Kerala High Court
A.Suma vs The Kerala Public Service Commission on 15 December, 2010
Author: J.Chelameswar
Bench: J.Chelameswar, Thomas P.Joseph, P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 3012 of 2007()
1. A.SUMA, W/O.DR.SURA SREE JATHAN,
... Petitioner
Vs
1. THE KERALA PUBLIC SERVICE COMMISSION,
... Respondent
2. THE CHIEF CHEMICAL EXAMINER,
3. STATE OF KERALA REPRESENTED BY ITS
4. INDU CHANDRAN.R., SREEKANTAVILASAM,
5. BIJU.V., CHIEF CHEMICAL EXAMINER TO
6. BIJU.D., REGIONAL CHEMICAL EXAMINER'S
For Petitioner :SMT.V.P.SEEMANDINI (SR.)
For Respondent :SRI.S.P.ARAVINDAKSHAN PILLAY
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :15/12/2010
O R D E R
J.Chelameswar, C.J.,
Thomas P.Joseph
and
P.R.Ramachandra Menon, JJ.
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W.A.No.3012 of 2007-B
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Dated, this the 15th day of December, 2010
ORDER
J.Chelameswar,C.J.
This matter is placed before the Full Bench pursuant to an order of reference dated October 13, 2010. The facts of the case are narrated in detail in the order of reference and we do not propose to reiterate them.
2. The essential facts necessary to adjudicate the question referred can be summarised as follows: The Public Service Commission of Kerala is requested to conduct a recruitment process for the post of Junior Scientific Officer by the State of Kerala. The said post is created under the Kerala Chemical Examiner's Laboratory Service Special Rules, 1997. The basic academic qualification prescribed in the said Rules is Masters Degree with 50% marks in Chemistry or Forensic W.A.No.3012 of 2007 - 2 - Science or Bio-Chemistry of a recognised University. The question is, whether the Public Service Commission can recognise a Masters Degree in any other branch as an equivalent qualification to the qualification prescribed under the above-mentioned Rules. In the instant case, the Public Service Commission recognised a Masters degree in Applied Chemistry, Organic Chemistry and Inorganic Chemistry as equivalent qualifications to the prescribed qualification.
3. The question, therefore, for our consideration is whether the Public Service Commission is authorised by the appropriate law to resort to such a process. A Division Bench of this Court in a case reported in Viswam v. K.P.S.C. [2001 (3) KLT 170], on an interpretation of Rule 13(b)(i) of the Kerala State and Subordinate Services Rules, opined that the Public Service Commission has the necessary authority of law to undertake an exercise such as the one mentioned above. We are required to examine the correctness of the said decision.
W.A.No.3012 of 2007 - 3 -
4. Article 309* of the Constitution stipulates that the Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. The proviso to the said Article authorises the President or the Governor, as the case may be, to make rules with respect to the abovementioned until the appropriate Legislature makes a law.
---------------------------------------------------------------- *309. Recruitment and Conditions of Service of Persons Serving the Union or a State.- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provisions in that behalf is made by or under an Act of the appropriate Legislature under this article and any rules so made shall have effect subject to the provisions of any such Act.
W.A.No.3012 of 2007 - 4 -
5. In exercise of the authority under Article 309, the State of Kerala made an Act, known as "The Kerala Public Services Act, 1968", which, in turn, authorises, under Section 2, the executive Government to make regulations to regulate recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala. Section 3 declares that all rules made in exercise of the proviso to Article 309 regulating the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala and were in force before the commencement of the Act shall be deemed to have been made under the said Act.
6. Rules, known as "Kerala State and Subordinate Services Rules, 1958" (for short "KS&SSR"), are made by the Governor of Kerala in exercise of the powers conferred under Article 309, which are deemed to be rules made by the Government in exercise of the power under the above-mentioned Act pursuant to the fiction created under Section 3. W.A.No.3012 of 2007 - 5 -
7. The above-mentioned Rules deal with various aspects of the recruitment and conditions of service. Rule 10 of the said Rules, in so far as it is relevant, reads as follows:-
"10. Qualifications.- (a)(i) The educational or other qualifications if any, required for a post shall be specified in the Special Rules applicable to the service in which that post is included or as specified in the executive orders of Government in cases where Special Rules have not been issued for the post/service.
(ii) Notwithstanding anything contained in these rules or in the Special Rules, the qualifications recognised by executive orders or standing orders of Government as equivalent to a qualification specified for a post in the Special Rules or found acceptable by the Commission as per rule 13
(b)(i) of the said rules in cases where acceptance of equivalent qualifications is provided for in the rules and such of those qualifications which pre-suppose the acquisition of the lower qualification prescribed for the post, shall also be sufficient for the post".
8. It can be seen from the above Rule that qualifications required for a post may be prescribed by the W.A.No.3012 of 2007 - 6 - Special Rules applicable to the particular service in which the post is included or in the absence of any prescription by the Special Rules, to be specified by the executive orders of the Government. However, sub-clause (ii) deals with a specific situation of somebody claiming to be qualified for a particular post on the ground that he has the qualification which is equivalent to the qualification prescribed by the State. Sub-rule
(ii) declares that in certain contingencies specified in the said sub-rule, such a claim can be accepted. Those contingencies are - (i) the Government recognises by executive orders certain qualifications to be equivalent to the qualifications specified in the relevant Special Rules; (ii) the Public Service Commission accepts a qualification to be equivalent to the qualification specified in the Special Rules relevant to the post. But the acceptance of the Public Service Commission is required to be only in those cases where acceptance of the equivalent qualification is provided for in the Rules.
W.A.No.3012 of 2007 - 7 -
9. Rule 13* of KS&SSR declares that no person shall be eligible for appointment to any service unless he possesses such special qualifications and has passed such special tests as may be prescribed in that behalf in the Special Rules. It further stipulated that in the alternative to the declaration referred to above, if a person possesses such other qualification which is
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"13. Special qualifications.- No person shall be eligible for appointment to any service, class, category or grade or any post borne on the cadre thereof unless he,-
(a) possess such special qualifications and has passed such special tests as may be prescribed in that behalf in the Special Rules, or
(b) possesses such other qualifications as may be considered to be equivalent to the said special qualifications or special tests -
(i) by the Commission in cases where the appointment has to be made in consultation with it; or
(ii) by the State Government or by the appointing authority with the approval of the State Government, in other cases. W.A.No.3012 of 2007 - 8 -
considered to be equivalent to the special qualification or special test, is also eligible for appointment to any service or post. The question is, who should consider the question of equivalence of the qualifications? Sub-rule(b) stipulates either the Public Service Commission or the State Government to be the competent bodies to consider the question of equivalence. However, the competence of either of those bodies is limited to certain specified circumstances. The Public Service Commission is declared to be the competent body under Rule 13(b)(i) in those cases where the appointment is to be made in consultation with the Public Service Commission. The requirement to make an appointment in consultation with the Public Service Commission, in turn, depends upon the relevant law or rules governing a recruitment to a particular service. On the other hand, the competence of the Government to consider the equivalence of qualification is confined only to cases other than those where the recruitment is to be made through the Public Service Commission.
W.A.No.3012 of 2007 - 9 -
10. The question is, whether Rule 13(b)(i) authorises the Public Service Commission to recognise the equivalence of any qualification to the qualifications specified in the relevant rules applicable to a post which is sought to be filled up.
11. In our opinion, Rule 13 read in isolation does convey a meaning that the power of the Public Service Commission to consider the equivalence of qualifications is unrestricted at least in those cases where the recruitment is required to be conducted in consultation with the Public Service Commission. In our opinion, to understand the true meaning and purport of Rules 10 and 13, the Rules should not be read in isolation. They should be read in conjunction with Rule 10, 11, 13A, 13AB, 13BB, 18, 19, 21, 24, etc.
12. Obviously, there is a conflict between the scope and power of the Public Service Commission contemplated under the above mentioned two Rules. While Rule 10 appears to envisage a power regulated by law, Rule 13 apparently confers unlimited power on the Public Service Commission. If W.A.No.3012 of 2007 - 10 - it is a question of harmonizing such conflicting positions, the power of the Public Service Commission, in our view, should be understood as a power structured by law. Unstructured and unlimited powers are antithetical to the concept of the rule of law under Article 14 of the Constitution of India.
13. Whether the inconsistency between the language of Rules 10 and 13 is only apparent or real and if real is it an accident or draftsman's folly or deliberate and with a purpose is required to be examined.
14. We may point out at this stage that there is a significant difference in the language of Rules 10 and 13. While Rule 10 deals with "educational and other qualifications", Rule 13 deals with "special qualifications and special tests". None of the expressions are defined under KS&SSR. But, obviously each one of those expressions, in our opinion, must have a separate and definite connotation. The other distinction between Rule 10 and 13 is, while Rule 13 speaks about eligibility for appointment to any service, Rule 10 is W.A.No.3012 of 2007 - 11 - conspicuously silent about the appointment. Appointment to a post, it is well settled, can be made by various modes, either by direct recruitment from open market or by promotion from lower post or by transfer from some other service, depending upon the prescription of the rules.
15. To understand the meaning of the expressions "special qualifications" and "special tests", a brief survey of the relevant rules of KS & SSR is necessary. Rule 24 of the Special Rules stipulates that an approved probationer shall be appointed to be a full member of the services in the class or category for which he was selected. The expression "approved probationer" is defined under Rule 2(3) to mean, a member of the service who has satisfactorily completed his probation. Though the expression "probation" is not defined under the said rule, Rules 18 and 19 throw light on the meaning of the said expression. While Rule 18(a) speaks of "commencement of the probation" in different situations, Rule 19 speaks of the "period of probation prescribed by the Special Rules". Rule 21 W.A.No.3012 of 2007 - 12 - speaks of the "extension of the period of probation" to enable the appointing authority to decide whether the "probationer is suitable for full membership or not".
16. Similarly, Rule 13A* deals with Special and Departmental Tests prescribed by the Special Rules and the grant of exemption from passing such tests in various circumstances. Rules 13AA and 13AB confer on the State Government the power to exempt any member of the service who belongs to a Scheduled Caste or Scheduled Tribe from passing such special tests, while Rule 13B deals with the exemption from passing the obligatory departmental tests.
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* 13A. Special and Department Tests - Temporary exemption for promotion.- (1) Notwithstanding anything contained in rule 13,--
(a) Where a pass in a special departmental test is prescribed by the Special Rules of a service for any category, grade or post therein or in any class thereof, a member of a service belonging to any of the scheduled castes or scheduled tribes who has not passed the said test but is otherwise qualified and suitable for appointment to such class, category, grade or post may be appointed thereto temporarily.
W.A.No.3012 of 2007 - 13 - Rule 19(b)(i)* stipulates the discharge of a probationer in the case where a probationer fails to acquire a special qualification or pass a special test prescribed by the Special Rules. Similarly, Rule 11** speaks of a probationer acquiring a special qualification or passing any special test. It can be
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*19(b)(i) If within the period of probation a probationer fails to acquire the special qualifications or to pass the special tests, if any, prescribed in the Special Rules, or to acquire such other qualifications as may be declared by the State Government or by the appointing authority with the approval of the State Government to be equivalent to the said special qualifications or special tests, the appointing authority shall, by order, discharge him unless the period of probation is extended under rule 21.
**11. Special qualifications to be acquired or Special Test to be passed during probation.- Where a probationer has, before he commenced his probation, already acquired any special qualification or passed any special test prescribed by the Special Rules or has acquired such other qualification as may be considered by the State Government or by the appointing authority with the approval of the State Government to be equivalent to the said special qualification or special test, he shall not be required to acquire such special qualification or to pass such special test again after the commencement of his probation. W.A.No.3012 of 2007 - 14 - noted from the above Rules that the various prescriptions and exemptions not only are applicable in the case of fresh appointments to a cadre, but also appointments by promotion within the same cadre or to a higher class of posts. Therefore the expressions "special tests" and "special qualifications"
occurring in Rule 13, in our opinion, should be understood to mean, special qualifications and special tests prescribed under the Special Rules of Service are required to be acquired or passed by the candidates seeking appointment or promotion in service, whereas Rule 10, in our opinion, deals with the educational or other qualifications which provide the basic eligibility for competing for the posts.
17. In Viswam v. K.P.S.C. [2001 (3) KLT 170]*, the Division Bench did not notice the distinction between the
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*5. R.13 of the Kerala State and Subordinate Services Rules states that no person shall be eligible for appointment to any service, class, category or grade or any post borne on the cadre thereof unless he possesses such special qualifications and has passed W.A.No.3012 of 2007 - 15 - such special tests as may be prescribed in that behalf. We may extract the said provision for easy reference.
13. Special qualifications.- No person shall be eligible for appointment to any service, class, category or grade or any post borne on the cadre thereof unless he,-
(a) possess such special qualifications and has passed such special tests as may be prescribed in that behalf in the Special Rules, or
(b) possesses such other qualifications as may be considered to be equivalent to the said special qualifications or special tests -
(i) by the Commission in cases where the appointment has to be made in consultation with it; or
(ii) by the State Government or by the appointing authority with the approval of the State Government, in other cases.
Provided that in the case of the ministerial staff of the different departments/offices in the Kerala Judicial Ministerial Subordinate Service and in the Kerala Ministerial Subordinate Service the unified tests prescribed in G.O.(P) No.22/63/PD dated 14th January 1963, as subsequently amended or clarified shall be applicable, until the Special Rules for the Kerala Judicial Ministerial Subordinate Service or the Kerala Ministerial Subordinate Service as the case may be come into force.
R.10 of the Kerala State Subordinate Service Rules stipulates that educational or other qualifications, if any, required for a post shall be as specified in the Special Rules applicable to the service in which that post is included or as specified in the executive orders of Government in cases where Special Rules have not been issued for W.A.No.3012 of 2007 - 16 - the post/service. The post of Junior Health Inspector Grade II is included in the Municipal Common Service. R.13 of the K.S.& S.S.R. stipulates that persons who possess either the special qualifications as per rules or an equivalent qualification is qualified to be appointed. Equivalent qualification is one which satisfies the test of either clause (i) or clause (ii) of sub-r.(b) of R.13 which indicates that either the Commission in a case where appointment has to be made in consultation with the Commission, or the Government, or the appointing authority with the approval of the Government, may recognise a qualification as an equivalent qualification. This is what has been done in the instant case. This question has been pointedly considered by the Apex Court in Civil Appeal Nos.1730-32/88 where the question of appointment to the post of Ayurveda Pharmacist Grade II came up for consideration. Reversing the Bench decision of this Court, Apex Court held that the Commission did exercise their mind over the question of equivalent qualification after ascertaining the views of the appointing authority, and reached their conclusion in the light of relevant evidence and expressed their view when consulted by the Government. We are of the view that the principle laid down by the Apex Court is squarely applicable to the facts of this case as well. In such circumstances, we declare that P.S.C. and the State Government have got power under R.13 of the K.S.& S.S.R. to prescribe which are equivalent qualifications. The Writ Appeal lacks merits and it is accordingly dismissed. W.A.No.3012 of 2007 - 17 - language of Rules 10 and 13 and the relevance of such difference and, therefore, we are of the opinion that Viswam's case (supra) does not lay down the correct position of law and we declare as such. Consequently, we come to the conclusion that under the scheme of KS & SSR, the Public Service Commission is incompetent to deal with the question of equivalence of educational or other qualifications prescribed by the Special Rules, unless the Special Rules provide for the recognition of qualifications other than the prescribed qualifications as equivalent to the qualifications prescribed.
The reference is ordered accordingly.
Sd/-
(J.Chelameswar) Chief Justice Sd/-
(Thomas P.Joseph) Judge Sd/-
(P.R.Ramachandra Menon) Judge vku/-