Dismissed

Mohammed Makher.M v. Union Territory of Lakshadweep and Other

Kerala HC9 Aug 2017OP (CAT)/3661/2011

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the original petition concerning selection for a Lecturer in Hindi post. It held that mid-hearing documents showed the petitioner had only 33 months of experience, falling short of the mandatory 3 years. Thus, eligibility was negated.

What did the court decide?

Original petition dismissed as petitioner lacked mandatory teaching experience.

Mohammed Makher.M Vs Union Territory of Lakshadweep… — Service and Employment | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.

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WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939

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OP (CAT).No. 3661 of 2011 (Z)

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AGAINST THE ORDER/JUDGMENT IN OA 120/2011 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 14-10-2011

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PETITIONER:

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MOHAMMED BAKHER.M, AGED 32, S/O. P.SHAIKH KOYA, MATHIL HOUSE, ANDROTH ISLAND,, U.T. OF LAKSHADWEEP-682551.

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BY ADVS.SRI.P.K.IBRAHIM SMT.K.P.AMBIKA

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RESPONDENT(S):

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1. UNION TERRITORY OF LAKSHADWEEP, REPRESENTED BY THE ADMINISTRATOR, KAVARATTI.

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2. THE SELECTION COMMITTEE CONSTITUTED FOR

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THE POST OFLECTURER IN HINDI REPRESENTED BY, ITS CHAIRMAN, DISTRICT INSTITUTE OF EDUCATION AND TRAINING, U.T. OF LAKSHADWEEP., KAVARATTI-682555.

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3. THE SECRETARY, EDUCATION, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI.

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4. THE DIRECTOR OF EDUCATION, DEPARTMENT OF EDUCATION,UNION TERRITORY OF LAKSHADWEEP,, KAVARATTI.

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5. THE PRINCIPAL, DISTRICT INSTITUTE OF EDUCATION AND TRAINING, U.T. OF LAKSHADWEEP., KAVARATTI-682555.

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6. NOORUL HASSAN.U., UMMARODA HOUSE, KAVARATTI ISLAND, U.T. OF LAKSHDWEEP., KAVARATTI-682555.

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R,R6 BY ADV. SRI.S.ARUN RAJ R,R1-5 BY ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN R1-R5 BY ADV. SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LA

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (CAT).No. 3661 of 2011 (Z)

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APPENDIX

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PETITIONERS EXHIBITS

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EXT.P1	COPY OF THE ORIGINAL APPLICATION AS O.A. NO.120/2011 ALONG WITH ITS ANNEXURES
EXT.P2	COPY OF THE REPLY IN O.A.NO.120/2011 FILED BY THE RESPONDENTS 1 TO 5.
EXT.P3	COPY OF THE REPLY AFFIDAVIT OF THE 6TH RESPONDENT IN O.A. NO.120/2011
EXT.P4	COPY OF THE M.A. FILED BY THE PETITIONER IN O.A. NO.120/2011
EXT.P5	COPY OF THE ORDER IN O.A. NO.120/2011 DATED 14.10.2011 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL

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RESPONDENTS EXHIBITS

NIL

TRUE COPY

P.A TO JUDGE

SMM

P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.

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O.P(CAT)No.3661 of 2011

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Dated this the 9^th day of August, 2017

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JUDGMENT

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P.R. Ramachandra Menon, J.

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Applicant in O.A.No.120/2011 is before this Court, challenging the correctness and sustainability of Ext.P5 verdict passed by the Tribunal declining interference and dismissing the O.A as devoid of any merit.

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Heard the learned counsel for the petitioner, the learned Standing Counsel for the Lakshadweep Administration and the learned Counsel appearing for the sixth respondent, who is stated as the person selected pursuant to Annexure A1 notification to the post of Lecturer in Hindi.

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The sequence of grievance shows that Annexure A1 notification was issued by the Lakshadweep Administration for selection to the post of Lecturer in Hindi and such other posts way back on 23.9.2009. The

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O.P(CAT)No.3661 of 2011

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qualifications stipulated for the post as aforesaid are in the following terms.

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“Essential qualifications:

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Master's degree in Hindi 2) M.Ed preferably with specialization in elementary education, or in service/continuing education or distance education or educational extension. OR degree/diploma/certificate in teacher education (preferably elementary education) OR Degree/diploma/certificate in distance education/ continuing education/extension.”

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It was pointed out that the petitioner is having MA (Hindi), plus B.Ed in Social Studies, M.Phil in Hindi and M.A in Economics, apart from having 3 years of experience. Based on the said credentials, the petitioner also made application to the post in question. It is pointed out that the qualifications notified as per Annexure A1 notification were in conformity with the qualifications stipulated in the Recruitment Rules, copies of which have been produced as Annexure A7/A8.

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Pursuant to the selection process, the

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Lakshadweep Administration published Annexure A9

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O.P(CAT)No.3661 of 2011 3

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preliminary rank list, naming the person who has been actually selected and also showing the name of another person who was to be in the waiting list. Admittedly, the petitioner was not included therein. The sixth respondent herein had approached the Tribunal by filing O.A No.389/2010 challenging Annexure A9 selection, pointing out that the persons stated as selected did not have the requisite teaching experience of 3 years. The stand of the Lakshadweep Administration was that 3 years experience was not mandatory. The Tribunal held that, in so far as there was no dispute with regard to the qualification in the Recruitment Rules, as well as in the notification, stipulating that the three years of experience was necessary, the same could not have been tinkered by the Administration. It was accordingly, that the order under challenge was set aside and the O.A. was allowed, as borne by Annexure R6(a). The Tribunal also ordered fresh selection to be conducted in conformity with the qualifications prescribed in the Recruitment

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O.P(CAT)No.3661 of 2011

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Rules/notification.

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The verdict passed by the Tribunal was subjected to challenge before this Court, which however did not turn to be fruitful. The verdict passed by the Tribunal was affirmed by this Court as per Annexure A10, making it clear that the prescription of experience of 3 years was mandatory, which was never to be watered down. A complaint was also raised as to the eligibility of somebody else, which was not considered by the Court, holding that, since fresh selection has been ordered, the matter could be considered by the Administration. After passing Annexure A10 verdict by this Court, a fresh notification was issued by the Administration on 28.12.2010 as borne by Annexure A12. This was challenged by the sixth respondent by filing O.A.No.13/11 before the Tribunal, pointing out that, by virtue of culmination of the proceedings as per Annexure R6(A) before the Tribunal and Annexure A10 before this Court, the selection had to be confined to the applicants who had responded

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O.P(CAT)No.3661 of 2011

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pursuant to Annexure A1 notification and issuance of fresh notification was never envisaged or ordered by this Court or the Tribunal. The contention was not accepted and the O.A. was dismissed by the Tribunal, which was challenged by the sixth respondent by way of O.P(CAT) No.262/2011. After hearing both the sides, the above OP was allowed by this Court as per Annexure A13 verdict dated 19.1.2011, virtually setting aside Annexure A12 notification and ordering the exercise to be pursued confining the same to the applicants who responded to Annexure A1 notification issued in the year 2009. Proceedings were being pursued by the Department accordingly.

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Pointing out that the petitioner came across the marks awarded to him by the Administration in the earlier course of selection (virtually ignoring the B.Ed and awarding 'Nil' marks for such degree - as revealed from Annexure A11 (A) only later, when it was produced by the sixth respondent. The petitioner sent Annexure A11(b)

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O.P(CAT)No.3661 of 2011 6

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representation to the first respondent pointing that he was entitled to get the marks for the B.Ed degree in Social Studies . According to the Department, it ought to have been the particular subject concerned, and hence no marks could be awarded to the petitioner. But according to the petitioner, neither the Recruitment Rules, nor the notification specified that B.Ed degree shall be in the concerned subject; as the essential qualification mentioned therein was only 'PG degree', which alone was to be in the concerned subject and not with respect to B.Ed. It was in the circumstance, that the petitioner approached the Tribunal by filing O.A.No.120/2011 with the following prayers:

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“i) To call for the records leading to Annexure A 11(a) and quash the same in as much as the selection committee has failed to awarded marks to the applicant to his Bed degree in a highly arbitrary and discriminatory manner.

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ii) To declare that the Applicant is entitled to marks for his Bed degree and preference in selection for having M.Phil in terms of the Recruitment rule.

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Iii) To direct the respondents 1 to 5 to finalize the selection to the post of lecturer in Hindi in the District

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O.P(CAT)No.3661 of 2011

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Institute of Education and Training after making the selection strictly as per the Recruitment Rule.

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iv) pass such other order or direction as may be deemed just, fit and necessary in the facts and circumstances of the case.”

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It is also pointed out that the petitioner had produced Annexure A14(a) and A14(b) to show that promotion was being given by the Department to the post of Post Graduate Teacher, permitting change in subject and as such, the degree in B.Ed possessed by the petitioner was an adequate qualification making him eligible for selection. Reference is also made to Annexure A16 Recruitment Rules for the post and the factum of having applied for the said post by the petitioner earlier. The educational qualification for the post of Post Graduate Teacher as reflected from Annexure A16 very much recognises the B.Ed degree and hence the petitioner was awarded marks while considering for the post of Post Graduate Teacher, as discernible from Annexure A15. However, the said contention was not accepted by the

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O.P(CAT)No.3661 of 2011 8

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Tribunal holding that there was nothing wrong on the part of the Administration, who was the employer, to have insisted B.Ed degree in the 'concerned subject', though the Recruitment Rules did not specifically say so, thus giving a purposive interpretation. This made the petitioner to feel aggrieved and hence the Original Petition.

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The learned counsel for the petitioner asserted that, in so far there is no dispute with regard to the contents of Annexure A1 notification, which has been issued in confirmity with Annexure A7/A8 Recruitment Rules, which do not insist that B.Ed Degree shall be in the concerned subject, it could not have been tinkered with by the Administration by adding something more, howsoever desirable it might be, to have such an intention with reference to the particular subject.

