IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 12TH DAY OF APRIL 2013/22ND CHAITHRA 1935 WP(C).No. 24611 of 2011 (B ) ---------------------------- PETITIONER : -------------------------- ABDUL GAFARKHAN.A., ACCOUNTANT/HEAD CLERK, MAYYANAD REGIONAL CO-OPERATIVE BANK LTD.NO. 94, MAYYANAD, KOLLAM DISTRICT. BY ADVS.SRI.P.N.MOHANAN SRI.K.N.AJAYAN SMT.I.VINAYAKUMARI SRI.S.SHAJI RESPONDENT(S): ---------------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,(G), KOLLAM -691 001. 2. MAYYANAD REGIONAL CO-OPERATIVE BANK LTD. NO.94, REPRESENTED BY ITS SECRETARY, MAYYANAD-691 303, KOLLAM DISTRICT. *ADDL.R3 TO R6 IMPLEADED *R3: JAYASREE.C., WORKING AS SENIOR CLERK, MAYYANAD REGIONAL CO-OPERATIVE BANK LTD., MAYYANAD, KOLLAM, RESIDING AT SAPHALYAM, MADAN NADA, KOLLAM. *R4: SUMABAI.A., WORKING AS SENIOR CLERK, MAYYANAD REGIONAL CO-OPERATIVE BANK LTD., MAYYANAD, KOLLAM, RESIDING AT PALAKKATTIL VEEDU, KOTTAPPURAM, PARAVUR, KOLLAM. *R5: SUNIL LAL, WORKING AS SENIOR CLERK, MAYYANAD REGIONAL CO-OPERATIVE BANK LTD., MAYYANAD, KOLLAM, RESIDING AT GEETHA BHAVANAM, PATTATHANAM,P.O.KOLLAM. sts 2/- -2- WP(C)NO.24611/2011 *R6: SUBHAKUMAR, WORKING AS SENIOR CLERK, MAYYANAD REGIONAL CO-OPERATIVE BANK LTD., MAYYANAD, KOLLAM, RESIDING AT THANNOLIL VEEDU, AKKOLIL, KOTTIKKADA.P.O., KOLLAM. *ADDL. RESPONDENTS 3 TO 6 ARE IMPLEADED AS PER ORDER DATED 3/1/2012 IN I.A.NO.20459/2011. R1 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL R2 BY ADV. SRI.P.HARIDAS SMT.S.SIKKY ADDL.R3 TO R6 BY SRI.P.B.SURESH KUMAR,SENIOR ADVOCATE ADV. SRI.LEO GEORGE SRI.K.N.SASIDHARAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/01/2013, THE COURT ON 12/04/2013 DELIVERED THE FOLLOWING: sts WP(C)NO.24611/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 COPY OF THE FEEDER CATEGORY SUB RULES APPROVED BY THE JOINT REGISTRAR. EXT.P2 COPY OF THE MARK LIST OF B.COM DEGREE OF VMRF UNIVERSITY, DEEMED UNIVERSITY AT SALEM,TAMIL NADU. EXT.P3 COPY OF THE RELEVANT PORTION OF THE LIST OF APPROVED DEEMED UNIVERSITIES BY THE UNIVERSITY GRANTS COMMISSION INCLUDING THE V.M.R.F.,SALEM, TAMIL NADU. EXT.P4 COPY OF THE GAZETTE OF INDIA PART-1 SECTION 4 NOTIFICATION (44) EXT.P5 COPY OF THE CERTIFICATE OF EX-POST FACTO RECOGNITION OF IGNOU DATED 29.8.07. EXT.P6 COPY OF THE ORDER DATED 17.7.1965 EXT.P7 COPY OF THE JUDGMENT REPORTED IN 2009 (I) KLT 917 EXT.P8 COPY OF THE JUDGMENT REPORTED IN 2011(3) KHC. EXT.P9 COPY OF THE CADRE STRENGTH AND EXISTING VACANCIES OF THE BANK. EXT.P10 COPY OF THE JUDGMENT DATED 29/1/2010 IN WP(C)NO.2126/2010 EXT.P11 COPY OF THE ORDER DATED 17/3/2010 EXT.P12 COPY OF THE JUDGMENT DATED 24/11/2010 IN WP(C)NO.23529/10 EXT.P13 COPY OF THE RESOLUTION NO. 37 DATED 16/5/2011 EXT.P14 COPY OF THE ORDER DATED 26/8/2011 EXT.P15 COPY OF THE INTERIM ORDER DATED 14/10/2010 IN WP(C)NO.23529/2010 EXT.P16 COPY OF THE ORIGINAL OF THE FULL TEXT OF EXT.P3 AVAILABLE IN THE INTERNET EXT.P17 COPY OF THE LIST OF UNIVERSITIES APPROVED BY THE DISTANCE EDUCATION COUNCIL EXT.P18 COPY OF THE ORDER DATED 01/3/95 OF THE MINISTRY OF HUMAN RESOURCE DEVELOPMENT. sts 2/- -2- WP(C)NO.24611/2011 EXT.P19 COPY OF THE MARK LIST ISSUED BY THE UNIVERSITY. EXT.P20 COPY OF THE MIGRATION CERTIFICATE. EXT.P21 COPY OF THE ORDER DATED 2/2/2010 OF THE GOVERNMENT RESPONDENTS' EXHIBITS : EXT.R3(A) TRUE COPY OF THE RELEVANT PAGE OF THE WEB SITE OF THE UNIVERSITY GRANTS COMMISSION DATED NIL EXT.R3(B) TRUE COPY OF THE INFORMATION FURNISHED TO THE HUSBAND OF THE ADDITIONAL THIRD RESPONDENT BY THE UNIVERSITY GRANTS COMMISSION DATED 19/1/2012 EXT.R3(C) TRUE COPY OF THE PUBLIC NOTICE ISSUED BY THE UNIVERSITY GRANTS COMMISSION DATED NIL EXT.R3(D) TRUE COPY OF THE UGC REGULATIONS REGARDING THE MINIMUM STANDARDS OF INSTRUCTIONS FOR THE GRANT OF THE FIRST DEGREE THROUGH NON-FORMAL/DISTANCE EDUCATION DATED NIL EXT.R3(E) TRUE COPY OF THE INFORMATION SUBMITTED TO THE HUSBAND OF THE THIRD RESPONDENT BY THE INDIRA GANDHI NATIONAL OPEN UNIVERSITY UNDER THE RIGHT TO INFORMATION ACT DATED 30/1/2012 EXT.R3(F) TRUE COPY OF THE INFORMATION PUBLISHED BY A NEWS WEB SITE DATED 20/9/2006 EXT.R3(G) TRUE COPY OF THE COMMUNICATION ISSUED BY INDIRA GANDHI OPEN UNIVERSITY TO THE FIRST RESPONDENT DATED 15/9/2011 EXT.R3(H) TRUE COPY OF THE RECOGNITION POLICY OF DISTANCE EDUCATION COUNCIL UNDER THE INDIRA GANDHI OPEN UNIVERSITY ACT AS PUBLISHED IN THEIR WEB SITE DATED NIL. /TRUE COPY/ P.S.TO.JUDGE sts A.M.SHAFFIQUE, J. ---------------------------------------------------- W.P.(C) No. 24611 of 2011 - B --------------------------------------------------- Dated this the 12th April, 2013 J U D G M E N T
The writ petition is filed mainly seeking a declaration that the B.Com, graduation degree from Vinayaka Mission Research Foundation (VMRF) is a valid degree from a recognized University for promotion to the post of Branch Manager in the 2nd respondent Bank and that the petitioner is entitled to be promoted to the post of Branch Manager with effect from 1.7.2009.
2. Petitioner was appointed as UD clerk in the 2nd respondent Bank, a society registered under the Kerala Co-operative Societies Act (hereinafter referred to as the 'Act'). He became a Senior Clerk on 1.10.1994 and was promoted as Head W.P.(C) No. 24611 of 2011 - B
clerk/Accountant on 11.9.2006. According to the petitioner, as per the feeder category sub-rules, next promotion post from Head Clerk/Accountant is the Branch Manager/Internal Auditor. The qualification prescribed for the said post of Branch Manager/Internal Auditor as per Rule 186 of the Kerala Co-operative Societies Rules (hereinafter referred as the 'Rules') is graduation from a recognized University with JDC or HDC and the employee concerned completing two years in the feeder category for promotion. Ext.P1 is the feeder category sub rules. According to the petitioner, he obtained B.Com. degree under the Distance Education Programme. He joined for B.Com degree in the University of Technology and Science, Raipur during the academic year 2002-2003 and then W.P.(C) No. 24611 of 2011 - B
migrated to VMRF University, Salem and passed B.Com degree in August 2005. Ext.P2 is the said certificate. It is the case of the petitioner that the post of Branch Manager/Internal Auditor became vacant in the Bank with effect from 1.7.2009 and no one is appointed to the said post so far. The petitioner though qualified was not given the promotion. Petitioner submitted various representations to the second respondent but no action was taken in the matter. Ultimately, he had approached this Court by filing W.P.(C) No.2126/2010 and by Ext.P10 judgment dated 29.1.2010 the Joint Registrar of Co-operative Societies was directed to consider the representation of the petitioner. By Ext.P11, the Joint Registrar rejected the request of the W.P.(C) No. 24611 of 2011 - B
petitioner. It is observed that the petitioner's degree is not from a recognized University and that no materials were produced to prove the same. Petitioner again approached this Court by filing W.P. (C) No.23529/2010 and by Ext.P12 judgment dated 24.11.2010 this Court observed that what is to be considered is, whether the degree awarded by the VMRF University under the Distant Education Programme was approved by the Distant Education Council, of Indira Gandhi National Open University (IGNOU). This court also found that even if the said degree has not been recognized by any of the Universities of Kerala, the same cannot be a reason for rejecting the claim of the petitioner.
3. Subsequently the petitioner was called for an interview for the post of Branch Manager. After W.P.(C) No. 24611 of 2011 - B
considering the certificate of the petitioner, the same was rejected as per Ext.P14 on the ground that the degree obtained from VMRF University cannot be recognized as sufficient qualification.
4. The contention of the petitioner is that VMRF University of Tamil Nadu is recognized by the Distant Education Council of IGNOU. This aspect of the matter was considered by this Court in Ext.P12 judgment and there was a direction to the Joint Registrar to verify whether the degree obtained from VMRF University has recognition of the Distant Education Council of IGNOU. No such enquiry is seen conducted despite the petitioner producing Ext.P5, a communication from IGNOU stating that all programmes of Vinayaka Mission University till 2005 was approved by the Distant Education Council W.P.(C) No. 24611 of 2011 - B
of IGNOU. Petitioner also relies upon Ext.P3, a print out from the website of UGC which indicates the list of institutions which has been declared as Deemed University under section 3 of the University Grants Commission Act, 1956 (UGC Act). Item No. 109 in the said list is the VMRF. Ext.P7 is the judgment of this Court in which there is a finding that Vinayaka Mission Deemed University is recognized by the UGC under the UGC Act. Reference is made to Ext.P6, a communication of Government of Kerala in which it is stated that other degrees and diplomas awarded by Statutory Universities established by an Act of the Central or State Legislature or by other Institutions of higher learning recognized as Universities by the Central University Grants Commission, should be recognized. It is therefore W.P.(C) No. 24611 of 2011 - B
the contention of the petitioner that he has the prescribed qualification which is not being considered.
5. Counter affidavit is filed by the 1st respondent inter alia supporting their stand. It is stated that as per the information collected by the Secretary of the Bank, Vinayaka Mission University started its Distant Education Wing only in 2007. The petitioner had not applied for leave for the study and the attendance register did not show any kind of leave being availed at the time of examination. Petitioner has not produced any document showing that the degree obtained by him is approved by IGNOU and therefore they were justified in rejecting the claim.
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6. Counter affidavit is filed by additional respondents 3 to 6. They have contended that Vinayaka Mission University is not a recognized University. They have admitted the fact that the Government of India has declared certain institutions of Vinayaka Mission as Deemed Universities as per notification dated 1st March 2001. They relied upon Ext. R3(a) information from the web site which would show the approval of various colleges under the very same notification. It is further submitted that the distance mode of education can be conducted by the Deemed University only in terms with the regulations of UGC. According to them, Vinayaka Mission, Kirupananda Variyar Arts and Science College, Salem (VMKVAS was granted Deemed University W.P.(C) No. 24611 of 2011 - B
status only with effect from 19.8.2004. Therefore according to them, the said institution can start B.Com degree programme under the distance mode only after obtaining approval from Distance Education Council and since the petitioner had joined the course during the period 2002-2003 he is not eligible for such a degree. It is further contended that Ext.P4 is not the original notification. Respondents have produced Ext. R3(g) to show the actual notification. Further it is contended that Distance Education Council under IGNOU is not authorised to issue ex post facto recognition to an institution conducting a programme under Distance mode. According to them Ext.P5 is issued without any authority of law.
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7. The petitioner had filed a reply affidavit producing Ext.P16 which is the full text of Ext.P2 available in the web site. Ext. P17 is the list of Universities approved by the Distance Education Council and Vinayaka Mission University, Salem is one among the said university. Period of approval is shown as five years from Feb 2007 and in the column whether ex post facto approval was given it is recorded as "till 2005". According to the petitioner, he had originally joined Raipur University and later migrated to Vinayaka Mission University as evident from Ext.P20. Ext.P9 is the mark list to show that he had completed the course.
8. Learned counsel for respondents 3 to 6 has placed reliance on the judgment of the Supreme W.P.(C) No. 24611 of 2011 - B
Court in Annamalai University v. Secretary to Government, Information and Tourism Department and Others (2009) 4 SCC 590). The relevant paragraphs are 42, 56, 57 and 58 which reads as under:
42. The provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by it in terms of clauses (e), (f), (g) and (h) of sub-section (1) of Section 26 are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instructions. Such minimum standards of instructions are required to be defined by UGC. The standards and the coordination of work or facilities in universities must be maintained and for that purpose required to be regulated. The powers of UGC under Sections 26(1)(f) and 26(1)(g) are very broad in nature.
Subordinate legislation as is well known when validly made W.P.(C) No. 24611 of 2011 - B
becomes part of the Act. We have noticed hereinbefore that the functions of UGC are all-pervasive in respect of the matters specified in clause (d) of sub-section (1) of Section 12-A and clauses (a) and (c) of sub-section (2) thereof.
56. Grant of relaxation cannot be presumed by necessary implication only because UGC did not perform its duties. Regulation 2 of the 1985 Regulations being imperative in character, non-compliance therewith would entail its consequences. The power of relaxation conferred on UGC being in regard to the date of implementation or for admission to the first or second degree courses or to give exemption for a specified period in regard to other clauses in the Regulations on the merit of each case do not lead to a conclusion that such relaxation can be granted automatically. The fact that exemption is required to be considered on the merit of each case is itself a pointer to show that grant of relaxation by necessary implication cannot be inferred. If mandatory provisions of the statute have not been complied with, the law will take its own course. The consequences will ensue. W.P.(C) No. 24611 of 2011 - B
57. Relaxation, in our opinion, furthermore cannot be granted in regard to the basic things necessary for conferment of a degree. When a mandatory provision of a statute has not been complied with by an administrative authority, it would be void. Such a void order cannot be validated by inaction.
58. The only point which survives for our consideration is as to whether the purported post facto approval granted to the appellant University of programmes offered through distance modes is valid. DEC may be an authority under the Act, but its orders ordinarily would only have a prospective effect. It having accepted in its letter dated 5-5-2004 that the appellant University had no jurisdiction to confer such degrees, in our opinion, could not have validated an invalid act. The degrees become invalidated in terms of the provisions of the UGC Act. When mandatory requirements have been violated in terms of the provisions of one Act, an authority under another Act could not have validated the same and that too with a retrospective effect". W.P.(C) No. 24611 of 2011 - B
9. Another judgment relied upon is Professor Yeshpal and another v. State of Chhatthisgarh and Others (2005 5 SCC 420). The relevant paragraphs are 64 and 65 which reads as under:
64. As a consequence of the discussion made and the findings recorded that the provisions of Sections 5 and 6 of the Act are ultra vires and the gazette notifications notifying the universities are liable to be quashed, all such universities shall cease to exist. Shri Amarendera Sharan, learned Additional Solicitor General has submitted that UGC had conducted an inquiry and it was found that most of the universities were non-existent, but the report was not placed before the Court as the complete exercise had not been done. Learned counsel for the universities have seriously disputed this fact and have submitted that the universities are functioning. We have not gone into this question as it is purely factual. In order to protect the interests of the students who may be actually studying in the institutions established by such private universities, it is W.P.(C) No. 24611 of 2011 - B
directed that the State Government may take appropriate measures to have such institutions affiliated to the already existing State universities in Chhattisgarh. We are issuing this direction keeping in mind the interest of the students and also Sections 33 and 34 of the Act, which contemplate dissolution of the sponsoring body and liquidation of a university whereunder responsibility has to be assumed by the State Government. It is, however, made clear that the benefit of affiliation of an institution shall be extended only if it fulfils the requisite norms and standards laid down for such purpose and not to every kind of institution. Regarding technical, medical or dental colleges, etc. affiliation may be accorded if they have been established after fulfilling the prescribed criteria laid down by All India Council of Technical Education, Medical Council of India, Dental Council of India or any other statutory authority and with their approval or sanction as prescribed by law.
65. In view of the discussions made above, Writ Petition (C) No. 19 of 2004 (Prof. Yashpal v. State of Chhattisgarh) and Writ Petition (C) No. 565 of 2003 (Gopalji Agarwal W.P.(C) No. 24611 of 2011 - B
v. Union of India) are allowed and provisions of Sections 5 and 6 of the Chhattisgarh Niji Kshetra Vishwavidhyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 are declared to be ultra vires and are struck down. As a consequence of such declaration, all notifications issued by the State Government in the gazette in the purported exercise of power under Section 5 of the aforesaid Act notifying the universities (including Respondents 3 to 94) are quashed and such universities shall cease to exist. If any institutions have been established by such universities, steps may be taken for their affiliation to already existing State universities in accordance with the direction contained in para 64 above. Parties would be at liberty to approach the High Court if any dispute arises in implementation of this direction. All writ petitions, civil appeals and transferred cases filed by the private universities are dismissed".
10. Another judgment relied upon is Shirish Govind Prabhudesai v. State of Maharashtra (1993) 1 SCC 211). Reliance is placed on para 7 W.P.(C) No. 24611 of 2011 - B
which reads as under:
7. The recommendations on Graduate Medical Education are by an expert body of the Medical Council of India which is entrusted with certain statutory functions relating to medical education by the Indian Medical Council Act, 1956. The Medical Council of India having chosen to accept these recommendations, such a condition of eligibility for migration/transfer from one medical college to another adopted by the recognised medical colleges cannot be termed unreasonable or arbitrary. The qualitative difference between the non-recognised medical colleges generally as compared to the medical colleges recognised by the Medical Council of India, the recognition being based on certain objective standards relating to medical education, and the competitive merit forming the basis for admission to a recognised medical college justify as reasonable such a restriction for grant of permission for migration/transfer from one medical college to another.
One of the purposes served by such a restriction is to permit this inter-college movement of students after W.P.(C) No. 24611 of 2011 - B
passing the first MBBS examination only between students of recognised medical colleges and to prevent indirect entry into recognised medical colleges of students who had failed initially to secure entry into a recognised medical college. Movement of students between recognised medical colleges only is quite often to facilitate the students thereof in certain circumstances without conferring on them any additional benefit after the initial entry to a medical college duly recognised. Viewed in this manner, such a condition of eligibility for migration/transfer to a recognised medical college permitting only students of recognised medical colleges is neither arbitrary nor unreasonable. There being no inherent right in a student admitted to a non-recognised medical college to claim such migration/transfer, this restriction for migration/transfer imposed by the recognised medical colleges on the basis of the recommendations adopted by the Medical Council of India, there is no foundation for the claim for such migration/transfer made by the students of non-recognised medical colleges. "
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11. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel for party respondents.
