(2013) 302 KLR 240

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:- THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

MONDAY, THE 1ST DAY OF APRIL 2013/11TH CHAITHRA 1935

W.A.No.1394 of 2012

--------------------------------------

AGAINST THE JUDGMENT IN W.P.(C).No.24914/2011-L, OF HIGH COURT OF KERALA, DATED 29-03-2012.

---------------------

APPELLANT/ PETITIONER:-

----------------------------------------

SMT.SUDHA PANNERI, PANNERI HOUSE, P.O, AROLI, KANNUR DT. - 670 566.

BY ADVS.SRI.A.MOHAMED MUSTAQUE SRI.K.R.AVINASH (KUNNATH).

RESPONDENT/ RESPONDENT:-

----------------------------------------------

THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY SECRETARY, PATTOM, TRIVANDRUM - 695 004.

BY STANDING COUNSEL SRI.P.C.SASIDHARAN.

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

Manjula Chellur, C.J. & K.Vinod Chandran, J.

----------------------------------------

W.A.No.1394 of 2012

-----------------------------------------

Dated this, the 1st day of April, 2013

Head Note:-

Kerala State and Subordinate Services Rules, 1958 - Rule 10(ab) - Legal Entity - Meaning of - The grant of recognition by Departments or autonomous bodies in which the State or the Central Government has a pervasive control cannot by itself deem the status of a "legal entity" on a proprietary concern as distinguished from its proprietor.  Merely for reason alone of a business being conducted in a name; by a sole proprietor, that alone cannot confer on the business the status of a legal entity, which normally would not be conferred with such character.

J U D G M E N T

K.Vinod Chandran,J.

The appellant is aggrieved by the action of the Kerala Public Service Commission (hereinafter referred to as "the Commission"), in not considering her experience, evidenced by Exhibit P6 Certificate, as one required under Exhibit P1 notification. 2. The appellant was an applicant to the post of Computer Assistant in the Kerala Live Stock Development Board Limited; called for by Exhibit P1 notification of the Commission. The qualifications prescribed under Exhibit P1 notification was as under:

"7. Qualifications

1. B.Sc. (Computer Science)

OR

B.A/B.Sc/B.Com degree from a recognized University with Post Graduate Diploma in computer Application from an Institution approved by Government/AICTE.

2. Typewriting English (KGTE/MGTE) Lower or its equivalent.

3. Minimum experience of three years in Computer Operation in a reputable Institution".

The appellant's claim was under the second category and the dispute is with respect to the experience required thereon. Exhibit P6 evidenced her experience as a "Programmer-cum-Faculty" in Universal Institute of Information Technology, Fort Road, Kannur-1. Finding that the experience is with a private establishment and that the declaration has not been countersigned by the Labour Officer, the appellant was refused to be considered in the rank list prepared pursuant to Exhibit P1 notification.

3. The learned counsel for the appellant before the learned Single Judge and also before us contended that the institute in which the appellant had experience was a "legal entity" as required under paragraph 21 of the General Conditions published by the Commission; which is verbatim reproduction of Rule 10(ab) of Part II of the Kerala State & Subordinate Services Rules, 1958 (for short "KS & SSR"). It is also contended that the further reason for rejection being that the Labour Officer has not countersigned; is also not sustainable, since the Inspector under the Employees' State Insurance Act is an officer designated as Social Security Officer having powers of inspection of relevant material relating to employment of a person in an establishment and the establishment; by the said statute is enjoined upon to maintain certain books of accounts which, inter alia, is subject to verification by the Inspector appointed under the Act.

4. The learned counsel for the Commission, however, maintains that a threadbare analysis of the term "legal entity" is not called for, since this Court is exercising circumscribed jurisdiction of review and the recruiting agency has to have sufficient elbow room in reasonably deciding the eligibility with respect to a candidate who has applied for public employment. The learned Standing Counsel also contends that the experience, in any event, is of a Programmer-cum-Faculty, as is evidenced by Exhibit P6, and the same cannot be equated with the job of a Computer Operator. The learned counsel for the appellant, however, would strenuously contend that the job responsibilities of a Computer Operator or equation thereof to the experience acquired by the appellant was not a reason for rejection by the Commission.

5. We would first look at the question whether the institute in which the appellant is said to have acquired experience, is one which comes within the General Conditions relating to the employment aspired to by the appellant. We extract hereunder Rule 10(ab) of Part II of KS & SSR:

"R.10(ab) Where the Special Rules or Recruitment Rules for a post in any service prescribe qualification of experience, it shall, unless otherwise specified, be one gained by persons on temporary or regular appointment in capacities other than paid or unpaid apprentices, trainees and Casual Labourers in Central or State Government Service or in Public Sector Undertaking or Registered Private Sector Undertaking, after acquiring the basic qualification prescribed for the post. Provided that the experience gained as factory workers on daily wages of a permanent nature may be accepted, if the service is continuous and not of a casual nature.

Explanation.- For the purpose of this sub-rule, 'Registered Private Sector Undertaking' means.-

(i) Co-operative Societies registered under the Kerala Co-operative Societies Act, 1969, Societies Registered under the Societies Registration Act, 1860 or the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 or Companies registered under the Companies Act, 1956 or any Institution, firm or company which has a legal entity under any law for the time being in force;

(ii) xxx

(iii) xxx".

