Malabar Regional Co-operative Milk Producers Union Ltd. & Others v. Aswathy V.A. & Kerala Veterinary and Animal Science University & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944** **WA NO. 458 OF 2022** **AGAINST THE JUDGMENT DTD 13/12/2021 IN WP(C) 28610/2021 OF HIGH COURT** ## **OF KERALA** ## **APPELLANTS/RESPONDENTS 4 TO 6:** - **1 MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD. HEAD OFFICE, PERINGOLAM, KOZHIKODE - 673 571, KERALA STATE, REPRESENTED BY ITS MANAGING DIRECTOR.** - **2 THE CHAIRMAN (CONVENIOR, RECRUITMENT COMMITTEE) MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD., KUNNAMANGALAM, KOZHIKODE DISTRICT - 673 571.** - **3 THE MANAGING DIRECTOR MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD., KUNNAMANGALAM, KOZHIKODE DISTRICT - 673 571.** **BY ADVS.LATHA ANAND M.N.RADHAKRISHNA MENON** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3:** - **1 ASWATHY V.A. AGED 26 YEARS, D/O.ASOKAN, VADERIYATHIL, KAIPARAMBU P.O., THRISSUR, PIN - 680 546.** - **2 KERALA VETERINARY AND ANIMAL SCIENCE UNIVERSITY POOKODE, LAKKIDI, WAYANAD - 673 576 REPRESENTED BY ITS REGISTRAR.** - **3 THE REGISTRAR, BOARD OF MANAGEMENT, KERALA VETERINARY AND ANIMAL SCIENCE UNIVERSITY, POOKODE, LAKKIDI, WAYANAD - 673 576.** - **4 THE VICE CHANCELLOR KERALA VETERINARY AND ANIMAL SCIENCE UNIVERSITY, POOKODE, LAKKIDI, WAYANAD - 673 576.** 2 ## **W.A.No.458 of 2022** **BY ADVS.SAM ISSAC POTHIYIL(B/O) MANU GOVIND AYSHA YOUSEFF, SC** **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 16.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **W.A.No.458 of 2022** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** **Writ Appeal No.458 of 2022 ------------------------------------------Dated this the 16[th] day of August, 2022** ## **J U D G M E N T** ## **C.S.Sudha, J.** The writ appeal is against the judgment dated 13/12/2021 in W.P. (C)No.28610/2021. The appellants are respondents 4 to 6 in the writ petition and the respondents herein, the petitioners and respondents 1 to 3. The parties and the documents will be referred to as described in the writ petition. 2. The writ petition was filed by the petitioner, a Graduate in Bachelor of Technology (Dairy Science and Technology) along with post qualification, work experience in Quality Control Laboratory, Dairy Plant, Mannuthy. The petitioner has also completed her M.Tech (Diary Technology) residency programme. She has acquired experience of two years, two months and three days' experience from 03/09/2018 to 16/11/2020 in the activities of Quality Control Laboratory, Dairy Plant, Mannuthy, which experience was attained while undergoing the Master's degree. Ext.P2 is the copy of the experience certificate issued by the Kerala Veterinary and Animal Science 4 ## **W.A.No.458 of 2022** University Dairy Plant, Mannuthy, Thrissur, under the first respondent. 2.1. The fourth respondent, namely, Malabar Regional Co-operative Milk Producers' Union Ltd. (the Society) issued notification dated 27/01/2021 for recruitment to various posts including to the post of Assistant Quality Assurance Officer. The petitioner who applied for the post of Assistant Quality Assurance Officer, cleared the written examination conducted by the Recruitment committee. As she qualified in the written examination, she was issued a call-letter requiring her to appear for the 'certificate verification and group discussion'. When the petitioner produced Ext.P2 certificate before the fourth respondent Society, they insisted for an experience certificate in the specified format and hence she approached the University Dairy Plant and obtained Ext.P3 experience certificate in the specified form. However, when the petitioner appeared for the certificate verification, she was informed by the authorities that Ext.P2 experience certificate issued by the Kerala Veterinary and Animal Science University Dairy Plant, is not valid and that it cannot be accepted by the fourth respondent Society. The petitioner was not allowed to participate in the group discussion and her application was rejected. Inspite of repeated requests, the fourth respondent Society has not given any reason(s) in 5 ## **W.A.No.458 of 2022** writing for the rejection of Exts.P2 and P3. Ext.P2 has been unjustly declared to be invalid. The petitioner is fully qualified for the post of Assistant Quality Assurance Officer as per Ext.P4 notification of the fourth respondent Society. She is eligible to appear for the group discussion and to attend the interview. The action of the fourth respondent denying her permission to attend the group discussion and interview, is arbitrary, illegal and against the principles of natural justice. Hence the writ petition seeking a direction to the fourth respondent to permit the petitioner to participate in the group discussion and interview and also for a writ of mandamus directing the first respondent to ascertain the validity of Ext.P2 certificate. 