Vineetha M.V. v. Kerala Public Service Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937 WP(C).No. 271 of 2016 (H) ----------------------------------------- PETITIONER: VINEETHA M.V. AGED 30 YEARS, W/O.RENJITHKRISHNAN C.R., CHAKKALAKKAL HOUSE, "ANASWARA", PERINCHERY, THRISSUR PIN - 680 306. BY ADV. SRI.K.RAVI (PARIYARATH) RESPONDENTS: 1. THE KERALA PUBLIC SERVICE COMMISSION, PATTAM, PATTAM PALACE P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE DISTRICT OFFICER, KERALA STATE PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, THRISSUR. 3. THE STATE OF KERALA REP. BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 4. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, KERALA, THE OFFICE OF THE REGISTRAR, THIRUVANANTHAPURAM, PIN - 695 001. R1& R2 BY ADV. SRI.P.C.SASIDHARAN R3 & R4 BY GOVERNMENT PLEADER SRI.V.VIJULAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN WP(C).No. 271 of 2016 (H)** ## PETITIONER'S EXHIBITS: EXHIBIT P1. TRUE COPY OF THE CONSOLIDATED MARK LIST OBTAINED BY THE PETITIONER IN M.A. ENGLISH, ISSUED BY THE UUNIVERSITY OF CALICUT, DATED 22.12.12. EXHIBIT P2. TRUE COPY OF THE M.A. DEGREE CERTIFICATE ISSUED BY THE UNIVERSITY OF CALICUT TO THE PETITIONER, DATED 23.05.2013. EXHIBIT P3. TRUE COPY OF THE POST GRADUATE DIPLOMA IN JOURNALISM CERTIFICATE OBTAINED BY THE PETITIONER FROM THE INSTITUTE OF COMMUNICATION & JOURNALISM CALICUT PRESS CLUB, KOZHIKODE, DATED 25.10.08. EXHIBIT P4. TRUE COPY OF THE NOTIFICATION WITH CATEGORY NO.18/2013, ISSUED BY THE 1ST RESPONDENT FOR FILLING UP OF THE 03 VACANT POSTS AT THE DISTRICT CO-OPERATIVE BANK IN DISTRICTS, DATED 15.02.13. EXHIBIT P5. TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER, CALLING UP ON HER TO SUBMIT, SELF ATTESTED COPIES OF THE DOCUMENTS, DATED 31.01.14. EXHIBIT P6. TRUE COPY OF THE VERIFICATION CERTIFICATE ISSUED BY THE 2ND RESPONDENT, TO THE PETITIONER DATED 24.04.15. EXHIBIT P7. TRUE COPY OF THE ON LINE STATUS REJECTING THE PETITIONER'S APPLICATION ISSUED BY THE 1ST RESPONDENT DATED NIL. EXHIBIT P8. TRUE COPY OF THE NOTIFICATION WITH CATEGORY NO. 300/2011, ISSUED BY THE 1ST RESPONDENT FOR FILLING UP OF THE 01 VACANT POST AT THE APEX SOCIETIES OF THE CO-OPERATIVE SECTOR IN KERALA, DATED 28.09.11. EXHIBIT P9. TRUE COPY OF THE NOTIFICATION WITH CATEGORY NO. 07/2015, ISSUED BY THE 1ST RESPONDENT FOR FILLING UP OF THE 01 VACANT POST AT THE DISTRICT CO-OPERATIVE BANK IN PALAKKAD DISTRICT, DATED 16.04.15. EXHIBIT P10. TRUE COPY OF THE EXPERIENCE CERTIFICATE PRODUCED BY THE PETITIONER BEFORE THE 2ND RESPONDENT WITH ENGLISH TRANSLATION DATED 08.04.2015 RESPONDENT'S EXHIBITS: NIL. /TRUE COPY/ P.S. TO JUJDGE Dama Seshadri Naidu, J. ------------------------------------------- W.P.(C)No.271 of 2016 -------------------------------------------- Dated this the 7[th] day of January, 2016 ## **JUDGMENT** Exhibit P4 is the recruitment notification issued by the first respondent on behalf of the District Co-operative Bank inviting applications for the post of Public Relations Officer. The prescribed qualifications are (a) the Bachelor's/ Master's Degree in Public Relations/Journalism from a recognised University with not less than 50% marks or (b) a Master's Degree in English/Malayalam Literature from a recognised University with not less than 50% and PostGraduate Diploma in Public Relations/Journalism from a recognised University/Institute. The notification also prescribes, apart from the basic qualification, an experience of minimum three years in “this field”. Presumably, “this field” may mean Public Relations/Journalism. WPC 271/16 2 2. In response to Exhibit P4 notification, the petitioner applied for the said post. Having received the petitioner's application, the second respondent issued Exhibit P5 communication requiring her to produce for verification the qualification and experience certificates in the original. Having thus initially reflected the petitioner’s name among the candidates applied for the post, the first respondent, however, removed the petitioner’s name from the list of eligible candidates to appear for the examination after verifying the certificates produced by her, as is evident from Exhibit P7. 3. Coming to know that the petitioner was not qualified on the grounds that she did not gain the experience after acquiring the basic qualification, the petitioner, aggrieved, approached this Court. 