Roy K George v. K. P. S. C. — 1999 DIGILAW 99 (KER)

JUDGMENT K.A. Abdul Gafoor, J. 1. These cases relate to recruitment to the post of Asst. Motor Vehicle Inspector in the Transport Subordinate Service. The petitioners were applicants to the said post when the recruitment was notified as per Ext. P1 in OP 15860/96, hereinafter referred to as the Notification. The notification is dated 11-7-95, and the last date for receipt of such application was 3-8-95. Qualifications required are: pass in Xth standard, Diploma in Automobile or Mechanical Engineering (3 year course) or equivalent qualification and work experience of atleast one year in a reputed (Government approved) automobile workshop which undertakes repairs of light motor vehicles, heavy goods vehicles and heavy passenger Motor Vehicles fitted with petrol and diesel engine. It is further provided in the Notification that this work experience "should be one acquired after the acquisition of the basic qualification" prescribed for the post and such experience should be from a Government approved workshop. It is further provided that "experience in the capacities of paid or unpaid apprentices, trainees and casual labourers will not be accepted". A form for such certificate of experience is also prescribed with insistence that such certificate shall be in the said form. There is a further requirement of holding a driving licence to drive motor cycle, heavy goods vehicle and heavy passenger vehicle. 2. The petitioner in O.P.15860/96 challenges Ext.P8. That is a communication from the public service commission rejecting the petitioner's application on the ground that he did not prove the required experience of one year after the acquisition of the basic qualification after the publication of the Diploma result and that the certificate was not in the prescribed form. The petitioner also seeks a declaration that the experience required if insisted as one acquired after publication of the result of the Diploma Examination is unconstitutional and void. It is an admitted case of the petitioner that he had passed the Diploma examination the result of which was declared on 6-8-91. Ext.P6 is the experience certificate to show that he had worked in a Government approved automobile workshop for a period of one year and one month from 1-6-91 to 30-6-92. 3. If this experience is reckoned from the date of publication of the result of the Diploma examination, the petitioner does not have one year's experience after acquisition of the qualification. 3. If this experience is reckoned from the date of publication of the result of the Diploma examination, the petitioner does not have one year's experience after acquisition of the qualification. The petitioner contends that after the completion of the course and after writing the examination, he had got such employment in the workshop and that experience shall be considered as the work experience acquired after the acquisition of the basic qualification. 4. The petitioner in O.P.5352/97 challenges EXt.P6 and seeks a declaration that he satisfies the requirements regarding qualification for the post. Ext.P6 in this original petition is a communication from the public service commission addressed to the petitioner that his application has been rejected as he did not prove the required experience of one year on the date of application and after the acquisition of the basic qualification. In this case, the petitioner had experience as disclosed by Ext. P4 certificate from 1-11-93 to 1-12-94. According to the counter affidavit of the public service commission, the date of publication of the result of the diploma examination was 23-1-1995 in the case of the petitioner. Therefore, the entire experience to the credit of the petitioner is before the acquisition of the basic qualification. According to the petitioner, he gain this experience after the course of study for the diploma examination. Therefore he must be regarded as having acquired the experience after the acquisition of the basic qualification and therefore he is fully qualified for the post. 5. The petitioner in O.P.14127/97 has approached this court challenging Ext.P8 and seeking a declaration that he is fully qualified for recruitment to the post of Asst.Motor Vehicle Inspector. Ext. P8 is a similar communication as in other two cases. Along with the application petitioner submitted Ext.P3 certificate to show that he was employed as a trainee during the period from 4-5-93 to 8-5-94. According to the petitioner, this was an inadvertent mistake in issuing the experience certificate. He had really worked as a paid motor mechanic during the said period. He produced a corrected certificate Ext.P5 to show that he was not a paid trainee but was a paid motor mechanic. He produced Ext.P5 to show also that the earlier certificate was issued by mistake. Inspite of that the public service commission rejected his application. The result of the Diploma examination passed by the petitioner was declared admittedly on 6-9-93. He produced a corrected certificate Ext.P5 to show that he was not a paid trainee but was a paid motor mechanic. He produced Ext.P5 to show also that the earlier certificate was issued by mistake. Inspite of that the public service commission rejected his application. The result of the Diploma examination passed by the petitioner was declared admittedly on 6-9-93. Thus, even if the experience claimed in Ext.P3 is taken note of, it will not certify an experience of one year after publication of the result of the examination. The petitioner submits that he has got another experience certificate Ext.P7 to show that he had worked for the period from 1-2-95 to 31-1-96 and this sufficiently satisfies the requirements in the notification. But, the certificate Ext.P7 shows that during the said period he was working as a Junior Instructor and not in any automobile workshop, to obtain a work experience as is required in the notification. Therefore, Ext.P7 cannot make him eligible or qualified, the public service commission contends. 