3. The learned Single Judge by the impugned judgment allowed the writ petition holding that the action of the fourth respondent Society in not permitting the petitioner to sit in the interview is wholly abrasive, repugnant and uncalled for. Hence a writ of mandamus was issued directing respondents 4 to 6 to permit the petitioner to participate in the group discussion and for further counselling by taking into consideration Ext.P2 experience certificate of the petitioner. Aggrieved, the fourth respondent Society has come up in appeal. 6 ## **W.A.No.458 of 2022** 4. In the appeal memorandum it is contended by the Society that the minimum post qualification experience stipulated in the notification is 'two years experience in a dairy plant'. The certificate verification which was conducted by the Recruitment agency found that Ext.P2 experience certificate issued by the Head, University Dairy Plant, Kerala Veterinary and Animal Science University, was not in consonance with the experience stipulated in the notification. The experience criteria stipulated in the notification is a Full Time post qualification experience. However, the experience which the writ petitioner claims to have attained is one obtained during the course of her Master's degree. Hence the writ petitioner was not allowed to participate in the group discussion. The findings in the impugned judgment are erroneous in law. The writ petitioner has not alleged violation or breach of any statutory right or duty. The only point raised in the writ petition is regarding the acceptability of Ext.P2 experience certificate. The fourth respondent Society is not a 'State' falling under Article 12 of the Constitution of India. Going by the decision in **Association of Milma Officers v. State of Kerala, 2015(1) KLT 849,** experience to be of any value or utility must have been acquired after acquisition of the educational qualifications and not while acquiring post 7 ## **W.A.No.458 of 2022** graduate qualification. The experience obtained by the petitioner is one obtained during a post graduation and so the same cannot be counted as work experience, contends the fourth respondent. 5. The only question to be considered is whether the petitioner satisfies the stipulation in Ext.P4 notification relating to the 'minimum post qualification work experience' required. The petitioner relies on Ext.P2 certificate which says that she has acquired 2 years, 2 months and 13 days' experience from 03/09/2018 to 16/11/2020 in activities of Quality Control Laboratory, Dairy Plant, Mannuthy, during her Master's degree under residency programme at College of Dairy Science and Technology, Mannuthy, Thrissur. This is apparently experience attained by the petitioner during the course of her Master's degree. This obviously cannot satisfy the post qualification work experience stipulated in Ext.P4 notification in the light of clause (C) in Ext.P4 which reads - ## _“_ _**C) Educational Qualifications and Experience**_ _The experience certificate should be from reputed firms and in the prescribed format enclosed along with this notification attested by concerned Enforcement Officer under any relevant statutes or by the Department of Labour, Govt. of Kerala. Training will not be considered as post qualification work experience. In case, if the experience certificate is_ 8 **W.A.No.458 of 2022** _issued by the Managing Directors of KCMMF Ltd / Regional Unions of milma or the appropriate authorities of public sector institutions of Government of Kerala / Government of India; attestation of Enforcement Officer is not necessary. In case of candidates who possess higher academic qualification without minimum basic academic qualification prescribed in this notification, their candidature are liable to be rejected._ _**During certificate / credential verification if the certificates produced by the candidates does not confirm in case of academic qualifications and / or experience, those applications will be deemed to be summarily rejected and no claim will be entertained in this regard** .”_ (Emphasis supplied) 6. Here we refer to the decision in **Maharashtra Public Service Commission v. Sandeep Shriram Warade, AIR 2019 SC 2154** cited on behalf of the fourth respondent Society. This was a case in which applications were invited for the post of Assistant Commissioner (Drugs) and Drug Inspectors. In the notification for the post of Assistant Commissioner, in addition to the basic academic qualifications, the qualification prescribed was – “experience gained after acquiring qualification in the manufacture or testing of drugs or enforcement of the provisions of the Drugs and Cosmetics Act, 1961 for a minimum period of five years”. As far as the post of Drug Inspectors was concerned, in addition to the basic academic qualification, the stipulation was that the candidate should have “practical experience gained 9 ## **W.A.No.458 of 2022** after acquiring the necessary academic qualification in the manufacture or testing of drugs or enforcement of the provisions of the aforesaid Act for a period of not less