Kerala High Court
Mujeeb Rahman.A.K vs Sikhesh.V on 11 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
WA.No.1859 OF 2019
AGAINST THE ORDER/JUDGMENT IN WP(C) 27396/2017(Y) OF HIGH COURT OF
KERALA
APPELLANT:
MUJEEB RAHMAN.A.K
AGED 46 YEARS
LAB ASSISTANT, LBS CENTRE, NANDAVANAM,
THIRUVANANTHAPURAM - 695 033
BY ADVS.
SRI.PIRAPPANCODE V.S.SUDHIR
SMT.A.MEGHA
SMT.ALEENA K BABU
RESPONDENTS:
1 SIKHESH.V
S/O.KRISHNAN V.V., SAVIKRISHNA, MEDICAL COLLEGE P.O.,
KOZHIKODE - 673 008
2 MATHEWCHAN M.C.
S/O. MAMACHAN T., M6/23, K.S.H.B.COLONY, MALAPARAMBA
P.O., KOZHIKODE - 673 009
W.A.No.1859/2019 & con.case 2
3 THE LBS CENTRE OF SCIENCE AND TECHNOLOGY
REPRESENTED BY ITS DIRECTOR, NANDAVANAM,
PALAYAM, THIRUVANANTHAPURAM - 695 033
4 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM
- 695 001
5 SALEENAMMA JOSEPH
INSTRUCTOR, LBS CENTRE, KANNANALLUR, KOLLAM -
691 576
6 BINDU D.S.
INSTRUCTOR, REGIONAL LBS CENTRE, NANDAVANAM,
THIRUVANANTHAPURAM - 695 033
7 HAREEDA PUZHAKKAL
REGIONAL LBS CENTRE, OLD ENGINEERING COLLEGE
CAMPUS, S.N. PARK ROAD, KANNUR - 670 001
8 USHA KUMAR T.J.
INSTRUCTOR, REGIONAL LBS CENTRE, HARIPAD,
ALAPPUZHA - 690 514
9 RENJAN ABRAHAM
ETTUMANOOR LBS SUB CENTRE, PANDARASERIL
BUILDINGS, ETTUMANOOR, KOTTAYAM DIST. - 686 631
W.A.No.1859/2019 & con.case 3
10 RAJESH A.S.
INSTRUCTOR, REGIONAL LBS CENTRE, NANDAVANAM,
THIRUVANANTHAPURAM - 695 033
R1 BY ADV. SRI.V.T.MADHAVANUNNI
R1 BY ADV. SRI.V.A.SATHEESH
R3 BY SMT.SHAMEENA SALAHUDHEEN, SC, LBS CENTRE
FOR SCIENCE AND TECHNOLOGY
R4 SRI. T. RAJASEKHARAN NAIR - SR.G.P.
R5, R7-8 BY ADV. DR.V.N.SANKARJEE
R5, R7-8 BY ADV. SMT.M.SUSEELA
R10 BY ADV. DR.K.P.PRADEEP
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2020,
ALONG WITH WA.1905/2019, THE COURT ON 11-01-2021 DELIVERED
THE FOLLOWING:
W.A.No.1859/2019 & con.case 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
WA.No.1905 OF 2019
AGAINST THE JUDGMENT IN WP(C) 27396/2017(Y) OF HIGH COURT
OF KERALA
APPELLANT:
LBS CENTRE FOR SCIENCE AND TECHNOLOGY
NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM 695033
REPRESENTED BY ITS DIRECTOR
BY ADV. SMT.SHAMEENA SALAHUDHEEN, SC, LBS
CENTRE FOR SCIENCE AND TECHNOLOGY
RESPONDENTS:
