Sudheesh Somanathan v. Central University of Kerala (Writ Appeal No. 854 of 2022)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944** **WA NO. 854 OF 2022** **AGAINST THE JUDGMENT DATED 06.06.2022 IN WP(C) 12005/2021 OF HIGH** **COURT OF KERALA.** ## **APPELLANT/PETITIONER IN W.P.(C)NO.12005/2021:** **SUDHEESH SOMANATHAN, AGED 43 YEARS S/O. SOMANATHAN NAIR, 343A, KALAVATH HOUSE, ERAVATHUR P.O, MALA, THRISSUR 680 734.** **BY ADVS.J.VISHNU VIVEK A.V. GODWIN JOSEPH** ## **RESPONDENTS/RESPONDENTS IN W.P.(C) NO.12005/2021:** - **1 CENTRAL UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, THEJASWINI HILLS, PERYE P.O, KASARGOD 671 316.** - **2 THE REGISTRAR, CENTRAL UNIVERSITY OF KERALA, THEJASWINI HILLS, PERYE P.O., KASARGOD 671 316.** - **3 SREEJITH V. SECURITY OFFICER, CENTRAL UNIVERSITY OF KERALA, THEJASINI HILLS, PERYE P.O, KASARGOD 671 316.** **BY ADV K.R.RAJKUMAR, R1 AND R2 ADVS.PRASANTH, R3** **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 26.09.2022, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 ## **Writ Appeal No.854 of 2022** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-------------------------------------------------Writ Appeal No.854 of 2022 ------------------------------------------Dated this the 26[th] day of September, 2022** ## **J U D G M E N T** ## **C.S.Sudha, J.** This writ appeal is against the judgment dated 06/06/2022 in W.P.(C)No.12005/2021. The appellant is the petitioner and the respondents herein, the respondents in the writ petition. The parties and the documents will be referred to as described in the writ petition. 2. The writ petition was filed challenging Ext.P7 appointment order by which the third respondent has been appointed as Security Officer in the first respondent University. According to the petitioner, the third respondent does not satisfy the qualifications prescribed in Ext.P2 notification and hence prayed for quashing the appointment order and also for an order directing respondents 1 and 2 to appoint the petitioner as Security officer in the first respondent University. 3. Respondents 1 and 2 have jointly filed a counter and the third 3 **Writ Appeal No.854 of 2022** respondent, the successful candidate, a separate counter denying the allegations of the petitioner. 4. The learned Single Judge by the impugned judgment dismissed the writ petition holding that the third respondent satisfies the qualifications prescribed in Ext.P2 notification. Aggrieved, the petitioner has come up in appeal. 5. Heard Adv.Vishnu J., the learned counsel for the appellant, Adv.K.R.Rajkumar, the learned counsel for respondents 1 and 2 and Adv.S.M.Prasanth, the learned counsel for the third respondent. 6. The essential qualifications for the post of Security Officer in Ext.P2 notification reads thus - ## _“Security Offer_ ## _**Essential qualifications:**_ _Bachelor's Degree from a recognized University / Institution with five years of experience as Security Supervisor / Supervisory Position in Security in a Govt. Office, Educational Institute / Private Organisation of repute with an annual turnover of Rs 200/- Crores._ ## _OR_ _Persons who have served in the Army or such Uniformed Service at JCO level or equivalent or above, with 10[th] standard pass or Army class 1 Examination or an equivalent examination._ 4 **Writ Appeal No.854 of 2022** ## _AND_ _Holding a valid Driving License (LMV & Motor cycle)_ _**Desirable** :_ _Completion of a course in firefighting or unarmed combat course in Army or Paramilitary force. Knowledge in Computer applications. Ability to speak English and Hindi / Regional Language of the location of the University, Upper age limit 35 yrs._ _Note: Age relaxation as per Govt. of India rules are admissible for PWD and Ex Servicemen candidates.”_ According to the third respondent, he falls under the first limb of the essential qualifications prescribed in Ext.P2 notification. This is disputed by the petitioner who contends that the third respondent will not fall under either of the two limbs in the notification. The third respondent retired from the Indian Navy from the category of Regulating Petty Officer (RPO), which post is not in the level of a Junior Commissioned Officer (JCO), and so he will not fall under the second limb. The third respondent will also not fall under the first limb of the essential qualifications prescribed in Ext.P2 notification because though he holds a Bachelor's Degree, he does not have five years' experience as Security Supervisor or in a Supervisory position in a Government office. The post of RPO is a post in the Indian Navy and not a 5 ## **Writ Appeal No.854 of 2022** post in Government service and it is also not in the category of a Supervisory position as the duties attached to the post the third respondent held, has nothing to do with that of a Security Officer. It is also alleged that the third respondent acquired his Bachelor's Degree only in the year 2017. He retired from the Indian Navy in the year 2018. As per the qualifications prescribed in Ext.P2, a person who falls in the first limb of the essential qualifications prescribed, should possess a Bachelor's Degree with five years’ experience as a Security Supervisor in a Government office. This five years’ experience should be after acquiring the Bachelor's Degree, which the third respondent does not have. Thus, the third respondent does not possess any of the essential qualifications prescribed in Ext.P2 and therefore his appointment is absolutely illegal, unfair, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India, contends the petitioner. 7. Respondents 1 and 2 contend that the third respondent is fully qualified for the post and hence he was selected. 8. The third respondent has no case that he falls under the second limb of the essential qualifications prescribed in Ext.P2. His case is that he falls under the first limb. Therefore, we will only be examining whether he 6 **Writ Appeal No.854 of 2022** fulfills the essential qualifications as referred to in the first limb of Ext.P2. The fact that the third respondent obtained a Bachelor's Degree in the year 2017 and that he retired from the Navy in the year 2018, is admitted. According to the petitioner, the experience of five years mandated in Ext.P2 should have been acquired after obtaining the Bachelor's Degree and not before it. In support of this argument, reference is made to the decisions in **N. Suresh Nathan v. Union of India, 1992 Supp (1) SCC 584** , **Indian Airlines Ltd. v. S. Gopalakrishnan, 2001(2) SCC 362** and **Sheshrao Jangluji Bagde v. Bhaiyya, AIR 1991 SC 76** . 9. The third respondent, on the other hand, contends that it is not necessary that the experience should have been acquired after obtaining the essential qualification as neither the recruitment rules nor the notification says so. In support of this argument, he relies on the decisions in **Dakshayani M. v. State of Karnataka, 2018(16) SCC 172** and **Laila T.Abraham (Dr.) v. Mahatma Gandhi University, Kottayam, 2018 KHC 4646** . 10. **Suresh Nathan** ( _Supra_ ) is a case which involved a dispute as to whether a diploma-holder Junior Engineer who obtained a degree while in 7 **Writ Appeal No.854 of 2022** service became eligible for appointment as Assistant Engineer by promotion on completion of three years' service including therein the period of service prior to obtaining the degree or whether the three years' service as a degreeholder for this purpose is to be reckoned from the date he obtained the degree. The Apex Court, after going through the scheme of relevant recruitment rules, held that the period of three years can commence only from the date of obtaining the degree and not earlier. 11. In **Indian Airlines** _(Supra)_ , the dispute was relating to the post of Junior Operator in the Indian Airlines. The requisite qualification for appointment was that the candidate should have two years' experience in equipment operating or driving and possess current heavy vehicles' driving license. It was specifically stated in the notification itself that the experience would be computed after the date of acquiring the necessary qualification. It was held by the Apex Court 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. It was also noticed that in prescribing qualification and experience, it had been made clear in the general information instructions in 8 ## **Writ Appeal No.854 of 2022** the notification that experience would be computed after the date of acquiring the necessary qualification. Therefore, it was held that when this requirement was made very clear that the candidate should have experience only after acquiring the qualification, a view taken to the contrary would not stand to reason. 12. In **Sheshrao Jangluji Bagde** ( _Supra_ ), it has been held that normally, when we talk of experience, unless the context otherwise demands, it should be taken as experience after acquiring the minimum qualifications required and, therefore, necessarily it will have to be posterior to the acquisition of the qualification. However, in the case of promotion, the same interpretation may not be just or warranted. It would depend on the relevant provisions as also the particular type of experience which is required. 13. In the case on hand, Ext.P2 notification does not say that experience acquired should be after obtaining the basic qualification. Nobody has a case that the Recruitment Rules of the first respondent University prescribes so. The first respondent being a Central University, Rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958, which says that where the Special Rules or Recruitment Rules for a post in any 9 ## **Writ Appeal No.854 of 2022** 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, is not applicable. So, the question is, what would be the position in the absence of any mention of the same in the notification or in the Recruitment Rules? 14. Here, we refer to the decision of a Division Bench of this Court in **Sreekala Devi Ammal P.N. v. Kerala Public Service Commission, 2012(2) KHC 514** , wherein it has been held that when gaining of experience is intricately linked with obtaining a qualification, the acquisition of experience cannot start or run before or commence prior to the actual acquisition of the educational (technical) qualification prescribed. What needs to be decided in each situation would depend on the relevant provisions and the particular type of experience which is required. It has been further held that, the position would be different when the Rule concerned itself provides that experience prescribed as qualification shall be 10 **Writ Appeal No.854 of 2022** one gained by the candidate after acquiring the basic qualification prescribed for the post and should be gained before the last date fixed for receipt of the application. However, this principle would not be relevant in cases where there is no express statement in the Rules that the experience is to be gained after acquisition of the qualification. 15. Therefore, the question whether experience should have been acquired before or after the acquisition of the basic qualification would depend on the post and the type of experience that is required. Here, the first respondent University/employer, is happy and content with the candidature of the third respondent, who according to them is fully qualified for the post. On going through the counter affidavit of respondents 1 and 2, a direct reply or answer is not seen given to the allegation of the petitioner that the experience referred to in Ext.P2 is one which ought to have been acquired by the third respondent after acquisition of the basic qualification. In fact, they do not have such a case. Apparently, the post of the Security Officer does not require any technical qualifications unlike in the case of **Suresh Nathan** ( _Supra_ ) and **Indian Airlines** ( _Supra_ ). 16. Here we refer to a Full Bench decision of this Court in **Shaila** 11 **Writ Appeal No.854 of 2022** **Beegum v. Kerala Public Service Commission, 1997(2) KLT 273** in which case also, the notification did not prescribe for acquiring experience before acquisition of the basic qualification. It has been held that when there is nothing in the notification by which the parties are bound, to suggest that the experience to count will only be such as had been obtained after obtaining the basic educational qualification, the court cannot import into the notification anything that is not warranted by its terms. As per the terms of the notification what was required or mandated was not that the basic educational qualification should have preceded experience. 17. Matter being so, in the absence of any specific provision or mandate in Ext.P2 notification or in the Recruitment Rules concerned, it cannot be held that experience that is mandated in Ext.P2 should be one that was acquired after attaining the basic qualification. 18. Yet another argument that has been advanced on behalf of the petitioner is that the third respondent does not have experience as ‘Security Supervisor/Supervisory position’ as required in the notification. The third respondent on the other hand relies on Ext.R1(a), a certificate given by the Indian Navy, i.e., equivalent of Naval Trade Certificate. In Ext.R1(a) 12 ## **Writ Appeal No.854 of 2022** certificate, it has been certified that the third respondent has requisite qualification for the post of Security Officer and that his experience in the said post is to be counted from 28/07/2003. That being the position, we find no reasons to interfere with the impugned judgment. In the result, the appeal is found to be without any merits and hence the same is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/Jms 13 **Writ Appeal No.854 of 2022** ## **APPENDIX OF WA 854/2022** ## **PETITIONER'S ANNEXURES** **Annexure A1 A TRUE COPY OF THE REPLY TO RTI APPLICATION, DATED 13.03.2020, ISSUED BY THE CENTRAL UNIVERSITY.** **Annexure A2 A TRUE COPY OF THE LEGAL NOTICE SENT BY THE COUNSEL FOR THE APPELLANT TO THE UNIVERSITY, DATED 23.04.2021. Annexure A3 A TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE APPELLANT IN REPLY TO THE COUNTER AFFIDAVIT FILED BY THE UNIVERSITY. Annexure A4 A TRUE COPY OF THE RELEVANT PORTION OF THE MANUAL OF AIR FORCE LAW PART I Annexure A5 A TRUE COPY OF THE RELEVANT PORTION OF THE CADET'S HANDBOOK (AIR FORCE) PUBLISHED BY THE NCC.**