Kerala High Court
The Kerala Public Service Commission vs Dhanyasree Nair (Deleted) on 8 April, 2022
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
Friday, the 8th day of April 2022 / 18th Chaithra, 1944
OP(KAT) NO. 64 OF 2022
AGAINST THE ORDER DATED 02/12/2021 IN OA (EKM) 147/2021 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM, ADDITIONAL BENCH, ERNAKULAM.
PETITIONER/RESPONDENT NO 4:
KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY,
KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695004,
KERALA.
RESPONDENTS/APPLICANTS& RESPONDENT NOS 1 TO 3 & 5:
1. DHANYASREE NAIR, AGED 28, D/O.M.P. BALAN, VNRA 100, VALLIKATTIL,
MEKKAD P.O., ANGAMALLY-683589.(DELETED) *R1 IS DELETED FROM THE
PARTY ARRAY AS PER ORDER DATED 4/3/2022 IN OP(KAT)64/2022.
2. NEETHU JOSE, AGED 29, W/O. SAJAN C.C., KANJIRATHINGAL HOUSE,
KOTTAPADY P.O., THRISSUR, KERALA-680505.
3. HUSNA AMEENA P.K., AGED 29, D/O. ABDUL JABBAR P.K., KAITHOTT HOUSE,
VATTOLI BAZAR P.O., KOZHIKODE, KERALA-673612.
4. STATE OF KERALA, DEPARTMENT OF HEALTH AND FAMILY WELFARE,
SECRETARIAT, THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS PRINCIPAL
SECRETARY, KERALA.
5. PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION,
THIRUVANANTHAPURAM-695001, KERALA.
6. KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O.,
THRISSUR-680596, REPRESENTED BY ITS REGISTRAR, KERALA.
7. INDIRA GANDHI NATIONAL OPEN UNIVERSITY, KALOOR, KOCHI, ERNAKULAM
PIN-682017, REPRESENTED BY ITS VICE CHANCELLOR, KERALA.
Op Kerala Administrative Tribunal praying inter alia that in the
circumstances stated in the affidavit filed along with the OP(KAT) the
High Court be pleased to issue an interim order of stay of Exhibit-P3
order of the Hon'ble Tribunal dated 02/12/2021 in OA(EKM)No.147/2021
pending disposal of the OP(KAT).
This petition again coming on for orders on 08/04/2022, upon
perusing the petition and the affidavit filed in support of OP(KAT) and
this court's order dated 04/03/2022, upon hearing the arguments of
SRI.P.C.SASIDHARAN, STANDING COUNSEL for the petitioner, and of
SRI.T.G.SUNIL, ADVOCATE for R2 and R3, SENIOR GOVERNMENT PLEADER for R4 &
R5, SRI.P.SREEKUMAR, STANDING COUNSEL for R6 and
SRI.K.MOHANAKANNAN,STANDING COUNSEL for R7, the court passed the
following:
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
=================================
O.P(KAT) No.59 of 2022
[arising out of the impugned final order dated 02.12.21
in O.A (Ekm) No.140/21 on the file of the KAT, Tvm. Bench],
O.P(KAT) No.77 of 2022
[arising out of the impugned final order dated 02.12.21
in O.A (Ekm) No.206/21 on the file of the KAT, Tvm. Bench]
&
O.P(KAT) No.64 of 2022
[arising out of the impugned final order dated 02.12.21
in O.A (Ekm) No.147/21 on the file of the KAT, Tvm. Bench ]
=================================
Dated this the 08th day of April, 2022
ORDER
These cases relate to the selection to the post of Optometrist Gr.II, Health Services Department, Government of Kerala, in terms of selection notification dated 14.11.2018 for category No.217/2018 issued by the Kerala Public Service Commission [produced as Annexure-A1 in O.P(KAT) No.59/2022]. The qualifications prescribed for the said post are as follows:
"7. Qualifications (1) Pass in Pre-degree with Physics, Chemistry and Biology OR Physics, Chemistry and Mathematics as optional subjects or equivalent qualification (2) Diploma in Ophthalmic Assistants Course (2 Years) conducted by the Medical colleges in Kerala or equivalent qualification."
2. The contesting respondents in these O.Ps/original applicants in the respective O.As are candidates for the above selection who have secured their B.Sc. in Optometry from Bharatiar University, Alagappa University & Indira Gandhi National Open University (IGNOU) O.P(KAT) Nos.59, 77 & 64 of 2022 2 respectively. These applicants do not have the notified prescribed qualification of Diploma in Ophthalmic Assistants Course (2 years) conducted by the Medical Colleges in Kerala. The qualification possessed by the applicants is a B.Sc. degree in the abovesaid subject. So, the notification also mentions the Note.1 under Clause 7 of the notification explicitly states that Rule 10(a)(ii) of Part-II KS&SSR is applicable. Rule 10(a)(ii) of KS&SSR Part-II, provides as follows :
"Rule 10.Qualifications.- (a) (i) ..............................
(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."
3. So, the main issue to be decided is as to whether the B.Sc. degrees possessed by the applicants herein can be treated as a higher qualification, which pre-supposses the acquisition of the lower qualification of Diploma in Ophthalmic Assistant Course conducted by the Medical Colleges in Kerala, as envisaged in Rule 10(a)(ii) of KS&SSR Part-II. For that purpose, an expert study by an academic body is required. Hence, we are told that the Kerala University of Health Sciences (KUHS), Thrissur is the university established by an Act to the State Legislature, which has the power to affiliate the institutions O.P(KAT) Nos.59, 77 & 64 of 2022 3 running all health and related courses, including medical and para-medical courses, etc., and that the said university is running a B.Sc. degree in Optometry. Hence, we propose to order that the said university may conduct an expert study and after comparison of curriculum, syllabus, etc., of both the B.Sc. degrees of these three universities, possessed by the applicants as well as that of the Diploma course in Ophthalmic Assistants, conducted by the Medical Colleges in Kerala and then give an expert opinion before this Court, as to whether or not each of these B.Sc. degrees can be treated as a higher qualification, which pre-supposses the acquisition of the lower qualification of Diploma in Ophthalmic Assistants, as prescribed in the selection notification and as envisaged in Rule 10(a)(ii) of KS&SSR Part-II. For that purpose, it is necessary to have the KUHS as a party in these proceedings. The KUHS is already an additional respondent in O.P(KAT) No.64/2022.
4. Sri.P.Sreekumar, learned Standing Counsel for the KUHS submits that, if necessary directions are issued by this Court, then the matter can be placed before the competent academic body of the university to examine these issues. Hence, with the consent of all the parties concerned, it is ordered that the "Kerala University of Health Sciences (KUHS), Represented by its Registrar, O.P(KAT) Nos.59, 77 & 64 of 2022 4 Mulankunnathukavu, Thrissur", will stand impleaded as additional respondents in O.P(KAT) Nos.59 & 77 of 2022. The Registry will assign appropriate additional respondent status to the KUHS in the abovesaid two O.Ps. The Registry will give copies of the memorandum of the original petitions in O.P(KAT) Nos.59 & 77 of 2022 to Sri.P.Sreekumar, learned Standing Counsel for the KUHS.
5. Further, in O.P(KAT) No.59/2022, Sri.T.G.Sunil, learned Advocate has taken notice for R1, the learned Senior Government Pleader has taken notice for R2-State and Sri.P.Sreekumar, learned Standing Counsel for the KUHS has taken notice for additional R3. In O.P(KAT) No.77/2022, Sri.P.K.Ibrahim, learned Advocate has taken notices for R1 to R3 therein and Sri.P.Sreekumar, learned Standing Counsel for KUHS has taken notice for additional R4 therein. In O.P(KAT) No.64/2022, Sri.T.G.Sunil, learned Advocate has taken notice for R2 & R3 therein, learned Senior Government Pleader has taken notices for R4 & R5 therein, Sri.P.Sreekumar, learned Standing Counsel for KUHS has taken notice for additional R6 therein and Sri.K.Mohanakannan, learned Standing Counsel for IGNOU has taken notice for R7 therein [R1 in O.P(KAT) No.64/2022 has already been deleted from the party array as per order dated 04.03.2022 in that O.P]. The Registry will show the names of all the abovesaid advocates in the O.P(KAT) Nos.59, 77 & 64 of 2022 5 cause list.
