IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 2ND MAY 2008 / 12TH VAISAKHA 1930 WP(C).No. 20286 of 2007(M) --------------------------------------- PETITIONER: ------------------- UNNIKRISHNAN NAIR V.K., SENIOR ACCOUNT ASSISTANT, NATIONAL HORTICULTURAL BOARD, 85, INSTITUTIONAL AREA, SECTOR 18,GURGOAN, HARYANA-122015. BY ADV. SRI.M.P.ASHOK KUMAR. RESPONDENTS: ------------------------ 1. THE COIR BOARD, MINISTRY OF AGRO AND RURAL INDUSTRIES, COIR HOUSE, P.B.NO.1752, M.G.ROAD,COCHIN, REP.BY ITS SECRETARY. 2. SMT.SHYAMALA C.S., KRISHNAKRIPA, AMBALLOOR P.O., KANJIRAMATTAM, ERNAKULAM DISTRICT. BY ADV. SRI.V.M.KURIAN, SRI.MATHEW B. KURIAN, SRI.K.T.THOMAS, SRI.N.SUNIL, SRI.NOUSHAD THOTTATHIL, ADDL.CGSC, SRI.P.PARAMESWARAN NAIR,ASST. S.G. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON 02/05/2008 DELIVERED THE FOLLOWING: W.P.(C). NO.20286/2007-M: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE ADVERTISEMENT PUBLISHED IN THE EMPLOYMENT NEWS DTD. 22/09/2006. EXT.P.2: COPY OF THE RELEVANT PAGES OF THE COIR BOARD (SERVICES) BYELAWS. EXT.P.3: COPY OF THE INTERVIEW CARD DTD. 09/03/2007. EXT.P.4: NIL. EXT.P.5: COPY OF THE FILE RELATING TO THE QUALIFICATION AND APPOINTMENT OF THE R.2. RESPONDENT'S EXHIBITS: EXT.R1: COPY OF THE RANK LIST PUBLISHED BY THE R.1. WITH RESPECT TO THE APPOINTMENT OF ACCOUNTS MANAGER. EXT.R2.A: COPY OF THE B.COM DEGREE CERTIFICATE DTD. 13/11/1996 ISSUED BY THE M.G. UNIVERSITY. EXT.R2.B: COPY OF THE MEMORANDUM DTD. 28/07/1994 ISSUED BY THE CONTROLLER OF EXAMINATION, M.G. UNIVERSITY SHOWING THE MARKS OBTAINED IN VARIOUS SUBJECTS INCLUDING FOR ADVANCED ACCOUNTANCY. EXT.R2.C: COPY OF THE CERTIFICATE DTD. 28/07/1997 ISSUED BY THE KERALA HI- TECH INDUSTRIES LTD. EXT.R2.D: COPY OF THE EXPERIENCE CERTIFICATE DTD. 25/09/2006 ISSUED BY M/S. V.J. MATHEW AND CO. ADVOCATES & NOTARY, ERNAKULAM. EXT.R2.E: COPY OF THE EXPERIENCE CERTIFICATE DTD. 21/09/99 ISSUED BY INDUS TRADE LINKS, ERNAKULAM. //TRUE COPY// prv. V.GIRI, J. ------------------------- W.P(C)No.20286 of 2007 M ------------------------- Dated this the 2nd day of May, 2008. JUDGMENT The first respondent - Coir Board, by Ext.P1 notification, invited applications for the post of Accounts Manager in the Coir Board. Two vacancies in the general category were notified. The educational qualifications prescribed in this regard, as per Ext.P1, which is in consonance with Ext.P2 Coir Board (Service) Bylaws 1983, are as follows: “B.Com, with Advanced Accountancy having 5 years' experience in Accounts Branch of a Government Department or concern of repute, OR Post Graduate qualifications in Accountancy including M.Com with 2 years' experience in Accounts in a Company or Government Department.” 2. The last date for receipt of application as per Ext.P1 was 29.08.2006. The petitioner participated in the written test and was called for the interview and was ranked No.3. The 2nd respondent was rank No.1. She was, therefore, appointed against one of the vacancies. The appointment of the 2nd respondent is challenged by the WP(C)No.20286/07 :: 2 :: petitioner, on the ground that the 2nd respondent did not have the requisite educational qualifications or experience for the post of Accounts Manager and she ought not to have been considered for the post. It is also contended that she was awarded 1st rank due to extraneous considerations, by relaxing the condition regarding experience. 3. When the matter came up for admission on 3.7.2007, this court directed the petitioner to file an additional affidavit dealing with the contentions that the 2nd respondent is not having the prescribed qualifications and that she has been selected by relaxing the required qualification. An additional affidavit was filed by the petitioner in this regard on 9.7.2007. On 13.7.2007, this court admitted the writ petition and passed an order to the effect that appointment, if any, of the 2nd respondent will be subject to the result of the writ petition. 4. The petitioner contends that the 2nd respondent does not possess B.Com degree with Advanced Accountancy, which is the prescribed qualification. It is further contended that she did not have 5 years' experience WP(C)No.20286/07 :: 3 :: in the Accounts Branch of a Government Department or concern of repute. It is further contended that the qualifications were relaxed in favour of the 2nd respondent, without any justification and this is on account of extraneous consideration. The contention is that the 2nd respondent was working as a Co-operative Inspector in the Coir Board, and it is, therefore, that the qualifications were relaxed in her favour. 5. Separate counter affidavits have been filed by respondents 1 and 2. The first respondent, in its counter affidavit, points out that the Board received 68 applications, including 3 applications from the Employment Exchange. Twenty (20) candidates were found to have sufficient qualification and experience, as prescribed by the Recruitment Rules of the Board. As per the records submitted by the 2nd respondent, along with her application, it was found that she had passed B.Com Degree with Cost Accounting as an elective subject; that she had taken co- operation also. She had a paper on Advanced Accountancy in Group-D for B.Com degree examination. Insofar as the WP(C)No.20286/07 :: 4 :: prescription regarding 5 years' experience in Accounts Branch of Government Department or concern of repute, it was noted that the 2nd respondent has experience of 4 years, 4 months and 8 days in various firms including 1 year, 11 months and 14 days in a Government of Kerala Undertaking apart from experience as a Co-operative Inspector. Hence she was allowed to appear for the written test for selection to the post of Accounts Manager, purely on merit basis. She had obtained maximum marks for the written test and based on the marks obtained by the candidates in the written test and interview, the 2nd respondent was ranked No.1 with 66 marks aggregate and one Sri.C.U.Abraham with 62.6 marks was ranked No.2. The petitioner was ranked No.3 with 60 marks aggregate. This position is discernible from Ext.R1(1). Since there were two vacancies of Accounts Manager, for which selection was made, the 2nd respondent and Sri.C.U.Abraham, the 2nd rank holder, were appointed as Accounts Managers. The specific contention taken up by the 1st respondent, in answer to the petitioner's allegation WP(C)No.20286/07 :: 5 :: that relaxation was afforded in favour of the 2nd respondent in the matter of qualification and experience, is as follows, in paragraph 7 of the counter affidavit: "It is pertinent to point out that no relaxation has been given to the second respondent either in the qualification or experience, for permitting her to attend the written test as alleged by the petitioner." 6. The 2nd respondent, in her counter affidavit, contended that she had passed B.Com degree examination of the M.G.University with Cost Accounting as an elective subject and Advanced Accountancy as a compulsory subject. She refers to Ext.R2(a) degree certificate issued by the M.G.University and Ext.R2(b) mark list, which shows that Advanced Accountancy is one of the optional subjects in Group-D. As far as experience is concerned, she points out that she was appointed as Junior Stenographer in the Coir Board on 22.09.1999 and while working as Junior Stenographer, she was given full additional charge of the post of Co-operative Inspector, for two spells as per orders dated 11.12.2003 and 16.03.2005. She was promoted to the post of Co-operative Inspector by order dated WP(C)No.20286/07 :: 6 :: 31.08.2005 and that as on the date of the application, she had 2½ years' experience in Coir Board working as Co- operative Inspector; that she had applied for the post of Accounts Manager pursuant to Ext.P1 while working as Co- operative Inspector; that the post of Co-operative Inspector in the 1st respondent requires thorough knowledge of Accounting Law, System and Practice. The work of Co- operative Inspectors in Coir Board includes inspection of progress of utilisation of the financial assistance granted to Co-operative Societies and reports to the office and other works in the Section to assist the Section Officer to discharge his duties promptly for reporting to the Branch Office/Joint Director (Planning). It is contended by her that as far as experience is concerned, she has 2½ years' in the Accounts Branch, in the Coir Board and another two years' experience in the Accounts Department in Kerala Hi-Tech Industries Limited, (KELTEC), Trivandrum, a Government of Kerala undertaking. She claims another 1 year's experience with M/s.V.J.Mathew and Company, Advocates and Notary, Ernakulam and also working experience with WP(C)No.20286/07 :: 7 :: Reccatex 95 of the Regional Engineering College, Calicut Alumni Association and experience in the Accounts Department of Indus Trade Links, Ernakulam. The certificates are produced as Exts.R2(c), (d) and (e). The 2nd respondent also specifically took up the contention that the 1st respondent has not granted any relaxation in her favour. 7. The 2nd respondent also took up a contention that the petitioner himself was not qualified to be considered for the post on the premise that he did not produce any materials to substantiate his contention that he was qualified and has the requisite experience. 8. Reply affidavits have been filed by the petitioner to the counter affidavits filed by respondents 1 and 2. Along with the reply affidavit filed by the petitioner to the counter affidavit filed by the 1st respondent, he has produced Ext.P5, which is a copy of the file relating to the qualification and appointment of the 2nd respondent, furnished by the Coir Board to the petitioner, pursuant to a request made by him under the Right to Information Act, WP(C)No.20286/07 :: 8 :: 2005. A copy of the application submitted by the 2nd respondent pursuant to Ext.P1 notification is part of the said file. The 2nd respondent claimed that she is a Graduate in commerce both in Cost Accountancy and in Co-operation. Insofar as experience is concerned, she refers to her employment with M/s.V.J.Mathew & Company, Advocates, Kochi, from 01.02.1993 to 18.02.1994, then with M/sReccatex, Kochi from 16.07.1994 to 22.03.1995 and with M/s.Kerala Hi-tech Industries Limited from 05.06.1995 to 19.05.1997 and with M/s.Indus Trade Links from 25.01.1999 to 21.09.1999. She had joined services of the Coir Board as Junior Stenographer on 22.9.1999 and she was promoted to the post of Co-operative Inspector on 31.8.2005. According to her, she had done Accounts work in connection with her work as a Co-operative Inspector She, therefore, claims a total experience of 7 years' in Coir Board and 4½ years' in other offices. A perusal of Ext.P5 further shows that apparently, the petitioner and 3 other persons who claimed experience in private firms were decided to be considered along with other applicants, who WP(C)No.20286/07 :: 9 :: satisfied the criteria prescribed in the notification. It is accordingly that the 2nd respondent was considered and ultimately selected and appointed. The petitioner submits, in his reply affidavit, that it is clear from Ext.P5 that the 2nd respondent did not have the requisite experience as prescribed in the notification to be considered for the post in question. 9. I heard learned counsel for the petitioner Mr.M.P.Ashok Kumar, learned counsel for the 1st respondent Mr.Noushad Thottathil and learned counsel for the 2nd respondent Mr.V.M.Kurian. 10. The petitioner challenges the selection and appointment of the 2nd respondent on two grounds. It is firstly contended that the 2nd respondent was not possessed with the requisite educational qualification. The educational qualification prescribed in Exts.P1 and P2 for the post of Accounts Manager is B.Com degree with Advanced Accountancy. Exts.R2(a) and R2(b) will show that the 2nd respondent acquired the degree of B.Com and one of the optional subjects was Advanced Accountancy. Cost WP(C)No.20286/07 :: 10 :: Accounting was one of the elective subjects. In the light of Exts.R2(a) and R2(b), I am of the view that the 2nd respondent did possess the requisite educational qualification, as prescribed in Ext.P2 for the post of Accounts Manager. Sri.Ashok Kumar submits that the qualification "B.Com with Advanced Accountancy" contemplates a degree in commerce with Advanced Accountancy as the main subject. Ext.P2 does not lend itself to such an interpretation. It is clear from Ext.R2(b) that Advanced Accountancy was one of the optional subjects undertaken by the 2nd respondent as part of the course of study leading to Ext.R2(a). This, in my view, is sufficient for the purpose of Ext.P2 Recruitment Rules and Ext.P1 notification. The second contention taken up by the petitioner is that the 2nd respondent did not have the requisite experience of 5 years in the Accounts Branch of a Government Department or a concern of repute and therefore, she ought not to have been considered for the post of Accounts Manager. The question is whether this is correct. The experience claimed by the 2nd respondent is WP(C)No.20286/07 :: 11 :: discernible from her application, forming part of Ext.P5. Apart from the experience which she claimed in the Coir Board, she claims that she had experience with M/s.V.J.Mathew and Company, Advocates and Notary, Ernakulam. One of the certificates, which she has produced along with her application in this regard is dated 18.2.1994 and earliest in point of time. For the purpose of this case, it is appropriate to go by the said certificate produced along with the application. It certifies that the 2nd respondent had been working in the office of Sri.V.J.Mathew, Advocate as a stenographer/typist for one year. It is, therefore, clear that the 2nd respondent was not working in the Accounts Branch, as contemplated by Ext.P2 Recruitment Rules, when she was employed in the office of Sri.V.J.Mathew. 