Kerala High Court
Soniaalex vs Stateof Kerala
Author: Anil K. Narendran
Bench: C.T.Ravikumar, Anil K.Narendran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY,THE 3RD DAYOF MARCH 2017/12TH PHALGUNA, 1938
OP(KAT).No. 111 of 2014 (Z)
----------------------------
ORDER DATED 14.2.2014 IN O.A.(EKM)No.44/2014 OF KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM (CAMP SITTING, ERNAKULAM)
PETITIONERS:
--------------------
1. SONIAALEX, AGED 32 YEARS,
W/O. STANLEY, ARAKAL,
STANLY VILLA, POLLATHAI P.O., ALAPPUZHA - 688 567.
2. REJITHA KUMARI V., AGED 36 YEARS,
W/O. ASOK KUMAR, PALAVILA VEEDU,
KARICODE, CHANDANATHOPE P.O, KOLLAM -691 014.
3. RAJANI R.V., AGED 36 YEARS,
W/O. AMBILY,HOUSE No. 161, VENGODE,
KUDAVOOR P.O., THIRUVANANTHAPURAM -695 313.
4. GRISHMAA., AGED 36 YEARS,
W/O. ANIL KUMAR, RESIDING ATASWATHY,
IDICHAKKAPLAMOODU, PARASSALA P.O,
THIRUVANANTHAPURAM - 695 502.
5. SHYLAJA, AGED 39 YEARS,
W/O. SHAJU, RESIDING AT GEETHANJALI,
KURUMANDAL, PARAVUR P.O., KOLLAM DISTRICT - 691 301.
BY ADVS.SRI.P.T.DINESH
SRI.C.N.SAMEER
RESPONDENTS:
----------------------
1. STATEOF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM - 695 001.
2. THE DIRECTOR,
DIRECTORATE OF HIGHER SECONDARY EDUCATIONM,
HOUSING BOARD BUILDING, THIRUVANANTHAPURAM - 695 001.
3. KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY,
KERALA PUBLIC SERVICE COMMISSION, PATTOM,
THIRUVANANTHAPURAM -695 001.
R1 & R2 BY SPL. GOVERNMENT PLEADER SRI N. MANOJ KUMAR
R3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD
ON 03-03-2017, ALONG WITH OPKAT. 95/2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(KAT).No. 111 of 2014 (Z)
-------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
------------------------------------
EXHIBIT-P1- TRUE COPY OF THE ORDER DATED 14/02/2014 BY THE KERALA
ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM (CAMP
SITTING, ERNAKULAM)
EXHIBIT-P2- TRUE COPY OF THE O.A (EKM)No.44/2014 FILED BEFORE THE
KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM
(CAMP SITTING ERNAKULAM)
EXHIBIT-P3- TRUE COPY OF THE GAZETTE NOTIFICATION DATED 19/04/2001 BY
WHICH G.O(P)144/2001/GL.EDN. DATED 16/04/2001 WAS NOTIFIED BY
THE GENERAL EDUCATION (SPECIAL CELL) DEPARTMENT,
GOVERNMENT OF KERALA.
EXHIBIT-P4- TRUE COPY OF THE GAZETEE NOTIFICATION DATED 19/04/2001 BY
WHICH G.O(P)144/2001/GL.EDN. DATED 16/04/2001 WAS NOTIFIED BY
THE GENERAL EDUCATION (SPECIAL CELL) DEPARTMENT,
GOVERNMENT OF KERALA.
EXHIBIT P5- TRUE COPY OF LETTER NO.66439/SC1/14/GL.EDN. DT.31.12.2014 BY
THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (SC
DEPARTMENT) TO THE SECRETARY, KERALA PUBLIC SERVICE
COMMISSION.
RESPONDENTS' EXHIBITS: NIL
------------------------------------
TRUE COPY
P.S. TO JUDGE
dsn
"CR"
C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.
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O.P.(KAT) Nos.111 of 2014 & 95 of 2015
--------------------------------------------------
Dated this the 3rd day of March, 2017
JUDGMENT
ANIL K. NARENDRAN, J.
O.P.(KAT)Nos.111 of 2014 and 95 of 2015 arise out of O.A.(EKM) No.44 of 2014 and O.A.No.448 of 2013 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram Bench.
2. Since common issues are involved, these Original Petitions are heard together and disposed of by this common judgment. For convenience, we shall refer facts as contained in O.P.(KAT)No.111 of 2014 arising out of O.A.(EKM)No.44 of 2014.
3. The petitioners in these Original Petitions, who are the applicants before the Tribunal, are aspirants for the post of Higher Secondary School Teacher in Sociology under the Kerala Higher Secondary Education State Service Rules, 2001 and Higher Secondary School Teacher (Junior) in Sociology under the Kerala Higher Secondary Education Subordinate Service Rules, 2001. They have approached the Tribunal in the said O.As. seeking similar reliefs. The reliefs sought for in O.A.(EKM)No.44 of 2014 read thus;
"(i) To declare that Rule 5 of the Kerala Higher Secondary Education State Service Rules, 2001 issued as per G.O.(P) O.P.(KAT)Nos.111/2014 & 95/2015 -2- No.144/2001/G.Edn. dated 16.4.2001 to the extent it provides qualification for the post of Higher Secondary School Teacher (Category II) for the subject of Sociology is ultra vires, unconstitutional, inoperative, void and non est as it violates Articles 14 and 16 of the Constitution of India.
(ii) To declare that Rule 5 of the Kerala Higher Secondary Education Subordinate Service Rules, 2001 issued as per G.O. (P)No.144/2001/G.Edn. dated 16.4.2001 to the extent it provides the qualification for the post of Higher Secondary School Teacher (Junior) (Category I) for the subject Sociology is ultra vires, unconstitutional, inoperative, void and non est as it violates Articles 14 and 16 of the Constitution of India.
(iii) To quash Annexure A4 series and similar orders passed by the 3rd respondent Kerala Public Service Commission to the applicants.
(iv) To direct the 3rd respondent Kerala Public Service Commission to include the applicants in Annexures A5 and A6 ranked lists based on the marks obtained by them in the selection process, without adversely affecting their seniority.
(v) Direct the 1st respondent to reconsider the eligibility criteria for the post of Higher Secondary School Teacher in Sociology in the Kerala Higher Secondary Education State Service Rules, 2001 and further direct to reconsider the eligibility criteria for the post of Higher Secondary School Teacher (Junior) in Sociology in the Kerala Higher Secondary Education Subordinate Service Rules, 2001 within a time limit prescribed by this Hon'ble Tribunal after affording an opportunity of hearing to the applicants."
4. The Tribunal by Ext.P1 order dated 14.2.2014 dismissed O.A. O.P.(KAT)Nos.111/2014 & 95/2015 -3- (EKM)No.44 of 2014 holding that, no grounds have been made out warranting interference with Rule 5 of the Kerala Higher Secondary Education State Service Rules, 2001 or Rule 5 of the Kerala Higher Secondary Education Subordinate Service Rules, 2001. As such, there is nothing wrong in Annexure A4 series of orders. Accordingly, the Tribunal dismissed O.A.(EKM)No.44 of 2014 by Ext.P1 order dated 14.2.2014 produced along with O.P.(KAT)No.111 of 2014. Based on the said order, the Tribunal dismissed O.A.No.448 of 2014 by Ext.P1 order dated 26.2.2014 produced along with O.P.(KAT)No.95 of 2015. Feeling aggrieved by the said orders of the Tribunal, the petitioners/applicants are before this Court in these Original Petitions filed under Articles 226 and 227 of the Constitution of India.
5. Heard arguments of learned counsel for the petitioners/ applicants, learned Special Government Pleader for the 1st and 2nd respondents and also the learned Standing Counsel for the 3rd respondent Kerala Public Service Commission.
6. The applicants are aspirants for the post Higher Secondary School Teacher in Sociology (for brevity, 'HSST in Sociology') under the Kerala Higher Secondary Education State Service (for brevity, 'State Service') and Higher Secondary School Teacher (Junior) in Sociology (for brevity, 'HSST (Jr.) in Sociology') under the Kerala Higher Secondary O.P.(KAT)Nos.111/2014 & 95/2015 -4- Education Subordinate Service (for brevity, 'Subordinate Service'), pursuant to Annexure A1 notification dated 30.10.2010 issued by the Kerala Public Service Commission (for brevity, 'the PSC') for direct recruitment. The qualifications prescribed in Annexure A1 notification read thus;
"7. Qualifications:-
I. Master's Degree in the concerned subject with not less than 50% marks from any of the Universities in Kerala or a qualification recognised as equivalent thereto in the respective subject by a University in Kerala. II. (1) B.Ed. in the concerned subject acquired after a regular course of study from any of the Universities in Kerala or a 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 Statutes 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. 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 (SET) for the post of Higher Secondary School Teachers conducted by Government of Kerala or by the agency authorised by the State Government.
O.P.(KAT)Nos.111/2014 & 95/2015 -5- Note: (1) In the absence of B.Ed. Degree holders, candidates having Masters Degree with not less than 50% marks and who have passed State Eligibility Test will be considered. Preference will be given to those who have acquired 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 expense within 5 years from the date of entry in service. (2) Candidates who have acquired M.Ed. in the subject concerned recognised by any of the Universities in Kerala are exempted from B.Ed. qualification.
Exemptions:
xxx xxx xxx "
7. The applicants appeared for the objective type test conducted by the PSC on 6.10.2012 and they were included in Annexure A2 common shortlist published on 6.10.2012, which consists of candidates who have secured 25 marks and above. The requisite marks have been lowered to the extent necessary in respect of candidates included in the supplementary list. By Annexure A2, the candidates were directed to send self attested copies of documents to prove their qualifications, date of birth, community, etc. It was made clear that, the register number of those candidates who do not produce the required document in person at the time of verification and whose applications are found otherwise defective will be deleted from the shortlist without further notice. The applicants were issued with O.P.(KAT)Nos.111/2014 & 95/2015 -6- Annexure A3 series of communication dated 18.7.2013 of the PSC directing them to appear for verification of certificates and interview. Accordingly, the applicants produced their certificates and after verification they were permitted to attend the interview. Thereafter, the applicants were issued with Annexure A4 series of communication dated 27.12.2013 intimating rejection of their candidature on the ground that their B.Ed. qualification is not in Social Sciences/Social Studies Faculty. Thereafter, the PSC published Ext.P5 ranked list for the post of HSST in Sociology and Ext.P6 ranked list for the post of HSST (Jr.) in Sociology, which came into force with effect from 22.1.2014, in which the applicants were not included.
8. The pleadings and materials on record would show that the applicants possess Masters Degree in Sociology with not less than 50% marks, awarded by the University of Kerala. They have passed either the State Eligibility Test (for brevity, 'SET') conducted for appointment as HSST or the National Eligibility Test (for brevity, 'NET') for Lectureship conducted by the University Grants Commission. But, their B.Ed. qualification is not in Social Sciences/Social Studies Faculty, which fact is not in dispute.
9. In exercise of the powers conferred by sub-section (1) of Section 2 of the Kerala Public Services Act, 1968 and in supersession of all the rules and orders on the subject, the Government of Kerala made the Special Rules for the Kerala Higher Secondary Education State Service, by O.P.(KAT)Nos.111/2014 & 95/2015 -7- G.O.(P)No.144/2001/G.Edn. dated 16.4.2001, which consists of two categories, namely, Principal and HSST in various subjects. In Rule 2 of the Special Rules, HSST in various subjects falls under Category II and HSST in Sociology is item (28) under the said category. Rule 3 of the Special Rules deals with appointment to various categories. The method of appointment to the category of Principal is by promotion from Category II; and by transfer from qualified Headmasters of High Schools in the Kerala General Education Service. The method of appointment prescribed under Rule 3 for the category of HSST reads thus;
Sl.No. Category Method of appointment
1 2 3
2 Higher Secondary (I) By transfer from Higher Secondary School
School Teacher Teacher (Junior) in the subject concerned.
(II) In the absence of qualified hands under
clause (I) above, the vacancies shall be
apportioned in the ratio 1:3 between
appointment by transfer and direct recruitment as detailed below:
(1) (a) By transfer from High School Assistants included in the General Education Subordinate Service who possess the requisite qualification in the subject concerned.
(b) In the absence of qualified persons under item (a) above by transfer from qualified Upper Primary School Assistants/ Lower Primary School Assistants included in the General Education Subordinate Service who possess the requisite qualification in the subject concerned.
(2) By direct recruitment O.P.(KAT)Nos.111/2014 & 95/2015 -8- Notes: 1. When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under item (II)(1), such vacancies shall also be allotted for direct recruitment.
2. Appointments under item (I) above shall be made from select lists of qualified persons prepared on the basis of merit and ability.
3. Direct recruitment under item (II)(2) shall be made on State-wise basis by the Kerala Public Service Commission.
10. Rule 5 of the Special Rules for State Service deals with qualifications. Rule 5 provides that, no person shall be eligible for appointment in the category mentioned in column (2) in the table, under methods specified in column (3) unless he possesses the qualification prescribed in the corresponding entry in column (4) thereof. The qualifications prescribed for appointment by transfer and for direct recruitment to the category of HSST in Sociology read thus;
Sl. Category Method of Qualifications
No. appointment
1 2 3 4
2 Higher By transfer (i) Master's Degree in the concerned
Secondary and by direct subject with not less than 50%
School recruitment marks from any of the Universities
Teacher in in Kerala or a qualification
(28) Sociology recognised as equivalent thereto in
the respective subject by a
University in Kerala.
(ii) (1) B.Ed. in the concerned subject
acquired after a regular course of
study from any of the Universities
in Kerala or a qualification
recognised as equivalent thereto by
a University in Kerala.
O.P.(KAT)Nos.111/2014 & 95/2015 -9-
(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 Statutes 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. 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 Teachers
conducted by Government of Kerala
or by the Agency authorised by the
State Government.
Note:- 1. In the absence of B.Ed. Degree holders, candidates having Masters Degree with not less than 50% marks and who have passed State Eligibility Test will be considered. Preference will be given to those who have acquired Ph.D Degree/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 expense within 5 years from the date of entry in service.
2. Candidates who have acquired M.Ed. in the subject concerned recognised by any of the Universities in Kerala are exempted from B.Ed. qualification.
11. Similarly, in supersession of all the rules and orders on the subject, the Government of Kerala made the Special Rules for the Kerala Higher Secondary Education Subordinate Service, by G.O.(P)No.144/ 2001/G.Edn. dated 16.4.2001, which consists of various categories. In Rule 2 of the Special Rules, HSST (Jr.) in various subjects falls under Category I and HSST (Jr.) in Sociology is item (28) under the said category. Rule 3 of O.P.(KAT)Nos.111/2014 & 95/2015 -10- the Special Rules deals with appointment to various categories and the method of appointment to the category of HSST (Jr.) reads thus;
Sl.No. Category Method of appointment
1 2 3
2 Higher Secondary (1) (i) By transfer from qualified High School
School Teacher Assistants in the subject concerned.
(Junior) (ii) In the absence of qualified hands under
clause (I) above, by transfer from qualified Upper Primary School Assistant/Lower Primary School Assistant in the subject concerned.
and (2) By direct recruitment.
Note:- 25% of the total posts shall be filled up by the method specified in item (1) above on seniority basis and 75% of such posts shall be filled up by direct recruitment.
12. Rule 5 of the Special Rules for Subordinate Service deals with qualification. Rule 5 provides that, no person shall be eligible for appointment in the category mentioned in column (2) in the table, under methods specified in column (3) unless he possesses the qualification prescribed in the corresponding entry in column (4) thereof. The qualifications prescribed for appointment by transfer and for direct recruitment to the category of HSST (Jr.) in Sociology read thus;
Sl. Category Method of Qualifications
No. appointment
1 2 3 4
2 Higher By transfer and (i) Master's Degree in the concerned
Secondary by direct subject with not less than 50% marks
School Teacher recruitment from any of the Universities in Kerala or
(Junior) in a qualification recognised as equivalent
(28) Sociology thereto in the respective subject by a
University in Kerala.
O.P.(KAT)Nos.111/2014 & 95/2015 -11-
(ii) (1) B.Ed. in the concerned subject
acquired after a regular course of
study from any of the Universities
in Kerala or a 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 Statutes 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. 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 Teachers
conducted by Government of
Kerala or by the Agency authorised
by the State Government.
Note:- 1. In the absence of B.Ed. Degree holders, candidates having Masters Degree with not less than 50% marks and who have passed State Eligibility Test will be considered. Preference will be given to those who have acquired Ph.D Degree/ 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 expense within 5 years from the date of entry in service.
2. Candidates who have acquired M.Ed. in the subject concerned recognised by any of the Universities in Kerala are exempted from B.Ed. qualification.
13. As per the provisions under the Special Rules for State Service and that for Subordinate Service, for appointment to the category of HSST O.P.(KAT)Nos.111/2014 & 95/2015 -12- in Sociology or HSST (Jr.) in Sociology a candidate should possess (in addition to Master's Degree in the concerned subject with not less than 50% marks and a pass in State Eligibility Test) B.Ed. in the concerned subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by a University in Kerala. In the absence of candidates with B.Ed. Degree in the concerned subject, candidates with B.Ed. Degree acquired in the concerned Faculty as specified in the Acts and Statutes of any of the Universities in Kerala shall be considered for appointment. In the absence of candidates with B.Ed. Degree in the concerned subject/concerned Faculty, candidates with B.Ed. 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 shall be considered for appointment. The Special Rules for State Service and that for Subordinate Service prescribe similar qualifications for HSST and HSST (Jr.) in all other subjects, except Computer Science, Computer Application and Electronics. For those subjects certain technical qualifications are insisted upon.
14. Section 2 of the Kerala Public Services Act, 1968 deals with regulation of recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State. As per sub-section (1) of Section 2 of the said Act, the Government may make O.P.(KAT)Nos.111/2014 & 95/2015 -13- rules either prospectively or retrospectively to regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala. In Kunjukunju M.I. v. State of Kerala [(2015) 11 SCC 440] the Apex Court held that, under the Kerala Public Services Act, 1968 the State Government is empowered to make Rules either prospectively or retrospectively to regulate the recruitment and condition of service of persons appointed to public services.
