Sajid Ali M. , S/o. Mohammed Ali v. Government of Kerala, Represented by Secretary to Government, Co-operative Department, Secretariat
2022-03-22
ALEXANDER THOMAS, VIJU ABRAHAM
body2022
DigiLaw.ai
JUDGMENT : Alexander Thomas, J. The judgment under challenge in the instant intra court appeal filed under Section 5(i) of the Kerala High Court Act, is the one rendered by the learned Single Judge of this Court dated 28.02.2022, dismissing the instant W.P.(C) No.9418/2021. The appellant in the writ appeal is the sole petitioner in the W.P.(C). The respondents in the writ appeal are the respondents in the W.P.(C). 2. Heard Sri. P.N. Mohanan, learned Advocate instructed by Smt. Amrutha Suresh, learned counsel appearing for the appellant in the WA/petitioner in the W.P.(C), Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents in the WA/respondents in the W.P.(C)., Smt. S.L. Shylaja, learned Standing Counsel appearing for the 2nd respondent Kerala State Co-operative Service Examination Board and Sri. K.S. Arundas, learned counsel appearing for the 3rd respondent Makkaraparamba Service Co-operative Bank Ltd. 3. The prayers in the instant W.P.(C) are as follows : “(i) Call for the records leading to issue Ext.P5 and P10 and quash the same by issuing a writ of certiorari or any other appropriate writ order or direction. (ii) Issue a declaration as the vacancy of the System Administrator in the third respondent bank arose on 19.01.2018 the notification to the said vacancies should be on the basis of Ext.P4 Government Order without insisting first class in B.Tech. (iii) issue a writ of mandamus directing the second and third respondents to consider the petitioner for the post of System Administrator in the light of Ext.P4 Government Order. (iv) issue a direction directing the second respondent to permit the petitioner to write the written examination scheduled to be held on 17.04.2021 for the post of system administrator of the third respondent bank at Government College, Meen Chanda Kozhikode (v) Grant such other relief as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 4.
Learned Single Judge has now rendered the impugned judgment on 28.02.2022, dismissing the above writ petition on the ground that, even inspite of the relaxed approach on the basis of the interim order passed in the writ petition, directing the grant of provisional permission to the petitioner/appellant to participate in the written examination for the above selection, it is found that he has failed to secure reasonable score to show his competency, going by the factual details given by the 2nd respondent Kerala State Co-operative Service Examination Board, and accordingly the writ petition has been dismissed. 5. According to the appellant/petitioner, he is working as System Administrator in the 3rd respondent Makkaraparamba Service Co-operative Bank, Malappuram, on temporary basis since 18.04.2018. Earlier, the qualification for the post was not prescribed in terms of Rules as conceived in Rule 186 of the Kerala Co-operative Society Rules framed under the Kerala Co-operative Societies Act, 1969. Later, Ext.P3 G.O(Rt) No.517/2013/Co-op dated 03.08.2013, was issued by the competent authority of the State Government in the Co-operation Department, wherein it has been inter-alia stipulated that minimum qualification for holding the post of System Administrator in Co-operative Societies would be M.C.A/B.Tech in Computer Science/B.Tech in Electronics & Communication/B.Tech Information Technology. Further that, Government has issued Ext.P4 G.O.(Rt) No.642/2017/Co-op dated 27.11.2017, wherein, it has been stipulated that for the post of System Administrator in Co-operative Societies, the minimum qualification shall be B.Tech in Information Technology/Computer Science/M.C.A and two years experience as System Administrator in a reputed organization handling financial transactions. Both in Exts.P3 and P4 government orders, no stipulation has been made that the requisite degree in B.Tech in Computer Science/B.Tech in Information Technology/M.C.A shall be in first class. Later, the Government issued orders creating the post of System Administrator in the 3rd respondent bank on 19.01.2018, at which time Ext.P4 G.O dated 27.11.2017 was in vogue. 6. Later, Government has issued Ext.P5 G.O. (Rt) No.599/2018/Co-op dated 26.10.2018, wherein, it has been stipulated that the minimum qualification to hold the post of System Administrator in the Co-operative Societies shall be first class B.Tech degree in Computer Science, Information Technology, Electronics and Communication Engineering/MCA/Msc (Computer Science or Information Technology), and the desirable qualification of Redhat certification which will be an added advantage.
Later, the 2nd respondent, Kerala State Co-operative Service Examination Board, has issued Ext.P11 selection notification dated 29.09.2020, wherein, the post of System Administrator in the 3rd respondent Co-operative bank has also been notified for selection as category No.4/2020, item No.3, in the scale of pay of Rs.17,420-47,750, in which the minimum qualification stipulated therein are in terms of Ext.P5 G.O.(Rt) No.599/2018/Co-op dated 26.10.2018, i.e., first class B.Tech degree in Computer Science/Information Technology/Electronics and Communication Engineering or M.C.A/Msc (Computer Science or Information Technology) and desirable Redhat certification as an added advantage. The complaint of the petitioner is that the post of System Administrator in the 3rd respondent bank, referred to as category No.4/2020 -item No.3 of Ext.P11 notification, has been created in the 3rd respondent bank only on 19.01.2018, and at that time, the qualifications prescribed as per Ext.P4 G.O. dated 27.11.2017 were in vogue and the added rigorous qualification of first class in the requisite degree, as per Ext.P5 G.O. dated 26.10.2018, was not in force. Hence, it is urged that the qualifications prescribed in Ext.P11 notification dated 29.09.2020, issued by the 3rd respondent Selection Board should have been in consonance with the norms as per Ext.P4 dated 27.11.2017, which was in vogue at the time of creation of the post on 19.01.2018, and not the subsequently introduced rigorous norms in Ext.P5 dated 26.10.2018. In the said writ petition, the learned Single Judge has passed an interim order dated 09.04.2021, ordering that the petitioner may also be provisionally permitted to take part in the written examination, proposed to be conducted by the 3rd respondent selection board, in pursuance of the impugned Ext.P11 selection notification for the above said post in question and that mere permission to write the written examination will not confer any further right to the petitioner and the final decision on the issue will be subject to the outcome of the writ petition. It is common ground that the petitioner has indeed appeared in the said written examination conducted by the 3rd respondent board for the post of category No.4/20 item No.3 of Ext.P11 selection notification. 7. As regards the main contention of the petitioner, it has to be noted that the present method of appointment, covered by Ext.P11 selection notification, is direct recruitment and not otherwise.