11. Ext.P5 shows that, apart from the certificate as mentioned above, which was issued by Sri.V.J.Mathew on 18.2.1994, there was another certificate dated 25.9.2006, which is the same as Ext.R2(d) in which Sri.V.J.Mathew, Advocate and Notary certified that the 2nd respondent was working as Stenographer/typist during WP(C)No.20286/07 :: 12 :: 1993-94, but had also handled the Accounts of the Office. Even if this is taken into account, it is difficult to accept this certificate as one certifying the 2nd respondent's experience in the Accounts Branch of a Government Department or a concern of repute. The certificate only shows that the 2nd respondent was essentially working as Stenographer/typist in an Advocate's offce. This is different from working in the Accounts Branch of an undertaking. 12. The 2nd respondent then claimed a stint of service in Reccatex 95, which was apparently an All India Science and Technology Exhibition and Industrial Fair. She had worked as an Office Assistant cum Stenographer from July 16, 1994 to March 22, 1995. This is hardly relevant for the recruitment in question. 13. Insofar as the claim made by the 2nd respondent relating to a stint in Kerala Hi-Tech Industries Limited, the certificate shows that, she was working in the said company which is a Government of Kerala undertaking as Clerk/Typist from 05.06.1995 to 19.05.1997, which is almost a period of 23 months. I find it difficult to accept WP(C)No.20286/07 :: 13 :: the 2nd respondent's claim that she had experience of the requisite character on the strength of her service in Kerala Hi-Tech Industries Limited. It is clear from the certificate that the petitioner was working as a Clerk/Typist and was not employed in the Accounts Branch of the Company. The certificate further shows that she had acquired the knoweldge of the duties and works of an effective Clerk, Accountant and Office Management. She has got working experience in the operations of computerised EPABX, Telex Telefax and Xerox Machine. This is different from working in the Accounts Branch of a concern. The 2nd respondent was employed as a Clerk/Typist and may have, in the course of the same, acquired the working knowledge in the Accounts Section of the concern. This obviously was not the experience that is required for the post of Accounts Manager. 14. The next experience claimed by the 2nd respondent was her experience as a Stenographer-cum- Accountant in M/s.Indus Trade Links Limited for the period from 25.01.1999 to 21.09.1999, about 8 months. The WP(C)No.20286/07 :: 14 :: certificate shows that she was responsible for Accounting, Reception, Stenography and Computer Operating. 15. Apart from the abovementioned periods of experience claimed by the 2nd respondent, she had also claimed experience acquired for being promoted to the post of Co-operative Inspector with effect from 31.08.2005 on the premise that she had done Accounts work in connection with her work as Co-operative Inspector. This may be accepted for the sake of arguments. If that be so, it could only mean that the 2nd respondent had experience in the Accounts Branch from 31.08.2005 till the last date of receipt of the application, 25.9.2006, i.e., approximately 13 months. The 2nd respondent had also claimed that she was also given charge of a Co-operative Inspector, while she was working as Junior Stenographer in the Coir Board during the period from 10.12.2003 to 19.11.2004 (11 months) and 16.03.2005 and 25.07.2005 (4 months). If the aforementioned periods are also taken note of, as contended by the 2nd respondent, the total experience as claimed by her in the Coir Board, as experience of a WP(C)No.20286/07 :: 15 :: character required in the notification, would be approximately 29 months. Even if the stint of service rendered by the petitioner in Kerala Hi-Tech Industries Limited, as Junior Stenographer is also taken into account, for the sake of argument, the experience claimed by the 2nd respondent is not sufficient in terms of the Recruitment Rules in the notification. The aforementioned exercise has been undertaken only as a part of considering the 2nd respondent's argument that she had the requisite experience in the Accounts Branch of a Government Department or a concern of repute, as on the last date of receipt of the application. The experience claimed by the 2nd respondent falls far short of the minimum requirement. 