INTRODUCTION:
It is more than a decade long battle of an unemployee to secure employment in the respondent University as a Mechanic with the qualification of ITC certificate. The bone of contention is equivalency, since the qualification acquired by the petitioner is seemingly different from what was stipulated in employment notification, though the very notification contains a provision to the effect that an equivalent certificate could also be entertained. Thus, the issues essentially boil down to these twin-aspects: Who should determine the equivalency? At what stage should the certificate of equivalency be produced before the authorities? To determine these issues, I proceed to extract the facts and pleadings of the rival parties.
WPC 13723/10 2 FACTS:
2. To the extent necessary for adjudication, the facts are that the petitioner, having worked - going by the version of the petitioner - for a decade, or in the alternative - going by the version of the respondent University - for about five years, on a contract basis, applied to the post of Technician when Exhibit P1 notification was issued on 09.11.2000 by the respondent University. The whole process of recruitment was put on the back burner for about a decade. When the interviews were to be held on 21.04.2010, the petitioner, having come to know that some candidates had already received call letters, submitted Exhibits P6, P6(a) and P6(b) representations to the University authorities requesting them to consider her application, so that she could participate in the interview. Without causing any reply to those representations, the University authorities went ahead with the interviews on 21.04.2010. Evidently, the petitioner was not called for the interview. WPC 13723/10 3
3. The very next day, i.e. on 22.04.2010, the petitioner filed this writ petition assailing the action of the respondent University on various counts. I.A.No.581/2010 was filed seeking stay of all further proceedings concerning the appointments being made pursuant to the interviews held on 21.04.2010. This Court, through an order dated 06.05.2010, directed that appointments, if any, made shall be subject to the outcome of the writ petition.
4. When the respondent University joined the issue by filing a counter affidavit, initially, the petitioner filed a reply and later filed an amendment petition, which was eventually allowed by this Court. By amending the pleadings, the petitioner has laid a comprehensive challenge against the entire recruitment process, apart from impleading one of the successful candidates as additional fourth respondent.
PETITIONER'S SUBMISSIONS:
5. With this factual background, the learned counsel for the petitioner has strenuously contented that there is no WPC 13723/10 4 iota of doubt that the qualification possessed by the petitioner, namely, ITC-Mechanic (Radio and TV), as evidenced by Exhibits P2 and P3, is absolutely equivalent to the qualification notified in Exhibit P1, i.e., ITI Electronic Mechanic. The learned counsel has also submitted that in the same department, the petitioner had worked on contract basis beginning from the year 1998, intermittently though, as could be seen from Exhibit P5 series.
6. At this juncture, the submission of the learned counsel that the petitioner had worked for about a decade on contract basis was seriously disputed by the learned Standing Counsel for the respondent University, who submitted that cumulatively the entire period would not exceed five years. Be that as it may, the fact remains that the petitioner worked on a contract basis in the same department for a considerable period of time.
7. The learned counsel for the petitioner has made elaborate submissions by taking this Court through the provisions of the Cochin University of Science and WPC 13723/10 5 Technology Act, 1986 ('the Act' for brevity), which governs the respondent University. To begin with, the learned counsel for the petitioner has drawn my attention to the preamble, as well as Sections 2, 23 and 24 of the said Act.
8. The learned counsel has further submitted that the academic council of the respondent University has been cast with a statutory obligation of prescribing the equivalence of examinations, degrees, diplomas and certificates of other Universities, institutions, boards, etc., in terms of clause (f) of Section 24(ii) of the Act. The learned counsel has also placed reliance on Exhibit P10, containing the Apprenticeship Rules, 1992, which are the statutory rules framed under the Apprentices Act, 1961. Under those rules, group No.23, which concerns itself with the Electronics Trade Group, equates certificate of 'Electronics Mechanic' with that of 'Mechanic Radio & TV'.
9. The learned counsel for the petitioner has focused all his energies in driving home the point that the petitioner was initially allowed to work on a contract basis under the WPC 13723/10 6 respondent University having subjected her to due process, namely, notifying the temporary vacancy, calling for interview, selecting the suitable candidate and later, admitting her into service. At that juncture, the university authorities evidently examined the qualification of the petitioner and felt satisfied that the petitioner was suitable to work in the department concerned. As such, the University is estopped from contending that the petitioner has failed to produce the equivalency certificate, much less she did not possess the necessary qualification. According to the learned counsel, the conduct of the respondent University in insisting that the petitioner herself ought to have produced the equivalency certificate is nothing but tinkering with the recruitment rules, as have been reflected in Exhibit P1. Placing reliance on the decisions reported in Udayan v. Kerala Agro Machinery Corporation Ltd. (2011 (3) KLT 952 (FB) and Biju v. Kerala Public Service Commission (2012 (4) KLT 980), the learned counsel has stressed that the recruitment conditions cannot be changed WPC 13723/10 7 midway.
10. The learned counsel has also submitted that had the University authorities felt that the petitioner should produce an equivalency certificate, notwithstanding the fact that she worked in the same department for many years stretching across a decade, they could have communicated to her the necessity of her producing the certificate. Even otherwise, in response to Exhibit P6 series representations, the authorities could have provided the petitioner with an opportunity to make good the deficiency, if it were to be called a deficiency. Eventually, the learned counsel has stated that the authorities intended to provide employment to the additional fourth respondent and they have taken the issue of the petitioner's alleged failure to produce the equivalency certificate as an excuse. Accordingly, the learned counsel has urged this Court to set aside the selection of additional fourth respondent and further direct the respondent University to consider the case of the petitioner by letting her face the further process of WPC 13723/10 8 selection such as the interview and other stages of selection.
11. Ad hominem, the learned counsel has submitted that now the petitioner is 51 years old, and that, having waited all these years with a hope that she would be provided employment, at this stage, she has practically no hope of securing any fresh employment. The learned counsel has also drawn the attention of this Court to Exhibit P12 communication. He has tried to demonstrate that the additional fourth respondent was admitted into service even before the selection process was completed and appointment orders were issued. In further elaboration of the submission, the learned counsel has submitted that additional fourth respondent reported to duty on 18.05.2010, whereas, the Vice Chancellor approved the selection of the candidate only on 25.05.2010. Going by Exhibit P12, it is also evident that appointment order was despatched on 31.05.2010. The learned counsel for the petitioner strenuously contended that Exhibit P12 WPC 13723/10 9 communication exposes the mala fides of the University officials in making hasty efforts to provide employment to the additional fourth respondent at any cost, especially at the expense of the petitioner, who is otherwise eminently suitable for the post.
RESPONDENTS' SUBMISSIONS:
12. Per contra, the learned Standing Counsel for the respondent University has strenuously countered the submissions of the learned counsel for the petitioner. He has submitted that the respondent University has followed a uniform policy in the selection process. To bolster the said submission, the learned Standing Counsel has submitted that 83 applications were received, and out of those, 34 were rejected on various grounds. According to the learned Standing Counsel, it was incumbent on the petitioner to have produced at the relevant point of time the equivalency certificate. When faced with a question, who should issue the said certificate, the learned Standing Counsel has submitted that the petitioner could have obtained the WPC 13723/10 10 equivalency certificate from the very institute where she studied. In the alternative, nothing prevented the petitioner, contends the learned Standing Counsel, to apply even to the respondent University at the earliest point of time seeking an equivalency certificate. Once it is admitted on the face of it that the qualification possessed by the petitioner is not the one reflected in the notification, it is all the more essential that the petitioner should have produced the equivalency certificate. She ought not to have presumed things.
13. The learned Standing Counsel, referring to Exhibit R4(a), which is the instruction sheet, said to have been attached to the application issued under Exhibit P1, has submitted that under paragraph 8 of the note attached to the said instruction sheet, the University has clearly mandated that failure to produce the certificate of equivalency qualification will entail rejection of the application.
WPC 13723/10 11
14. According to the learned Standing Counsel, in the face of such an express provision, the petitioner cannot plead ignorance of those pre-conditions for acceptance of the application.
15. Repelling the contention that the University authorities have acted mala fide in providing employment to the additional fourth respondent, the learned Standing Counsel has stated that Exhibit P14 produced by the petitioner, which is the appointment order, contains a reference to advice Memo dated 17.05.2010. He has further drawn the attention of this Court to Exhibit R4(e), which is the very same memo dated 17.05.2010. According to the learned Standing Counsel, initially the memos were issued on 17.05.2010 and subsequently, on the very next day, as it turned out, the successful candidates, including the additional fourth respondent, reported for duty. Later, the formalities of approval have been completed, and as such, it cannot be contended by the petitioner that there are mala fides in the selection process. Accordingly, the learned WPC 13723/10 12 Standing Counsel has urged this Court to dismiss the writ petition.
