Sudha Panneri v. Kerala Public Service Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN THURSDAY, THE 29TH DAY OF MARCH 2012/9TH CHAITHRA 1934 WP(C).No. 24914 of 2011 (L) --------------------------- PETITIONER(S): ------------- SMT.SUDHA PANNERI, PANNERI HOUSE, P.O.AROLI, KANNUR DISTRICT-670566. BY ADVS.SRI.A.MOHAMED MUSTAQUE SRI.K.R.AVINASH (KUNNATH) RESPONDENT(S): -------------- THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY SECRETARY, PATTOM TRIVANDRUM-695 004. BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.24914/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION DATED 14/1/2008. EXT.P2: COPY OF THE NOTIFICATION ISSUED BY THE RESPONDENT DATED 9/11/2010. EXT.P3: COPY OF THE COMMUNICATION DATED 15/11/2010 ISSUED BY THE RESPONDENT. EXT.P4: COPY OF THE PROFORMA OF THE PETITIONER. EXT.P5: COPY OF THE ORDER ISSUED BY RESPONDENT DATED 9/8/2011. EXT.P6: COPY OF THE EXPERIENCE CERTIFICATE SUBMITTED BY THE PETITIONER. EXT.P7: COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE THE RESPONDENT DATED 21/8/2011. EXT.P8: COPY OF THE CRTIFICATE OF ACCRREDITATION. EXT.P9: COPY OF THE ORDER OF RECOGNITION. RESPONDENTS EXHIBITS: NIL. /TRUE COPY/ P.A. TO JUDGE. ## **K.SURENDRA MOHAN, J. -----------------------W.P(C). NO. 24914 OF 2011 ------------------------** Dated this the 29[th] day of March, 2012 **JUDGMENT** The petitioner, who was an applicant for selection and appointment to the post of Computer Assistant in various vacancies under the Kerala Live Stock Development Board, has filed this writ petition challenging Ext.P5 proceedings of the respondent by which her application has been rejected. The petitioner's application has been rejected for the reason that the experience certificate, Ext.P6, submitted by her does not conform to the requirements insisted upon by Ext.P1 notification by which applications were invited. As per Ext.P1 notification, the qualification prescribed are the following; “1. B.Sc(Computer Science) **==> picture [20 x 11] intentionally omitted <==** B.A/B.Sc/B.Com degree from a recognised University with Post Graduate Diploma in Computer Application from an Institution approved by Government/AICTE. 2. Type writing English ( KGTE/MGTE) Lower or its equivalent. W.P.(C). No. 24914 /2011 2 3. Minimum experience of three years in Computer Operation in a reputable Institution. “ 2. Since the petitioner possessed all the qualifications prescribed, she had submitted an application. The experience certificate submitted by the petitioner is Ext.P6. Two objections have been raised against Ext.P6 by the respondent. The first is that the petitioner's experience has been gained from a private establishment. Secondly, the declaration portion of Ext.P6 is not counter signed by a Labour Officer. 3. According to the learned counsel for the petitioner, Ext.P1 does not exclude experience gained from private establishments. As per Ext.P1, the experience of three years in computer operation is required only from a reputable institution. Therefore, it is contended that the first ground, on which the petitioner's application has been rejected, is unsustainable. Ext.P6 has been attested by the Insurance Inspector of the Employees State Insurance Corporation. Since he is an officer who is authorised to inspect the accounts of the establishment in which the petitioner had gained her experience, it is W.P.(C). No. 24914 /2011 3 contended that the person who has attested Ext.P6 is a competent person in terms of the requirements of Ext.P1. For the above reasons, the counsel for the petitioner seeks appropriate orders setting aside Ext.P5. 4. A counter affidavit has been filed on behalf of the respondent. According to the respondent, apart from prescribing the minimum qualifications, Ext.P1 has also prescribed the format of the certificate to be produced in proof of the experience gained by the candidates. On the basis of the documents produced, the petitioner was ranked in the probability list of candidates for appointment to the post of Computer Assistant. However, on verification of her certificate, it was found on 1/12/2010 that the experience gained by the petitioner was from an institution that does not satisfy the requirements of paragraph 21 of the general conditions published by the respondent. The experience certificate Ext.P6 suffers from a further defect that it was not counter signed by an authorised officer as stipulated by Note 2 of paragraph 22 of the general conditions. 5. According to the learned counsel for the respondent, W.P.(C). No. 24914 /2011 4 Rule 21 is a reproduction of Rule 10 ( ab) of Part II of the Kerala State And Subordinate Service Rules 1958 (KS & SSR). The above rule stipulates that a registered private sector undertaking should be either a Co-operative Society registered under the Kerala Co-operative Societies Act 1969, a Society registered under the Societies Registration Act 1860, the Travancore Cochin Literary, Scientific Charitable Societies Registration Act, 1955 or any Institution, Firm or Companies registered under the Companies Act 1956, or any Institution, Firm or Company which has a legal entity under any law for the time being in force. Small scale Industrial units registered with the Industrial Development Commissioner and industrial Institutions wherein the Government have investments are also included. According to the learned counsel for the respondent, Ext.P6 has not been issued by an institution that satisfies the requirements of the above provision. Therefore, it is contended that Ext.P6 is not acceptable. It is the further case of the learned counsel for the respondent that an ESI Inspector is not the Controlling Authority of any institution but an officer who is only concerned with the implementation of a social security legislation. Therefore, it is W.P.