6. The petitioner in O.P.8128/98 seeks a declaration that he is entitled to be invited for interview for appointment to the post of Asst. Motor Vehicle Inspector on the basis of his application and performance in written test. According to him, he satisfied all the conditions regarding qualification as contained in the notification and he does have the experience from 2-12-87 to 9-1-89 as a regular mechanic on a salary basis in a Government approved automobile workshop. Ext. P2 is the certificate in that regard. It is an admitted case before me that the result of the Diploma examination passed by the petitioner was declared on 29-1-88. If that date is taken as the date for acquisition of the qualification, the petitioner will not have one year's work experience as required in the Notification. But, the petitioner contends that the entire experience gained by him was after completion of the course. 7. The petitioner in O.P.8967/98 challenges Ext.P6 communication from the Public Service Commission addressed to him. By Ext.P6, the public service commission has rejected the application of the petitioner and his name included in the short list on provisional basis had been removed after affording him an opportunity of being heard. 7. The petitioner in O.P.8967/98 challenges Ext.P6 communication from the Public Service Commission addressed to him. By Ext.P6, the public service commission has rejected the application of the petitioner and his name included in the short list on provisional basis had been removed after affording him an opportunity of being heard. This was on the ground that the experience claimed by him from 5-8-94 to 14-8-95 did not cover one year after acquisition of the basic qualification, as the result of the Diploma examination passed by him was declared on 5-9-94. He also raises the same contention with regard to the experience as in the case of other petitioners. 8. The petitioner in O.P. 10796/98 mainly seeks a declaration that the requirement regarding experience in the Notification and R.10(ab) of the General Rules in K.S. & S.S.R. as unconstitutional in so far as the work experience shall be one after the publication of the result of the examination relating to the basic qualification. In this case, the petitioner passed the Diploma Examination, the result of which was published on 19-4-93. Ext.P2 is the certificate of experience showing an experience of one year and two months 15 days from 1-9-92 to 15-11-93. This certificate does not show one year's work experience after the publication of the result on 19-4-93. But, on the strength of Ext.P14 produced along with the reply affidavit, the petitioner claims experience from 16-11-93 to 31-12-94. This certificate is dated 14-7-98. That is produced far later than the submission of the application. Therefore, it cannot be accepted, the public service commission contends. 9. In O.P. 19222/98, the petitioner challenges the final rank list prepared pursuant to the notification, and seeks a direction to conduct a denovo selection. Petitioner submits that he is fully qualified. He did not get any memo rejecting his application. He was not interviewed despite his eligibility. Ext. P3 is the experience certificate showing the experience from 1-5-88 to 14-7-89. The result of the diploma examination was published admittedly on 20-7-88. When that date is taken note of, Ext. P3 experience certificate does not cover one year period after the acquisition of the qualification. 10. In O.P.No.22100/97, the petitioner challenges all proceedings to delete his name from the short list published by the Public Service Commission pursuant to the notification. The result of the diploma examination was published admittedly on 20-7-88. When that date is taken note of, Ext. P3 experience certificate does not cover one year period after the acquisition of the qualification. 10. In O.P.No.22100/97, the petitioner challenges all proceedings to delete his name from the short list published by the Public Service Commission pursuant to the notification. He also seeks a declaration that he is duly qualified for appointment to the post of Asst. Motor Vehicle Inspector. Based on his application, subject to its scrutiny, he was allowed to appear for the test as in the case of other petitioners and based on an interim order he was interviewed. He was issued with a show cause notice Ext. P4 why his name shall not be deleted from short list as he did not have one year's experience as required in the notification. In the application, as averred in the counter affidavit of the P.S.C., the petitioner claimed experience for the period from 1-8-94 to 14-8-95 in an approved workshop. That covers more than one year. The petitioner submits that in such circumstances it cannot be stated that he did not possess the required experience. In the counter affidavit of the P.S.C. it is specifically stated that the petitioner had been given a chance to cure the defects in his application regarding production of necessary experience certificate. The experience certificate produced by the petitioner as Ext.P3 shows an experience from 1-8-94 to 30-1-96. The result of the Diploma examination in which the petitioner appeared was published on 23-1-95. The last date for submission of application was 30-8-95. Therefore the experience gained by him between these dates alone can be counted. So, the said experience certificate does not cover one year experience after the acquisition of qualification and until submission of the application, the counsel for P.S.C. submits. 