Sikhesh V S/o Krishnan V.V and Mathechan M.C vs LBS Centre for Science & Technology & State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941** ## **WP(C).No.27396 of 2017** ## **PETITIONERS:** **1 SIKHESH V S/O KRISHNAN V.V, AGED 47 YEARS,'SAVIKRISHNA', MEDICAL COLLEGE PO,KOZHIKODE.673008** - **2 MATHEWCHAN M.C** **S/O MAMACHAN T, AGED 47 YEARS,M6/23, K.S.H.B COLONY, MALAPARAMBA PO,KOZHIKODE. 673009.** **BY ADVS. SRI.V.T.MADHAVANUNNI SRI.M.S.VINEETH SRI.M.VIVEK RABINDRANATH SRI.V.A.SATHEESH** ## **RESPONDENTS:** - **1 THE LBS CENTRE OF SCIENCE & TECHNOLOGY REPRESENTED BY ITS DIRECTOR, NANDAVANAM,PALAYAM, THIRUVANANTHAPURAM.PIN.695033.** - **2 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. PIN. 695001.** **3 SALEENAMMA JOSEPH INSTRUCTOR, LBS CENTRE, KANNANALLUR, KOLLAM. PIN. 691576.** - **4 BINDU D.S INSTRUCTOR, REGIONAL LBS CENTRE,NANDAVANAM, THIRUVANANTHAPURAM. PIN.695033.** - **5 HAREEDA PUZHAKKAL REGIONAL LBS CENTRE, OLD ENGINEERING COLLEGE CAMPUS, B.N PARK ROAD, KANNUR. PIN.670001,.** **WP(C)No.27396 of 2017** **2** **6 USHAKUMARI T.J. INSTRUCTOR, LBS CENTRE,HARIPAD, ALAPPUZHA, PIN. 690514. 7 RENJAN ABRAHAM ETTUMANOOR LBS SUB CENTRE, PANDARASSERIL BUILDINGS, ETTIMANOOR, KOTTAYAM DISTRICT.686631. 8 MUJEEB RAHMAN A.K LAB ASSISTANT, LBS CENTRE, NANDAVANAM,THIRUVANANTHAPURAM. PIN. 695033. 9 RAJESH A.S INSTRUCTOR, LBS CENTRE, NANDAVANAM,THIRUVANANTHAPURAM. PIN. 695033. BY ADVS. SMT.SHAMEENA SALAHUDHEEN, SC, LBS CENTRE FOR SCIENCE AND TECHNOLOGY SMT.M.LISHA SRI.M.J.THOMAS SRI.PIRAPPANCODE V.S.SUDHIR SRI.V.M.JACOB SRI.V.N.MADHUSUDANAN DR.V.N.SANKARJEE SMT.M.SUSEELA SMT.R.UDAYA JYOTHI SRI.B.RAGHUNANDANAN SRI.M.M.VINOD SRI.M.SALIM SRI.P.PRASANTH SRI.RILGIN V.GEORGE SRI.S.SIDHARDHAN SRI.T.S.SUBASH GOVT. PLEADER SRI. PAUL ABRAHAM VAKKANAL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.06.2019, THE COURT ON 28.06.2019 DELIVERED THE FOLLOWING:** **WP(C)No.27396 of 2017** **3** ## **[CR]** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioners, who are working as Instructors under the 1[st] respondent - LBS Centre for Science & Technology, seek to quash Ext.P7 proceedings by which four employees have been promoted to the post of Programmer. The petitioners further seek to finalise Ext.P2 Provisional Seniority List after considering their objections. 2. The petitioners state that Ext.P2 Provisional Seniority List of Instructors has not been finalised. Respondents 3 to 6 are wrongly assigned seniority in the provisional list overlooking certain service breaks, lack of continuous service and wrong dates of acquisition of qualifications. Without considering the objections of the petitioners, respondents 4 and 7 to 9 have been illegally promoted as Programmers, as per Ext.P7. The further case of the petitioners is that they have acquired 1[st] Class MCA **WP(C)No.27396 of 2017** **4** Degree while working in the lower post. The period of experience prescribed in Rules for promotion as Programmer need not be the experience acquired after obtaining 1[st] Class MCA and hence they were eligible and ought to have been promoted. The respondents erred in importing Rule 10(ab) of the Kerala State and Subordinate Service Rules ('KS & SSR', for short) in the selection process which culminated in Ext.P7. 3. The respondents resisted the writ petition filing counter affidavits. The 1[st] respondent stated that pursuant to earlier directions of this Court, the Special Rules for LBS Centre for Science & Technology were framed as per G.O. (Rt) 1854/07/H.Edn dated 02.11.2007. Regarding seniority list, after inviting objections from all employees, the 1[st] respondent decided to appoint a Single Member Commission to submit a report. Based on its report, a new provisional seniority list was published inviting objections. Evaluation of objections is being done and a final seniority list will be published thereafter. As regards promotions to **WP(C)No.27396 of 2017** **5** the post of Programmer, the selection was conducted after obtaining clarification from Government. Thereafter, the Selection Committee decided to follow Rule 10(ab) of KS & SSR as applicable to Kerala Government Service. Under the said Rules, experience requirements should be one gained after acquisition of qualification. The petitioners have not acquired prescribed three years experience after acquisition of 1[st] Class MCA Degree. Hence, they were not considered. 4. Respondents 3, 5 and 6 filed counter affidavits. According to them, all of them have the requisite qualification and experience. The 3[rd] respondent had to take leave due to maternity disability. The leave therefore cannot be treated as break in service. They had joined service during 1992-94. The petitioners passed MCA only in November, 2016. They did not possess the requisite period of experience after obtaining MCA and hence they were not considered for promotion. The seniority has been fixed properly. The 4[th] respondent, in her counter affidavit, stated **WP(C)No.27396 of 2017** **6** that she entered service in 1993 and worked as Instructor. The seniority is properly maintained. The petitioners have not challenged her seniority as Instructor. Therefore, she is entitled to continue in the post of Programmer. The writ petition is therefore liable to be dismissed. 5. I have heard the learned counsel appearing on either side. The Standing Counsel for the 1[st] respondent submitted that appointment to the post of Programmer is by open selection and is not based on seniority of employees. The qualifications and method of appointment to the post of Programmer is given in Ext.R1(a) produced by the 1[st] respondent, which are as follows:- Category : Programmer Scale of pay : 1640-6-2600-75-2900 Qualifications : 1[st] Class MCA Degree. Or I Class PGDCA/PGDCE and three years experience or I Class Post Diploma in Computer Application with four years experience as Computer Programmer. Method of Appointment : By selection from qualified Instructors and Lab Assistants with 3 years and 5 years experience respectively. Or By direct recruitment. **WP(C)No.27396 of 2017** **7** From the above, it is evident that as far as the qualification for appointment as Programmer is concerned, a 1[st] Class MCA Degree holder need not have any experience, whereas a 1[st] Class PGDCA/PGDCE should have three years experience as Computer Programmer and a 1[st] Class Post Diploma in Computer Application holder should have four years experience as Computer Programmer. Thus, a 1[st] Class MCA holder, without any experience, is equated with 1[st] Class PGDCA/PGDCE holder with three years experience and 1[st] Class Post Diploma holder with four years experience, as Computer Programmer. It is seen from the Recruitment Rules that there is no post called 'Computer Programmer' in the Centre, in order to gain experience in that post. To a query, the parties on either side submitted that by the term 'Computer Programmer', what is intended is 'Programmer' only. If that be so, it is queer how three or four years experience as Programmer is prescribed for promotion to the same post. The Selection Committee noted this issue **WP(C)No.27396 of 2017** **8** and decided to seek clarification from the Government, as per Ext.R1(b). The Government of Kerala gave Ext.R1(d) reply informing that eligible candidates from Instructors and Lab Assistants can be promoted and if any amendment is to be made to the Special Rules, necessary steps may be initiated. However, the Special Rules have not been amended. 6. Be that as it may, the argument of the 1[st] respondent is that the method of appointment is by selection from qualified Instructors and Lab Assistants with three years and five years experience respectively and this experience, as far as those employees who have obtained 1[st] Class MCA Degree after joining service are concerned, should be one after acquiring the qualification of MCA. The petitioners do not satisfy this requirement. Advocate Smt.Shameena Salahudheen, learned Standing Counsel for the 1[st] respondent, heavily relied on the judgments of the Apex Court in _**Shailendra Dania and others v. S.P. Dubey and Others** [(2007) 5 SCC 535]_ and in _**K.K. Dixit and others v.**_ **WP(C)No.27396 of 2017** **9** _**Rajasthan Housing Board and another** [(2015) 1 SCC 474]_ . 