IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WA.No. 332 of 2009() -------------------- AGAINST THE JUDGEMENT IN WPC.4300/2008 Dated 03/11/2008 .................... APPELLANT/RESPONDENT NO.3 IN WPC: ------------------------------------------------------- SUDHEER K., THARAMGINI THUVVAKODE P.O., CHEMMANCHERI VIA. KOZHIKODE 673 304. BY ADV. SRI.ALEXANDER THOMAS RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2: --------------------------------------------------------------------------- 1. SREEJITH KANHOLI, S/O. K. SREEDHARAN VAISAKH, MALADATH THAZHAM, POST KOTTOLI, CALICUT - 16. 2. UNIVERSITY OF CALICUT, REP. BY ITS REGISTRAR CALICUT UNIVERSITY P.O. 3. SELECTION BOARD(CONSTITUTED TO THE POST OF ASST. CURATOR IN THE DEPT. OF ZOOLOGY) REP. BY ITS CHAIRMAN, UNIVERSITY OF CALICUT CALICUT UNIVERSITY P.O. R1 BY ADV. SHRI. P.K. IBRAHIM R2 & 3 BY SC, SRI. P.C. SASIDHARAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2009, ALONG WITH WA NO. 394 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.Nos. 332 & 394 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of March, 2009 JUDGMENT Balakrishnan Nair, J. W.A.No.394 of 2009 The appellants were respondents 1 and 2 in the Writ Petition. The respondents herein were the petitioner and the third respondent respectively. 2. The brief facts of the case are the following. The first appellant, University of Calicut, invited applications for appointment to the post of Assistant Curator, as per Notification published on 17.12.2004. The last date for receipt of the applications was 15.1.2005. The qualifications prescribed for the post are: 1) Degree in Zoology; and 2) Experience in collecting and preserving Zoological specimens. W.A.Nos. 332 & 394 of 2009 2 3. The respondents herein and few others were applicants for the post. The written test was conducted on 15.12.2005. After considerable delay and on being compelled as per the direction of this Court in the writ petition filed by the first respondent, the interview was held on 16.1.2008. The second respondent was selected and appointed to the said post and he joined duty on 31.1.2008. According to the first respondent, though he did well in the written test, because of the alleged manipulation in the marks for the interview, he was not selected. The second respondent, who got only very poor marks for the written test, was given maximum marks for the interview and therefore, he got selection. On coming to know of the above facts, the writ petition was filed, seeking the following reliefs: “i) Call for the records leading to order No.U.O. No.Ad-A2-9079/2004 dt.25.1.08 of the 1st respondent appointing the 3rd respondent as Assistant Curator and declare that the selection and appointment of the 3rd respondent is arbitrary and illegal being violative of provisions of the Calicut University Act and Statute; W.A.Nos. 332 & 394 of 2009 3 ii) issue a writ of mandamus commanding the 1st respondent to conduct the interview afresh and finalise the selection in accordance with the provisions of the Calicut University Act and Statute; iii) declare that the selection and appointment of the 3rd respondent in preference to the petitioner is highly arbitrary and illegal and vitiated by manipulations in the ranking of the candidates.” 4. The first respondent claimed that he has passed B.Sc., Zoology and also M.Sc. Applied Zoology. He has got 2 ½ years' experience in collection and preservation of Zoological specimens. He further submitted that the selection was not conducted in accordance with law. The Selection Board was not constituted properly. There was no quorum for the Board. Other irregularities were also pointed out by the first respondent. He also pointed out that he got 72 out of 75 marks for the written test. But, the interview W.A.Nos. 332 & 394 of 2009 4 marks were manipulated to favour the second respondent. On the above allegations, the first respondent sought the above quoted reliefs. 5. The University filed a detailed counter affidavit, stating how the selection was made. All the allegations of the 1st respondent/ petitioner were denied. The University also produced a chart showing how marks were awarded to the candidates on various parameters. The University asserted that everything was done in accordance with law. 6. The first respondent/petitioner filed a reply affidavit and along with that, he produced Ext.P10, extract of the minutes of the Syndicate meeting held on 25.4.1981. It contained a decision of the Syndicate, providing how the selection of non-teaching staff (non- gazetted technical posts) should be made. It provided for the constitution of a Committee. There should be two practical tests by two experts and the total marks for the tests should be 75. The total marks for the interview was also fixed as 25. But, deviating from the norms prescribed, the present selection was made. As evident from the University's counter affidavit, the first respondent pointed W.A.Nos. 332 & 394 of 2009 5 out that 75 marks were awarded for the written test and 75 marks for the interview. The 75 marks allotted for interview were further allocated under various heads, like higher qualifications, experience etc. The actual marks for the interview stricto senso was 40. So, the procedure followed was contrary to the procedure prescribed by the Syndicate, it was pointed out in the reply affidavit. 7. At the time of hearing of the writ petition, the main contention canvassed on behalf of the writ petitioner was based on Ext.P10. Statute 8 of Chapter IV, Part II of the Calicut University Statutes provides for the constitution of a Selection Committee and the method of selection of non-teaching staff. The learned Single Judge upheld the contentions of the first respondent/writ petitioner and allowed the writ petition, directing the competent authority of the University to hold a fresh interview and finalise the selection, based on that interview. 8. Aggrieved by the above direction of the learned Single Judge, the University preferred this Writ Appeal. The second respondent, who is the selected candidate, filed W.A.No. 332 of 2009. W.A.Nos. 332 & 394 of 2009 6 9. We heard the learned counsel on both sides. While hearing, it was felt that the first respondent/writ petitioner did not have the requisite qualifications for the post. Apart from Ext.P1 Notification, we referred to the Ordinance also, prescribing the qualifications for the post of Assistant Curator. As per the Ordinance the qualifications prescribed are: “B.Sc. Degree in Zoology with experience in collection/preservation of Zoological specimens, especially higher invertebrates.” 