11. In all these cases thus, the issue is whether the petitioners did possess the required experience in terms of the Notification and whether they are qualified in terms of the experience certificate produced by them before the public service commission. Is it sufficient that the experience required as per Notification be one acquired after completion of the course of study? 12. Elaborate arguments were advanced on either side. Is it sufficient that the experience required as per Notification be one acquired after completion of the course of study? 12. Elaborate arguments were advanced on either side. I need not go in detail with regard to such submission because the issue is now covered by the judgment of another learned single Judge of this court rendered on 5-8-88 in O.P.14874/97 reported in Sirajudheen v. P.S.C. ( 1998 (2) KLT 1046 ). Considering the very same issue and adverting to R.10(ab) of Kerala State & Subordinate Service Rules the learned judge held that, "What is relevant and material is to find out whether a special qualification like experience has to be acquired before or after acquiring the basic qualification prescribed for the post. R.10(ab) cannot be limited to the cases where the Special Rules or the recruitment rules prescribe the qualification of experience and not to other cases. According to me, wherever a qualification of experience is prescribed either by the special rules or by the recruitment rules or by any other method it must have been acquired after the acquisition of the basic qualification". When this decision is followed, all the original petitions have to be dismissed. There is no reason not to follow this dictum. Even otherwise, the petitioners cannot escape from the conditions contained in the notification."� 13. One among the conditions in the Notification is that the work experience "should be one acquired after the acquisition of the basic qualification" prescribed for the post. A person can be said to be qualified only after the declaration of the result of the examination. A person cannot be said to have acquired the qualification after completion of the course of study and after appearing for the final examination. That will not title him with the qualification. That may be only an eligibility to acquire the qualification. One will be certified to have acquired the qualification only when the result of the examination is published. The Supreme Court in Charles K. Skaria v. C. Mathew ( AIR 1980 SC 1230 ) held as follows: "If acquisition of qualification for eligibility or weightage were to be looked into subsequent to the last date, we should think that only an open and official or authentic declaration of result by the University, or perhaps an official intimation of declaration of result alone can serve the purpose". Thus, the petitioners can be regarded as having acquired the qualification when the result of their Diploma examination had been declared. As already mentioned above, the condition in the Notification is that the experience should be one acquired after the acquisition of the basic qualification. So, the experience required is the one acquired after publication of the result of the Diploma examination from which date the candidates would be regarded as having acquired the basic qualification. Admittedly, in these cases, one year experience possessed by the petitioners cover the period earlier than the date of acquisition of the qualification and in none of the cases the experience certificate does show experience of one year after the declaration of the result of the Diploma Examination. When one can be regarded as qualified only when the result is published and the experience required is the one acquired after acquisition of the qualification, it cannot be accepted, as contended by the petitioners, that the experience acquired by them after undergoing the course and after appearing for the examination but before the declaration of the result, shall be the work experience after acquisition of the qualification. 14. The petitioners relied on the Full Bench decision of this court in Shaila Beegum v. K.P.S.C. ( 1997 (2) KLT 273 ) to contend otherwise. It was held: "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". In the Notification in this case, there is such specific stipulation. So, the Full Bench decision does not therefore come to their help. Moreover, that was a case before the advent of R.10(ab) of the General Rules in the K.S. & S.S.Rules. 15. The required experience shall be one gained after the acquisition of the qualification, in the light of R.10(ab) of the General Rules in the Kerala State and Subordinate Services Rules. Moreover, that was a case before the advent of R.10(ab) of the General Rules in the K.S. & S.S.Rules. 15. The required experience shall be one gained after the acquisition of the qualification, in the light of R.10(ab) of the General Rules in the Kerala State and Subordinate Services Rules. That rule reads as follows: "(ab) Whether 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." The rule refers to the qualification of experience prescribed by the Special rules or Recruitment Rules. The Special Rules relating to the post does not contain requirement of such experience. Such requirement is mandatory as per the statutory notification issued by the Government of India under S.123 of the Motor Vehicles Act. A person cannot be appointed as Assistant Motor Vehicle Inspector in terms of the said Notification without qualification specified in the said statutory notification. Specification regarding qualification in such statutory notification is a part of the recruitment rules relating to the post. Therefore, the requirement in the notification is perfectly in terms of R.10(ab) of the General Rules and it is not outside the said rule. Even without the specification in that regard in the Notification, the experience required shall always be, in terms of R.10(ab) one gained "after acquiring the basic qualification prescribed for the post." 16. There is challenge against this rule in one among the original petitions. Sub rule (ab) was introduced to R.10 by an amendment and such amendment is in terms of Sec.2 of the Kerala Public Service Act. There is no challenge to the competence of the Government in introducing that amendment. R.10 of the General Rules is with reference to the qualification which includes experience as well. R.10(ab) is with reference to prescription of qualifications of experience and to provide a uniform approach in respect of such experience to the effect that it shall be one gained after acquiring the basic qualification. R.10 of the General Rules is with reference to the qualification which includes experience as well. R.10(ab) is with reference to prescription of qualifications of experience and to provide a uniform approach in respect of such experience to the effect that it shall be one gained after acquiring the basic qualification. It will not enable the different appointing authorities to adopt varied yardsticks accepting experience acquired before the acquisition of the qualification in one case and insist for such experience after the acquisition of qualification in another case. R.10(ab) is thus intended to eschew arbitrariness and a rule to eschew arbitrariness can never be considered as arbitrary. There is no arbitrariness in R.10(ab). Therefore, challenge against R.10(ab) fails. 17. There is challenge against the condition contained in the Notification insisting that the experience shall be one acquired after acquisition of the qualification. The said condition in the Notification cannot be successfully assailed when the General Rules contain such a clause in R.10(ab). It is not opposed to R.10(ab). It is in tune with R.10(ab). Moreover, when it is insisted in the notification that experience shall be after acquisition of the basic qualification, it cannot be said to be arbitrary. So, challenge against that condition in the Notification also fails. 18. Notification issued by the Public Service Commission is the information to the candidates who proposes to submit application. When such a notification is published for the information of the candidates who also understand specification regarding qualification, the Public Service Commission cannot adopt a varied stand and accept the applications which do not conform to the conditions in the Notification. When applications are invited from those who possess the experience after the acquisition of the basic qualification, the petitioners are not expected to apply pursuant to the said notification. After having so applied, the petitioners also cannot insist that their applications shall be accepted. Because there are several others similarly placed as the petitioners, who did not respond to the notification as they did not possess the experience gained after the acquisition of the qualification, though they may have one year's experience in the same manner as the petitioners have. So, the public service commission has acted perfectly in tune with the notification. Because there are several others similarly placed as the petitioners, who did not respond to the notification as they did not possess the experience gained after the acquisition of the qualification, though they may have one year's experience in the same manner as the petitioners have. So, the public service commission has acted perfectly in tune with the notification. If the petitioners' applications are accepted, it will offend the rights under Art.16 available to such persons similarly placed as the petitioners but did not respond because of the condition contained in the notification. The supreme court has held in the decision reported in Ashok Kumar Sharma and others v. Chander Shekhar and another ( 1997 (4) SCC 18 ) as follows: "An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself." 19. The petitioner in O.P. 14127/97 on the strength of Ext. P7 submits that he has experience for one year after acquisition of the qualification. But, that is an experience as Junior Inspector and not a work experience in an automobile workshop including repairs and maintenance of motor vehicles as required in the Notification. So, it does not in any way advance the case of the petitioner. 20. The experience possessed by the petitioner in O.P. 10796/98 as revealed by Ext. P2 therein is from 1-9-92 to 15-11-93. Result of his Diploma examination was published only on 19-4-93. The certificate does not show an experience for one year from that date when the petitioner shall be said to have acquired the qualification. So, on the strength of Ext. P2, he cannot be deemed to have the required experience. But, on the strength of Ext. P14 the petitioner claims experience during the period from 16-11-93 to 31-12-94. The certificate does not show an experience for one year from that date when the petitioner shall be said to have acquired the qualification. So, on the strength of Ext. P2, he cannot be deemed to have the required experience. But, on the strength of Ext. P14 the petitioner claims experience during the period from 16-11-93 to 31-12-94. Admittedly, this is a certificate issued on 14-7-98 far later than the date of submission of the application. That certificate was never produced in time along with the application submitted by the petitioner. Therefore it cannot be considered, the P.S.C. submits relying on a Division Bench decision of this court in W.A. 2472/98. The Notification specifically informs all the candidates that necessary documents in support of the qualification and experience shall be produced along with the application. Otherwise, the application would be rejected. It was held in the judgment in the said Writ appeal that, "it was the due of the petitioner to send application with the experience certificate of one year and that having not been done the Commission cannot be blamed for rejecting the application". It was also held that, "Conditions set out in the Notification coupled with the general conditions clearly establish that the petitioner should have sent the application form complete in all respects and that the comprehensive conditions do not admit of any rectification". Therefore, the Commission was not obliged to take into account Ext. P14 to find that the petitioner was qualified. As the testimonials along with the application do not satisfy that the petitioner did have the necessary experience, the petitioner cannot get any relief, that too on the strength of a subsequent document. 21. The petitioner in O.P. 19222/98 impugns the selection process and seeks a direction for denovo selection. But, he has not substantiated before me how the selection process is vitiated. A list had already been published. Several persons are included in the list. If the selection is quashed, it would adversely affect them. None of them is impleaded as respondents. On any count such relief cannot be granted. 22. It may be true that in the case of the petitioner in O.P. 19222/98, he did not receive an intimation rejecting his application. Several persons are included in the list. If the selection is quashed, it would adversely affect them. None of them is impleaded as respondents. On any count such relief cannot be granted. 22. It may be true that in the case of the petitioner in O.P. 19222/98, he did not receive an intimation rejecting his application. But, it is his admitted case that the experience possessed by him is from 1-5-88 to 14-7-89 whereas the declaration of the result of his Diploma examination was on 20-7-88. Ext. P3 certificate in that original petition does not prove an experience as required in the Notification. Therefore, he does not reveal a case for interference as he does not possess the required experience. 23. The petitioner in O.P. 22100/97 claimed experience from 1-8-94 to 14-8-95 in his application. The petitioner has no dispute regarding the date of publication of the result of the Diploma examination. That was on 23-1-95. When the experience from this date is taken note of, he does not have one year's experience until 14-8-95, in terms of the notification. Therefore, he cannot be said to be qualified as per the experience claimed in his application. 24. Of course, the petitioner has produced Ext. P3 certificate to show his experience from 1-8-94 to 30-1-96. The last date for submitting the application was 30-8-95. Any experience gained after that date cannot be a ground for considering his candidature. There may be several candidates who have gained experience after the last date fixed for the application. Candidates for consideration to the post should have acquired the necessary qualification atleast by the last date for submission of the application. Subsequent acquisition of the prescribed qualification cannot enure to his benefit for being considered with reference to the last date fixed for application. So, even though Ext. P3 shows one year's experience after the declaration of the result of the Diploma examination, that one year stretch beyond the last date for submitting the application to the P.S.C. namely 30-8-95. Even if, thus, Ext. P3 is taken note of, the experience only upto that date alone can be reckoned to his credit for the purpose of consideration on the basis of the notification. That experience when counted from 23-1-95, the date of publication of the result will not be for one year as required in the notification. Even if, thus, Ext. P3 is taken note of, the experience only upto that date alone can be reckoned to his credit for the purpose of consideration on the basis of the notification. That experience when counted from 23-1-95, the date of publication of the result will not be for one year as required in the notification. So, the petitioner is not qualified for the post as he lacks one year's work experience. Therefore, deletion of his name from the short list is not arbitrary or discriminatory or violative of any of the provisions in the rules or in the notification as contended by him. 25. Thus, the impugned communications issued by the Public Service Commission rejecting applications cannot be said to be illegal. The petitioners cannot get declaration that they are duly qualified or a direction that they shall be interviewed and included in the rank list prepared for the post. There is no vitiating factor in the selection process because of the non inclusion of the petitioners as none of them possesses the required experience as mentioned above. The petitioners are not entitled to any of the directions prayed for in these Original petitions. O.Ps. are accordingly dismissed. No costs.