John Ajit Sam v. Jabir K.J. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY ,THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** **WA.No. 1592 of 2016** **AGAINST THE JUDGMENT IN WPC 30217/2015 of HIGH COURT OF KERALA DATED 29-06-2016** ## **APPELLANT:** **JOHN AJIT SAM AGED 32 YEARS, S/O K.J. SAM, KURISANKAL HOUSE, HOUSE NO.11343, SOUTH THAMARAPARAMBU, KOCHI-682001.** **BY ADVS. SRI.M.S.UNNIKRISHNAN SAJU THALIATH SMT.M.P.PRIYANKA SRI.JITHIN PAUL VARGHESE SRI.K.SUNIL** ## **RESPONDENTS:** **1 JABIR K.J., MECHANIC, COCHIN COLLEGE, KOCHI-682002. 2 MAHATMA GANDHI UNIVERSITY KOTTAYAM, REPRESENTED BY ITS REGISTRAR-686001 3 THE COCHIN COLLEGE, COCHIN, PIN-682002, REPRESENTED BY ITS PRINCIPAL. 4 THE EDUCATIONAL AGENCY OF COCHIN COLLEGE COCHIN-682002, REPRESENTED BY ITS MANAGER. 5 THE DIRECTOR, DIRECTOR OF COLLEGIATE EDUCATION,THRUVANANTHAPURAM695001. 6 THE SENIOR JOINT DIRECTOR DIRECTORATE OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM-695001.** **WA.No. 1592 of 2016 2** **7 THE SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695001.** **BY ADVS. SMT RAJI T. BHASKAR GP SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY SRI.P.P.JACOB** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **JUDGMENT** ## **Vinod Chandran, J.** The appointment to the post of a Mechanic in the Cochin College, an aided college, gave rise to a controversy; agitated in this Writ Appeal. The learned Single Judge by the impugned judgment found that the certificates produced by the first respondent who was the petitioner in the Writ Petition; shows him to have the qualification of VIII[th] standard and I.T.I. Certification in the relevant trade. The mere fact that I.T.I. Qualification, obtained by him was not recognized by the Directorate of Technical Education of the State Government could not be a reason to cancel the appointment given to the petitioner, was the finding. The 3[rd] respondent college asserted that the selected candidate had the necessary certification from an institute affiliated to the National Council For Vocational Training (for brevity “NCVT”). It was found that there is no further stipulation in the Recruitment Rules that the I.T.I. qualification in the relevant trade must also be one that is recognized by the Directorate of Technical Education of the State Government. 2. The learned Single Judge held that there was also no ground stated, of the certificate produced by the petitioner to be not a valid ITI qualification and the reason stated is only absence of recognition in the order impugned and hence relying on W.A.No.1592 of 2016 4 ## _**Mohinder Singh Gill v Chief Election Commissioner (AIR**_ _**1978 SC 851)**_ the Writ Petition was allowed finding the appointment made by the respondent college to be proper. The learned Single Judge held that the impugned order has to be tested on the reasons stated therein and a counter affidavit cannot improve the case of the authority who passed the order. Immediately we must notice that the authority has, in Exts P4 & P6 impugned orders asserted that the petitioner does not have the ITI Qualification, consistent with which a similar contention was taken in the counter affidavit dated 19.04.2016. It was in Ext P10 that there was an additional ground urged of the courses conducted by 'Bluetronix', being not one duly recognised by the Directorate. This is in tandem with the ground of the qualification not being an ITI qualification, since only courses recognized by National Council of Vocational Training (NCVT) can be considered as leading to a valid ITI qualification. The 7[th] respondent, the appellant herein also asserted that the Certificate produced by the petitioner was not a proper ITI Certificate. 3. The appellant herein, ranked second in the selection process, impugn the judgment of the learned Single Judge contending that the first respondent did not have an I.T.I. qualification at all. Additional material has been placed before this W.A.No.1592 of 2016 5 Court in the Writ Appeal on specific directions issued by this Court. We have to first look at the validity of the I.T.I. Certificate as proffered by the first respondent for which the specific qualification as per the Mahatma Gandhi University Statutes, 1977 has to be noticed. 4. We extract the essential qualification for the post of Mechanic for direct recruitment, as seen from Ext. R4 (a): - “VIII standard with I.T.I Qualification in the relevant trade. In the absence of I.T.I certificate holders, those with experience as a mechanic or fitter in a well-equipped workshop for a period of three years with VIII standard Educational Qualification.” 5. I.T.I, as it is loosely termed, refers to a course conducted by an Industrial Training Institute; which has an affiliation of the National Council for Vocational Training (NCVT) and the students have to sit for a Trade Test conducted by the NCVT which is the essential requirement for a valid certification. The Director of Training, Industrial Training Department has filed an affidavit dated 22.11.2018 in compliance of this Court's directions on 01.11.2018; wherein the legal requirements necessary to categorize a certificate as an I.T.I. certificate was directed to be clarified. As per the affidavit, it is explained that the State Director in charge of Craftsman Training Scheme will make publications in the newspapers for receipt of particulars in W.A.No.1592 of 2016 6 the prescribed proforma from the agencies seeking permission to start training in the pattern of the Craftsman Training Scheme. The State Director scrutinizes the applications, judges its authenticity and the applicant’s financial position before conveying provisional permission to the deserving applicants. The Standing Committee constituted by the State Director will then conduct an inspection for the purpose of affiliation to NCVT, which inspection is conducted by an Inspection Team, comprising of three members, one of whom would be a representative of the NCVT and one, of the State Director. The State Director then forwards the inspection report to the Director General of Employment and Training, New Delhi for further scrutiny and approval. The Secretary, NCVT scrutinizes all such inspection reports and obtains approval of deserving trade or units from the sub-committee of the NCVT. 6. It is admitted that NCVT affiliation has been granted to certain trades and courses of Bluetronix College of Engineering & Private Industrial Training Institute, Palluruthy. Among the courses which had been granted affiliation by NCVT, the trade qualification claimed by the petitioner; “Fitter” is also approved by the NCVT, in so far as Bluetronix College of Engineering & Private ITI is concerned. The Director then states in his affidavit that as W.A.No.1592 of 2016 7 per the existing rules, the trainees who have undergone training in the trades/units affiliated to NCVT has to appear in the All India Trade Test (AITT) conducted by the NCVT for the award of National Trade Certificates. This is the Certificate of ITI as spoken of in the Statutes and generally understood. 7. It is further submitted that Fitter trade is a two-year course and the trainees admitted in 2007 will complete the course in 2009 and participate in the AITT in 2009 itself. It is also averred that the Director, Bluetronix College of Engineering & Private I.T.I. has informed, by their letter dated 7.11.2018 that no trainee was admitted in the NCVT affiliated Fitter trade in 20072009 academic session. The Director has also verified the Form containing the details of trainees attending the AITT for the academic year 2007-2009, which does not reveal any trainee in Fitter trade of Bluetronix College of Engineering & Private I.T.I having participated in the examination, AITT, conducted by the NCVT. A reading of the affidavit would indicate that an I.T.I. qualification as mentioned in the Statutes would be enabled only if a National Trade Certificate is issued by the NCVT on the marks awarded in the AITT; as is seen from Ext. R7(a), the certificate obtained by the appellant herein. 8. We also notice the Affidavit of the Director, W.A.No.1592 of 2016 8 Directorate of Collegiate Education filed in the Writ Petition which produces as Exhibit R4(b) & (c), the certificate obtained by the 7[th] respondent. Ext. R4(c) is the Provisional National Trade Certificate issued by the Government Of Kerala, Industrial Training Department and Ext. R4(b) is the National Trade Certificate issued by the Government of India, Ministry of Labour and Training, NCVT. These are the Certificates recognised as ITI Certificates. True, one of the impugned orders, Ext. P10 referred to the absence of recognition to the Course. The other impugned orders specifically alleged that the petitioner did not have the qualification as prescribed by the statutes, of ITI Certificate. The Counter Affidavit of the Director also asserted, consistent with the impugned orders at Exts. P4 & P6 that the petitioner did not have the required qualification. Further the second rank holder also asserted that the selected candidate did not have the qualification and moved the Higher Education Department by Ext. P8, pointing out that the selected candidate did not have the required qualification as per the statutes. In the available circumstances, we do not think _**Mohinder Singh Gill**_ has any application. 9.We also anxiously scrutinized the certificates produced as Exts P2 and P2(a) by the petitioner, which according to him proves his ITI qualification. Ext P2 is a certificate issued by W.A.No.1592 of 2016 9 Bluetronix College of Engineering & Private ITI which admittedly is recognized both by the Government of India and Government of Kerala. But however, the certificate issued is of the Institute and it only certifies the candidate having passed the final examinations/trade test conducted by the training centre/college. Ext P2 is the mark sheet issued by the institute, wherein it is so specified:- “Those who are having working experience, after a test will be given course certificate and can appear for the NCVT trade test through this Training Centre. Bluetronix is an Approved Trade Testing Centre for MES under Skill Development Initiative Scheme (SDIS) DGE &T-Govt. of India.” Obviously the petitioner did not appear in the AITT conducted by NCVT. 10. We also see an affidavit filed by the Training Officer Related Instructions Centre, Kalamassery producing the communications issued by Bluetronix Institute as Annexures-I & II on the query made by the Director of Training. Annexure-I is a covering letter and the specific queries and answers are found in Annexure-II which are as below:- 1. Whether the writ petitioner Sri.Jabir K.J. underwent NCVT Fitter Trade course in Bluetronix? 2. Whether the writ petitioner Sri.Jabir K.J underwent any certificate course conducted by the institution namely Bluetronix themselves? W.A.No.1592 of 2016 10 Sri. Jabir K.J has underwent Fitter certificate course conducted by our institute during the period 20072009 as part time for workshop practical and have issued course completed certificate after conducting trade test by the institution. (Certificate No.027819). There is nothing stated of the petitioner having appeared for the AITT conducted by the NCVT and obtained a Certificate akin to Ext. P7(a) obtained by the appellant herein. 11. In the circumstances we are of the opinion that the first respondent cannot be said to be a person having qualification in I.T.I, as specified in the Statutes; which obviously Exts P2 and P2(a) does not certify. The learned Counsel appearing for the first respondent then, has a contention with reference to the eligibility, of even persons having experience as a mechanic or fitter in a well-equipped workshop for a period of three years with VIII[th] Standard educational qualification; who would be entitled for selection if there is absence of I.T.I. certificate holders. As far as the absence of I.T.I. certificate holders is concerned, the learned Counsel specifically refers to Annexure-R3(b) produced by the third respondent college. Annexure-R3(b) speaks of a skill test having been conducted by the Head of the Department on the request of the Manager of the College; in which the petitioner alone qualified. The other candidates did not reach “upto the satisfaction” (sic). Hence, though there were I.T.I. candidates W.A.No.1592 of 2016 11 present for the selection; they having been found to be incompetent, there is an absence of I.T.I. candidates and the appointment of the first respondent has to be affirmed is the argument. 12. To meet the said argument we first look at Ext P1 notification of the College inviting applications _inter alia_ for the post of Mechanic. The notification does not speak of a selection procedure by which the skill test would be conducted at first and a candidate being disqualified merely on the basis of the skill test. There cannot hence be a disqualification made of the candidates having I.T.I. qualification on the basis of a skill test as prescribed by the Selection Committee. The absence of I.T.I. candidates as spoken of in the Statute would only mean absence of I.T.I. candidates totally for the purpose of selection. When such candidates with a proper qualification is available, a skill test cannot be resorted to, so as to exclude qualified candidates and select an unqualified person on the basis of his performance in that skill test, which is not prescribed by the Statute. 13.The reliance placed by the learned Counsel for the petitioner is also on Annexure R3(a) and R3(b). Annexure R3(a) is a letter purportedly issued by the Manager to the Head of the Department of Physics directing a practical test of the candidates W.A.No.1592 of 2016 12 who attended the interview. Ext.R3(b) is a communication addressed by the Head of the Department to the Manager after the alleged conduct of practical test. It was indicated that he has observed the mechanical job in the Physics laboratory, as carried out by each of the candidates and out of the four candidates; three could not reach upto satisfaction (sic). As we held, there could be no skill test prescribed by the Selection Committee to enable exclusion of qualified hands. We are also of the opinion that Ext.R3(a) and R3(b) produced along with the affidavit dated 12.11.2018 are cooked up documents. Originally when the counter affidavit dated 24.05.2016 was filed, the respondent College did not have such a contention. The respondent College along with that counter affidavit produced the proceedings of the interview recording the marks given to the various candidates. The petitioner was given 9 marks and the appellant herein 7 marks. They were also ranked 1 and 2. If in the practical test, the other candidates had failed and that alone was a criterion to exclude them from the selection process then there should have been a proceedings by the interview committee itself. There would also be no occasion to rank the candidates in the selection process, if three out of four are to be excluded totally. The said finding does not at all detract from the opinion expressed by us W.A.No.1592 of 2016 13 that the selection committee does not have the power to prescribe a practical test to exclude qualified hands. The Selection Committee also does not have the power to prescribe such a skill test when the appointing authority has not specified it before the selection process itself. We only noticed the affidavit dated 24.05.2016 to establish un-equivocally that the statement dated 12.11.2018 filed by the respondent college and the documents produced therein are falsehoods, cooked up to deliberately mislead this Court. 14. On the aforesaid findings we have to find the appointment of the 1[st] respondent to be bad for reason of his having no qualification as prescribed in the Statutes. Ext.P2 and P2(a) are not ITI certificates as properly spoken of in the Statutes. In such circumstances, we set aside the judgment of the learned Single Judge and as a consequence we dismiss the writ petition, affirming the orders of the Higher Education (D) Department of the Government of Kerala impugned therein. It is directed that the application filed by the appellant and the further details along with certificates shall be sent to the Directorate of Collegiate Education as directed in Ext.P10 for consideration of appointment of the 2[nd] rank holder. The Department shall also consider the approval of the said appointment within one month from the date W.A.No.1592 of 2016 14 of receipt of the certified copy of the judgment. The appellant shall be immediately appointed to the post of Mechanic in the 3[rd] respondent college. 15. We notice that the 1[st] respondent had been continuing in the 3[rd] respondent college, an aided college drawing salary paid by the Government continuously from 2015 despite the repeated orders of the Higher Education Department and Directorate of Collegiate Education pointing out the dis-entitlement of the petitioner to be appointed and continued in the post. Ext.P4 is a communication dated 26.03.2015 addressed by the Higher Education (D) Department directing the appointment to be frozen and the incumbent to be not continued until further orders from the Government. It was also directed that the details of the other applicants who applied for the post and attended the interview along with score sheet and grade sheet of the interview shall be furnished to the Government. As response to this communication, Ext.P5 was issued asserting that 1[st] respondent was entitled to be continued in the post. Again, by Ext.P6, the Director of Collegiate Education set aside the appointment order issued to the petitioner, which also was not acceded to. Ext.P7 was issued by the College seeking to justify the appointment of the petitioner. The further communication W.A.No.1592 of 2016 15 issued by the Senior Joint Director of Technical Education Directorate dated 04.08.2015 and the Collegiate Education Director dated 18.09.2015 seeking furnishing of details of the other applicants were also ignored. Respondent College is guilty of latches and omissions in carrying out the selection and granting appointment to a candidate who was not qualified to hold the post. Government cannot be mulcted with the liability of salary to such a person. If salary is not paid to the petitioner then he shall not be entitled to any. The salary and allowances if any paid to the petitioner, by the Government shall be recovered from the 3[rd] respondent College with immediate effect and if the same is not voluntarily repaid the Government shall move the University to take out appropriate proceedings for cancellation of affiliation of the 3[rd] respondent College and shall also recover the amounts as arrears due on land under the Kerala Revenue Recovery Act. 16. Further, the omissions and latches of the 3[rd] respondent has resulted in an eligible candidate being kept out of employment for more than three years. Though it would not be in full compensation of the loss suffered, we are of the opinion that the appellant herein is entitled to exemplary costs which we quantify at Rs.1 lakh which shall be paid by the 3[rd] respondent College to the appellant within a period of one month from today, failing which, the appellant would be entitled to seek recovery under the Kerala Revenue Recovery Act in which event, the same W.A.No.1592 of 2016 16 shall carry interest at the rate of 18% till the date of payment from the date of appointment of the petitioner in the writ petition. We hasten to observe that if the amounts are paid within a period of three months there would be no interest liability on the 3[rd] respondent College. We allow the writ appeal, dismissing the writ petition, with the above directions. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **V.G.ARUN, JUDGE** cms/jma /True copy/ P.S.to Judge