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The learned Standing Counsel for the Lakshadweep Administration submits that the intention of the Administration is very clear and the necessity to have the B.Ed Degree in the 'concerned subject', was in the

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O.P(CAT)No.3661 of 2011 9

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best interest of the Institution and also in the interest of those to whom it was to be imparted by the persons to be

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selected by the Administration. If the same is in a different subject, the requisite extent of input cannot be obtained and hence, there is nothing wrong on the part of the Administration and as such, Ext.P5 order passed by the Tribunal is not assailable, submits the learned counsel.

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The learned Counsel for the sixth respondent also seeks to sustain Ext.P5 order passed by the Tribunal, pointing out that the petitioner had not chosen to challenge the selection and appointment of the sixth respondent in the second round, pursuant to the orders passed by this Court ie; after the verdict passed by this Court ordering the selection process to be finalized confining the same to Annexure A1 notification and the candidates responded pursuant to the said notification. The initial stand of the Administration was that, three years' experience was not mandatory, which came to be

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O.P(CAT)No.3661 of 2011 10

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changed and the Administration found the person who was originally selected as shown in Annexure A9 was not having the requisite experience of 3 years. Having found that the sixth respondent was satisfying all the requisite norms, by virtue of the qualification and experience, he was selected and appointed who is continuing in the post. The learned counsel points out that though the petitioner had made a plea in the Original Application that he was having more than 3 years of experience, the experience certificates produced as Annexures A6 and such other documents only show a total of two years and seven months of experience; which is far less than the requisite extent of three years. Reference is also made to paragraphs 6 of Ext.P5 verdict passed by the Tribunal which is reproduced below for convenience of reference:

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“6. It could be seen from Annexure A-11(2) and the Annexure A-6 experience certificates produced in the OA, the applicant possess only 31 months of teaching experience as on 23.9.2009 (the date of notification) or as on 10.10.2009 (the last date of submission of the application) i.e. 2 years and 7 months. As the applicant is

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O.P(CAT)No.3661 of 2011

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not having minimum 3 years of teaching experience as prescribed in the RR he is ineligible to apply or to be considered for the post of Lecturer (Teacher Education) Hindi as was held by Annexure R6(A) or of the Honourable CAT and Annexure A-10 judgment of the Honourable High Court. The details of the teaching experience of the applicant as evident from Annexure A-11(2) and the Annexure A-6 Experience Certificate is as follows:

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Sl	*Teaching*	*Experience*	*Month*	*Days*
*No.*	*From*	To
1	26.12.2005	31.03.2006	3	6
2	11/06/06	21.9.2006	3	11
3	28.10.2006	29.3.2007	5	2
4	02/06/07	25.3.2008	9	24
5	03/06/08	26.8.2008	2	24
6	18.10.2008	26.12.2008	2	9
7	07/01/09	13.1.2009	---	7
8	15.1.2009	08/03/09	1	22
9	02/06/09	18.8.2009	2	17
10	29.9.2009	10/10/09	---	12
		Total	27	134

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There is no case for the petitioner in the

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Original Petition, that the factual aspects noted by the Tribunal in paragraph 6 as above are wrong in any

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O.P(CAT)No.3661 of 2011

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manner. Even according to the petitioner, as contended in the Original Application, all the certificates in support of the experience claimed by him have been produced. There is no mention that, any of such certificates have been omitted to be noted by the Tribunal while extracting the factual aspects as above.

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With reference to the contents of Annexure A11, the learned Counsel for the petitioner made an attempt to contend that even according to the Department, the petitioner was having a total of 38 months of experience. In the said context, it is relevant to note that Annexure A1 notification was issued on 23.9.2009 and the last date for submission of the application was 10-10-2009. This being the position, the experience only upto the last date of application could have been considered.

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On going through the contents of Annexure A11, it is seen that the total experience is shown as '38 months', which includes the period from 29.9.2009 to 31.3.2010 as well, ie; 5 months and 11 days. Since the

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last date for submitting the application was 10-10-2009, the subsequent period after 10.10.2009 is liable to be deducted from the total of 38 months. This makes the total experience as '33 months'; which falls 3 months short of 36 months, to make it 3 years, as prescribed in Annexure A7/A8 Recruitment Rules and A1 notification. In so far as there cannot be any dispute with regard to the said factual aspect, this Court holds that the petitioner is not having the requisite experience as prescribed in the Recruitment Rules and the notification, which is a mandatory requirement as already held by this Court while passing the verdict in the earlier round of litigation. This being the position, the question with regard to the acceptance of B.Ed for awarding marks to the petitioner with reference to the contention raised by him that the Recruitment Rules/notification do not insist prescription of such qualification in the 'particular subject', need not be considered.

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No interference is warranted with regard to

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O.P(CAT)No.3661 of 2011

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Ext.P5 under any circumstance. The Original Petition fails

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and the same is dismissed accordingly.

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P.R. RAMACHANDRA MENON JUDGE

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SHIRCY.V JUDGE

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smm

Mohammed Makher.M v. Union Territory of Lakshadweep and Other

Case brief

What is this about?

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Mohammed Makher.M v. Union Territory of Lakshadweep and Other

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