Kerala High Court
Manikandan K vs Kerala State Electricity Board on 11 July, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 10TH DAY OF JANUARY 2014/20TH POUSHA, 1935
WP(C).No. 26694 of 2013 (J)
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PETITIONER(S):
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1.MANIKANDAN K.
S/O.V.P.UNNIKRISHNAN, KANNAMKUMARATH, PUDUSSERRY
P.O.CHERUTHURUTHY, THRISSUR-679531.
2.NAKHIL KUMAR C.
S/O.RAGHAVAN NAIR V., BHARATHI MANDIRAM, PERINGODE
CHAZHIYATTIRI P.O., PALAKKAD-679535.
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENT(S):
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1.KERALA STATE ELECTRICITY BOARD
REPRESENTED BY SECRETARY
KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN
THIRUVANANTHAPURAM-695001.
2.THE CHIEF ENGINEER (HRM)
KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN
THIRUVANANTHAPURAM-695001.
3.THE KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY THE SECRETARY
KERALA PUBLIC SERVICE COMMISSION, PATTOM
THIRUVANANTHAPURAM-695004.
R1 & 2 BY ADV. SRI.K.S.ANIL, SC, KSEB
R3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-01-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 26694 of 2013 (J)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXHIBIT P1 : TRUE COPY OF THE NOTIFICATION WHICH APPEARED IN
MATHRUBHUMI THOZHIL VARTHA DT.4-4-2009.
EXHIBIT P2 : TRUE COPY OF THE BBS CERTIFICATE OF THE 1ST PETITIONER.
EXHIBIT P3 : TRUE COPY OF THE BBS MARK LIST OF THE 1ST PETITIONER.
EXHIBIT P4 : TRUE COPY OF THE M.COM CERTIFICATE OF THE 1ST PETITIONER.
EXHIBIT P5 : TRUE COPY OF THE M.COM MARK LIST OF THE 1ST PETITIONER.
EXHIBIT P6 : TRUE COPY OF THE BBS CERTIFICATE OF THE 2ND PETITIONER.
EXHIBIT P7 : TRUE COPY OF THE M.COM CERTIFICATE OF THE 2ND PETITIONER.
EXHIBIT P8 : TRUE COPY OF THE ORDER DT.31-7-2010 ISSUED BY THE
UNIVERSITY OF CALICUT.
EXHIBIT P9 : TRUE COPY OF THE PSC SHORTLIST DT.14-11-2012.
EXHIBIT P10 :TRUE COPY OF THE PSC MEMO DT.9-9-2013.
EXHIBIT P11 :TRUE COPY OF THE CERTIFICATE PRODUCED BY THE 2ND
PETITIONER.
EXHIBIT P12 :TRUE COPY OF THE PSC REJECTION MEMO DT.22-10-13 ISSUED TO
THE 1ST PETITIONER.
EXHIBIT P13 :TRUE COPY OF THE PSC REJECTION MEMO DT.22-10-13 ISSUED TO
THE 2ND PETITIONER.
EXHIBIT P14:TRUE COPY OF CIRCULAR NO.18/2003 DATED 11.7.2003.
RESPONDENT(S)' EXHIBITS:NIL
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//TRUE COPY//
P.A.TO JUDGE
"C.R"
C.T. RAVIKUMAR, J.
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W.P.(C). No.26694 OF 2013
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Dated this the 10th day of January, 2014
JUDGMENT
Yet again, the rejection of candidature by the Kerala Public Service Commission (for short 'PSC') is to face the judicial scrutiny in the light of Rule 10(a)(ii) of the General Rules in Kerala State and Subordinate Services Rules, 1958 (for brevity 'KS & SSR'). This situation arose in the following background:-
The petitioners applied for appointment to the post of Divisional Accountant in the Kerala State Electricity Board (for short 'KSEB') in response to a notification issued by the PSC with category No.53/2009. As per Ext.P12, the application of the first petitioner was rejected on the ground that he is lacking the qualification owing to non-possession of B.Com Degree with first class which is one of the prescribed alternative qualifications. The application of the second W.P.(C).26694/13 2 petitioner was rejected as per Ext.P13 assigning the same reason and an additional reason of non-fulfilment of requisite experience.