16. The learned counsel appearing for the fourth additional respondent adopted the arguments of the learned Standing Counsel for the respondent University. He has further submitted that the fourth additional respondent has been subjected to proper selection process and has eventually been selected on merit. He has emphatically denied the allegation that the University has shown any favour to the additional fourth respondent. He has also reminded this Court that his client has already put in sufficient service in the University.
17. Heard the learned counsel for the petitioner, the learned Standing Counsel for the respondent University and the learned counsel for the fourth additional respondent, apart from perusing the record.
ISSUES:
18. The issue that falls for consideration in the present instance is whether the respondent University is WPC 13723/10 13 justified in rejecting the petitioner's application without giving an opportunity to her to cure the defect. In other words, whether the respondent University is right in not considering the petitioner's candidature for her failure to produce equivalency certificate concerning her qualification, even when the mode and manner of production of the said certificate are not specific. DISCUSSION:
19. At the outset, it is to be said that there is not much controversy on facts. Exhibit P1 notification provides, as a matter of eligibility, certain academic qualifications. With regard to those persons who do not have that specific qualification, the notification does mention that an equivalent qualification can also suffice. The issue that follows next concerns itself with who is the authority that could issue the equivalency certificate and when it should be produced.
20. According to the learned counsel for the petitioner, Exhibit P1 notification is silent on that aspect. WPC 13723/10 14 He has contended, with statutory support, that University has the necessary wherewithal and also has been statutorily obligated to provide the equivalency certificate. At any rate, his contention is that the petitioner's candidature ought not to have been rejected without affording her an opportunity to make good the deficiency, if any, concerning the production of equivalency certificate. Exhibit P10 is the extract of the Apprenticeship Rules, 1992, wherein both the qualifications, namely 'Electronics Mechanic' and 'Mechanic Radio & TV', have been equated. That apart, the petitioner did work for considerable time in the same Department of the respondent University on a contract basis. Under these circumstances was there any justification for the respondent University to summarily reject the application of the petitioner at the threshold?
21. Inequitable as the conduct of the respondent University may seem, on closer scrutiny, it reveals a different picture. At the threshold, it has to be observed that the equivalency as has been provided in Exhibit P10 is WPC 13723/10 15 altogether for a different purpose. Those rules could not have an automatic application to an autonomous body like the respondent University, more particularly as an employer selecting its workforce. The University could have as well adopted the norms or the criterion fixed in Exhibit P10, but it is entirely up to the University. As such, it cannot be said that Exhibit P10 per se dispenses with the need of submitting any equivalency certificate.
22. The second contention is that the petitioner worked in the respondent University for a considerable time. When she was taken into the University on a contract basis, she faced the due selection process, during the course of which even her qualifications are said to have been scrutinised.
23. There can be no element of doubt that it is the prerogative of the appointing authority to lay down the requisite qualifications for recruitment into the service. It is equally well established that there can be no recruitment in deviation of the published qualifications as it would WPC 13723/10 16 otherwise amount to arbitrary exercise of power and be hit by Articles 14 and 16 of the Constitution. What cannot be lost sight of is that while engaging any workforce on an ad hoc basis, which includes temporary, contractual and such other modes, the employer, at that juncture, will have sufficient leverage. Given the transient nature of the recruitment for those temporary posts, failure to have an absolute adherence to the rules may not be fatal. As such, a particular method adopted by the employer at the time of effecting ad hoc appointments could not ipso facto become the accepted mode of recruitment while going for regular recruitment.
24. It is axiomatic that once a particular procedure of recruitment is prescribed in notification, especially when it is not shown that it is out of synchronisation with the recruitment regulatory regime, it is impermissible for the appointing authority to deviate there from. Faced with this limitation, the appointing authority is required to modulate the procedure it adopts during the recruitment process. WPC 13723/10 17 Without much ado it can be said that the respondent University did prescribe certain norms for the selection process in the information sheet it has provided to the applicants along with Exhibit P1 application. Exhibit R4(a), termed as information sheet No.1, contains the general instructions to the applicants for the posts notified by the University. Paragraph 8 thereof contains the necessary instructions regarding qualifications. It has a specific reference to the production of equivalency certificate and it reads as follows:
"Failure to produce the proof of equivalency of qualification will entail rejection of her application."
25. The respondent University has contended that in compliance with the above peremptory prescription, the application of the petitioner has been rejected. It is the contention of the respondent University that it has not been obligated in terms of those instructions in Exhibit R4(a) to provide any opportunity to any applicant to cure the defect. At any rate, the respondent University was required to WPC 13723/10 18 follow a uniform process without discriminating among the candidates, which it did. As it could be seen, out of 83 applications, 34 were rejected on various grounds, and none of those 34 rejected candidates has been given any opportunity to cure the defects of whatever nature in their applications. It is not the case of the petitioner either.
26. There is any amount of justification in the respondent University's submission that it has adopted a uniform policy and has acted strictly in compliance with the recruitment instructions it is provided in Exhibit R4(a).
27. Now, it is necessary to address the issue that, the petitioner having worked earlier occasions, though on a contract basis, in the respondent University, it could have been fair for the University to have taken the qualification of the petitioner as equivalent to the one notified in Exhibit P1. It may assume importance in the back drop of the fact that the qualification possessed by the petitioner is said to have been subjected to scrutiny at that time. In the same breath, it is, however, to be observed that, in the face of the WPC 13723/10 19 instructions contained in Exhibit R4(a), especially the one extracted above from paragraph 8 thereof, it cannot be said that the University has acted capriciously or even unreasonably. When a large number of candidates have offered themselves for the posts notified, the University could not have tinkered with the process or a precondition on the premise that one of those candidates worked earlier in the University, in a different capacity though.
28. Put it in another way, the respondent University could have provided an opportunity to the petitioner to cure the defect or it could have taken the qualification as equivalent in the light of the petitioner's past experience in the Department. But, regrettably we cannot say that the University must have acted in that manner. There is, indeed, significant semantic difference between could have and must have. Unless it is an obligation, statutory or otherwise, that has been violated by the respondent University, this Court would be loathe to exercise its jurisdiction under judicial review. When it is a matter of WPC 13723/10 20 discretion and the respondent University has exercised it one way, the University's exercising it another way could have been equally acceptable, but it cannot, surely, provide a ground for this Court to interdict the action of the respondent University.
29. The learned counsel for the petitioner has placed reliance on Biju (supra) to stress the aspect that the respondent University could not afford to change the rules of the game after the game has started. Paradoxically, the learned Standing Counsel too lays emphasis on the same principle. He has emphasised that the respondent University did not want to change the rules of the game midway and for that reason treated the petitioner on a par with other candidates whose applications were found incomplete. In any event, on a perusal of the record and on appreciation of the rival submission, I am unable to persuade myself that there had been any change of the rules in the midst of the game as far as the respondent University is concerned.
WPC 13723/10 21
30. In Udayan (supra), a learned Full Bench of this Court has observed in paragraph 32 thereof that there can be no controversy that the recruiting agency like Union/ State Public Service Commission is not vested with any power to deviate from the qualifications prescribed in the notification for the purpose of recruitment. It has further held that the norms should be followed.
31. In the absence of any material to establish that the respondent University has deviated from the qualifications prescribed or deviated from the norms of selection process, it is difficult to understand how this ratio has any application to the present factual situation. CONCLUSION:
32. To sum up, this Court is of the view that the recruitment rules mandate that one has to submit the equivalency certificate along with application. The failure on the part of any applicant will entail a summary rejection of the application. Once the respondent University has followed a uniform policy in terms of the recruitment WPC 13723/10 22 regulations or instructions, the hardship to an individual, unfortunate and heart burning though, cannot be a ground to upset the selection process, which, indeed, requires much stronger reasons in a judicial review. It is, however, left open for the University to consider the case of the petitioner, who is said to be in her early 50s, to be accommodated in the respondent University in any capacity, given her past experience in the University and given her tenacious hope for more than a decade that one day she may have a judicial redressal to her issue.
In the facts and circumstances, the present writ petition is dismissed. No order as to costs.
Dama Seshadri Naidu, Judge tkv