7. In _**Shailendra Dania** (supra)_ , the Apex Court considered a Rule relating to promotion of Junior Engineers of Delhi Municipal Corporation, to the post of Assistant Engineer and held that the three years experience required for Degree holding Junior Engineers should be experience gained after obtaining Degree. In deciding the issue, the Apex Court considered its earlier decisions in _**N.Suresh Nathan v. Union of India** [(1992) Supp 1 SCC 584],_ _**M.B. Joshi v. Satish Kumar Pandey** [(1993) Supp 2 SCC 419],_ _**D. Stephen Joseph v. Union of India** [(1997) 4 SCC 753],_ _**Anil Kumar Gupta v. Municipal Corporation of Delhi** [(2000) 1 SCC 128]_ and _**A.K. Raghumani Singh v. Gopal Chandra Nath** [(2000) 4 SCC 30]_ . After considering the Recruitment Rules, the Apex Court held that the experience gained by a Diploma holder in the post cannot be qualitatively the same as that of the experience gained by a graduate Engineer working in the same post. To arrive at **WP(C)No.27396 of 2017** **10** the conclusion, the Apex Court relied on the fact that under those Rules, the distinction between the experience acquired by Degree holders and Diploma holders is maintained in the source of recruitment (feeder category) as well as in further promotions. The Rule itself makes differentia in qualifying service. Those rules also prescribed separate quotas for Diploma holding Junior Engineer and graduate Junior Engineers. Such quota would indicate that the qualifying service should be after obtaining the educational qualification. While holding so, the Apex Court did not overrule its earlier decisions, and held that those decisions are based on interpretation of the respective rules. It is evident from the judgment of the Apex Court that such matters have to be decided on the basis of the Scheme of the Rules and the facts and circumstances of the case. 8. In _**K.K. Dixit** (supra)_ also, the Apex Court considered the Rules in question and came to the conclusion that the particular years of qualifying service prescribed in those Rules being the cumulative requirement **WP(C)No.27396 of 2017** **11** with certain educational qualifications providing for promotional avenue within a specified quota, the qualifying service cannot be anything but service rendered as Degree holders and not as Diploma holders. Thus, it is clear that in the matter of selection for promotion, whether Degree holders should acquire the requisite qualifying service after obtaining Degree, has to be decided on the basis of the Scheme of the respective Rules. Whether the rules maintain the distinction between Degree holders and Diploma holders in feeder and promotional posts and whether separate quotas are prescribed for Degree holders and Diploma holders, are relevant factors in deciding the issue. 9. In the light of the law laid down by the Apex Court, let us examine Ext.R1(a) Special Rules. For selection for promotion as Programmers, 1[st] Class MCA holders are made qualified without any requirement of experience. At the same time, 1[st] Class PGDCA/PGDCE holders are required to have three years experience and 1[st] Class Diploma holders are required to have four years experience **WP(C)No.27396 of 2017** **12** as Computer Programmer. It is therefore clear that 1[st] Class MCA holders are not required to have any previous experience as Computer Programmers, to qualify them for appointment as Programmers. 10. However, the Rules under the heading 'Method of Appointment' state that selection (for promotion as Programmer) should be from qualified Instructors and Lab Assistants with three years and five years experience respectively. The prescription of service experience under the heading 'Method of Appointment' can only be to identify the employees in the feeder categories who are eligible to be considered. The said provision do not in any manner indicate that the experience should be one after obtaining the requisite qualification. In other words, the Special Rules while equating MCA Degree holders without any experience to Diploma holders with experience, do not make any such distinction in identifying employees in feeder categories who are to be considered for promotion. 11. In the light of the judgment in _**Shailendra Dania**_ **WP(C)No.27396 of 2017** **13** _(supra)_ , it is to be examined whether such distinction between MCA holders and Diploma holders based on qualifying service, is maintained in the feeder categories. A perusal of Ext.R1(a)/Ext.P11 Special Rules shows that for appointment to the feeder categories of Instructors and Lab Assistants, MCA is not a prescribed qualification. Therefore, it cannot be said that the qualitative distinction is maintained in the Special Rules. Further more, no separate quota has been prescribed for MCA holders and Diploma holders, in the Special Rules, which also is one of the criteria to hold that experience required is post qualification experience. 