Rikha Suseel vs Versus Gireeshkumar T.M on 30 January, 2024

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Kerala High Court

Rikha Suseel vs Versus Gireeshkumar T.M on 30 January, 2024

These appeals arise from a common judgment in two writ petitions filed by the applicants to the post of Lower Division Clerk in the Kerala Water Authority. The notification inviting applications was issued on 16.7.2012 and was produced as Ext.P1 in both the writ petitions. The qualifications prescribed were, (i) degree in any discipline and (ii) certificate in Data Entry and Office Automation of minimum 3 months (120 hrs) duration awarded by Lal Bahadur Shasthri Centre for Science and Technology (LBS), Institute of Human Resource Development (IHRD) or from similar/equivalent institution approved by the Government. The writ petitioners, who had prescribed qualification had applied.

2. While so, a person, who had the qualification of Diploma in Computer Application (DCA) filed W.P.(C) No.24279/2012 contending that he possesses a higher qualification which pre-supposes the acquisition of the lower qualification and that his application should also be considered. W.A. Nos.1941 and 1945 of 2023 -: 14 :- It was contended that the applications of several persons who had DCA qualification were being considered and that the petitioner therein could not submit his application only because the notification was not clear. It was specifically contended that in view of the specific qualification mentioned in Ext.P1 notification, thousands of candidates who are actually having higher/equivalent qualification could not apply for the post.

3. Relying on the decisions of the Apex Court in Excise Superintendent, Malkapatnam v. K.B.N. Visweshwara Rao and others [(1996) 6 SCC 216] and Jyothi K.K. and others v. Kerala Public Service Commission [JT 2002 Suppl. 1 SC 85] and the decision of a Full Bench of this Court in Suma v. Kerala Public Service Commission [2011 (1) KLT 1], it was contended that the qualification should have specifically stated that persons who had higher qualification which pre-supposes the acquisition of the prescribed qualification should also have been permitted to apply.

4. A learned Single Judge of this Court considered the issue elaborately and found that the facts in Jyothi K.K.'s case was different and that the defective/obscure notification had W.A. Nos.1941 and 1945 of 2023 -: 15 :- restricted the zone of consideration to the total of 1192 candidates. In the circumstances, by Ext.P3 judgment produced in W.P.(C) No.23679/2023, Ext.P1 notification was set aside and the Kerala Public Service Commission (KPSC) was directed to issue a revised notification in the manner as specified under the Rules, also incorporating the qualifications, specifying whether equivalent or higher qualification could also be accepted and giving a chance to eligible aspirants to apply for the post.

5. The KPSC took up the matter in appeal and contended that a candidate with DCA qualification was not entitled to be considered for the post and that the words 'similar/equivalent' in Ext.P1 notification is only with reference to the institute from which the certificate in data entry and office automation was to be obtained. It is contended that there was actually no issue on equivalency provided in Ext.P1 and that only the persons with the prescribed qualification would be appointed. It was noticed in Ext.P4 judgment in W.A. No.1501/2015, which was produced in W.P.(C) No.23679/2023, that the KPSC had filed a review petition, that is, R.P. No.884/2014 against the judgment of the learned Single Judge which was also dismissed by order dated 24.2.2015. W.A. Nos.1941 and 1945 of 2023 -: 16 :- Thereafter, the Division Bench held as follows :-

"6. Before us, the learned counsel for the appellant submits that the factual reasoning in the judgment is wrong as the PSC had never notified any change in the qualification after Ext.P1 notification and that candidates with DCA qualification had applied, but the Commission had already decided that DCA is not an equivalent qualification for the post in question and the equivalency mentioned in the notification was only with respect to the institution. It is also submitted that they had rejected about 590 applications received with DCA qualification. The direction of the learned Single Judge was unwarranted in this situation as qualification as notified in Ext.P1 stands and no change was brought about by the Commission.

7. After hearing the learned counsel for the parties and on a consideration of the factual aspects involved, we feel that since no change has been made by the PSC with respect to the qualifications after the issuance of Ext.P1, and as a matter of fact the Commission had decided that DCA was not an equivalent qualification for the post in question, which fact was put in the form of an affidavit before the learned single Judge itself, there was no warrant for allowing the writ petition and issuing the directions impugned in the judgment under appeal. Even if a person with higher qualification had applied, the same would have been rejected when the scrutiny takes place before shortlisting the candidates for the interview. We also note that in the instant case since the very foundation on which the writ petition is filed, namely, that candidates with DCA were permitted to apply and was being considered for selection is found to be wrong, the petitioner could not have been prejudiced in any manner from his inability to apply as he was not qualified for the post in question. Under these circumstances, the directions issued in the impugned judgment will turn out to be a futile exercise. In that view of the W.A. Nos.1941 and 1945 of 2023 -: 17 :- matter we hold that the directions were not warranted in the facts of case and accordingly, we set aside the judgment of the learned single Judge by allowing the writ appeal and dismissing the writ petition."