10. Mr. P.K. Ibrahim, learned counsel for the first respondent, took us through his pleadings in paragraph 2 of the writ petition. The first respondent has claimed 2 ½ years' experience in collection and preservation of Zoological specimens. But from the counter affidavit of the University, it is clear, the first respondent was not granted any marks for experience. His experience was treated as nil. Therefore, the first respondent filed a reply affidavit. In paragraph 6 of the reply affidavit, he has re-iterated his claim regarding experience. W.A.Nos. 332 & 394 of 2009 7 The said paragraph reads as follows: “6. It is respectfully submitted that the awarding of marks to the various candidates even going by the criteria fixed is arbitrary as is evident from the following instances. The 3 rd respondent has been given 10 marks for Ph.D. As a matter of fact the 3 rd respondent was not awarded Ph.D. degree as on 15.1.2005 which was the last date for the receipt of application to the post of Assistant Curator. In fact he had only submitted his thesis on 14.1.2005 and he was conferred (Ph.D) only on 18.5.2005. Similarly another candidate Smt. Anitha who obtained Ph.D. after the date of application (on 20.6.05) was also given 10 marks. The award of marks to the qualification obtained after the last date of the application is highly arbitrary and illegal. It is submitted that if the qualification obtained after the last date of the receipt of the application is reckoned petitioner should also have been given marks for 3 years experience in collection, preservation, breeding and curation of insects invertebrates and vertebrates. Petitioner has 3 years experience, that is from July 2004 to January 2005 in collection, preservation and breeding and curation of insects etc. under a U.G.C. research project conducted by W.A.Nos. 332 & 394 of 2009 8 the Principal Investigator Dr.K.V. Lazer in the Department of Zoology of the respondent University itself. A true copy of the said certificate of experience dated 3.4.2007 is produced herewith and marked for reference as Ext.P2. This certificate was produced at the time of interview but no mark is seen awarded. This is highly arbitrary and discriminatory.” The learned counsel for the first respondent also handed over an experience certificate dated 18.1.2005, issued by Dr.K.V. Lazer, Lecturer, Department of Zoology, Calicut University. We notice that the said experience certificate is not part of the pleadings. But, we are of the view that the contents of the certificate tallies with the claim made by the petitioner in paragraph 6 of his reply affidavit, which we have already quoted above. The learned counsel further explained that the experience claimed by the first respondent before the last date for submission of applications is the experience he got while doing his Post Graduate course. The subsequent experience claimed by him in the U.G.C. research cannot obviously be reckoned, as it is W.A.Nos. 332 & 394 of 2009 9 acquired after the last date for receipt of the applications. The learned counsel for the first respondent has got a case that similar experience has been counted in the case of other candidates also. According to the second respondent, the experience gained by the first respondent covered by the experience certificate produced by him relates to Leukemia Project and it has nothing to do with collection and preservation of Zoological specimens. The said submission is seriously disputed by the learned counsel for the first respondent. 11. When experience is prescribed as a qualification, it is well settled that the same should be acquired after the acquisition of the basic qualification, unless it is otherwise provided in the Rule. In this case, while doing his Post Graduate course, the first respondent might have done collection and preservation of invertebrates. But, the same cannot normally be treated as experience for the purpose of employment. In service parlance, when experience is prescribed as a qualification, it is the experience gained through regular or temporary employment. We feel that it is apposite to refer to Rule 10(ab) of the W.A.Nos. 332 & 394 of 2009 10 Kerala State and Subordinate Services Rules, dealing with experience as a qualification. The said sub-rule reads as follows: “(ab) Where the Special Rules or Recruitment Rules for a 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: Provided that the experience gained as factory workers on daily wages of a permanent nature may be accepted, if the service is continuous and not of a casual nature.” 12. Though the provisions of the Kerala State and Subordinate Services Rules are not applicable to University employees, we feel that the concept of experience in that Rule will help us to decipher the meaning of experience in the Ordinance, which we have already W.A.Nos. 332 & 394 of 2009 11 quoted above. In this case, the claim of the first respondent regarding experience is the one gained by him while doing his Post Graduate course. We are of the view that, the said experience cannot be treated as experience for the purpose of appointment as Assistant Curator, when experience is prescribed as one of the essential qualifications. From the above, it becomes clear that the first respondent was not qualified to apply for the post of Assistant Curator on the last date for receipt of the applications. If that be so, he has no locus standi to challenge the selection of the second respondent. Going by Ext.P9, the second respondent has claimed some experience. Whether his experience is good for the job or not, is not relevant in this case, as the first respondent has no locus standi to challenge the selection or appointment of the second respondent. In view of the above finding, we are not rendering any decision on the other contentions raised by the parties, some of which we have already noted above. 13. In the result, the Writ Appeal is allowed and the Writ Petition is dismissed. W.A.Nos. 332 & 394 of 2009 12 W.A.No.332 of 2009 14. It is ordered that the judgment in W.A.No.394 of 2009 will be treated as the judgment in this case also. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm