Kerala High Court
Mujeeb Rahman vs State Of Kerala on 17 December, 2004
Equivalent citations: 2005(1)KLT680
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, M.N. Krishnan
JUDGMENT K.S. Radhakrishnan, J.
1. Can the Public Service Commission meddle with the qualification laid down for the post of Higher Secondary School Teachers under the Kerala Higher Secondary Education State Service Rules, framed by the Government of Kerala in exercise of the powers conferred under Section 2(1) of the Kerala Public Services Act, 1968, is the question that has come up for consideration in these cases.
2. Government of Kerala in exercise of the powers conferred by Sub-section (1) of Section 2 of the Kerala Public Services Act, 1968 have framed the Special Rules for the Kerala Higher Secondary Education State Service called "the Kerala Higher Secondary Education State Service Rules, 2001". Department of Higher Secondary Education was formed in the year 1990. Appointments to various categories of posts in the Department are being made on deputation and on provisional basis. State Government thought it necessary to prescribe qualification, method of appointments etc. to the various posts coming under the Department so as to make regular appointments. It was under such circumstances Special Rules were framed. The Higher Secondary Education State Service consists of two categories; Principal of Higher Secondary School and Higher Secondary School Teachers on various subjects. Rule 3 of the Rules deals with appointments to various categories of which we are concerned in these cases only with Higher Secondary School Teacher, which, as per the method of appointment, has to be made by transfer from Higher Secondary School Teacher (Junior) in the subject concerned and in the absence of qualified hands under Clause (1), vacancies shall be apportioned in the ratio of 1:3 between appointment by transfer and direct recruitment. Sub-rule (3) of Rule3 stipulates that direct recruitment shall be made on Statewise basis by the Kerala Public Service Commission. Rule 4 stipulates that the appointing authority in respect of category 2, Higher Secondary School teachers, shall be the Director of Higher Secondary Education. Rule 5 stipulates the qualification for appointment to various categories including the post of Higher Secondary School Teacher. For easy reference we may refer to the relevant qualifications laid down in Rule 5.
5. Qualifications.-- No person shall be eligible for appointment to the category mentioned in column (2) in the Table below under methods specified in column (3) unless he possesses the qualification prescribed in the corresponding entry in column (4) thereof.
TABLE
SI. Category Method of Qualifications
No.
XX XX XX
2. Higher Secondary By transfer (i) Master's Degree in the con-
Schools Teachers in and by direct cerned subject with not less
1. English recruitment than 50% marks from any of
2. Communicative the Universities in Kerala or
English qualification recognised
3. Malayalam as equivalent thereto in
4. Hindi the respective subject by
5. Arabic any University in Kerala.
6. Urdu (ii) (1) B.Ed, in the concerned
7. Tamil subject acquired after a regular
8. Kannada course of study from any of the
9. Sanskrit Universities in Kerala or a
39. Electronics qualification recognised as
equivalent thereto by a
University in Kerala.
(2) In the absence of persons with
B .Ed. Degree in the concerned
subject, B.Ed. Degree acquired
in the concerned Faculty as
specified in the Acts and Stat-
utes of any of the Universities
in Kerala.
(3) In the absence of persons with
B.Ed. Degree as specified in
items (1) and (2) above, persons
with B.Ed. Degree in any subject
acquired after a regular course
of study from any of the
Universities in Kerala or a
qualification recognised as
equivalent thereto by any of
the Universities in Kerala.
(iii) Must have passed the State
Eligibility Test for the post of
Higher Secondary School
Teacher conducted by Govern-
ment of Kerala or by the agency
authorised by the State Govern-
ment.
Note: 1. In the absence of B.Ed. Degree holders, candidates having Master's Degree and who have passed State Eligibility Test will be considered. Preference will be given to Ph.D. Degree or M.Phil. Degree or qualified at Junior Research Fellowship/National Eligibility Test. The teachers appointed under this provision will have to acquire B.Ed. Degree at their own expense within five years from the date of entry in service.
The Kerala Public Services Act, 1963 has conferred powers on the State Government to make rules to regulate the recruitment and conditions of service of persons appointed to public services and posts connected with the affairs of the State of Kerala. It is in exercise of that statutory power, State Government have framed the Special Rules for the Kerala State Higher Secondary Education State Service Rules, 2001. Further Article 162 of the Constitution of India also stipulates that the executive powers of the State shall extend to the matters with respect to which the Legislature of the State has power to make laws.
3. The Kerala Public Service Commission on the basis of the request made by the State Government issued a notification inviting applications from qualified hands for filling up various posts including the post of Higher Secondary School Teacher in accordance with the qualifications prescribed in the Kerala State Higher Secondary Education State Service Rules, 2001, vide Gazette notification dated 13.12.2001. Petitioners and several others applied pursuant to the said notification. Petitioners submit that they possess all the requisite qualifications as per the Special Rules as well as the notification published by the Public Service Commission.
4. Petitioner in W.P.(C) No. 13803 of 2004 possesses M.A.Degree in Political Science from the Madurai Kamaraj University by distance education (correspondence course). His application was rejected by the Public Service Commission by memo dated 7.4.2004 stating that those applicants who have got M.A. Degree through correspondence course would not satisfy the requisite qualification laid down in the Special Rules. It is the stand taken by the Public Service Commission in respect of other petitioners also who have applied for the post in various other subjects. The stand of the Public Service Commission is that unless the applicants possess M.A. Degree after undergoing regular course of study, their applications cannot be entertained.
5. In the counter affidavit filed by the Public Service Commission they have made the stand more clear. According to it, degree acquired through distance education course and correspondence course is different and distinct from that of the degree obtained after undergoing regular course of study. Further it is also stated that Kerala Public Service Commission is a constitutional body and the duties and functions of the Commission have been laid down in Article 320 of the Constitution of India, that is, to conduct selection for appointment to the services of the State. Duty cast on the Public Service Commission is to select best suitable candidate to the post. Further it is stated, under the Kerala Public Service Commission Rules of Procedure, Commission can conduct all or any one or more of the examinations stated in Rule 3 to assess the merits of the candidates. Commission is also empowered to decide the manner in which a selection is to be finalised, as per Rule 11. As per Rule 11, Commission has to decide as to whether a candidate possess the prescribed qualification for the post and any other matter incidental to the selection. Further it is also pointed out while deciding the zone of consideration and mode of selection, several factors like qualifications prescribed, the nature of degree obtained by the candidates, duties attached to the post, the number of candidates in the fray etc. are very relevant and therefore the Commission is entitled to restrict the zone of consideration based on the nature of degree obtained by the candidate in relation to the post for which selection is conducted.
6. Writ petitioners took up the stand that the rule making authority has not made any distinction between persons who have acquired M.A.Degree after undergoing regular course of study and those who have acquired the M.A. Degree after undergoing course of study through distance education or correspondence course. Counsel submitted wherever rule making authority thought that the degree obtained must be through regular course of study the same has to be specified in the rules. Counsel referred to B.Ed. Degree which has to be acquired through regular course of study unlike M.A. Degree where there is no such stipulation. Counsel submitted that the only stipulation is that Master's Degree obtained by the candidate must be recognised by any of the Universities in the State of Kerala. Petitioners satisfy those conditions and therefore, counsel submitted that, there is no justification in rejecting their application overlooking the statutory rules. Petitioners have produced eligibility certificate from the University certifying that the Master's Degree obtained by them from various Universities have been recognised as equivalent qualification in the respective subject by the Universities in Kerala.
Rule making authority in their wisdom, has not made any distinction between Master's Degree obtained through correspondence course and the one acquired through regular course of study. Similar issue arose when the recruitment was made to the post of High School Assistant. Public Service Commission noticed that several persons who have acquired the degree through correspondence course had applied for the post of High School Assistant. Commission then addressed a letter to the State Government to clarify whether candidates who have applied to the post of High School Assistant having the qualification acquired through distance educational course or correspondence course are eligible for holding the post. Request was also made by the P.S.C to the Government to amend the qualification of the teaching post so as to make ineligible the degrees which are obtained through distance education system without undergoing the stipulated regular course of study. Government at that time accepted the request of the P.S.C. and passed an order on 6.11.2002 stating that the qualification obtained through regular course of study alone shall be considered for appointment to the post of High School Assistant, Government later rescinded the said order, vide G.O. (P) No. 406/02/G.Edn. dated 13.12.2002. Rule making authority therefore made no distinction between the degree obtained by correspondence course as well as through regular course so far as appointment to the post of High School Assistants are concerned. Rule making authority, it is seen, has taken the same stand for the post of Higher Secondary School Teacher as well. State Government have also not filed counter affidavit in these cases. Consequently they are not contradicting the stand of the writ petitioners that Master's Degree obtained by candidates through correspondence course if it is recognised by any of the Universities in Kerala would be sufficient qualification for the post of Higher Secondary School Teachers.
7. Public Service Commission is a constitutional body that is all the more the reason that they should function within the four corners of the Constitution and the laws. Constitutional body like Public Service Commission shall abide by the rules and regulations and the Special Rules made by the State Government in exercise of the statutory powers. Article 320 of the Constitution of India deals with the functions of the Public Service Commission. Duty is cast on the Public Service Commission to conduct examination for appointment to various posts in the services of the State. Article 320(3) states that the State Service Commission shall be consulted on all matters relating to methods of recruitment to civil services and for civil posts. Under Article 225 of the Constitution power is conferred on the State Legislature to make laws. Article 246 states that the State Legislature have the powers to make laws with respect to any of the matters enumerated in List II in the Seventh Schedule to the Constitution. Further every rule made by the State Government under Section 2 of the Kerala Public Services Act has to be laid before the Legislative Assembly as provided under Section 2(2) of the said Act. Public Service Commission has got a statutory duty to follow those statutory rules approved by the Legislative Assembly.
8. Public Service Commission is bound to conduct the selection process only on the basis of the qualifications laid down by the rule making authority, a legal position well settled by catena of decisions of the Apex Court. Apex Court in Shri Durgacharan Misra v. State of Orissa (1987 (2) U.J.S.C. 657) held that Public Service Commission which has been constituted under the Rules must therefore faithfully follow the Rules and it must select candidates in accordance with the Rules and cannot prescribe additional requirements for selection either as to the eligibility or as to suitability. Apex Court in State of Punjab and Ors. v. Manjit Singh and Ors. ((2003) 11 SCC 559) held as follows:
"We feel, here lies the fallacy in the whole reasoning of the Commission. It is no doubt true that the Commission is an independent and autonomous body and has to work without influence of any authority of the Government. It is rather under duty to act independently. But at the same time the fact cannot be lost sight of that the State Government is competent to lay down the qualifications for different posts, and frame rules for the purpose or take policy decisions which may of course not be against the law."
Apex Court further held as follows:
"It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview."
Reference may also be made to another decision of the Apex Court in Inder Parkash Gupta v. State of J. & K. and Ors. ((2004) 6 SCC 786). Apex Court while dealing with the J.& K. Public Service Commission (Conduct of Business and Procedure) Rules, 1980 vis-a-vis J. & K. Medical Education (Gazetted) Services Recruitment Rules, 1979 held as follows:
"The Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Service Commission to meet the constitutional requirement for the purpose of discharging its duties under the Constitution. Appointment to service in a State must be in consonance with the constitutional provisions and in conformity with the autonomy and freedom of executive action. Section 133 of the Constitution imposes duty upon the State to conduct examination for appointment to the services of the State. The Public Service Commission is also required to be consulted on the matters enumerated under Section 133. While going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field. It may be that for certain purposes, for example, for the purpose of shortlisting, it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with the statutory rules. It cannot take any action which per se would be violative of the statutory rules or makes the same inoperative for all intent and purport. Even for the purpose of shortlisting, the Commission cannot fix any kind of cut off marks."
We are of the view, Kerala Higher Secondary Education State Service Rules, 2001 make no distinction between M.A. Degree obtained through regular course of study and through distant education. Rule only stipulates that M.A.Degree recognised as equivalent by any of the Universities in the State of Kerala. Rule making authority, Government of Kerala also have not taken a different stand and hence the Public Service Commission is bound to treat the candidates who have obtained M.A. Degree through regular course as well as those who have obtained M.A.Degree through correspondence course as equal provided those qualification has been recognised by any of the Universities in the State of Kerala. We are therefore inclined to allow all these Writ Petitions and hold that applications of the petitioners shall not be rejected for the reason that they have obtained Master's Degree through correspondence course provided those degrees have also been recognised by any of the Universities in the State of Kerala. Public Service Commission is therefore directed to entertain those applications and proceed in accordance with law.
9. Public Service Commission also has invited applications for the post of Higher Secondary School Teacher (Junior). Applications submitted by candidates like the petitioners in O.P. No. 14045 of 2003 were also not entertained for the same reason. Their applications are also liable to be considered in view of the declaration made by us.