15. Indisputably, the Special Rules for State Service and that for Subordinate Service are made by the State Government, in exercise of the powers conferred by sub-section (1) of Section 2 of the Kerala Public Services Act. It is essentially a legislation made to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State and as such, the legislative competency of the State cannot be doubted.
16. In Union of India v. Pushpa Rani [(2008) 9 SCC 242] the Apex Court has stated in categorical terms that, matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees, etc. fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the O.P.(KAT)Nos.111/2014 & 95/2015 -14- employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.
17. In Official Liquidator v. Dayanand [(2008) 10 SCC 1] a Three-Judge Bench of the Apex Court has reiterated that, the creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and lay down the qualification etc. is not immune from judicial review, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the O.P.(KAT)Nos.111/2014 & 95/2015 -15- judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by mala fides.
18. In Dilip Kumar Garg v. State of U.P. [(2009) 4 SCC 753] the Apex Court, while considering the vires of Rule 5(ii) of the U.P. Public works Department Group B Civil Engineering Service Rules 2004, held that Article 14 of the Constitution should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion and it is not for the Court to sit over their decision like a Court of Appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. The Court should not ordinarily interfere in policy decisions unless there is clear violation of some constitutional provision or the statute. In Tata Cellular v. Union of India, AIR [(1994) 6 SCC 651] it has been held that there should be judicial restraint in administrative decision. This principle will apply all the more to a Rule under Article 309 of the Constitution.
O.P.(KAT)Nos.111/2014 & 95/2015 -16-
19. In view of the law laid down by the Apex Court in the decisions referred to supra, matters relating to creation and abolition of posts, prescribing the source/mode of recruitment and qualifications, criteria of selection, etc. fall within the exclusive domain of the employer. The administrative authorities are in the best position to decide the requisite qualifications for appointment, promotion, etc. and it is not for the Court to sit over their decision like a Court of Appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides.
20. In the instant case, the applicants challenge the qualification prescribed for HSST in Sociology under the State Service and that for HSST (Jr.) in Sociology under the Subordinate Service mainly on the ground that none of the Universities in Kerala are conducting B.Ed. Degree course in Sociology. The applicants would also contend that, there is no much difference between the candidates who possess B.Ed. Degree in the concerned Faculty, i.e., Social Sciences/Social Studies Faculty, as specified in the Acts and Statutes of any of the Universities in Kerala, and those who possess B.Ed. Degree in any other subject. As such, the classification of O.P.(KAT)Nos.111/2014 & 95/2015 -17- candidates with B.Ed. Degree in Social Sciences/Social Studies Faculty and those with B.Ed. Degree in any other subject is not founded on an intelligible differentia having a rational relation to the object sought to be achieved by the Special Rules.
21. In Om Kumar v. Union of India [(2001) 2 SCC 386] the Apex Court examined the distinctive application of the 'doctrine of proportionality' and 'Wednesbury principles'. The Apex Court held that, by 'proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under this principle, the Court will see that the legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve'. The legislature and the administrative authority are however given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court to decide. That is what is meant by proportionality. But, where an administrative action is challenged as 'arbitrary' under Article 14 of the Constitution of India, the question will be whether the O.P.(KAT)Nos.111/2014 & 95/2015 -18- administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. Thus, the principle of primary review and proportionality on the one hand and the principle of secondary review and Wednesbury reasonableness on the other hand gave a new dimension to Administrative law, the former applying in the case of fundamental freedoms and the latter, in other cases.
22. In All India Railway Recruitment Board v. K.Shyamkumar [(2010) 6 SCC 614] the Apex Court held that, Wednesbury principles applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to 'assess the balance or equation' struck by the decision maker. Proportionality, requires the Court to judge whether action taken was really O.P.(KAT)Nos.111/2014 & 95/2015 -19- needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision- maker has achieved more or less the correct balance or equilibrium. The Courts entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e., well balanced and harmonious, to this extent Court may indulge in a merit review and if the Court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate, i.e. if the Court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.
23. It is trite law that, when constitutionality of a subordinate legislation is under challenge, interference is possible only on limited grounds. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth [(1984) 4 SCC 27] the Apex Court laid down that, the constitutionality of the regulations has to be adjudged only by a three-fold test, namely, (1) whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate; (2) whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment; and lastly (3) whether they infringe O.P.(KAT)Nos.111/2014 & 95/2015 -20- any of the fundamental rights or other restrictions or limitations imposed by the Constitution.