4. In the above factual backdrop, the learned counsel for the petitioner has submitted that the petitioner has WPC 271/16 3 possessed both the qualification and the requisite experience as has been required by Exhibit P4 notification. It is his principal contention that the notification is absolutely silent concerning whether a person is required to have the experience only after obtaining the basic qualification. In this regard, the learned counsel has drawn my attention to Exhibits P8 and P9 notifications which have different methods of stipulating the required experience. 5. Eventually, the learned counsel has placed reliance on **Sreekala Devi Ammal v. the Kerala Public Service Commission**[1] to contend that the requirement of possessing the basic qualification before acquiring the experience should apply only in the case of technical qualification, but not other professional areas. In elaboration, the learned counsel has submitted that in so far as Sreekala Devi (supra) is concerned, the post applied for was Data Entry Operator, and in that context, their 1 2012 (2) KLT 670 WPC 271/16 4 Lordships have held that acquiring the basic technical qualification is a pre-condition. In other words, the learned Division Bench, contends the learned counsel, has explicitly laid down that so long as the basic qualification is not technical in nature, the recruitment agency cannot insist that the applicant should have the experience only after acquiring the basic qualification. 6. Finally, the learned counsel has contended that given the distinction made by the learned Division Bench in Sreekala Devi (supra), this Court, at this juncture, may only have a prima facie view on the issue whether the petitioner should possess the experience only after acquiring the basic qualification. As a corollary, the learned counsel has urged this Court to permit the petitioner to write the examination since he has possessed the qualification and experience, albeit by making the result subject to the outcome of the writ petition. In essence, he contends that the issue whether WPC 271/16 5 the petitioner's acquiring the basic qualification should precede the gaining of experience could be decided on merits in the end. 7. Sri. P. C. Sasidharan, the learned Standing Counsel for the first respondent, has strenuously contended that the first respondent, to begin with, would list the names of all applicants on the website before verifying the records. According to him, on the verification of the records, the Commission will eventually shortlist the eligible candidates and allows them to download the hall tickets online without any manual method of issuing them. 8. When this Court queried whether it is possible for the Commission to issue a hall ticket to the petitioner to enable her to write the examination making the result thereof subject to the outcome of the writ petition, the learned Standing Counsel has submitted that given the automation that has been adopted by the Commission, it is WPC 271/16 6 not possible. At any rate, the learned Standing Counsel urged this Court to decide the matter on merits since the Commission, to its credit, has already filed a counter affidavit. 9. The learned Standing Counsel has been categoric in his submission that the law is too well established to be caviled about that unless otherwise specified the experience should always follow the acquisition of basic qualification. In this regard, the learned Standing Counsel has brought my attention to the general conditions for notification as contained in Part II regulations issued by the Commission. 10. In elaboration, the learned Standing Counsel has submitted that Exhibit P4 notification was issued in terms of Part I requirement, and it should be read with the conditions that have been specified in Part II. Summing up his submissions, the learned Standing Counsel has submitted that the petitioner clearly lacks the necessary WPC 271/16 7 experience to be eligible to write the examination. 11. Heard the learned counsel for the petitioner and the learned Standing Counsel, apart from perusing the record. 12. The singular issue to be decided in this case is whether the petitioner is required to earn the experience only after acquiring the basic qualification. In other words, whether the stipulation that the acquisition of the basic qualification should precede the earning of experience be read into Exhibit P4 notification despite the fact that it has not contained such a stipulation, explicitly. 13. Viewed chronologically, on 15.02.2013, the first respondent issued Exhibit P4 recruitment notification with 20.03.2013 as the last date for applying. The petitioner, a job seeker, responded to the notification. Having acquired his post-graduate qualification on 22.12.2012, he has, however, produced an experience certificate showing that WPC 271/16 8 he had acquired the experience beginning from October 2008. Thus, evidently the experience preceded the acquisition of the basic qualification. In this context, it is essential to examine whether the experience should precede or follow the basic qualification. 14. At the outset, to make things clear, it is apposite to examine the conditions of qualification and experience as have been incorporated in Exhibit P4. Under clause 7 of the notification, the qualifications prescribed are as follows: “1)(a) A Bachelor's/Master's Degree in Public Relations/Journalism from a recognised University with not less than 50% marks. OR (b) A Master's Degree in English/Malayalam Literature from a recognised University with not less than 50% marks and post Graduate Diploma in Public Relations/Journalism from a regonsied University/Institute. ” 15. In so far as the column of experience is concerned, clause 7(2) reads as follows: “Minimum three years experience in this field. The experience Certificate shall be counter signed by the concerned controlling officer noted below.” WPC 271/16 9 16. When we examine the precedential position, it can be seen that in **Shaila Beegum v. Kerala Public Service Commission[2]** a learned Full Bench of this Court has held as follows: “6. [W]e cannot import into the notification anything that is not warranted by its terms. We cannot also accept or permit a departure from its terms on any "Practice" of the first respondent about its construction to the detriment of a candidate. It is not as to how the first respondent understood the notification to convey, but actually what it did could have to the applicants. There could be no doubt on the terms of the notification that what was required was not that the basic educational qualification should have preceded experience. The several clauses regarding qualifications could only be read disjunctively and not in the manner it had been construed by the first respondent, which it was submitted, was aware of this aspect since in the several notifications, it had published, it was careful to state that experience qualification that was required must have followed the acquisition or the basic educational qualification…” 17. It is pertinent to observe that in Shila Beegum (supra), the notification prescribes the qualification and experience in identical terms as have been done in the present instance. As can be seen from the very paragraph 6 > 2 1997 (2) KLT 273 WPC 271/16 10 of the judgment referred to above, the notification in that case was issued on 26.07.1983. Their Lordships have noticed the subsequent statutory developments by observing that a new sub-rule (ab) was inserted after the Explanation to sub-rule (aaaa) of Rule 10 of Part II KS&SSR to the effect that unless otherwise specified, the gaining of experience should be only subsequent to the acquisition of the basic qualification. 18. Be that as it may, the learned Division Bench has eventually held on the facts of the case that it was too late in the day to disqualify the petitioner therein on the premise that he did not possess the necessary qualification. 19. Placing reliance on **Sheshrao Jangluji Bagde v. Bhaiyya**[3] , a learned Division Bench of this Court in Sreekala Devi (supra) has held that when gaining experience is interlinked with obtaining a qualification, the gaining of experience should not be anterior to the > 3 AIR 1991 SC 76 WPC 271/16 11 acquisition of the qualification. According to their Lordships, what needs to be decided in each situation would depend upon the relevant provisions and the particular type of experience which is required. 20. In **Hari Soman v. Kerala Public Service Commission**[4] , a learned Single Judge of this Court has held, with reference to the facts of the case, that basic qualification is one which equips an incumbent to perform the duties attached to the post in question. Functions attached to the post of Assistant Motor Vehicles Inspector can be performed only if an incumbent possesses Diploma in automobile/mechanical Engineering. Without that, the incumbent will be a misfit to the service. Therefore, that is the basic qualification which equips the incumbent to perform the duties. The notification requires that the incumbent should have work experience for the required period after acquiring the basic qualification. Therefore, > 4 1998 (2) KLT 1046 WPC 271/16 12 such experience shall be one gained after passing of the basic qualification, that is, after the declaration of the result of the diploma examination. 