority for the proposition that whenever experience is mentioned, it must be one gained after acquisition of basic qualification. He also placed reliance on the judgments of this Court in _**Sirajudheen v. Public Service Commission; 1998 (2) KLT 1046**_ and _**Hari Soman v. Kerala Public Service Commission; 1999 (2) KLT 348**_ to contend that wherever any experience is prescribed, the experience must be one gained after acquisition of the basic qualification. He also states that the interpretation placed by the learned counsel for the petitioner on Statutes 2 and 8 of Chapter IV of the First Statutes is incorrect. He states that when the entirety of KS&SSR has been made applicable to and governs the service conditions under the University, it does not lie in the mouth of the petitioner to contend that only the rules mentioned in Statute 8 of Chapter IV of the First Statutes will apply in case of recruitment. 4. The learned counsel appearing for the petitioner, in reply, has placed reliance on the provisions of Art.309 of the Constitution of India and the decision of the Supreme Court in _**Keshav Chandra**_ _**Joshi and others v. Union of India and others; 1992 Supp (1)**_ _**SCC 272**_ to contend that conditions of service and recruitment are two different aspects and therefore, the fact that the Statute 2 of Chapter IV W.P.(C)No.14279/2021 6 of the First Statutes incorporates the entirety of the KS &SSR to govern the conditions of service of University employees does not mean that all the provisions in the KS & SSR would apply to recruitment as well. 5. Having heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the University of Calicut, I believe that the petitioner is not entitled to succeed. The provisions of Rule 10(ab) of the KS &SSR read as follows:- “ _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 un paid 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** ”_ If the provisions of Rule 10(ab) of the KS & SSR were to apply in the case of recruitment to the University service, the petitioner is clearly not qualified for the post of University Engineer. The provisions of Statute 2 of Chapter IV of Calicut University First Statutes, 1977, read as follows:- _**Applicability of the Kerala Service Rules etc., to the non-teaching staff** : Subject to the provisions of the Act and the Statutes issued there under, the Kerala State and Subordinate Service Rules, 1958, the Kerala Service Rules, 1959 and the Government Servant Conduct Rules, 1960 as amended from time to time in so far as may be applicable and except to the extent expressly provided for in these Statutes, shall apply in the matter of all the service conditions of the University employees in the University service:_ W.P.(C)No.14279/2021 7 _Provided that the said rules shall, in their application to the members of the University service, be construed as if the employer were the Calicut University instead of the Kerala State Government.”_ While the learned counsel for the petitioner strenuously argued that conditions of service and recruitment must be treated differently, the language of Statute 2 of Chapter 4 does not admit such an interpretation. Rule 10(ab) of the KS & SSR clearly applies to qualification and that alone. It would be obnoxious to hold that Rule 10(ab) of the KS & SSR would apply to the petitioner only after recruitment, as the conditions of service would operate only after the petitioner is recruited as University Engineer. In other words, if such an interpretation is accepted, a Rule that applies to the petitioner after recruitment will find him unqualified for the post, while the Rules that apply to the petitioner at the time of recruitment will find him qualified to the post. Even otherwise, _**Sirajudheen (supra)**_ is the authority for the proposition that whenever a qualification of experience is prescribed either by Special Rules or by recruitment rules or by any other method, it must have been gained after the acquisition of the basic qualification. The contention that ‘recruitment’ and ‘conditions of service’ are treated differently in Article 309 of the Constitution of India does not compel me to hold that the two must always be considered differently. The First Statutes must be interpreted as they stand. In _**Keshav Chandra**_ W.P.