12. Any other view taken in the matter may result in an anomalous situation also. The Special Rules provide that appointment to the post of Programmer can be made by direct recruitment also. If that be so, an in-service candidate holding 1[st] Class MCA will require three years and five years post qualification service experience as Instructor or Lab Assistant to get promotion as Programmer, whereas a direct recruit need only 1[st] Class MCA and no previous experience **WP(C)No.27396 of 2017** **14** is required for the direct recruit to get appointment. This cannot be the intention of the Special Rules. 13. Strenuous arguments were made by the learned Standing Counsel to the effect that the Selection Committee decided to follow Rule 10(ab) of KS & SSR in the matter of post qualification experience and there is nothing wrong on the part of the Selection Committee in adopting a rule accepted and implemented in government service. The said argument cannot stand the scrutiny of law. The 1[st] respondent is a registered society. Service conditions of its employees are governed on the basis of published recruitment rules. A Selection Committee constituted by the 1[st] respondent has to follow the published Special Rules. A Selection Committee cannot follow a rule which is not specifically made applicable to the society. It is an admitted position that the 1[st] respondent has not resolved or decided to adopt Rule 10(ab) of KS & SSR. Therefore, the reliance made by the Selection Committee on Rule 10(ab) of the KS & SSR, is illegal. **WP(C)No.27396 of 2017** **15** 14. For all the aforesaid reasons, the writ petitioners are entitled to succeed. Ext.P7 order is, therefore, set aside. The 1[st] respondent is directed to finalise the seniority list of Instructors and Lab Assistants expeditiously and conduct a fresh selection for promotion to the four posts of Programmer, treating the petitioners as 1[st] Class MCA holders eligible to be promoted as Programmers. Writ petition is allowed as above. Sd/- **N. NAGARESH, JUDGE** aks/24.06.2019 **WP(C)No.27396 of 2017** **16** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE GOVERNMENT NOTIFICATION (MS)NO. 277/10/HEDND DATED 4.9.2010.** **EXHIBIT P2 TRUE COPY OF THE PROVISIONAL SENIORITY LIST OF THE INSTRUCTORS AS ON 12.6.2014.** **EXHIBIT P3 TRUE COPY OF THE OBJECTION SENT BY THE PETITIONER NO.1 TO THE RESPONDENT NO.1 DATED 26.6.2014.** **EXHIBIT P4 TRUE COPY OF THE OBJECTION SENT BY THE PETITIONER NO.2 TO THE RESPONDENT NO. 1 DATED 26.6.2014.** **EXHIBIT P5 TRUE COPY OF THE LETTER SENT BY THE RESPONDENT NO.1 TO THE PRIVATE SECRETARY TO THE EDUCATION MINISTER.** **EXHIBIT TP6** **TRUE COPY OF THE LETTER SENT BY THE RESPONDENT NO.5 TO THE RESPONDENT NO.1** **EXHIBIT P7 TRUE COPY OF THE SELECTION LIST DATED 4.8.2017 FOR THE PROMOTION TO THE POST OF PROGRAMMERS.** **EXHIBIT P8 TRUE COPY OF THE PROVISIONAL CERTIFICATE OF THE DEGREE OF MASTER OF COMPUTER APPLICATIONS OBTAINED BY THE PETITIONER NO.1** **EXHIBIT P9 TRUE COPY OF THE PROVISIONAL CERTIFICATE OF THE DEGREE OF MASTER OF COMPUTER APPLICATIONS OBTAINED BY THE PETITIONER NO.2** **EXHIBIT P10** **TRUE COPY OF THE QUESTIONS SENT BY MR. SALIM K TO THE INFORMATION OFFICER OF THE RESPONDENT NO.1 AND ANSWERS.** **WP(C)No.27396 of 2017** **17** **EXHIBIT P11 A TRUE COPY OF THE SPECIAL RULES OF LBS CENTRE AS PER GO.(RT) NO.473/2005/H.EDN. DATED 19.3.2005.** **RESPONDENT'S EXHIBITS:** **EXHIBIT R1 A A TRUE COPY OF THE RELEVANT EXTRACT OF THE SPECIAL RULES FOR THE LBS CENTRE** **EXHIBIT R1 B A TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE MEETING HELD ON 7/12/2016** **EXHIBIT R1 C A TRUE COPY OF THE COMMUNICATION NO.B2/5377/2016 DATED 7/12/2016** **EXHIBIT R1 D A TRUE COPY OF THE REPLY NO.HEDNJ1/304/2016-H-EDN DATED 31/3/2017 EXHIBIT R1 E A TRUE COPY OF THE CIRCULAR NO.B2/MISC/2016 DATED 4/5/2017 EXHIBIT R1 F A TRUE COPY OF THE NOTIFICATION NO.B2/5252/2017 DATED 14/5/2018**