Shaila Beegum v. Kerala Public Service Commission — 1997 DIGILAW 273 (KER)

Judgment :- B.M. Thulasidas, J. By order dated 26.10.1990 a learned judge referred the Original Petition for being heard by a Division Bench since important questions were involved, on which there was no direct authority. Subsequently by another order dt. 21.11.1995 a Division Bench referred the case to a Full Bench on the ground general importance of the questions that arose for consideration. 2. The petitioner applied for the post of Assistant Information Officer in the Public Relations Department as per notification issued in Part I B dated 26.7.1983 of the Kerala Gazette. The qualifications prescribed for the post were: a) B.A., B.Sc. or B.Com. Degree of any recognised University b) Two years experience in a Government Publicity Organisation or Publicity Department of a Private Organisation or firm or the Editional Section of a daily news paper or news agency, and c) Ability to prepare press bulletin and press publicity handouts. She passed the B.A. Degree examination on 7.9.1981 from the Kerala University. She had experience as a Sub Editor in Jayaramam News Weekly, Kaniyapuram for two years from 1.1.1981 to 5.9.1983. She was therefore, qualified for the post and submitted her application on 5.9.198 3. The first respondent rejected her application on the ground that she had not the prescribed qualifications and intimated her about it as per Ext. P1 dt.16.2.1984. She was also told that no further correspondence will be entertained in the matter. But subsequently, the matter was re-considered suo moto and she was called for interview as per Ext. P2. On 7.10.1985 she received Ext. P3 from the first respondent informing that her name was proposed to be deleted from the rank list on the ground that she had not acquired experience qualification for two years at the time of the application for "according to the Gazette Notification, experience qualification should be one acquired after obtaining the basic qualification, viz B. A." She was asked to show cause within 15 days of receipt of the communication. To this, she sent Ext. P4 objecting the proposal to delete her name from the rank list, followed by another detailed reply, copy of which is Ext. P5. But without considering her case correctly, the first respondent was stated to have illegally and arbitrarily passed Ext. P6, by which her name was deleted from the supplementary list for Muslims, finalised on 25.4.1985. P4 objecting the proposal to delete her name from the rank list, followed by another detailed reply, copy of which is Ext. P5. But without considering her case correctly, the first respondent was stated to have illegally and arbitrarily passed Ext. P6, by which her name was deleted from the supplementary list for Muslims, finalised on 25.4.1985. She has prayed: A. To call for the records of the case leading to the issue of Ext. P6 communication dated 3.2.1986 and quash the same by the issue of a writ of certiorari or any other appropriate writ, order or direction; and/or to declare that the action of the 1st respondent in deleting the name of the petitioner from the supplementary rank list dt. 25.4.1985 for the post of Assistant Information Officer in the Public-Relations Department is illegal, invalid and without jurisdiction; B. To issue a writ of mandamus or any other appropriate writ, order of direction in the nature of a writ of mandamus directing the first respondent to act in accordance with law and to restore the name of the petitioner in the rank list dated 25-4-1985 and to advise the name of the petitioner for appointment to the post of Assistant Information Officer in accordance with the Rules regarding appointment: C. To issue a writ of mandamus or any other appropriate writ, order or direction to the respondents to advise and appoint the petitioner in the next arising vacancy in the post of Assistant Information officer in the Public Relations Department to give her seniority and other benefits on the basis of the seniority of the petitioner in the rank list dated 25-4-1985; D. To issue a writ of mandamus or any other appropriate writ, order or direction forbearing the respondents from advising and appointing any of the persons from the rank list whose rank is below the petitioner; and E. To pass such other order or orders as this Honourable Court may deem just and necessary in the circumstances of the case including cost of this 'petition." 3. In the counter affidavit filed on behalf of the first respondent the basic facts had not been disputed. It was submitted that about 346 applications were received, of which 67 alone were defect-free. The selection was finalised after a written test followed by an interview. In the counter affidavit filed on behalf of the first respondent the basic facts had not been disputed. It was submitted that about 346 applications were received, of which 67 alone were defect-free. The selection was finalised after a written test followed by an interview. In the main list, 51 candidates and one candidate of the Muslim community in the supplementary list were published on 8.1.1985 and they were called for interview. In the rank list settled there were 50 candidates, 49 in the main list and one in the supplementary list, which were brought into force w.e.f. 25.4.1985. Only 15 vacancies had been notified for the post and five more vacancies were subsequently reported and as such 20 candidates were advised for appointment from the rank list prepared as per the rules of reservation and rotation. Petitioner's experience and the period she spent for study to acquire the essential qualification overlapped and therefore, her application was defective and she was informed accordingly. But while scrutinizing the applications, the acceptability of certain certificates of experience submitted by some of the candidates became doubtful and therefore, the Commission by order dt.12.6.1984 directed a re-scrutiny. From the documents she produced it was seen that she appeared for the B.A. Degree examination in April, 1981, while her experience was for the period from 1.1.1981 to 5.9.1983. According to clause 19 of the General Conditions of the notification, the candidate will be deemed to have passed the examination only with effect from the date of official publication of the results by the University. The experience required for a post before acquisition of the basic academic qualification could not be taken as qualifying experience for 'obvious reasons'. Hence, her application as also of some others were rejected as defective. However, her application was provisionally admitted pending information regarding the date of publication of the result and it was later ascertained that the result was published on 7.9.1981. Accordingly her experience from 8.9.1981 to 5.9.1983 alone could be taken into account, which was less than two years. A "defect-curing memo" was issued to