6. Accordingly, it is ordered that the respective original applicants may make available authenticated copies of the curriculum, contents, syllabus, etc., of the B.Sc. course in Optometry conducted by each of these universities, viz., Bharathiar University, Alagappa University & IGNOU, to the Registrar of the respondents-KUHS, without any further delay.
7. It appears that the notified qualification of the two year Diploma course in Ophthalmic Assistants conducted in Medical Colleges in Kerala is run by the Directorate of Medical Education, Government of Kerala. If that be so, the Registrar of KUHS may make a request to the Director of Medical Education, Government of Kerala, Thiruvananthapuram to make available copies of the curriculum, syllabus, course contents etc., of the two year Diploma course in Ophthalmic Assistants conducted in Medical Colleges, without any further delay. The learned Senior Government Pleader is also requested to intimate the Director of Medical Education to immediately give copies of the abovesaid materials to the Registrar, KUHS, for further immediate action. Further, the respondent-IGNOU will also provide the details of the course contents, syllabus, curriculum, etc. of the B.Sc. Optometric course, conducted by them, to the Registrar of KUHS within O.P(KAT) Nos.59, 77 & 64 of 2022 6 two weeks. Further, the Registrar, KUHS may also request the Registrar concerned of the Bharathiar University, & Alagappa University to make available the abovesaid materials regarding the respective B.Sc. courses in Optometry run by these universities, without any further delay. To obviate any further delay, the Registrar, KUHS may also personally contact the Registrar of those universities and may secure those materials, without any further delay. Thereafter, the expert academic body of the KUHS may examine all these materials like course contents, syllabus, curriculum of the respective B.Sc. course in Optometry run by each of these universities, viz., Bharathiar, Alagappa & IGNOU and also compare the same with the syllabus, course contents, curriculum, etc., of the two year Diploma course in Ophthalmic Assistants run in Medical Colleges in Kerala and then may take a considered decision as to whether or not each of these B.Sc. degrees of these three universities can be treated as a higher qualification, which pre-supposses the acquisition of the lower qualification of Diploma in Ophthalmic Assistants as above, within the meaning of Rule 10(a)(ii) of KS&SSR Part-II. It is also made clear that the Kerala Public Service Commission may also give their considered remarks in the abovesaid matter to the Registrar, KUHS, within two weeks and those aspects pointed out by the PSC may also be duly taken note of by the academic body of the KUHS while rendering O.P(KAT) Nos.59, 77 & 64 of 2022 7 the abovesaid decision, as abovesaid. All efforts may be taken by the academic authorities of the KUHS to ensure that a considered professional academic decision is taken on the abovesaid aspects,without much delay, preferably before the third week of May, 2022. We also make it clear that, if the competent authority of the KUHS is of the opinion that this issue is to be examined and decided by a competent committee of the university constituted for that purpose, other than the academic council, etc., then the KUHS authorities would be fully at liberty to do so and they may take a call on that matter on their discretion, without much delay.
8. Since the matter also involves subtle issues in the light of Rule 10(a)(ii) of KS&SSR Part-II, we would also request Sri.P.Sreekumar, learned Standing Counsel for the KUHS to give necessary guidance and co-ordination for effective action by the KUHS in the above. A comprehensive report on the abovesaid aspect may be duly submitted on behalf of the competent academic body of the KUHS as above, within the said timeline and the said report may be filed before this Court through Sri.P.Sreekumar, learned Standing Counsel for the respondent-KUHS. So also, it is made clear that the respective original applicants will also be at liberty to make their written submissions in the matter in support of their claims, as above and such written submissions O.P(KAT) Nos.59, 77 & 64 of 2022 8 should be given by the original applicants concerned to the Registrar, KUHS, within the said timeline of two weeks. Since the matter is now under consideration of this Court, it is further ordered in the interest of justice, that contempt of court proceedings, if any, arising out of the enforcement of the impugned verdicts of the Tribunal, shall stand deferred and that direction will be in force till 31.05.2022.
List these cases on 26/05/2022.
Hand Over Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
VIJU ABRAHAM, JUDGE
vgd
08-04-2022 /True Copy/ Assistant Registrar