1 SIKESH.V
AGED 49 YEARS
S/O.KRISHNAN V.V.SAVIKRISHNA, MEDICAL
COLLEGE.P.O., KOZHIKODE-673008
W.A.No.1859/2019 & con.case 5
2 MATHEWCHAN.M.C.
AGED 49 YEARS
S/O.MAMACHAN.T., M6/23, K.S.H.B COLONY,
MALAPARAMBA.P.O., KOZHIKODE-673009
3 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT
HIGHER EDUCATION DEPARTMENT,
THIRUVANANTHAPURAM-695001
4 SALEENAMMA JOSEPH
INSTRUCTOR, LBS CENTRE, KANNANALLUR, KOLLAM-
691576
5 BINDU.D.S.,INSTRUCTOR, REGIONAL LBS CENTRE,
NANDAVANAM, THIRUVANANTHAPURAM-695033
6 HAREEDA PUZHAKKAL,REGIONAL LBS CENTRE, OLD
ENGINEERING COLLEGE CAMPUS, B.N.PARK ROAD,
KANNUR-670001
7 USHA KUMARI.T.J.,INSTRUCTOR, LBS CENTRE,
HARIPAD, ALAPPUZHA-690514
8 RENJAN ABRAHAM,ETTUMANOOR LBS SUB CENTRE,
PANDARASSERIL BUILDINGS, ETTUMANOOR, KOTTAYAM
DISTRICT-686631
9 MUJEEB RAHAMAN.A.K.,LBS ASSISTANT, LBS CENTRE,
NANDAVANAM, THIRUVANANTHAPURAM-695033
W.A.No.1859/2019 & con.case 6
10 RAJESH.A.S.
INSTRUCTOR, LBS CENTRE, NANDAVANAM,
THIRUVANANTHAPURAM 695033
R1-2 BY ADV. SRI.V.T.MADHAVANUNNI
R3- SRI. T. RAJASEKHARAN NAIR - SR.G.P.
R4, R6-7 BY ADV. DR.V.N.SANKARJEE
R4, R6-7 BY ADV. SMT.M.SUSEELA
R9 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR
R10 BY ADV. DR.K.P.PRADEEP
R10 BY ADV. SMT.T.THASMI
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2020,
ALONG WITH WA.1859/2019, THE COURT ON 11-01-2021 DELIVERED
THE FOLLOWING:
W.A.No.1859/2019 & con.case 7
JUDGMENT
[ WA.1859/2019, WA.1905/2019 ]
Dated this the 11th day of January 2020
Gopinath, J
These appeals arise out of the judgment of a learned single judge of
this Court in W.P(C). No. 27396 of 2017. The Writ Petition was filed
challenging a selection conducted by the LBS Centre for Science and
Technology (LBS for short) to the post of programmers. The writ
petitioners contended that they were also fully eligible and entitled to be
considered for selection and that they had been wrongly excluded from
the process of selection. On a consideration of the matter, the learned
single judge has set aside the select list (Ext.P.7) and has directed that a
fresh selection shall be conducted treating the Writ petitioners also as
being fully qualified for consideration. Aggrieved by the directions issued
by the learned single judge, the LBS has preferred Writ appeal 1905 of
2019 while the 8th the respondent in the Writ petition (one of the selected
candidates) has preferred Writ appeal 1859 of 2019.
2. The facts may be briefly noticed. The qualifications for the
post of programmer in the LBS is as follows:-
"Category : Programmer
Scale of pay : 1640-6-2600-75-2900
Qualifications : 1st 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."
On 7.12.2016, a selection committee was convened to select candidates for
4 posts of programmers which are stated to have arisen on 22.10.2001,
30.9.2012, 31.5.2015 and 7.12.2016. The committee noticed that there was
some ambiguity in the Rules and decided to seek a clarification from the
Government of Kerala. Following the receipt of the clarification, the
selection committee conducted the selection and excluded the Writ
petitioners on the ground that they had acquired the qualification of first-
class MCA degree only on 21.4.2017 and therefore did not have the
required experience in the feeder categories after the acquisition of
qualification. The committee was of the opinion that the provisions of
Rule 10(ab) of Part-II of the Kerala State & Subordinate Service Rules,
1958 was attracted and therefore that the experience must be one gained
after acquisition of the qualification. On an interpretation of the Rules,
the learned single judge has concluded as follows: -
(i) A first-class MCA degree holder need not have any experience as
per the Rules. A first-class PGDCA/PGDCE should have 3 years'
experience as a computer programmer and a first-class post-
diploma in computer application must have 4 years' experience
as a computer programmer;
(ii) Though the Rules prescribe the experience as one required in
the post of computer programmer there is no post of computer
programmer in the LBS and that this anomaly was noted by the
selection committee prompting the request for clarification from
the Government of Kerala;
(iii) That the Writ petitioners were excluded on the basis though
they acquired the qualification of first-class MCA on 21.4.2017,
they do not have the requisite experience after the acquisition of
qualification by applying Rule 10(ab) of Part-II of the Kerala
State & Subordinate Service Rules, 1958 (The KS&SSR) and that
the application of Rule 10(ab) of the KS&SSR was not called for
as those Rules do not apply to the LBS;
(iv) On an application of the law laid down by the Supreme Court in
Shailendra Dania v. S.P. Dubey, (2007) 5 SCC 535 & in
K.K. Dixit v. Rajasthan Housing Board, (2015) 1 SCC
474, in considering the question as to whether the experience
must be one gained after acquisition of the qualification or not
has to be determined with reference to the scheme of the
respective Rules and with reference to the question as to
whether the distinction between persons holding different
qualifications such as degree/diploma has been maintained in
the feeder category as well as in the promotion posts;
(v) That it would be an anomalous situation if the Rules were
interpreted to mean that a person with first-class MCA degree
could be appointed by direct recruitment without the
requirement of any experience qualification whereas the persons
in the feeder category were required to have the necessary
experience that too after the acquisition of the basic
qualification;
(vi) that on a combined reading of the qualification criteria in the
Rules and the method of appointment it is clear that there is no
stipulation that the experience must be one gained after
acquisition of the qualification.
