Kerala High Court
Kerala Public Service Commission vs Vivina.V.V on 13 March, 2009
Bench: K.Balakrishnan Nair, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 444 of 2009()
1. KERALA PUBLIC SERVICE COMMISSION
... Petitioner
Vs
1. VIVINA.V.V, MADTHUVILAKATH, TC 13/256
... Respondent
2. STATE OF KERALA
3. MANJU.R.S, SANTHI BHAVAN
For Petitioner :SRI.ALEXANDER THOMAS,SC,KPSC
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :13/03/2009
O R D E R
K.BALAKRISHNAN NAIR &
M.L.JOSEPH FRANCIS, JJ.
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W.A. NOS.325, 326, 403, 406,
433, 434, 435, 436, 437 & 444 /2009
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Dated 13th March, 2009.
JUDGMENT
Balakrishnan Nair, J.
These Writ Appeals are filed against the common judgment of the learned Single Judge in W.P.(C) Nos.20771, 21783, 24150 and 28075/2008 dated 15.12.2008, interfering with the decision of the Public Service Commission dated 12.5.2008, to treat M.Sc. Home Science as sufficient qualification for appointment to the post of Vocational Instructor in Clothing and Embroidery in the Vocational Higher Secondary Schools under the Kerala State.
2. The brief facts of the case are the following: W.A.No.444/2009 filed by the Public Service Commission (in short "PSC") against the judgment in W.P.(C) No.21783/2008 is treated as the main case, for the purpose of referring to the parties and exhibits. The writ petitioner is a member of the Scheduled Caste. She has passed Vocational Higher WA No.444/09 etc. 2 Secondary Course in Clothing and Embroidery with first class. Ext.P1 is the V.H.S.C certificate issued to her. She has passed B.Sc. Home Science with first class for the optional subjects, namely, Home Science (Main) and Botany and Zoology (Subsidiaries) in the year 2004. Ext.P2 is her Degree Certificate. The PSC invited applications for appointment to the post of Vocational Instructor in Clothing and Embroidery on 8.4.2005. Ext.P3 is the relevant pages of the notification published in the Kerala Gazette (Extraordinary) dated 26.4.2005. The qualifications prescribed for the post were "A pass in VHSE Clothing & Embroidery conducted by the Government of Kerala or its equivalent with B.Sc. Home Science awarded by any of the Universities in Kerala or an equivalent qualification OR Pre- degree awarded by any of the Universities in Kerala or its equivalent with Diploma in Costume Designing and Dress Making awarded by the Department of Technical Education." The written test for the post was held on 15.9.2007. A short list was published on 28.2.2008. The interview for the post was held from 14.5.2008 to 16.5.2008. The rank list was published on 18.6.2008. The copy of the rank list was produced in the writ petition as Ext.P4. The writ petitioner was included as rank No.3 in the supplementary list of Scheduled Caste candidates. The 3rd respondent in the writ petition, who was impleaded during its pendency, was rank No.1 in the WA No.444/09 etc. 3 said supplementary list.
3. The writ petitioner came to know that persons who were not having the prescribed qualifications, but were having only M.Sc. degree in Home Science have been included in the rank list. The 3rd respondent in the writ petition, who is rank No.1 in the supplementary list of Scheduled Caste candidates, is one of such candidates. Aggrieved by the inclusion of candidates, who do not have the prescribed qualifications, in the rank list, the writ petitioner filed W.P.(C) No.21783/2008. She prayed for quashing Ext.P4 rank list to the extent it includes persons without the prescribed qualifications. She also prayed for re-casting of the rank list and consequential reliefs.
4. The PSC filed a counter affidavit, in which it is admitted that the Commission has taken a decision on 12.5.2008, to treat the candidates with M.Sc. degree in Home Science as candidates qualified for the post. The PSC supported the decision, relying on the decision of the Apex Court in Jyoti K.K. & Ors. v. Kerala Public Service Commission & Ors. [JT 2002 (Suppl.1) SC 85]. According to the PSC, it has the power to accept qualifications considered as sufficient for the post, by virtue of Rules 10 and 13 of the Kerala State & Subordinate Services Rules (in short "KS & SSR"). It is also submitted that the qualification for the post of Vocational WA No.444/09 etc. 4 Teacher, which is the promotion post of Vocational Instructor, is M.Sc. Home Science. Both the posts are meant to teach in Plus One and Plus Two classes. So, if M.Sc. Home Science is sufficient qualification for the post of Vocational Teacher, there is nothing wrong in the PSC treating the said qualification plus Pre-degree as sufficient qualification for the post of Vocational Instructor, it is submitted.