24. In Paritosh Bhupesh Kurmarsheth's case (supra), on the question as to whether a bye-law can be struck down on the ground of unreasonableness, the Apex Court laid down that, even a bye-law cannot be struck down by the Court on the ground of unreasonableness merely because the Court thinks that it goes further than 'is necessary' or that it does not incorporate certain provisions, which in the opinion of the Court, would have been fair and wholesome. The Court cannot say that a bye-law is unreasonable merely because the Judges do not approve of it. Unless it can be said that a bye-law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the Court on the ground of unreasonableness.
25. In Pankajakshy and others v. George Mathew and others (1987 (2) KLT 723), a Division Bench of this Court has summarised the grounds available for impugning a subordinate legislation. This Court held that a rule made under a Statute by authority delegated for the purpose can be challenged on the following grounds; namely, (i) that it is ultra vires the Act; (ii) it is opposed to the fundamental rights;and (iii) it is opposed to other plenary laws. The Division Bench held that, to ascertain whether a rule is ultra vires of the Act, the Court can go into the question (a) whether O.P.(KAT)Nos.111/2014 & 95/2015 -21- it contravenes expressly or impliedly any of the provisions of the Statute;
(b) whether it achieves the intent and object of the Act; and (c) whether it is unreasonable to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such Rules.
26. In the instant case, under the Special Rules for the State Service and that for the Subordinate Service, apart from the qualification of Master's Degree in the concerned subject with not less than 50% marks and a pass in State Eligibility Test, a candidate seeking appointment to the category of HSST in Sociology or HSST (Jr.) in Sociology should possess B.Ed. in the concerned subject. In the absence of candidates with B.Ed. Degree in the concerned subject, B.Ed. Degree acquired in the concerned Faculty as specified in the Acts and Statutes of any of the Universities in Kerala shall be treated as the alternative qualification. In the absence of persons with B.Ed. Degree in the concerned subject/concerned Faculty, B.Ed. Degree in any subject shall be considered as the alternative qualification. The Special Rules for State Service and that for Subordinate Service prescribe similar qualifications for HSST and HSST (Jr.) in all other subjects, except Computer Science, Computer Application and Electronics, for which certain technical qualifications are insisted upon. The applicants could not point out any peculiar characteristics of the subject Sociology, in order to have different criteria in the matter of prescription of qualifications O.P.(KAT)Nos.111/2014 & 95/2015 -22- for the post of HSST in Sociology and HSST (Jr.) in Sociology.
27. In Tariq Islam v. Aligarh Muslim University [(2001) 8 SCC 546], following the earlier decision in the Constitution Bench in University of Mysore v. C.D. Govinda Rao (AIR 1965 SC 491) the Apex Court observed that, normally it is wise and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the courts generally are. The Apex Court reiterated the said principle in Rajbir Singh Dalal v. Chaudhari Devi Lal University [(2008) 9 SCC 284] holding that, it is not appropriate for the Court to sit in appeal over the opinion of the experts who are of the view that Political Science and Public Administration are inter related and inter changeable subjects, and hence a candidate who possesses Master's degree in Public Administration is eligible for the post of Lecturer in Political Science and vice versa.
28. Though, no University in Kerala is offering B.Ed. Degree Course in Sociology, the fact that the said course is being offered by the Universities outside Kerala is not seriously disputed by the applicants. Social Sciences, in its broadest sense, is a group of academic disciplines that examine society and how people interact and develop as a culture. As per the relevant Statutes/Ordinances of the Kerala University and Mahatma Gandhi University in Kerala, the Department of Sociology falls under the O.P.(KAT)Nos.111/2014 & 95/2015 -23- Faculty of Social Sciences. Under the Kerala University First Ordinances, 1978 the Faculty of Social Sciences shall comprise of the Departments of History, Political Science, Economics, Psychology, Islamic Studies, Sociology, Social Work and Archeology. No judicial interference is warranted in such categorisation made by expert academic bodies like Universities, unless there is a clear violation of the statutory provisions, regulations, notifications, etc. and this Court in exercise of the power of judicial review is not expected to sit in appeal over the opinion expressed by such expert academic bodies, who are more familiar with the problem they face.
29. Under the Special Rules for the State Service and that for the Subordinate Service, while prescribing the alternative qualification for the categories of HSST and HSST (Jr.), the legislature in its wisdom thought it appropriate to give preference to candidates with B.Ed. Degree in the concerned Faculty, as specified in the Acts and Statutes of any of the Universities in Kerala, before considering candidates with B.Ed. Degree in any other subject. Such a preference provided under the Special Rules, with reference to the categorisation made by expert academic bodies like Universities, is only proportionate, i.e., well balanced and harmonious, warranting no interference of this Court in exercise of the power of judicial review. Further, the said provisions under the Special Rules do not in any manner infringe the fundamental rights or other restrictions or limitations O.P.(KAT)Nos.111/2014 & 95/2015 -24- imposed by the Constitution of India. In view of the law laid down in the decisions of the Apex Court and this Court referred to hereinbefore, the grounds raised by the applicants are not valid grounds available for impugning a subordinate legislation like the Special Rules for State Service and that for Subordinate Service.
