The petitioner, who was an applicant to the post of Technical Assistant Grade II in terms of the notification dated 24/07/2010 issued by the 1st respondent University, challenges Ext.P5 rank list inter alia contending that his service for a long period comprising of nine years was not taken into account by the Selection Committee. It is contended that his service on daily wage basis as Technical Assistant ought to have been reckoned and sufficient marks should have been given to him during interview. Having not done so, the selection is bad in law.
2. Counter affidavit has been filed by respondents 1 to 4 inter alia stating that petitioner, though was engaged as daily wage Technical Assistant from 26/09/2001 to 19/09/2003, his actual engagement was for 504 days in six different spells with sufficient break between each spell of engagement. His further engagement in Department of Computer Application on daily wages was from 12/01/2004 to 26/09/2006. His actual engagement was for 615 days in six different spells with sufficient break. It is therefore contended that a scrutiny of Ext.P4 series experience certificate reveals that the experience acquired by the petitioner was not continuous and was broken. His actual engagement was for lesser period and the contention that he is having nine years experience was absolutely baseless. It is further stated that the interview was conducted on 12/11/2012, the recommendation of the selection committee was put up for approval on 15/11/2012, the Vice Chancellor approved the same on 17/11/2012 and the rank list was published on 19/11/2012. In regard to the 1st rank holder Smt.M.Dhanya, the 5th respondent herein, it was mentioned that she is not only a Diploma holder in Computer Science but also a first class degree holder and she is studying for MCA as well.
3. Counter affidavit is filed by the 5th respondent inter alia contending that she had the required qualification and experience for being considered for appointment. As far as the petitioner is considered, he was working as Technical Assistant in the School of Engineering on daily wage basis from 26/09/2001 to 19/09/2003, as Technical Assistant Grade II on daily wage basis in the Department of Computer Application from 12/01/2004 to 26/09/2006 and as Technical Assistant Grade I on contract basis from 07/2/2009 to 08/05/2012 in the 1st respondent University. The contract appointment was made after due selection process and therefore the said service alone is considered for the purpose of experience.
4. Reply affidavit has been filed along with certain documents as Ext.P6 to P8(a). In the reply affidavit, it is contended that his experience as Technical Assistant is continuous and without break in view of the number of working days in every year. Further it is contended that the 5th respondent was engaged on contract basis in the Department of Computer Science for a period from 11/06/2007 to 10/06/2008, thereafter for a period of six months from 02/07/2008 to 01/01/2009, thereafter from 25/02/2009 to 24/02/2010 and thereafter from 01/03/2010 to 31/08/2010. It is contended that even though the service was on contract basis it was not continuous and regular. Petitioner refers to an interview held in 2009 for contract appointment wherein his experience during daily wages has been considered. The 2nd rank holder was impleaded as additional 6th respondent, who filed counter affidavit inter alia contending that petitioner is not entitled to challenge the rank list.
5. During the pendency of this writ petition, this Court, by order dated 14/01/2003, requested the learned Standing Counsel for 1st respondent to make available the minutes of the Selection Committee and the relevant files containing the marks awarded to the various candidates in the interview held on 12/11/2012. Pursuant to the said order, learned Standing Counsel has produced the proceedings of the said records in a sealed cover. During the course of hearing, I permitted the learned counsel appearing on either side to verify the recommendations of the Selection Committee and also the marks awarded to each candidate which were produced by the 1st respondent in the sealed cover.
6. After perusal of the aforesaid documents and the pleadings of parties, the learned counsel for the petitioner contended that the rank list is required to be set aside mainly for four reasons. The first reason is that petitioner's nine years experience was not counted and appropriate marks has not been given for the same. Second is that the 5th respondent has been given additional 7.5 marks for additional qualification which is not contemplated as per the notification and was not warranted under the circumstances. Third is that the 5th respondent did not acquire 3 years experience as on the date of notification. Fourth reason is that the 6th respondent is not having the requisite qualification as he did not have experience in a computer lab. Therefore the argument is that the entire rank list is to be set aside.
7. Heard learned counsel for the petitioner and the learned counsel for respondents 1 to 3 and the learned counsel for respondents 5 and 6.
8. The learned counsel for the petitioner places reliance upon the following judgments:
i) A Full Bench judgment of this Court in Dr.Syril Johnson v. State of Kerala and Others [2009(4) KHC 404 (FB)]. That was a case in which selection was to the post of Controller of Examinations in the Kerala University. The Selection Committee evolved its own norms to conduct the selection. The Full Bench held that a Selection Committee, which has been statutorily constituted, should follow the norms for ascertaining the merits of rival candidates if such norms are laid down in the Statute and the Selection Committee cannot relax any of the norms or vary the same. If norms are not provided, then it is open to the appointing authority to lay down instructions and guidelines providing for such norms, in which event, the Selection Committee is bound to follow such administrative instructions in conducting selection. In cases where there are no such norms, the Selection Committee cannot evolve its own norms for conducting selection. The above judgment does not apply to the factual situation in this case as no material is placed on record to contend that there is violation of any norms either prescribed by the Statute or by way of administrative guidelines.
ii) Khagesh Kumar and Others. v. Inspector General of Registration and Others [1995 Suppl (4) SCC 182]. In that case, the Supreme Court had occasion to consider whether the experience of daily wage employee can be taken into consideration and whether they can be given any preference in that regard. It was held in the light of the judgment in Bhagwati Prasad v. Delhi State Mineral Development Corporation [(1990) 1 SCC 361) that for computing three years' period of continuous service for the purpose of Regularization Rules, the period of break in service which was longer than three months has to be excluded and only the period during which the petitioners actually worked can be counted. This is so, even in cases where such persons are employed on daily wage basis. The finding is that during the process of selection weightage has to be given for their experience as Registration clerks who had worked on daily wage basis. It is therefore the argument that even though the petitioner was working on daily wage basis, appropriate weightage should have been given and additional marks would have put the petitioner in a better ranking position.
iii) Secretary, A.P.Public Service Commission v.
Y.V.V.R.Srinivasulu and Others [(2003) 5 SCC 341]. In that case, the question considered was when a selection made on the basis of merit assessed through competitive examination and interview, whether preference can be given for additional qualification. It was held by the Supreme Court that preference in such competitive scheme of selection would only mean that other things being qualitatively or quantitatively equal, those with the additional qualification have to be preferred.
9. In the writ petition, the petitioner has only raised one specific ground that his experience has not been taken note of by the Selection Committee and appropriate marks has not been awarded to him. The Learned counsel for the respondents argued that other than the contention regarding not awarding marks for his experience as daily wage employee, no other contention was raised at the time of filing the writ petition. Therefore, the contentions urged at the time of hearing need not be considered by this Court. True that the petitioner had not raised the contention regarding additional marks given to the 5th respondent for her experience, nor had expressed any doubt regarding the qualification of the 6th respondent. But he has a contention that the rank list has been prepared in an unfair manner. When this Court had called upon the respondents to produce the mark sheet and if it is seen that the decision is arbitrary, this Court cannot shut its eyes and permit an illegality to be perpetuated. Hence I am of the view that all the contentions urged by the petitioner has to be heard and decided in this writ petition.
10. Perusal of the mark sheet would show that the total marks awarded to the petitioner is 46.08. The detailed marks would show that he was awarded 32.75 marks for qualification, 1.33 marks for experience and 12 marks for interview. Therefore, his experience is already taken note of and 1.33 marks has been awarded. But the argument is that the experience he had in terms of Ext.P4 series was not considered. The Selection Committee has adopted the procedure for awarding marks for experience which is shown as two marks per year upto maximum of 15 marks. The qualification prescribed for the post as evident from Ext.P2 is first class Diploma in Computer Science and three years experience in respective Laboratories of Engineering Colleges/Universities. Petitioner relies upon Ext.P4 series to prove his experience. Ext.P4 shows that he was working as Technical Assistant in the Computer Engineering Lab on daily wages from 26/09/2001 to 19/09/2003 with certain broken periods. Ext.P4(a) is issued by the Department of Computer Applications certifying that he was engaged as daily wages for certain broken periods from 12/01/2004 to 26/09/2006. Ext.P4(b) would show that he had worked as a Lab Instructor Grade II in the Federal Institute of Science and Technology (FISAT) from 01/12/2006 to 07/02/2009. Ext.P4(c) is a certificate issued by the CUSAT Department of Computer Science certifying that the petitioner has worked as Technical Assistant Grade II on temporary basis in the Computer Centre from 13/06/2005 to 22/07/2005. Ext.P4(d) is another certificate issued by CUSAT certifying that the petitioner was working on contract basis from 07/02/2009 to 6/2/2011 and 09/02/2011 to 08/02/2012. On this basis, it is contended that apart from having three years experience, the petitioner had also the experience for having worked for more than six years which was not counted or evaluated properly. The argument is that even if the petitioner was working on daily wage basis upto 26/09/2006, the same also should have been considered as an experience and appropriate marks awarded by the Selection Committee. Having not done so, it amounts to improper preparation of the rank list. Apparently, his claim for experience of nine years after excluding three years minimum service for qualifying is not considered. The other three candidates were also given certain marks. If the Selection Committee has followed a certain criteria and followed the same in respect of all the candidates, it may not be possible to say that there is arbitrariness in the action of the Selection Committee. Ext.P4 series would show that the petitioner had worked on daily wage basis. No doubt, in the judgment in Khagesh Kumar's case (supra) daily wage employment was also considered for giving weightage. The same depends upon the facts and circumstances of each case. If the Selection Committee felt that since the petitioner has broken period of service during a substantially long period and has decided to grant him only 1.33 marks, this Court cannot sit in judicial review over the same and come to a different finding. According to the petitioner, he should have been given 10 marks and if so, the marks obtained by him would have been enough to make him the first rank holder. It is borne out from the marks given that the 5th respondent was not given any marks for experience whereas four candidates were given marks ranging from 1.16 to 4. Since the Selection Committee had given marks based on the experience of each candidate, it is not open for this Court to exercise the power of judicial review and decide otherwise.
11. The next contention is with reference to the preference given to the 5th respondent for her additional qualification. It is seen that the Committee had decided to give 7.5 marks for Degree in Science/Technology and certain percentage for Post Graduate Degree in Science and Technology. Such an approach of giving marks for additional qualification has tilted the marks given to the 5th respondent when compared to the marks given to the other respondents. The award of such marks is virtually against the principle of law laid down by the Supreme Court in Y.V.V.R.Srinivasulu's case (supra). This, according to me, is clearly arbitrary and illegal. Additional qualification can be verified only if other things are equal. If several candidates have the same marks, additional qualification obtained by the candidates can be a criteria for preferring one candidate. No marks can be granted for additional qualification as it will tilt the total marks as evident from the marks obtained by each candidate. Therefore I am of the view that Ext.P5 is liable to be interfered with on the ground of having given 7.5 marks to the 5th respondent under the head additional qualification.
12. The next argument is that in the present case, 31/08/2010 was the last date of application. Notification was published on 24/07/2010. The 5th respondent did not have the experience as on the date of the notification and at best she could have completed three years experience only on 31/08/2010. She had produced a certificate issued by CUSAT on 22/09/2010 which apparently was not produced at the time when the application was submitted. When she had completed three years only as on 31/08/2010, she was not eligible and did not have the three years experience. But it is relevant to note that the 5th respondent had service on contract basis from 11/06/2007 to 31/08/2010 with short breaks. Therefore she would have acquired the three years experience even on the date of notification. Reliance is placed on Rajasthan Public Service Commission v. Kaila Kumar Paliwal and Another [(2007) 10 SCC 260]. This judgment is relied upon to emphasise the proposition that the eligibility condition with reference to qualification and experience has to be possessed on the date of issuance of notification or as specified in the rules. In the light of the factual finding aforesaid, I do not think that this judgment can be made applicable to the facts of this case.
13. Coming to the next argument of the learned counsel for the petitioner that the 6th respondent was not working in a computer lab, first of all no such contention is raised and secondly there is no material to come to the conclusion that he did not have the experience in a computer science lab. The experience required is “three years experience in respective laboratories of Engineering Colleges/Universities.” If the Selection Committee finds that the experience certificate produced by the 6th respondent is sufficient, there is no reason to interfere with the same.
14. Having regard to the aforesaid findings, I am of the view that Ext.P5 is liable to be interfered with. Hence this writ petition is allowed as under:
(i) The marks given to the 5th respondent towards additional qualification shall be deleted and the rank list finalised.
(ii) It shall be open for the 1st respondent to make appointments based on the modified rank list as stated above.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr