JUDGMENT

[ WA.1859/2019, WA.1905/2019 ]

Dated this the 11th day of January 2021 Gopinath, J These appeals arise out of the judgment of a learned single judge of this Court in W.P(C). No. 27396 of 2017. The Writ Petition was filed challenging a selection conducted by the LBS Centre for Science and Technology (LBS for short) to the post of programmers. The writ petitioners contended that they were also fully eligible and entitled to be considered for selection and that they had been wrongly excluded from the process of selection. On a consideration of the matter, the learned single judge has set aside the select list (Ext.P.7) and has directed that a fresh selection shall be conducted treating the Writ petitioners also as being fully qualified for consideration. Aggrieved by the directions issued by the learned single judge, the LBS has preferred Writ appeal 1905 of 2019 while the 8th the respondent in the Writ petition (one of the selected candidates) has preferred Writ appeal 1859 of 2019.

2. The facts may be briefly noticed. The qualifications for the post of programmer in the LBS is as follows:-

“Category : Programmer Scale of pay : 1640-6-2600-75-2900 Qualifications : 1st Class MCA Degree.

Or I Class PGDCA/PGDCE and three years experience or I class Post Diploma in Computer Application with four years experience as Computer Programmer.

Method of Appointment : By selection from qualified Instructors and Lab Assistants with 3 years and 5 years experience respectively.

Or By direct recruitment.”

On 7.12.2016, a selection committee was convened to select candidates for 4 posts of programmers which are stated to have arisen on 22.10.2001, 30.9.2012, 31.5.2015 and 7.12.2016. The committee noticed that there was some ambiguity in the Rules and decided to seek a clarification from the Government of Kerala. Following the receipt of the clarification, the selection committee conducted the selection and excluded the Writ petitioners on the ground that they had acquired the qualification of first- class MCA degree only on 21.4.2017 and therefore did not have the required experience in the feeder categories after the acquisition of qualification. The committee was of the opinion that the provisions of Rule 10(ab) of Part-II of the Kerala State & Subordinate Service Rules, 1958 was attracted and therefore that the experience must be one gained after acquisition of the qualification. On an interpretation of the Rules, the learned single judge has concluded as follows: -

(i) A first-class MCA degree holder need not have any experience as per the Rules. A first-class PGDCA/PGDCE should have 3 years’ experience as a computer programmer and a first-class post- diploma in computer application must have 4 years’ experience as a computer programmer;

(ii) Though the Rules prescribe the experience as one required in the post of computer programmer there is no post of computer programmer in the LBS and that this anomaly was noted by the selection committee prompting the request for clarification from the Government of Kerala;

(iii) That the Writ petitioners were excluded on the basis though

they acquired the qualification of first-class MCA on 21.4.2017, they do not have the requisite experience after the acquisition of qualification by applying Rule 10(ab) of Part-II of the Kerala State & Subordinate Service Rules, 1958 (The KS&SSR) and that the application of Rule 10(ab) of the KS&SSR was not called for as those Rules do not apply to the LBS;

(iv) On an application of the law laid down by the Supreme Court in Shailendra Dania v. S.P. Dubey, (2007) 5 SCC 535 & in K.K. Dixit v. Rajasthan Housing Board, (2015) 1 SCC 474, in considering the question as to whether the experience must be one gained after acquisition of the qualification or not has to be determined with reference to the scheme of the respective Rules and with reference to the question as to whether the distinction between persons holding different qualifications such as degree/diploma has been mai