12. The short question to be considered in this writ petition is whether the degree certificate obtained by the petitioner as Ext.P2 from Vinayaka Mission University is a valid certificate enabling the petitioner to seek appointment as Branch Manager/Internal Auditor in the 2nd respondent Bank. He is not given a posting only on the ground that the Vinayaka Mission University is not a recognized University and there is no material to show that it is recognized. In fact the certificate at Ext.P2 would show that the petitioner is given a bachelor degree in Commerce. It is given under the seal of the University under Section 3 of the UGC W.P.(C) No. 24611 of 2011 - B
Act. It is further stated in the certificate that it was formerly Vinayaka Mission's Research Foundation Deemed University.
13. There cannot be any dispute that if the certificate is issued by a recognized university, the petitioner will have the necessary qualification for the promotion post. The Joint Registrar had proceeded on the basis that the graduation obtained by the petitioner cannot be accepted. He does not have a case that the certificate is not genuine. The only ground taken is that the University concerned was not recognized.
14. IGNOU had given the Vinayaka Mission University a one-time ex post facto recognition for the programmes offered under the distance mode. According to respondents 3 to 6, VMKVAS, Salem W.P.(C) No. 24611 of 2011 - B
was granted deemed University status by the UGC only w.e.f. 19.8.2004 and the said Institute can start B.com Degree Programe under distance mode only from the said date and after approval from D.E.C. That apart, it is contended that ex post facto approval if any granted by the DEC is void, as held by the Supreme Court in Annamalai University Case (supra). In the said case it is held that:
" 58. The only point which survives for our consideration is as to whether the purported post facto approval granted to the appellant University of programmes offered through distance modes is valid. DEC may be an authority under the Act, but its orders ordinarily would only have a prospective effect. It having accepted in its letter dated 5-
5-2004 that the appellant University had no jurisdiction to confer such degrees, in our opinion, could not have validated an invalid act. The degrees become invalidated in terms of the provisions of the UGC Act. When W.P.(C) No. 24611 of 2011 - B
mandatory requirements have been violated in terms of the provisions of one Act, an authority under another Act could not have validated the same and that too with a retrospective effect".
15. Having regard to the law laid down by the Supreme Court, I am of the view that the ex post facto approval alleged to have obtained by the VMKVAS College, will be invalid by operation of law and therefore a degree obtained from such a College cannot have any validity.
16. But having regard to the limited material available to conclude that the degree obtained by the petitioner is valid or not, the respondent was justified in arriving at a conclusion in terms of Ext.P14. Hence I am not inclined to interfere with Ext.P14.
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In the result the writ petition is dismissed.
rka /true copy/ W.P.(C) No. 24611 of 2011 - B - 24- in bbbbbbbbbbbbbbbbess of the certificate and
the claim made on that basis, despite directions issued by this Court, the request of the petitioner is summarily rejected. This action of the respondents is liable to be deprecated and I do so. It is evident from the documents produced that the petitioner had obtained a graduation degree by way of Distance Education Programme conducted by Vinayaka Mission University which is a recognized University under S. 3 of the UGC Act and their Distance Education Programme was also approved by the council. Such being the position, I am of the view that the petitioner is entitled to seek the promotion and his qualification is liable to be taken as a valid qualification. In the result, the writ W.P.(C) No. 24611 of 2011 - B
petition is allowed as follows:
(i) Ext.P14 is quashed.
(ii) It is declared that Ext. P2 certificate obtained by the petitioner is from a recognized University and he is eligible for promotion to the post of Branch Manager/Internal Auditor of the 2nd respondent Bank.
(iii) Orders in this regard may be passed by the respondents within a period of one month from the date of receipt of copy of this judgment.
(iv) Petitioner shall be appointed with effect from the date on which vacancy had arisen, however without any monetary benefits, until the date of actual appointment. The service from the date of notional appointment till the actual date of appointment shall be counted only for the purpose W.P.(C) No. 24611 of 2011 - B
of seniority mmmmmmmmmm A.M.SHAFFIQUE, JUDGE.