6. Thereafter, a short list was prepared by the KPSC. On coming to know that the short list contained persons who had DCA and other higher qualification as well, the writ petitioners had approached this Court. In W.P.(C) No.23679/2023, respondents 4 to 14 who had other qualifications apart from the prescribed qualification including Diploma in Computer Engineering, MCA, Diploma in Data Entry and Console Operation, MSC in Software Engineering and other such qualifications were made parties. The prayer was to call for Ext.P5 probability list and Ext.P6 ranked list to the extent it includes register numbers and names of candidates who are not having the prescribed qualifications and to make appointments and to confine the ranked list with persons with prescribed qualifications. In W.P.(C) No.19463/2023, respondents 3 to 74 got themselves impleaded and contested the matter.

7. The learned Single Judge considered the contentions advanced on all sides and found that it was not possible for the W.A. Nos.1941 and 1945 of 2023 -: 18 :- KPSC to alter its stand after suffering Ext.P4 judgment by admitting individuals with higher qualifications. It was held that since it was specifically stated that DCA was not being considered as the prescribed qualification or an equivalent qualification and that 590 applications from persons possessing DCA qualifications had already been rejected, it was not proper for the KPSC to change its stand and contend that the persons with higher qualifications pre-supposing the existence of the lower qualifications could be appointed.

8. The learned Senior Counsel appearing for the appellants submits that the earlier round of writ petition, review petition and writ appeal were concerned only with the question of equivalency of qualifications and that the question of sufficiency in terms of Rule 10(a)(ii) of the General Rules contained in Part II KS & SSR, which is admittedly applicable to the selection in question, had not been considered in any of the judgments including Ext.P4. It is contended that since the appellants are admittedly persons who have the higher qualifications, their inclusion in the shortlist cannot be said to be illegal under any stretch of imagination. It is further contended that it is only with W.A. Nos.1941 and 1945 of 2023 -: 19 :- regard to equivalence of qualification that a notification by the Government as to equivalency is required and where the question is with regard to sufficiency of qualification, no such adjudication or order is contemplated.

9. The learned counsel appearing for the KPSC would place reliance on the stand of the KPSC as is evident from Ext.P2 judgment produced in W.P.(C) No.19463/2023 of the learned Single Judge in the earlier round of writ petition. Ext.P2 judgment records that the version of the 1st respondent KPSC was that it was open to the petitioner and other candidates who possess equivalent/higher qualification who have applied for the post and the question of equivalency was a matter to be considered at a later stage by the KPSC and that nothing prevented persons with higher qualification from applying. It is clear from Ext.P2 that the counter affidavit filed by the KPSC had specifically stated that the notification specifically stipulates that higher qualification will also be accepted and that no independent notification or declaration is necessary in that regard since the Rule makes the position clear. It is, therefore, contended that the contention of the KPSC before this Court in W.A. Nos.1941 and 1945 of 2023 -: 20 :- the earlier round was only that the Commission had decided that DCA is not an equivalent qualification for the prescribed qualification. It is contended that the question with regard to rejection of applicants with DCA qualification should be understood as meaning that such qualifications which were not the higher qualification which pre-supposes the acquisition of the lower qualification stood rejected and not that all persons with DCA had been found to be not eligible to apply for the post. It is submitted that the statement recorded at paragraph 6 of Ext.P4 judgment would not mean that persons who had the higher qualification from recognised institutes would be ineligible to apply for the post.

10. The learned counsel for the respondents/writ petitioners contends that even if the argument of the KPSC that the earlier writ petition was only with regard to equivalence of qualifications and the question of sufficiency of higher qualification which pre-supposes the acquisition of the prescribed qualification being considered, it was imperative on the part of the KPSC to have considered the question of sufficiency of the various qualifications which are acquired by the persons whose W.A. Nos.1941 and 1945 of 2023 -: 21 :- names are included in the ranked list and if the qualifications were not the prescribed qualifications, there must have been an express consideration on the question of sufficiency. It is contended that the post in question being L.D.Clerk, the strange contention now raised by the KPSC and the party respondents that even a degree in Computer Engineering would be a higher qualification pre-supposing the acquisition of the lower qualification of three months' certificate course in data entry and office automation is an absurd proposition and is liable to be rejected as such.

11. We have considered the contentions advanced. The learned Senior Counsel for the appellants contends that the question decided in Ext.P4 judgment of a Division Bench of this Court was with regard to the equivalency of qualification of DCA with the prescribed qualification. It is contended that Rule 10(a)

(ii) of the General Rules contained in Part II KS & SSR specifically provides that a higher qualification which pre- supposes the acquisition of the prescribed qualification will also be sufficient for the post. It is contended that there is no adjudication or order required and that any higher qualification W.A. Nos.1941 and 1945 of 2023 -: 22 :- which pre-supposes the acquisition of the lower qualification will be sufficient for appointment to the post. This argument is endorsed by the learned Standing Counsel appearing for the KPSC as well.