7. As regards the main contention of the petitioner, it has to be noted that the present method of appointment, covered by Ext.P11 selection notification, is direct recruitment and not otherwise. Ordinarily, it could be contended that matters in relation to promotion should be adjudged with reference to the state of affairs that exists at the time of occurrence of the post for which promotion is claimed and not at a subsequent occasion when the promotion may actually be made. It could be contended that the authorities competent to grant promotion may delay the matter with the result that the incumbents, who may not be qualified at the time of occurrence of the vacancy, will get qualified subsequently and they may steal a march over the incumbents, who had secured all the qualifications for promotion as on the date of occurrence of the vacancy. It is to avoid such unreasonable consequences that the above norm is ordinarily followed for promotion. But, such is not the approach and perspective of the service jurisprudence as far as direct recruitment is concerned. As far as direct recruitment is concerned, it is well established that, ordinarily, no one can compel the appointment authority to make direct recruitment to a post at a given point of time. These are all matters within the policy prerogatives of the appointing authority, subject to the rules. Where an appointing authority/selection authority makes a decision to resort to direct recruitment to a post, then ordinarily, the qualifications and norms in vogue at the time of issuance of the selection notification for direct recruitment should be the governing norms. Even according to the case of the appellant, the vacancy to the post of System Administrator was said to have been created only on 19.01.2018. It may be true that at that point of time, the norms regarding the qualifications may have been on the basis of Ext.4 G.O. dated 27.11.2017. But the appointing authority and the 2nd respondent statutory selection authority have decided to issue the selection notification in terms of Ext.P11 only on 29.09.2020. As on the date of issuance of Ext.P11 selection notification dated 29.09.2020, the norms regarding the qualifications for the said post were on the basis of Ext.P5 G.O. dated 26.10.2018.
But the appointing authority and the 2nd respondent statutory selection authority have decided to issue the selection notification in terms of Ext.P11 only on 29.09.2020. As on the date of issuance of Ext.P11 selection notification dated 29.09.2020, the norms regarding the qualifications for the said post were on the basis of Ext.P5 G.O. dated 26.10.2018. Therefore, the respondents cannot be legally faulted for insisting that the qualifications that are in vogue at the time of issuance of Ext.P11 notification should be taken into account. In other words, the stipulations made in Ext.P11 notification, that the qualifications for the post of System Administrator in the 3rd respondent bank shall be first class in B.Tech degree/M.C.A/Msc of the requisite branches, cannot be seriously faulted. 8. That apart, based on the interim order passed by the learned Single Judge in the writ petition, the petitioner has indeed taken part in the written examination for the above said post, pursuant to Ext.P11 selection notification. Smt. S.L. Shylaja, learned Standing Counsel for the 3rd respondent Kerala State Co-operative Service Selection Board, had submitted before the learned Single Judge, on the basis of instructions that, though the appellant had participated in the written examination, provisionally, on the basis of interim order in the writ petition, he had failed to secure even a reasonable score to show his competence and therefore, his name could not be included in the select list. In other words, even if it is assumed that the appellant already has the qualifications prescribed in Ext.P11 selection notification and is otherwise fully eligible and qualified to participate in the selection process, the above said subsequent factual averments disclosed by the 3rd respondent would reveal, that even on merits, the appellant would not have succeeded in the selection process. It is in the light of these aspects, that the learned Single Judge has dismissed the writ petition. 9. We do not find any serious grounds to interfere with the well considered verdict of the learned Single Judge in the writ petition. We have given different reasonings as above for arriving at the same conclusion as the one arrived at by the learned Single Judge to dismiss the instant writ petition. In other words, the view taken by the learned Single Judge cannot be held to be illegal or unreasonable. 10. Sri.
We have given different reasonings as above for arriving at the same conclusion as the one arrived at by the learned Single Judge to dismiss the instant writ petition. In other words, the view taken by the learned Single Judge cannot be held to be illegal or unreasonable. 10. Sri. P.N. Mohanan, learned Advocate, assisted by Smt. Amrutha Suresh, learned counsel appearing for the appellant, would then submit that the 3rd respondent bank has already taken resolution as Annexure R3 (b) to regularize the temporary appointment of the petitioner as System Administrator. We are not getting into the merits of the said plea as no such prayer has been made in the writ petition. Hence, we do not enter into that area and we do not propose to render any decision on the said plea. With these observations and directions, the writ appeal would stand dismissed.