The contention of the appellant is that the Institute in which the appellant worked comes within the scope of "any Institution, firm or company which has a legal entity under any law for the time being in force". The learned counsel would take us through a judgment of this Court reported in Ittiavira Thomas v. Sankaranarayanan [AIR 1964 Kerala 144] and that of the Supreme Court in Shiromani Gurdwara Prabandhak Committee v. Som Nath Dass [(2000) 4 SCC 146], to contend that the aforementioned Institute is a "legal entity". To buttress his contention, the learned counsel also points to Exhibits P8 and P9, by which the said Institute has been permitted to conduct courses by an autonomous body as also the Regional Directorate of Technical Education, Kozhikode, the latter of which is a Directorate functioning under the Government of Kerala.

6. We are afraid that none of these certificates can lead to a conclusion that the Institute has the status of "a legal entity under any law for the time being in force". The society which has issued Exhibit P8 is an autonomous body of the Department of Information Technology, Government of India, which conducts computer courses and has, by the said letter, granted accreditation to the courses conducted by the Institute aforesaid for a period of three years. Similarly, Exhibit P9 is a recognition for the academic year 2006-2008 to conduct K.G.C.E. Courses. Admittedly the institute is not a Corporate body; nor a firm and is merely a proprietory concern. The grant of recognition by Departments or autonomous bodies in which the State or the Central Government has a pervasive control cannot by itself deem the status of a "legal entity" on a proprietary concern as distinguished from its proprietor. The corollary drawn by the learned counsel for the appellant regarding the status of a school under the Kerala Education Act, 1958, we notice, cannot be countenanced, since a school recognized under the Kerala Education Rules has a status conferred by statute/statutory Rules, which is absent in the above case. The accreditation or recognition granted by the executive Government cannot confer a status in law; unless otherwise than by statutory force.

7. Ittiavira Thomas (supra) considered the issue whether a joint Hindu family is like a Corporation, a legal person; an altogether different person from the natural persons composing it. Distinguishing the words "entity" and "persons", which the learned Judge noticed have often been mistakenly used as synonymous terms, the Court found:

"... a legal entity means only a thing recognized by the law as real in itself and distinct from its qualities and attributes, and, while every legal person is necessarily a legal entity, the converse is not true".

It was also held so in paragraph 10:

"But, it seems to me that the true position is that a joint family is a group of persons, the membership of which, and the manner in which the members whereof hold joint property and joint rights, are regulated by law. It is a concept or institution which is a creature of the law and not of act of parties (though act of parties can put an end to it) and that is why it is called a legal entity.

Property and other rights are jointly held by all the members of the family and, surely, those rights cannot disappear by reason of an arrangement between the members whereby certain rights are thereafter to be held by one or more of the members to the exclusion of the rest. The right to avoid an alienation made by a manager is a right which inheres personally in each individual member of a joint family although he must exercise it not for himself alone but for the benefit of all, and, if a partition, any particular right is not the subject matter of allotment, it seems to me that it must still belong to all the members of the original joint family, whether as tenants-in-common or as co-parceners is a matter of no consequence".

We cannot understand the Institute in the present case to be a 'concept or institution which is a creature of law', as has been found in the above cited case, to necessarily confer the character of a 'legal entity' on it. Merely for reason alone of a business being conducted in a name; by a sole proprietor, that alone cannot confer on the business the status of a legal entity, which normally would not be conferred with such character.

8. Shiromani Gurdwara Prabandhak Committee (supra) was a case in which the meaning and concept of "juristic person" was elaborately considered to resolve the dispute whether "Guru Granth Sahib" installed in a Gurdwara has a separate juristic personalty from Gurdwara. Though the issue resolved may not be of any import in the instant case, the reiteration of well settled principles based on the authorities on jurisprudence in paragraph 19 is relevant:

"19. Thus, it is well settled and confirmed by the authorities on jurisprudence and courts of various countries that for a bigger thrust of socio-political-scientific development evolution of a fictional personality to be a juristic person became inevitable. This may be any entity, living, inanimate, object or thing. It may be a religious institution or any such useful unit which may impel the courts to recognise it. This recognition is for subserving the needs and faith of the society. A juristic person, like any other natural person is in law also conferred with rights and obligations and is dealt within accordance with law. In other words, the entity acts like a natural person but only through a designated person, whose acts are processed within the ambit of law. When an idol was recognised as a juristic person, it was known it could not act by itself. As in the case of a minor a guardian is appointed, so in the case of an idol, a Shebait or manager is appointed to act on its behalf. In that sense, relation between an idol and Shebait is akin to that of a minor and a guardian. As a minor cannot express himself, so the idol, but like a guardian, the Shebait and manager have limitations under which they have to act. Similarly, where there is any endowment for a charitable purpose it can create institutions like a church, hospital, gurdwara etc. The entrustment of an endowed fund for a purpose can only be used by the person so entrusted for that purpose inasmuch as he receives it for that purpose alone in trust. When the donor endows for an idol or for a mosque or for any institution, it necessitates the creation of a juristic person. The law also circumscribes the rights of any person receiving such entrustment to use it only for the purpose of such a juristic person. The endowment may be given for various purposes, may be for a church, idol, gurdwara or such other things that the human faculty may conceive of, out of faith and conscience but it gains the status of a juristic person when it is recognised by the society as such".

The conferment of a juristic personality or a status of a legal entity have often been extended, as noticed herein, to subserve public needs to cater to public law requirements and in the larger public interest. We do not find any such interest in treating the Institute aforesaid as a "legal entity" or a "juristic person".

9. Having found that the institute in which the appellant is said to have acquired experience is not one conferred with the status of "legal entity" under any law for the time being in force, we are of the definite opinion that the judgment of the learned Single Judge is not liable to be interfered with. We, hence, do not go into the other grounds raised either by the Commission or by the appellant herein.

The Writ Appeal is, accordingly, dismissed. No costs.

Sd/- Manjula Chellur, Chief Justice

Sd/- K.Vinod Chandran, Judge.

vku/- ( true copy )