5. The learned Single Judge, after hearing both sides, held that the decision of the PSC dated 12.5.2008, to treat the qualification of Pre-degree plus M.Sc. Home Science as sufficient qualification for the post of Vocational Instructor, can be made applicable only to notifications issued after the said decision. Since the qualification accepted as sufficient was not a notified qualification, the learned Single Judge interfered with the same and quashed the rank list to the extent it included rank Nos.1, 6, 7 and 8 in the main list and rank No.1 in the supplementary list of Scheduled Caste candidates.
6. Aggrieved by the above decision of the learned Single Judge, the PSC has filed W.A.No.444/2008. Aggrieved by the above common judgment, rank No.6 in the main list Smt.Lixy John has preferred W.A.Nos.325 & 326/2009. Smt.Remya M.S., rank No.7 in the main list, has preferred W.A.Nos.403 & 406/2009. Smt.K.P.Sreeja, rank No.8 in the WA No.444/09 etc. 5 main list, has preferred W.A.Nos.433 & 436/2009. Smt.Jisha Mathew, rank No.1 in the main list, has preferred W.A.Nos.434, 435 & 437/2009.
7. We heard the learned counsel M/s. Alexander Thomas, P.C.Sasidharan, S.B.Premachandra Prabhu and G.Ram Mohan for the appellants and learned counsel M/s. George Poonthottam, P.J.Elvin Peter, Mathew Kuriakose and K.B.Gangesh for the writ petitioners/respondents. We also heard Sri.Noble Mathew and Smt.R.Bindu, learned Government Pleaders appearing for the official respondents. The learned counsel for the appellants supported the action of the PSC, by referring to Rules 10(a)(ii) and 13 of the KS & SSR. Rule 11 of the PSC Rules of Procedure was also pressed into service. They submitted that M.Sc. Home Science is a qualification prescribed for the higher post of Vocational Teacher. The duties and responsibilities of the posts of Vocational Instructor and Vocational Teacher are the same. Vocational Teacher is the promotion post of Vocational Instructor. So, the qualification for the promotion post has been rightly held to be sufficient qualification for the feeder post. The PSC is competent to decide on the sufficiency of the qualification, even if the newly accepted qualification is not equivalent. Since no one, who could have applied in the light of the decision of the PSC dated 12.5.2008, has come forward to challenge the selection, there is no reason to interfere with WA No.444/09 etc. 6 the selection, it is submitted. The writ petitioners were already qualified as per the notification. So, they are not, in any way, aggrieved, it is submitted. In support of their submissions, the appellants relied on the decision of this Court in Viswam v. Kerala Public Service Commission [2001(3) KLT 170] and the decisions of the Apex Court in Jyoti K.K. & Ors. v. Kerala Public Service Commission & Ors.(supra) and Basic Education Board, U.P. v. Upendra Rai [(2008)3 SCC 432]. The writ petitioners, on the other hand, relied on the decisions in Sobha Menon v. Kerala Public Service Commission [1994(1) KLT 986], Lalitha Bai v. Public Service Commission [1999(2) KLT 894], Union of India v. Chandrasekharan [(1998)3 SCC 694] and Madan Mohan Sharma v. State of Rajasthan [(2008)3 SCC 724].
8. We will first advert to the Rules relevant in this case. The Rules relied on by the PSC to support its action are Rules 10(a)(ii) and 13 of the KS & SSR and Rule 11 of the PSC Rules of Procedure. The Rule 10(a)(ii) of Part II of the KS & SSR reads as follows:
"(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 WA No.444/09 etc. 7 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."
(Emphasis supplied) The relevant portion of Rule 13 of Part II of the KS & SSR reads as follows:
"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) possesses 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.
....................................................................................................." Rule 11 of the P.S.C. Rules of Procedure is as follows:
"11. A decision as to the following shall be taken by the Commission in respect of all selections made by them;
(i) whether any candidate possesses the prescribed qualifications for the post;
(ii) the basis on which the marks should be awarded;
(iii) the minimum or minima of marks for inclusion in WA No.444/09 etc. 8 the ranked list;
(iv) the manner in which the practical examination, physical efficiency test or any other test or examination is to be conducted;
(v) any other matter incidental to the selection."