21. In Sheshrao Jangluji Bagde (supra), which in fact was relied on by the learned Division Bench in Sreekala Devi (supra), the Hon'ble Supreme Court has 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 will have to be posterior to the accquisition of the qualification. Nevertheless, their Lordships have served a word of caution to the effect that same criteria cannot be applied in the case of a person acquiring the experience or qualification to be considered for a promotional post. In that event, it would depend on the relevant provisions as also the particular type of experience which is required. WPC 271/16 13 22. Indisputably, Exhibit P4 notification has not explicitly specified that the experience should follow the acquisition of the qualification. I, however, hasten to add that Exhibit P4 is to be read in conjunction with the general conditions contained in Part II issued by the very first respondent. It is profitable in this context to extract clause 19 of the general conditions, which reads as follows: “19(a) Unless otherwise specified, the experience prescribed as qualification for any post in Part I of this notification shall be one gained by candidate holding temporary or regular appointments in Central or State Government Service3 or in Public Sector Undertaking or Registered Private Sector Undertaking after acquiring the basic qualifications prescribed for the post. The experience gained as factory workers on daily wages of a permanent nature will also be accepted provided the service is continuous and not of a casual nature. Experience gained by candidates in the capacities of paid or unpaid apprentices, trainees and casual labourers will not be accepted.” 23. Before proceeding further, I must state that the learned counsel for the petitioner has made very sincere efforts to impress upon this Court that the issue may be considered prima facie thereby permitting the petitioner to WPC 271/16 14 write the examination so that the very issue as regards the experience either preceding or following the acquisition of basic qualification could be decided during the final hearing of the writ petition. He has, to his credit, produced certain cogent judicial precedents to back up his contention that the requirement of acquiring the basic qualification as a pre-condition to earn experience subsequently only applies vis-a-vis the technical qualifications. 24. I am afraid given the fact that the respondent Commission has already filed its defence, I am constrained to consider the case on merits, finally. 25. Though the learned counsel for the petitioner has made Sreekala Devi (supra) a sheet anchor of his arguments, it is pertinent to observe that their Lordships in the judgment have observed that each situation would depend on the relevant provisions and the particular type of experience which is required. Contrary to what has been WPC 271/16 15 contended by the learned counsel for the petitioner, the learned Division Bench has not laid down any invariable principle that in all cases where the qualification is nontechnical in nature, the experience can as well precede the acquisition of the very basic qualification. All that the learned Division Bench has observed is that each case has to be decided depending on the relevant provisions and the particular type of experience required. 26. As has already been extracted above, clause 19 of the general conditions, which is required to be read as part of Exhibit P4, makes it abundantly clear that unless it has been otherwise explicitly specified the basic qualification must precede the earning of experience. As such, the distinction as sought to be canvassed by the learned counsel for the petitioner between technical and non-technical qualification cannot be taken recourse to. WPC 271/16 16 Under these circumstances, this Court cannot but dismiss the writ petition observing that the action of the first respondent Commission in rejecting the petitioner's application cannot be found fault with. No order as to costs. Dama Seshadri Naidu, Judge tkv **'C.R.'**