her on 10.8.1984. By then the written test was fixed to be held on 15.9.1984. She was admitted to the test provisionally. No reply was received from her to the "defect curing" memo within the prescribed period of 15 days. A "defect-curing memo" was issued to her on 10.8.1984. By then the written test was fixed to be held on 15.9.1984. She was admitted to the test provisionally. No reply was received from her to the "defect curing" memo within the prescribed period of 15 days. Even then, provisionally admission ticket was issued to her to attend the written test and it was decided on 12.9.1984 to direct her to furnish explanation to the defect-curing memo at the time of interview. She was also admitted for interview and her name was included provisionally. She was ranked No.1 in the provisional list for Muslims. As stated already, it was ultimately found that she had no experience for the required period after acquiring the basic educational qualification. Her name was therefore, proposed to be deleted from the rank list. Notice was also given to show cause, to which she sent a reply on 18.10.1985, which was unsatisfactory. Eventually by order dt. 3.7.1986 her name was deleted and the order was communicated to her. The order is legal and valid. The list had already expired on 24.4.1988. Several candidates from the list were advised and appointed, who are not parties to the Original Petition, which is devoid of merit. 4. We heard counsel for the petitioner and the respondents. 5. A copy of the notification published for the first respondent on 26.7.1983 is in the file, which prescribed the essential qualifications and those desirable. Certain general conditions also had been notified. The basic educational qualification is a Bachelor's Degree. A candidate shall be deemed to have passed the examination only with effect from the date of official publication of the result of the examinations by the University or the concerned authority. Two years' experience in a Government Publicity Organisation or Publicity Department of a private Organisation or the Editorial section of Newspaper or News Agency and ability to prepare news bulletins and news publications are also required. But such experience shall not be in the capacity of paid or unpaid apprentices, trainees or casual labourers. 6. Petitioner passed the B. A. degree examination on 7.9.1981 and had experience as Sub Editor in Jayaramam News Weekly for the period from 1.1.1981 to 5.9.1983. These aspects are not in dispute. But such experience shall not be in the capacity of paid or unpaid apprentices, trainees or casual labourers. 6. Petitioner passed the B. A. degree examination on 7.9.1981 and had experience as Sub Editor in Jayaramam News Weekly for the period from 1.1.1981 to 5.9.1983. These aspects are not in dispute. There was 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. We 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 and 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 of the basic educational qualification. Several instances were quoted before us that we do not wish to state here, since counsel for the first respondent did not quite frankly contest the submission. Understandably it was to set right the controversy in this behalf that a new su- r.(ab) was inserted after the Explanation to sub-r.(aaaa) of R.10 of Part II KSSR which reads: "Where the special rules or recruitment rules for the post in any 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." 7. In Subash v. State of Maharashtra (1995 Supp. In Subash v. State of Maharashtra (1995 Supp. (3) SCC 332), the Supreme Court held that, the rules namely, Motor Vehicles Department (Recruitment) Rules, 1991, framed under Art.309 of the Constitution, show that a "mere possession of the working experience of atleast one year in a reputed Automobile workshop as mentioned in R.3(e)" was enough and that the rule does not make any difference between acquisition of such experience prior to or after the acquisition of basic educational qualification. A candidate must be held to have satisfied the qualifications required for appointment and in that view upset the decision of the Tribunal, which held on the basis of a Circular that such working experience was not enough since it had been acquired before the candidate had the basic educational qualification. 8. The Punjab & Haryana High Court in Sri Salig Ram Kumar v. The Secretary, Haryana Public Service Commission (1973 (1) SLR 1039) upon construing the language of R.8(4) of Punjab Employment Department Class III Rules, held that it was not the requirement of this rule that "one qualification should have been acquired before the other" and said that the Public Service Commission was not right to hold that experience in "collection, scrutiny and interpretation of statistical data in a Government office" should have been acquired after the petitioner became a graduate in Economics. 9. Counsel for the first respondent sought reliance upon the decision reported in Sheshrao Jangluji Bagde v. Baiyya (AIR 1991 SC 76), which in our view, is inapplicable to the facts of this case as evident from what the judgment itself had said that: "Normally when one talks of an experience, unless the con text otherwise demands, it should be taken as experience after acquiring the minimum qualifications required and, therefore, necessarily will have to be posterior to the acquisition of the qualification. However, in the case of a 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". 9. We are of the view that the petitioner had satisfied the qualifications required for the post. She passed the test and came out successful in the interview and was ranked No.1 in the supplementary list for Muslim candidates. It would depend on the relevant provisions as also the particular type of experience which is required". 9. We are of the view that the petitioner had satisfied the qualifications required for the post. She passed the test and came out successful in the interview and was ranked No.1 in the supplementary list for Muslim candidates. It was to late in the day and not proper for the first respondent to have objected to her application as defective on the ground that she had not the required experience after the basic educational qualification was acquired. Such a view was not justified by the terms of the notification, which had been misconstrued and misapplied by the first respondent, which should not have gone behind its plain terms. Ext. P6 order, in our view, is unsustainable and we accordingly quash the same. We direct the first respondent to advise the second respondent her appointment to the post of Assistant Information Officer in the Public Relations Department. In view of the long delay and some laches on her part, we hold that in giving appointment, the existing seniority of candidates already appointed need not be disturbed. The Original Petition is allowed as above.