30. The applicants would also contend that, since sufficient number of candidates are not included in Annexures A5 and A6 ranked lists, the PSC ought to have included candidates with B.Ed. Degree in any subject in the ranked lists, instead of rejecting their candidature by Annexure A4 series of orders.
31. By Annexure A1 notification, the PSC invited application to 33 vacancies of HSST in Sociology and 4 vacancies of HSST (Jr.) in Sociology. After conducting the written test and interview, the PSC published Annexure A5 ranked list for the post of HSST in Sociology and Annexure A6 ranked list for the post of HSST (Jr.) in Sociology. Annexure A5 ranked list contains 185 candidates in the main list and the supplementary list contains 16 Ezhava/Thiyya/Billava candidates, 6 Scheduled Caste candidates, 1 Scheduled Tribe candidate, 22 Muslim candidates, 7 Latin Catholic/Anglo Indian candidates, 4 OBC candidates, 3 Viswakarma candidates, 2 SIUC Nadar candidates, 2 Dheevara candidates and 3 Physically Handicapped (ortho) candidates. Similarly, Annexure A6 ranked list contains 176 O.P.(KAT)Nos.111/2014 & 95/2015 -25- candidates in the main list and the supplementary list contains 16 Ezhava/Thiyya/Billava candidates, 5 Scheduled Caste candidates, 1 Scheduled Tribe candidate, 22 Muslim candidates, 7 Latin Catholic/Anglo Indian candidates, 4 OBC candidates, 3 Viswakarma candidates, 2 SIUC Nadar candidates, 2 Dheevara candidates and 3 Physically Handicapped (ortho) candidates.
32. The stand taken by the PSC is that, since sufficient number of candidates with B.Ed. Degree in Social Sciences Faculty were available, the candidates with B.Ed. Degree in any subject were not considered for inclusion in Annexures A5 and A6 ranked lists. A similar stand taken by the PSC, in the matter of recruitment to the post of HSST in Sociology, has already been upheld by a Division Bench of this Court in Tessy Mol K.D. and others v. Secretary to Government and others (judgment dated 8.7.2003 in W.A.No.1112 of 2003) arising out of the judgment of the learned Single Judge dated 1.7.2003 in W.P.(C)No.20792 of 2003. In the said case, candidates who possessed B.Ed. Degree in other subjects were not even called for the written test. The learned Single Judge dismissed the writ petition observing that the candidates, who do not have B.Ed. Degree in the concerned Faculty were rightly not included in the list of candidates who were allowed to appear for the written test. Repelling the contentions raised by the candidates, the Division Bench observed that, it is for the PSC O.P.(KAT)Nos.111/2014 & 95/2015 -26- to devise a suitable method and that, the PSC is not bound to call all persons possessing the qualification of M.A., B.Ed. for written test, irrespective of the particular subject.
33. Rule 4(iv) of the Kerala Public Service Commission Rules of Procedure provides that, where a written examination and/or a practical test is conducted by the Commission for recruitment to a service or post, the Commission shall prepare a list in the order of merit of such number of candidates as the Commission may determine from time to time. As per the proviso to the said rule, the Commission may also prepare separate ranked lists in the order of merit of candidates coming under separate groups in accordance with the qualifications or other conditions as stipulated in the notification. Rule 12A(ii) of the said Rules provides further that, in cases where the qualification for a post is so prescribed that candidates possessing a lower qualification will be selected only in the absence of candidates with certain higher qualification, the Commission shall prepare separate ranked list in respect of candidates possessing the higher qualification and the lower qualification.
34. In Sajan v. State of Kerala (2008 (2) KLT 133), in the matter of recruitment to the post of Surveyor Grade-II in the Department of Survey and Land Records, a learned Judge of this Court held that, neither Rule 4 nor Rule 12A of the Kerala Public Service Commission Rules of O.P.(KAT)Nos.111/2014 & 95/2015 -27- Procedure obliges the Commission to call the persons who possess only the last alternate qualification, for the test conducted by them. The key words, in the absence of qualified candidates, obviously mean qualified in terms of the main part of the Rule. Thus, a person who has passed SSLC with the Chain Survey test could be considered for the post of Surveyor Grade-II only if there are no qualified candidates, namely the candidates who possess either ITI Surveyor Trade Certificate or the other certificates mentioned therein. The judgment of the learned Single Judge was affirmed by a Division Bench of this Court in Janardanan K. and others v. State of Kerala and others (2008 (3) KLT 384).