(C)No.14279/2021 8 _**(supra),**_ while considering the issue of seniority between direct recruits and promotees, it was held:- **“** _19. The heart of the controversy lies in the question as to when a person is appointed to a post in the service in a substantive capacity within the meaning of Rule 3(h) read with Rules 5 and 24 of the Rules. Under Rule 5 read with Rule 3(h) a member of the service means a person, be it direct recruit under Rule 5(a) or promotee under Rule 5(b), appointed in a substantive capacity to the service as per the provisions of the rules. In order to become a member of the service he/they must satisfy two conditions, namely, the appointment must be in substantive capacity and the appointment has to be to the post in the service according to rules and within the quota to a substantive vacancy. There exists marked distinction between appointment in a substantive capacity and appointment to the substantive post. Therefore, the membership to the service must be preceded by an order of appointment to the post validly made by the Governor. Then only he/they become member/members of the service. Any other construction would be violation of the Rules.”_ The decision was rendered in completely different factual circumstances. Therefore, the petitioner has not made out any case for interference. 6. The other decisions cited at the Bar by the learned counsel for the petitioner do not come to the aid of the petitioner as the principles laid down therein apply only if this Court were to hold that the provisions of Rule 10(ab) of KS &SSR will not apply to cases of recruitment to the post of University Engineer. Having held that the provisions of Rule 10(ab) apply to the cases of recruitment as well, I do W.P.(C)No.14279/2021 9 not think that the principles laid down in the decisions cited by the learned counsel for the petitioner can be applied in the facts of this case. The writ petition fails, and it is accordingly dismissed. Sd/- **GOPINATH P. JUDGE** acd W.P.(C)No.14279/2021 10 ## **APPENDIX OF WP(C) 14279/2021** - PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF DIPLOMA CERTIFICATE OF THE PETITIONER. - Exhibit P2 TRUE COPY OF THE BACHELOR OF TECHNOLOGY CERTIFICATE OF THE PETITIONER. - Exhibit P3 TRUE COPY OF THE UNIVERSITY ORDER DATED 06/12/1996 REGARDING APPOINTMENT OF THE PETITIONER AS OVERSEER (CIVIL). - Exhibit P4 TRUE COPY OF THE UNIVERSITY ORDER DATED 16/06/2000 REGARDING PROMOTION OF THE PETITIONER AS ASSISTANT ENGINEER (CIVIL). - Exhibit P5 TRUE COPY OF THE UNIVERSITY ORDER DATED 07/05/2011 REGARDING PROMOTION OF THE PETITIONER AS ASSISTANT EXECUTIVE ENGINEER (CIVIL). - Exhibit P6 TRUE COPY OF THE UNIVERSITY ORDER DATED 31/12/2014 REGARDING PROMOTION OF THE PETITIONER AS ASSISTANT EXECUTIVE ENGINEER (CIVIL). - Exhibit P7 TRUE COPY OF THE UNIVERSITY ORDER DATED 17/12/2019 REINSTATING THE PROMOTION GRANTED TO THE PETITIONER AS ASSISTANT EXECUTIVE ENGINEER (CIVIL). - Exhibit P8 TRUE COPY OF THE UNIVERSITY ORDER DATED 23/12/2019 REGARDING PROMOTION OF THE PETITIONER AS EXECUTIVE ENGINEER (CIVIL). - Exhibit P9 TRUE COPY OF THE KERALA PUBLIC SERVICES COMMISSION (ADDITIONAL FUNCTIONS AS RESPECTS THE SERVICES UNDER THE UNIVERSITIES) ACT, 2015. - Exhibit P10 TRUE COPY OF G.O.(P) NO.37/2020/H.EDN. DATED 06/11/2020 WITH ANNEXURE THERETO. - Exhibit P11 TRUE COPY OF THE NOTIFICATION ISSUED BY THE 1ST RESPONDENT AS CATEGORY W.P.(C)No.14279/2021 11 NO.204/2021 FOR SELECTION TO THE POST OF UNIVERSITY ENGINEER, ALONG WITH GENERAL CONDITIONS. Exhibit P12 TRUE COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE CHAIRMAN OF THE 1ST RESPONDENT BY EMAIL ON 10/07/2021. Exhibit P13 TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION PUBLISHED BY THE 1ST RESPONDENT PUBLIC SERVICE COMMISSION, REVISING THE EXAMINATION PROGRAMME FOR THE MONTH OF JUNE, 2023