Lini Joy C. v. Kerala Public Service Commission & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938 OP(KAT).No. 123 of 2016 (Z) ---------------------------AGAINST THE ORDER IN OA (EKM) 1325/2016 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 30.08.2016 PETITIONER(S): ------------- LINI JOY C., AGED 37 YEARS W/O.CHARLY N.V., ANGANWADI WORKER, AW NO.85, NEAR VILLAGE OFFICE, PATHIRAPALLY P.O., ALAPPUZHA AND RESIDING AT CHULLICKAL HOUSE, PATHIRAPALLY VILLAGE, POONKAVU, ALAPPUZHA - 688 521. ## BY ADV. SRI.R.C. NAIR (ALAPPUZHA) RESPONDENT(S): -------------- 1. THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, SOCIAL JUSTICE (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHPURAM. R1 BY SRI.P.C.SASIDHARAN, SC, KPSC R2 BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 16-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 123 of 2016 (Z) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS: ----------------------EXT.P1: TRUE COPY OF THE MEMORANDUM IN O.A (EKM) NO.1325/2016 EXT.P2: TRUE COPY OF THE ORDER PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL IN OA(EKM) NO.1325/2016 ON 30/8/2016 RESPONDENT(S)' EXHIBITS:NIL ----------------------------------- //TRUE COPY// P.A.TO JUDGE **“CR”** ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== O.P. (KAT). No.123 OF 2016 ========================== Dated this the 16[th] day of March, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This original petition arises out of Ext.P2 order of the Kerala Administrative Tribunal, Thiruvananthapuram Bench dated 30.8.2016 in O.A.(EKM)No.1325 of 2016. The said O.A. was filed by the petitioner herein, who is working as an Anganwadi Worker at Anganwadi No.85 in Pathirappally in Alappuzha District under the Social Justice Department, seeking an order directing the first respondent to consider her for appointment to the post of Supervisor (ICDS) under Integrated Child Development Scheme, pursuant to Annexure A1 notification dated 15.11.2014 issued by the Kerala Public Service Commission (for brevity 'the PSC'). She has also sought for an order directing the first respondent to consider Annexure A7 representation within a time frame that may be fixed by the Tribunal. 2. The Tribunal, after considering the rival contentions, dismissed the O.A by Ext.P2 order dated 30.8.2016 holding that, the petitioner is not having the requisite experience in terms of Annexure A1 notification. However, it was made clear that the dismissal of the O.P.(KAT).123/2016 2 O.A. will not stand in the way of the first respondent considering Annexure A7 representation made by the petitioner. Feeling aggrieved by Ext.P2 order of the Tribunal, the petitioner is before this Court in this original petition. 3. We heard arguments of learned counsel for the petitioner/applicant, learned standing counsel for the first respondent/PSC and also learned Government Pleader for the second respondent/State. 4. Going by the averments in the O.A., the petitioner entered service in June, 2010 as an Anganwadi Worker. While working as such, she submitted an application pursuant to Annexure A1 notification issued by the PSC for direct recruitment, from Graduate Women Anganwadi Workers with not less than ten years experience as Anganwadi Worker, to the post of Supervisor (ICDS) in the scale of pay of Rs.13900-24040/-. The qualifications prescribed in Annexure A1 notification for the post of Supervisor (ICDS) are (i) Degree in any subject from a recognised University and (ii) Ten years experience as Anganwadi Worker under Integrated Child Development Scheme in the Social Justice Department. The candidature of the petitioner was not considered by the PSC on the ground that she is not having the requisite experience. According to the PSC, ten years experience prescribed for direct recruitment to the O.P.(KAT).123/2016 3 post of Supervisor (ICDS) should be experience acquired after securing graduation in any subject. Feeling aggrieved by the said stand of the PSC, the petitioner moved the Tribunal in O.A.No.1325 of 2016 seeking various reliefs. The said O.A. ended in dismissal by Ext.P2 order of the Tribunal. 5. The fact that the petitioner entered the service as Anganwadi Worker in June, 2010 is not in dispute. It is also not in dispute that, though the petitioner completed her B.Com course in the year 2000, she could pass all papers and acquire degree only in April, 2012. Therefore, as on 17.12.2014, the last date for submission of application prescribed in Annexure A1 notification, the petitioner do not have ten years experience as a Graduate Women Anganwadi Worker. 6. The direct recruitment pursuant to Annexure A1 notification for the post of Supervisor (ICDS), from Graduate Women Anganwadi Workers with not less than ten years experience as Anganwadi Worker, is governed by the provisions of Annexure A5 Special Rules for the Kerala Social Welfare Subordinate Service, 2010, as amended by Annexure A6 Special Rules for the Kerala Social Welfare Subordinate Service (Amendment), 2012. The post of Supervisor (ICDS) falls under category 13 under Rule 2 of the Special Rules. Rule 3 of the Special Rules deals with the method of O.P.(KAT).123/2016 4 appointment and qualifications, which provides that, no person shall be eligible for appointment to any of the categories specified in column (1) by the method specified in column (2) of the table thereof unless he possesses the qualification specified in the corresponding entry in column (3) thereof. 7. Going by Rule 3 of the Special Rules, as amended by the Special Rules for the Kerala Social Welfare Subordinate Service (Amendment), 2012 the method of appointment to the post of Supervisor (ICDS) is (i) by promotion of persons from categories 17, 18, 19, 28, 30, 31 and 32; (ii) by direct recruitment; and (iii) by direct recruitment from Anganwadi Workers. For direct recruitment, the qualification prescribed is a Degree in Sociology/Social Work, Home Science or Psychology of a recognised University. The alternate qualification prescribed for direct recruitment is a Degree in any discipline of a recognised University along with Balasevika Training Certificate (one year course) issued by the Indian/State Council for Child Welfare or any other recognised institutions or Pre-primary Teachers Training Certificate from institutions recognised by the Government. 8. For direct recruitment from Anganwadi Workers, the qualification prescribed is SSLC and ten years experience as Anganwadi Worker under Integrated Child Development Scheme in O.P.(KAT).123/2016 5 the Social welfare Department. As per the 'Note', as amended by the Special Rules for the Kerala Social Welfare Subordinate Service (Amendment), 2012, a ratio of 58:29:11:2 shall be maintained in between (i) direct recruitment from open candidates; (ii) appointment from Anganwadi Workers; (iii) appointment from Ananwadi Workers having Degree in any subject; and (iv) promotion from feeder categories. Therefore, after the amendment of the Special Rules, Graduate Anganwadi Workers under Integrated Child Development Scheme in the Social Justice Department with ten years experience are entitled for direct recruitment to the post of Supervisor (ICDS), under 11% quota earmarked for Graduate Anganwadi Workers. 9. Admittedly, the petitioner is seeking direct recruitment to the post of Supervisor (ICDS) under 11% quota earmarked for Graduate Women Anganwadi Workers with not less than ten years experience as Anganwadi Worker. Rule 10 of the Kerala State and Subordinate Service Rules, 1958 (for brevity 'KS&SSR') deals with qualification. As per Rule 10(a)(i) of Part II KS&SSR, the educational or other qualifications, if any, required for a post shall be as specified in the Special Rules applicable to the service in which that post is included or as specified in the executive orders of Government in cases where Special Rules have not been issued for the post or service. Rule 10(ab) provides that, where the Special Rules or O.P.(KAT).123/2016 6 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 unpaid 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. 10. In **Sirajudheen v. Public Service Commission (1998** **(2) KLT 1046)** , in the context of Rule 10(ab) of Part II KS&SSR, a learned Judge of this Court held that, what is relevant and material is to find out whether a special qualification like experience has to be acquired before or after acquiring the basic qualification prescribed for the post. Rule 10(ab) cannot be limited to cases where the Special Rules or the recruitment rules prescribe the qualification of experience and not to other cases. Wherever a qualification of experience is prescribed either by the Special Rules or by recruitment rules or by any other method it must have been acquired after the acquisition of the basic qualification. The only exception is that the Rules must specifically state that one can acquire the qualification of experience even before acquiring the basic qualifications. In all other cases the general Rule 10(ab) of Part II KS&SSR will apply. 11. The aforesaid view of the learned Single Judge was O.P.(KAT).123/2016 7 affirmed by a Division Bench of this Court in **Sirajudheen v. Public Service Commission (2001 (2) KLT 268)** holding that, Rule 10 (ab) of Part II KS&SSR uses the expression 'Special Rules' as well as 'Recruitment Rules'. 'Special Rules' has been defined in under Rule 2 (16) of Part I KS&SSR to mean the rules in Part III applicable to each service or class of service. Though the expression 'Recruitment Rules' has not been defined in KS&SSR the same should be given a wider meaning. Recruitment Rules take in not only the Recruitment Rules framed by the State Legislature, even executive orders framed for recruitment. In the said decision, the Division Bench has also referred to the decision of the Apex Court in **Sheshrao Janguluji Bagde v. Baiyya [(1991) Supp.(1) SCC 367]** wherein it was held that, normally when one talks of an experience, unless the context otherwise demands, it should be taken as experience after acquiring the minimum qualifications required and, therefore, necessarily will have to be posterior to the acquisition of the qualification. 12. In **Roy K. George v. Kerala Public service Commission (1999 (5) KLJ 586)** the challenge against Rule 10(ab) of Part II KS&SSR was repelled by a learned Judge of this Court by holding that, Rule 10 of the General Rules is with reference to the qualification, which includes experience as well. Rule 10(ab) is with reference to prescription of qualification of experience and to provide O.P.(KAT).123/2016 8 a uniform approach in respect of such experience to the effect that it shall be one gained after acquiring the basic qualification. It will not enable the different appointing authorities to adopt varied yardsticks accepting experience acquired before the acquisition of the qualification in one case and insist for such experience after the acquisition of qualification in another case. Rule 10(ab) is thus intended to eschew arbitrariness and a rule to eschew arbitrariness can never be considered as arbitrary. 13. In **Basheer A. (Dr.) v. Dr. Saiful Islam A. and others (2014 (4) KLT 521)** a Full Bench of this Court, in which one among us (Anil K. Narendran, J) was a party, held that, a reading of Rule 10 (ab) of Part II KS&SSR shows that where recruitment rules for a post prescribe qualification of experience, it shall, unless otherwise specified in the rules, be one gained after acquiring the basic qualification prescribed for the post. 14. In **Indian Airlines Ltd v. S. Gopalakrishnan (2001 (2) SCC 362)** , dealing with the qualifications prescribed for the post of Junior Operator in Indian Airlines Limited, the Apex Court held that, when in addition to qualification, experience is prescribed, it would only mean acquiring experience after obtaining the necessary qualification and not before obtaining such qualification. In the said case, it was made clear in the General Information Instruction that O.P.(KAT).123/2016 9 'experience will be computed after the date of acquiring the necessary qualification'. On the other hand, in the instant case Rule 10(ab) of Part II of the General Rules, with reference to prescription of qualification of experience, mandates that such expreience should be one gained after acquiring the basic qualification. 15. In **Shailendra Dania v. S.P. Dubey (2007 (5) SCC 535)** in case of promotion in the Delhi Development Authority, the Apex Court held that, the diploma-holder Junior Engineers who have obtained a degree in Engineering while in service, shall be required to complete three years' service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diplomaholder Junior Engineers for promotion to the post of Assistant Engineers. Following the principles laid down in the judgment in Shailendra Dania (supra), the Apex Court in **K.K. Dixit v. Rajasthan** **Housing Board, [(2015) 1 SCC 474]** reiterated that, when graduation in Engineering with 3 years experience is prescribed for promotion in graduate quota, the candidate should have gained experience after graduation. 16. In the instant case, since the petitioner is seeking direct recruitment to the post of Supervisor (ICDS) under the quota O.P.(KAT).123/2016 10 earmarked for Graduate Women Anganwadi Workers, the 'basic qualification' prescribed for the post is 'Degree in any subject'. Therefore, going by the mandate of Rule 10(ab) of Part II KS&SSR, an Anganwadi Worker who seeks direct recruitment to the post of Supervisor (ICDS) under the quota earmarked for Graduate Women Anganwadi Workers, should possess ten years experience as Anganwadi Worker under Integrated Child Development Scheme in the Social Justice Department, after acquiring the basic qualification prescribed for the post under 'Graduate quota', i.e., ten years experience as Anganwadi Worker after acquiring Degree in any subject. 17. It is pertinent to note that, Clause 19 of the General Conditions attached to Gazette notification states that, unless otherwise specified, the experience prescribed as qualification for any post shall be one gained by the candidate holding temporary or regular appointment in Central or State Government, after acquiring the basic qualification for the post. 18. In view of the provisions under Rule 10(ab) of Part II KS&SSR and Clause 19 of the General Conditions, the petitioner do not have the requisite experience of not less than 10 years as Anganwadi Worker under Integrated Child Development Scheme in the Social Justice Department, after acquiring the basic qualification O.P.(KAT).123/2016 11 of Degree in any subject prescribed for the post of Supervisor (ICDS) under 'Graduate quota'. In such circumstances, as held by the Tribunal in Ext.P2 order, the petitioner is not entitled for appointment to the post of Supervisor (ICDS) pursuant to Annexure A1 notification issued by the PSC. In the result, the original petition fails and the same is accordingly dismissed. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** spc/ O.P.(KAT).123/2016 12 O.P.(KAT).123/2016 13 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** O.P.(KAT).123/2016 14