16. I also find force in the submission made by the learned counsel for the petitioner that the experience claimed by the 2nd respondent in M/s.Kerala Hi-Tech Industries Limited was not the requisite experience in terms of the notification. After all, the certificate produced by the 2nd respondent was that she was appointed as Clerk/Typist in the company. Obviously, therefore, her service was not WP(C)No.20286/07 :: 16 :: in the Accounts Branch of the company, primarily. May be, she had acquired working knowledge of the duties and works of an effective Clerk, Accountant and Office Management. Going by the certificate issued by the company it also shows that she has working experience in the operations of computerised EPABX, Telex, Telefax and Xerox Machine. This is not the same as experience in the Accounts Branch of a concern. Similar is the case with regard to the stint in Reccatex, Kochi (Exhibition cum Industrial Fair) where obviously she was working only as an Office Assistant cum Stenographer. It is different from the experience in the Accounts Branch of a concern of repute as prescribed in the notification. Her experience with M/s.V.J.Mathew, Advocate was essentially as a Stenographer. I am also not inclined to take into account the said experience for the further reason that it was prior to her acquiring the requisite educational qualification of B.Com degree. 17. The aforementioned discussion leads me to the conclusion that the 2nd respondent did not have the WP(C)No.20286/07 :: 17 :: requisite experience, which is part of the mandatory terms as per the Statutory Rules and the notification. In such circumstances, the 1st respondent ought not to have considered the 2nd respondent for selection to the post of Accounts Manager. The 1st respondent acted illegally and in contravention of the statutory rules in considering the 2nd respondent for the said post. 18. Learned counsel for the 2nd respondent had also taken up a contention that the petitioner himself was not qualified in terms of the Recruitment Rules for the post. I am not inclined to accept this submission essentially for the reason that the 1st respondent had considered the petitioner as a suitably qualified hand and had permitted him to appear for the written test and interview. The petitioner is in fact rank No.3. Consequently, no such contention is taken up by the 1st respondent. There cannot be a collateral challenge to the participation of the petitioner in the selection process undertaken by the 1st respondent. 19. The select list Ext.R1(a) produced by the 1st WP(C)No.20286/07 :: 18 :: respondent would show that the 2nd respondent was rank No.1 and the petitioenr was rank No.3. Sri.C.U.Abraham was rank No.2. The selection of the 2nd respondent is illegal and therefore, her appointment is also liable to be declared as illegal. Since the 1st respondent affirms Ext.R1(a) rank list and the petitioner, even according to the 1st respondent, was rank No.3, the petitioner is entitled to be appointed as Accounts Manager. 20. This leads to the question of any direction consequential to the declaration that the 2nd respondent was ineligible to be considered for the post of Accounts Manager in terms of Ext.P1 notification. It is admitted that the 2nd respondent was working as Co-operative Inspector in the 1st respondent at the relevant time. In the circumstances, the 2nd respondent had to resign from the post of Co-operative Inspector, when she was selected and appointed as Accounts Manager. I note in this context that the writ petition was filed on 02.07.2007 and it came up for admission on 03.07.2007. Going by the counter affidavit filed by the 2nd respondent, she had taken charge pursuant WP(C)No.20286/07 :: 19 :: to appointment order at 13.06.2007. This court, by order dated 13.07.2007, had made it clear that the appointment of the 2nd respondent will be subejct to the result of the writ petition. I am of the view that in circumstances where the selection and appointment of the 2nd repsondent is being declared as illegal by this court by this judgment, the 2nd respondent should be offered an appointment as Co- operative Inspector, which position she was occupying till her selection and appointment as Accounts Manager in the 1st respondent. In the result, the writ petition is allowed. It is declared that the 2nd respondent was ineligible to be considered for selection to the post of Accounts Manager in the selection undertaken pursuant to Ext.P1 notification. Consequently her appointment as Accounts Manager in the 1st respondent is declared as illegal. The 1st respondent is directed to appoint the petitioner in the vacancy, which arises as a consequence of the declaration made above. The 1st respondent shall also offer, to the 2nd respondent, appointment to the post of Co-operative Inspector, Which WP(C)No.20286/07 :: 20 :: post the 2nd respondent was holding till she was selected and appointed as Accounts Manager. Sd/- (V.GIRI) JUDGE sk/ //true copy//