35. Rule 13 of the Kerala Public Service Commission Rules of Procedure provides that, the ranked lists published by the Commission shall remain in force for a period of one year from the date on which it was brought into force provided that the said list will continue to be in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years whichever is earlier. Rule 14 of the said Rules provides further that, the Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive in the order of priority, if any, and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable. O.P.(KAT)Nos.111/2014 & 95/2015 -28-
36. Though, going by Rule 13, the ranked lists published by the Commission will continue to be in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years whichever is earlier, the PSC is legally entitled to invite applications and publish a fresh ranked list after the expiry of the one year period, without waiting for the extended period of three years to expire. Therefore, the candidates included in the ranked lists have no legal right to insist that the Commission should not publish a fresh ranked list till the expiry of three years from the date on which the original ranked list was brought into force.
37. In Ravidas M. and another v. Kerala Public Service Commission and others (2009 (2) KLT 295) a Full Bench of this Court held that, the candidates included in the ranked lists have no right to claim that all the vacancies arising over a period of three years should be filled up from only one ranked list. As per the rules, the validity of a ranked list (except in the case of recruitment to posts involving training) is for a period of three years from the date of publication or till a fresh ranked list is published, whichever is earlier. The Commission is therefore free to notify vacancies and publish a fresh ranked list without waiting for the period of three years to run out. Further, recruitment by the Commission to the State Civil Service is a continuous and ongoing process. Every year hundreds or thousands of students pass out of schools and colleges in the State. If the O.P.(KAT)Nos.111/2014 & 95/2015 -29- contention of the petitioners that the Commission should publish ranked lists large enough to fill up all the vacancies arising during a period of three years from its publication is accepted, students who pass out of schools and colleges will have to wait for years after completion of their studies to even apply for employment.
38. When sufficient number of candidates who possessed B.Ed. Degree in Social Sciences Faculty were available in the shortlist, there was no necessity for the PSC to consider the candidature of the applicants, who possessed only B.Ed. Degree in other subjects, who will be considered for appointment only in the absence of candidates who possessed B.Ed. Degree in Social Sciences Faculty. Even after exclusion of candidates who possessed only B.Ed. Degree in other subjects, adequate number of candidates are included in Annexures A5 and A6 ranked lists. Further, no materials are placed before this Court to show that Annexures A5 and A6 ranked lists got exhausted without advising candidates against all the vacancies reported to the PSC.
39. Since sufficient number of candidates with B.Ed. Degree in Social Sciences Faculty were available, the candidates with B.Ed. Degree in any subject were not considered for inclusion in Annexures A5 and A6 ranked lists. Therefore, we find no merit in the argument advanced by the learned counsel for the petitioners/applicants that, instead of rejecting the O.P.(KAT)Nos.111/2014 & 95/2015 -30- candidature of the applicants by Annexure A4 series of orders, the PSC ought to have included the candidates with B.Ed. Degree in any subject in the Annexures A5 and A6 ranked lists.
40. The Tribunal by the impugned orders dismissed O.A.(EKM)No.44 of 2014 and O.A.No.448 of 2013 holding that no ground has been made out warranting interference with Rule 5 of the Special Rules for the State Service and that for the Subordinate Service. As such, there is nothing wrong in Annexure A4 series of orders.
41. It is trite law that, while testing the correctness or otherwise of an order passed by a Tribunal or any other quasi-judicial authority, in exercise of the writ jurisdiction under Article 226/227 of the Constitution of India, this Court plays only a limited role. As has been repeatedly held by the Apex Court, the function of the High Court, in such proceeding is not appellate in nature and as such, finding of a fact arrived at by a Tribunal or a quasi-judicial authority cannot be interfered with upon re-appreciation of evidence. In such matters, the High Court is concerned with the determination of the question as to whether the Tribunal has or has not acted within the limits of its jurisdiction, or has acted in breach of the principles of natural justice in exercise of its jurisdiction, or whether the order of the Tribunal or quasi-judicial authority is vitiated by mala fides or perversity. In that view of the matter, it is not open to this Court, while O.P.(KAT)Nos.111/2014 & 95/2015 -31- exercising the writ jurisdiction under Article 226/227 of the Constitution of India, to convert itself into a court of appeal and examine the correctness of Ext.P1 order of the Tribunal or decide the appropriate view to be taken or the order to be made.
In the result, these Original Petitions fail and they are accordingly dismissed. No order as to costs.
Sd/-
C.T. RAVIKUMAR, JUDGE Sd/-
ANIL K. NARENDRAN, JUDGE dsn True copy P.S. to Judge