12. We are unable to agree with the above preposition for more reasons than one. Firstly, the Division Bench in Ext.P4 judgment has specifically recorded the stand of the KPSC that the Commission had already decided that DCA is not an approved qualification of the post in question and that they had rejected about 590 applications received with DCA qualification.

13. The learned Standing Counsel appearing for the KPSC submits that it was only with DCA qualifications which were acquired by persons from institutions other than the institutions mentioned in the notification and other such equivalent qualifications that were rejected by the KPSC and that the question of sufficiency of a higher qualification had not been considered either in Ext.P3 judgment or in Ext.P4 judgment of the Division Bench. However, in the light of the specific contention being recorded in Ext.P4 judgment, we are unable to accept this contention. Further, the question whether the higher W.A. Nos.1941 and 1945 of 2023 -: 23 :- qualifications which were accepted by the Commission are such qualifications which pre-suppose the acquisition of the prescribed qualification has not been pointedly considered or answered by the KPSC and no such consideration is evident from any of the materials placed on record.

14. In Jyothi K.K. and others v. Kerala Public Service Commission (supra), it was on a specific finding that the higher qualifications in question in that case was the qualification fixed for appointment to the next higher post in the direct line of promotion that the persons holding the higher qualifications were found eligible to apply for the post in question.

15. In Ajith K. and others v. Aneesh K.S. and others [2019 KHC 6830], the Apex Court clarified the situation and held that there has to be a determination by the Tribunal or any duly constituted authority to determine whether the higher qualification is a qualification which pre-supposes the acquisition of the lower qualification. On the contrary, the Tribunal had found that neither the KPSC nor the authorities concerned had endeavoured to find whether the qualification of DHIC could be treated as a superior qualification which pre-supposes the W.A. Nos.1941 and 1945 of 2023 -: 24 :- acquisition of the prescribed qualification. It was, therefore, held that the conclusion of the Tribunal and the High Court that DHIC qualification pre-supposes the acquisition of the prescribed qualification was not informed by any material was perfectly justified.

16. In Dharun K. and others v. Shino M. Gopal and others [2020 KHC 689], a Division Bench of this Court found that the decision of a Full Bench of this Court in Suma's case applies only to the first part of Rule 10(a)(ii) which deals with the equivalence of qualification and not to the second part of the Rule which deals with the acquisition of a higher qualification. However, in order to ensure that there is equality of opportunity and to avoid any kind of arbitrariness, the KPSC was directed to issue general guidelines or a circular regarding circumstances in which a qualification other than the prescribed qualification would be accepted being a higher qualification which pre- supposes the acquisition of the lower prescribed qualification.

17. In the instant case as well, apart from merely contending that the higher qualifications which pre-suppose the existence of the lower qualification are liable to be accepted, W.A. Nos.1941 and 1945 of 2023 -: 25 :- there are no pleadings or materials on record to show as to whether there was any application of mind as to what the higher qualifications which pre-suppose the acquisition of the prescribed qualifications would be. Further, the contention of the appellants that all the persons who have the higher qualifications have not been made parties to the writ petitions also cannot stand scrutiny in view of the fact that one of the writ petitions had 14 of such persons whose details could be collected by the writ petitioners on the party array and the appellants, 72 in number, have admittedly got themselves impleaded in the other writ petition.

18. On perusal of the Judges papers, we find that R.P. No.884/2014 in W.P.(C) No.24279/2012 had been filed specifically stating that the averment in the counter affidavit in the writ petition that higher qualification can be considered as sufficient for the post does not mean or intend that DCA qualification will also be accepted by the Commission as a qualification for selection to the post notified. It was stated that the notified qualification was never changed and that "as DCA qualification was not at all notified qualification, 590 applications of persons W.A. Nos.1941 and 1945 of 2023 -: 26 :- having DCA qualification were not treated as valid." It is, therefore, clear that it was a specific case of the KPSC in the earlier round of writ petition that DCA was not equivalent or sufficient qualification for application for the post of L.D.Clerk.

In the above factual situation, we are unable to find any error in the reasoning of the learned Single Judge as contained in paragraph 23 of the judgment. We are, therefore, of the opinion that the directions contained in the judgment are liable to be complied with. One month's further time is granted to the KPSC to complete the procedure as directed by the learned Single Judge. The Writ Appeals are disposed of with the said modification alone.

Sd/-

ANU SIVARAMAN JUDGE Sd/-

C. PRATHEEP KUMAR JUDGE Jvt/19.1.2024

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