than three years”. The appellants, namely, the Maharashtra Public Service Commission (MPSC), the employer, moved the Apex Court being aggrieved by the order of the High Court holding that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the aforesaid posts. The MPSC contended that academic qualifications coupled with the requisite years of practical experience in the manufacturing and testing of drugs were essential qualifications for appointment. Research experience in a research and development laboratory was only a desirable qualification which may entitle a candidate to be preferred. The latter experience, it was contended, could not be equated with and considered to be at par with the essential eligibility to be considered for appointment. On the other hand, the respondent-candidates contended that, they were Post Graduates (M. Pharma) having more than three years experience in research and development coupled with testing of drugs in a laboratory. They contended that they were also eligible to be considered for 10 ## **W.A.No.458 of 2022** appointment and had been called for selection after scrutiny of their documents by a Committee constituted for the purpose and which recommended them as eligible for consideration. Once they were consciously permitted to participate in the selection process, they could not be declared ineligible for consideration. 6.1. The Maharashtra Administrative Tribunal held that experience of manufacturing or testing in a research and development laboratory could not be termed as experience for the purposes of the recruitment to the aforesaid posts. It held that the said experience only entitled the candidate for a preference subject to possessing the basic eligibility and requisite experience in the manufacture and testing of drugs. Reversing the conclusion of the Tribunal, the High Court held that to deny opportunity to a candidate possessing research experience in synthesis and testing of drugs in a laboratory on the ground that such research experience cannot be linked with manufacturing, would be a perverse interpretation. A candidate having research experience in synthesis and testing of drugs in a laboratory needed to be preferred and could not be denied opportunity by misreading the eligibility conditions. It was held that the research work carried out in well reputed laboratories is for the purposes of manufacturing drugs. 11 ## **W.A.No.458 of 2022** 6.2. The Apex Court while allowing the appeal moved by the MPSC held that, essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The courts cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive rewriting of the notification, calling for applications. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law, the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same. Further, the fact that an expert committee may have been constituted and which examined the documents 12 ## **W.A.No.458 of 2022** before calling the candidates for interview, cannot operate as an estoppel against the clear terms of the advertisement to render an ineligible candidate eligible for appointment. The experience of testing has to be correlated to the manufacturing process which naturally, will be entirely different from the testing carried out in the research and development laboratory before the product is released for manufacture and sale in the market. Therefore, the Apex Court held that, to say that experience in testing of drugs in a research and development laboratory would be at par with the testing done at the time of manufacture before sale cannot be countenanced and has to be rejected. 7. Likewise in the case on hand also, the experience, the petitioner appears to have gained was one she had attained while undergoing her post graduation. As rightly pointed out by the learned counsel for the petitioner, quality testing has to be done independently by the incumbent holding the post of Assistant Quality Assurance Officer and hence the reason why the Society is particular that the candidate holding the post must have work experience acquired post acquisition of qualifications. The petitioner herein does not seem to have the said experience. Hence, the employer Society cannot be compelled to consider a candidate who according to them is not suitable or experienced to 13 ## **W.A.No.458 of 2022** hold such a responsible post. 8. The fourth respondent Society has also challenged the maintainability of the writ petition. The said ground is left open, as we have already found on merits that the petitioner is not entitled to the reliefs prayed for. In the result, the writ appeal is allowed and the impugned judgment is set aside. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B. SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/ 14 ## **W.A.No.458 of 2022** ## **APPENDIX OF WA 458/2022** **PETITIONER'S ANNEXURES Annexure A1 TRUE COPY OF THE UNFILLED 'FORM OF EXPERIENCE CERTIFICATE'. Annexure A2 TRUE COPY OF THE ORDER NO.KVASU/DAR/Acad/B1/11158/15 DATED 18/12/2015.**