On the basis of the findings as above, the learned single judge concluded
that the selection conducted by excluding the Writ petitioners is bad in
law and directed that a fresh selection be conducted treating the Writ
petitioners as fully qualified for being considered for promotion to the
post of programmer.
3. We have heard the respective counsel and perused the records. At
the outset, we must observe that the relevant recruitment Rules are totally
vague and lack the clarity and the precision which is expected of such
Rules. In the case of appointment/promotion to the post of programmer,
it is to be noticed that the Rules do not prescribe any quota between direct
recruitment and promotion. It does not also say that direct recruitment is
to be resorted to only in the absence of eligible candidates for promotion.
As noticed by the learned single judge the interpretation placed on the
Rules by the LBS will result in a situation where a person applying for
direct recruitment and having first-class MCA degree need not have any
experience however that a person with the same qualification and
included in the feeder categories would require the experience prescribed
under the head "Method of appointment". The Rules, obviously, require a
thorough review. Rules such as those in question, if vague, results in
different interpretations being placed on them by the administrator and
may at times result in arbitrariness and discrimination.
4. The notification (calling for exercise of option) for filling up the 4
posts of programmer was issued on 21.6.2016. The selection committee,
for reasons already noticed, decided to seek a clarification from the
Government which is evident from the minutes of the selection committee
dated 7.12.2016 [See Exhibit R1(b)]. In reply, the Government issued
Exhibit R1(d) letter dated 31.3.2017. We must say that there is nothing in
Exhibit R1(d) that gives any clarity to the issues relating to the lack of
clarity in the Rules, flagged in the judgement of the learned single judge
and the issues noticed by us above. In our opinion, the only reasonable
interpretation that can be placed on the Rules as they
stand at present is as follows: -
(i) Direct recruitment shall be resorted to only in the absence of
eligible candidates in the feeder categories of instructors and
laboratory assistants (lab assistants);
(ii) The experience qualifications prescribed under the head of
'qualifications' for those who do not have first-class MCA degree
relate to those applying for direct recruitment with
qualifications other than first-class MCA degree;
(iii) For promotion to the post of programmer those having first-
class MCA degree, first-class PGDCA/PGDCE or first-class post-
diploma in computer application are qualified provided they
have either 3 years' experience as an instructor or 5 years'
experience as a laboratory assistant. As observed by the
learned single judge, this is an anomalous situation in
as much as those having first-class MCA degree and
applying for direct recruitment, in the event of the
absence of qualified candidates in the feeder
categories, can aspire to be considered for selection
and appointment without the experience qualification
whereas those having the same qualification and
working in the feeder categories will be considered for
promotion only if they have the necessary experience
in the manner noticed above.
5. However, the fact that there is an anomalous situation created by
the Rules is not, in our opinion, a ground to set aside the entire selection
at the instance of the Writ petitioners. It is not disputed before us that a
selection committee was constituted in the year 2016 for considering the
eligible and qualified persons in the feeder categories mentioned in the
Rules for filling up 4 posts of programmers. It is also not disputed before
us that the Writ petitioners acquired MCA qualification only on 21.4.2017.
The minutes of the selection committee which have been placed before us
as Annexure A1 in Writ appeal 1905 of 2019 shows that the 4 vacancies of
programmers which were sought to be filled up arose on 22.10.2001,
30.9.2012, 31.5.2015 and 7.12.2016. Therefore, the Writ petitioners
admittedly did not have the necessary qualification either on the date of
occurrence of vacancies or the date on which the decision was taken by
LBS to fill up the aforesaid 4 vacancies. We are, therefore, of the opinion
that the judgement of the learned single judge to the extent it sets aside
the selection already made and to the extent, it directs a fresh selection to
be carried out treating the Writ petitioners also as fully qualified requires
to be set aside. The finding of the learned single judge that Rule 10(ab) of
Part-II of the Kerala State & Subordinate Service Rules, 1958 was not
applicable to LBS (as the Rules stand at present) is correct in law and
does not require any interference.
6. We have observed that the Rules framed by LBS to the extent they
relate to the post of a programmer are totally vague and ambiguous. We
have not examined the question as to whether the Rules, in so far as they
relate to other posts are equally vague and ambiguous for, we are not
called upon to do so in these proceedings.
7. In the light of the above findings these Writ appeals are disposed of
in the following manner: -
(a) The judgment of the learned single judge to the extent it interferes
with the selection of respondents 5, 8, 9 and 10 in Writ appeal
No.1905 of 2019 will stand set aside;
(b) The Director of the LBS Centre for Science and Technology shall, in
the light of the observations in this Judgment, take necessary steps
to conduct a thorough review of the Rules to ensure that they are
not vague, ambiguous or anomalous in any manner. Though we
have found that Rule 10(ab) of Part-II of the Kerala State &
Subordinate Service Rules, 1958 is not applicable to LBS, the
competent authority undertaking a review of the Rules as directed
above may, if so advised, make provision for adopting the
provisions of the said Rules.
(c) In the facts and circumstances of the case, there will be no order as
to costs.
sd/-
A.M.SHAFFIQUE
JUDGE
sd/-
GOPINATH P.
JUDGE
acd
APPENDIX OF WA 1859/2019
PETITIONER'S/S EXHIBITS:
ANNEXURE I TRUE COPY OF THE RELEVANT EXTRACT OF
THE PROVISIONAL RANKED LIST OF
INSTRUCTOR, PUBLISHED BY THE 3RD
RESPONDENT.
ANNEXURE II TRUE COPY OF THE CERTIFICATE NO.
B2/589/1997 DATED 23/07/1998, ISSUED BY
THE DIRECTOR OF LBS CENTRE FOR SCIENCE
AND TECHNOLOGY.
ANNEXURE III TRUE COPY OF THE GO(MS)
NO.614/2013/H.EDN. DATED 11/09/2013
ALONG WITH THE STAFF PATTERN OF LBS
CENTRE, AS APPENDED TO IT.
ANNEXURE IV TRUE COPY OF THE CIRCULAR DATED
21/06/2016 ISSUED BY THE 3RD
RESPONDENT.
ANNEXURE V TRUE COPY OF THE LETTER DATED
25/06/2016 OF THE 1ST RESPONDENT.
ANNEXURE VI TRUE COPY OF THE LETTER DATED
25/06/2016 OF THE 2ND RESPONDENT.
ANNEXURE VII TRUE COPY OF THE LETTER NO. P1-06/2016
DATED 25/06/2016 OF THE ASSISTANT
DIRECTOR.
ANNEXURE VIII TRUE COPY OF THE CIRCULAR NO.
B2/5372/2016 DATED 17/05/2019 OF THE
3RD RESPONDENT.
ANNEXURE IX TRUE COPY OF THE REPRESENTATION DATED
15/05/2017 OF THE 1ST RESPONDENT.
ANNEXURE X TRUE COPY OF THE REPRESENTATION DATED
15/05/2017 OF THE 2ND RESPONDENT.
ANNEXURE XI TRUE COPY OF THE REPRESENTATION DATED
05/06/2017 GIVEN BY THE 1ST RESPONDENT.
ANNEXURE XII TRUE COPY OF THE REPRESENTATION DATED
05/06/2017 GIVEN BY THE 2ND RESPONDENT.
ANNEXURE XIII TRUE COPY OF THE RELEVANT EXTRACT OF
THE AGENDA ITEMS AND THOSE CONCERNING
THE SELECTION TO THE POST OF
PROGRAMMERS, DETAILS OF CANDIDATES WHO
HAVE ACQUIRED MINIMUM QUALIFICATION TO
THE SAID POSTS, FROM BOTH THE
INSTRUCTORS AND LAB ASSISTANTS, THE
TOTAL NUMBER OF POSTS, AND THE PROPOSED
SELECTION LIST, RECEIVED UNDER THE
RIGHT TO INFORMATION ACT.
ANNEXURE XIV TRUE COPY OF THE MINUTES OF THE
SELECTION COMMITTEE MEETING HELD ON
22/06/2017 APPROVING THE PROPOSED
SELECT LIST FOR THE POST OF PROGRAMMERS
AND THE POST OF PERSONNEL SECRETARY.
APPENDIX OF WA 1905/2019
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 A TRUE COPY OF THE MINUTES OF THE
SELECTION COMMITTEE