Rule 11 quoted above does not relate to the action of the P.S.C impugned in this case. At the time of final hearing, we notice that the learned counsel for the appellants mainly relied on the powers of the PSC under Rule 10(a)(ii) of the KS & SSR. Rule 13 of the KS & SSR deals, inter alia, with the power of the PSC to say what are the qualifications equivalent to the qualifications prescribed by the Rules. But, M.Sc. Home Science with Pre- degree can, in no way, be treated as a qualification equivalent to the prescribed qualification. The learned counsel for the appellants, therefore, submitted that even if M.Sc. Home Science with Pre-degree cannot be treated as a qualification equivalent to the prescribed qualification, it can be treated as a sufficient qualification. The PSC has got the power for the same under Rule 10(a)(ii) of the KS & SSR. Since M.Sc. Home Science is the qualification prescribed for the promotion post, to teach in Plus One and Plus Two classes of the Vocational Higher Secondary Course, the same can be treated as sufficient qualification for the lower post also, it is submitted.
9. Since the writ petitioners are already qualified, the appellants WA No.444/09 etc. 9 pointed out that they cannot be said to be aggrieved by the consideration of other persons with sufficient qualification for the post. Many other prospective candidates who may have cleared M.Sc. Home Science did not get a chance to apply. But, none of them has come forward to challenge the selection. The writ petitioners cannot espouse the grievance of such candidates. They have no locus standi to do that, it is submitted.
10. The learned counsel for the writ petitioners/respondents in the appeal submitted that the PSC has power to lay down what is a qualification equivalent to the notified qualification under Rule 13 of the KS & SSR. The PSC has also the power to say what is sufficient qualification in the place of the prescribed qualification in terms of Rule 10
(a)(ii). But, such decisions can operate only prospectively. Any decision during the middle of the selection cannot have any impact on the selection at hand, it is submitted. In this case, the decision was taken after the publication of the short list and after every one came to know who all are the candidates in the field of choice. So, even if the decision of the PSC taken on 12.5.2008 is valid, the same can be made applicable only to future selections, it is submitted.
11. We gave anxious consideration to the rival submissions by the learned counsel on either side. By the inclusion of ineligible candidates in WA No.444/09 etc. 10 the rank list, the chances of the writ petitioners for getting advised are affected. Therefore, they have the necessary standing to challenge their inclusion and move for exclusion of such ineligible candidates, so that their position in the rank list improves. If the PSC wanted to treat a particular qualification, which is different from the notified qualification as sufficient qualification, it should have taken a decision before the issuance of the notification inviting applications. But, in this case, the PSC has taken the decision two days before the holding of the interview and that too, after coming to know who all are the candidates in the field of choice. The decision taken by the PSC can be applied validly only to future selections. Normally, no one will think that M.Sc. Home Science is a qualification equivalent to the notified qualifications, which we have already extracted above. M.Sc. Home Science can never be treated as equivalent to those qualifications. Rule 10(a)(ii) of the KS & SSR authorises the PSC to treat a particular qualification as sufficient, subject to satisfying certain conditions. The qualification proposed to be accepted must be a higher qualification when compared to the prescribed qualification. Further, acquisition of that higher qualification should pre-suppose the acquisition of the lower qualification. For example, if B.Sc. Home Science is the prescribed qualification, M.Sc. Home Science, even if the candidate graduated in WA No.444/09 etc. 11 some other subject, can be treated as sufficient qualification. The acquisition of P.G. Degree would pre-suppose the acquisition of Degree in the concerned subject. Similarly, for the same reason, if Diploma in Engineering is prescribed as the qualification, Degree in Engineering can be treated as sufficient qualification under the above Rule. But, the acquisition of M.Sc. Degree in Home Science cannot pre-suppose the acquisition of the prescribed qualifications in this case. Further, the Apex Court in Latha v. State of Kerala [2003(1) KLT 949(SC)] held that acquisition of B.Ed. cannot be treated as sufficient for the prescribed qualification of T.T.C for appointment to the post of Primary Teacher, though, for promotion of a Primary Teacher as High School Assistant, B.Ed. is an obligatory qualification. So, in this case, the prescription of M.Sc. Home Science as sufficient qualification for the prescribed qualification appears to be untenable. But, it is not necessary to decide that point, finally, in these Writ Appeals, as we are of the view that the decision of the PSC dated 12.5.2008, even if it is valid, could not have been made applicable to the on going selection. It can govern only selections for which notifications were issued after the said decision. We agree with the views of the learned Single Judge that equivalency or sufficiency of M.Sc. Home Science with Pre- WA No.444/09 etc. 12 degree for the post of Vocational Instructor is relevant only to notifications for selection issued after 12.5.2008. The decision of the PSC dated 12.5.2008 could not have been made applicable during the middle of the selection, after it was revealed to all, including the P.S.C members, who were the contestants in the field.
For the aforementioned reasons, the Writ Appeals fail and they are accordingly dismissed.
K.BALAKRISHNAN NAIR, JUDGE.
M.L.JOSEPH FRANCIS, JUDGE.
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