(C). No. 24914 /2011 5 contended that the said officer cannot certify a certificate like Ext.P6. 6. According to Sri.Mohamed Mustaque, who appears for the petitioner, Section 45 of the Employee State Insurance Act confers power on the ESI Inspector, who has been subsequently redesignated as Social Security Officer, to enter any office establishment, factory or other premises and to examine the accounts, books and other documents relating to the employment of persons and payment of wages, etc. The above power entitles the said authority to exercise control over the establishments, employment of workers as well as the wages payable to them. Therefore, it is contended that he is also exercising similar powers as a Labour Officer. 7. Reference is also made to Regulation 2(l) of the Employees' State Insurance (General) Regulations 1950 as well as the Regulation 102A to contend that a duty is cast on the employer to maintain the books of accounts in accordance with the provisions of the Employees State Insurance Act and to produce the same for inspection before the Social Security Officer. For the above reasons it is contended that the W.P.(C). No. 24914 /2011 attestation in Ext.P6 is proper. 6 8. I have heard the learned counsel appearing for the contesting parties. I have also considered the rival contentions anxiously. 9. There is no dispute that the institution in which the petitioner has gained her experience is a private establishment. Therefore, the only question is whether the same is an establishment that satisfies the requirements of paragraphs 21 and 22 of the general conditions published by the Public Service Commission and Rule 10 (ab) of the KS & SSR. As noticed above, the said provision stipulates that the private sector undertaking should be either a Co-operative Society registered under the Co-operative Societies Act 1969, or a Society registered under the Societies Registration Act, 1860 or the Travancore Cochin Literary, Scientific Charitable Societies Registration Act 1955 or a company registered under the Companies Act 1956 or any Institution, Firm or Company which has a legal entity under any law for the time being in force. It is not in dispute that the institution that has issued Ext.P6 is neither a Co-operative Society, a registered society or an incorporated W.P.(C). No. 24914 /2011 7 company. Therefore, it should be an institution which has a legal entity under any law for the time being in force. 10. The learned counsel for the petitioner has drawn my attention to Exts.P8 and P9(a) to contend that the said documents prove the said establishment to be a recognised one. However, a reading of Ext.P8 shows that the same has been issued giving approval to the course conducted by the institution. It is not a recognition granted to the institution as such. Ext.P9 issued by the Regional Directorate of Technical Education, Kozhikode also is only an order giving sanction for conducting K.G.C.E courses as ordered in the Government Order referred to therein. The question as to whether a recognition by the Government would confer on the institution the status of a legal entity under any law for the time being in force is also not clear. Therefore, it has to be held that the institution that has issued Ext.P6 certificate is not one that satisfies the requirements of paragraphs 21 and 22 of the general conditions or Rule 10 ( a b) of the KS & SSR. It is the case of the respondent that since Ext.P6 was not issued by an institution that satisfies the requirements of paragraphs 21 and 22 of the W.P.(C). No. 24914 /2011 8 general conditions no purpose would be served by granting an opportunity to the petitioner to rectify the defect in the attestation part of Ext.P6. The petitioner, being a person who does not satisfy the requirements of experience stipulated by Ext.P1, her application was rightly rejected as per Ext.P6. 11. The learned counsel for the petitioner has placed reliance on the decision in **K.V.Mathew v. District Manager, Telephones (1983 KLT 1022)** to contend that the word 'institution' is not capable of precise definition. However, I notice that in paragraph 6 of the said decision, it has been held that it should have an enduring value and the public should have an interest in the maintenance and preservation of an organsiation or establishment which is an institution. It cannot be the momentary or fleeting interest of the public which sustains this organisation. 12. There are no materials or circumstances to warrant a conclusion that the establishment that has issued Ext.P6 satisfies any of the above conditions. 13. Since I have already found that the institution that has issued Ext.P6 is not one that satisfies the requirements of the 9 W.P.(C). No. 24914 /2011 general conditions, it is not necessary for me to consider the question as to whether the officer who has attested Ext.P6 was competent to do so. Therefore, I refrain from embarking upon a consideration of the said aspect. For the above reasons, I am not satisfied that the petitioner is entitled to any of the reliefs claimed in this writ petition. The same is therefore dismissed. ## **Sd/-** **K.SURENDRA MOHAN,** **JUDGE** dpk /True copy/ P.A to Judge. # W.P.(C). No. 24914 /2011 10