2. Essentially, the petitioners contend that they possess the requisite academic qualifications relying on Rule 10(a)(ii) of the General Rules in KS & SSR. It is the further contention of the second petitioner that having accepted the experience certificate produced by the first petitioner, there was absolutely no reason at all for holding him ineligible on account of lacking the prescribed experience. According to the second petitioner, the certificate produced by him revealing the gained experience of seven years in the category of Special Grade Assistant in the Kerala State Financial Enterprises Ltd., which is a Government of Kerala undertaking should have been treated as sufficient to satisfy the requirement regarding the prescribed experience. Respondents 2 and 3 have filed separate counter affidavits. Essentially, their contention is that Rule 10(a)(ii) of the General Rules in KS & SSR got no application in the facts and W.P.(C).26694/13 3 circumstances of the case and being persons lacking the prescribed qualification of Graduation in Commerce viz., B.Com or any other qualification prescribed the petitioners cannot claim possession of the prescribed academic qualification for getting appointment as Divisional Accountant in pursuance of Ext.P1 notification. In the case of the second petitioner the stand is that he is lacking the prescribed experience as well.
3. I have heard the learned counsel for the petitioners, the learned standing counsel appearing for respondents 1 and 2 and the learned standing counsel appearing for the third respondent. In view of the rival contentions, essentially, the first question to be decided is whether the petitioners are entitled to get the benefit of the provisions under Rule 10(a)(ii) of the General Rules in KS & SSR for the purpose of holding them as qualified candidates for selection to the post of Divisional Accountant pursuant to Ext.P1 notification. Before adverting to the rival contentions in detail, it is only apposite to refer W.P.(C).26694/13 4 to Rule 10(a)(ii) of the General Rules in KS & SSR and the same reads thus:-
"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."
4. For deciding the applicability of Rule 10(a)(ii) of the General Rules in KS & SSR, the qualifications admittedly possessed by the petitioners are also to be looked into. In paragraph 7 of the counter affidavit filed by the 3rd respondent-PSC with respect to the qualifications possessed by the petitioners it has been stated thus:-
1. Manikandan K -BBS+M.Com+1st class 3 years plus experience as LDC (Accounts Branch) in PWD.
2. Nakhilkumar C -BBS+ M.Com+1st class 7 years plus experience as Special Grade Assistant in KSFE.W.P.(C).26694/13 5
5. It is common case that the petitioners secured Master's Degree in Commerce without acquiring B.Com Degree. True that in the case of the second petitioner, his application was rejected on the ground of lacking the prescribed experience as well. The petitioners contend that Rule 10(a)(ii) of the General Rules in KS & SSR is applicable in their case and by virtue of the said provision, they are entitled to be treated to have the first alternative qualification. To support the said contention, the petitioners relied on the decision of the Hon'ble Supreme Court in Jyoti K.K & Ors. v. Kerala Public Service Commission & Ors. [JT 2002 (suppl. 1) SC 85]. Per contra, to contend that the case of the petitioners will not fall within the purview of Rule 10(a)(ii) of the General Rules in KS & SSR, the third respondent relied on the decisions of this Court in Sunil v. Public Service Commission [2008(3) KLT 384], Abdul Salam v. Executive Engineer [2011(3) KLT 204] and Suresh Kumar B and others v. Kerala Public Service Commission and others [2012(4) KHC 83]. While endorsing the contentions raised by the third W.P.(C).26694/13 6 respondent relying on the aforesaid decisions, the learned standing counsel appearing for respondents 1 and 2 contended that possession of M.Com without acquiring B.Com will not be sufficient to discharge the duties attached to the post of Divisional Accountant. It is contended that in fact, it is taking into account the duties attached to the post of Divisional Accountant under the KSEB that the qualifications were prescribed in Ext.P1. In other words, according to respondents 1 and 2, possession of any of the prescribed qualifications in Ext.P1 is required to satisfy the academic qualifications besides possessing the requisite experience and no other qualifications can be accepted. To contend that the provisions under Rule 10(a)(ii) of the General Rules in KS & SSR is not applicable, they relied on the decision of the Hon'ble Apex Court in Bagiradhan v. State of Rajasthan (AIR 1992 SC 1949).
6. The learned counsel for the petitioners laid emphasis on paragraph 9 of the decision in Jyoti's case (supra) and contended that W.P.(C).26694/13 7 higher qualification of M.Com possessed by the petitioners should take in pre-supposition of acquisition of prescribed qualification of B.Com. In this context, the contention taken up by respondents 1 and 2 is that in order to attract the provisions under Rule 10(a)(ii) of the General Rules in KS & SSR and to presuppose the acquisition of the lower qualification prescribed there must be actual possession of the prescribed qualification of B.Com besides the higher qualification of M.Com. In that context, it is relevant to refer to the following specific contention of the second respondent in paragraph 10 of the counter affidavit.:-
"The citation relied in the writ petition will not apply in the subject case as both petitioners are not having the basic qualification specified in the notification. Hence Rule 10(ii) of General Rules of KS & SSR will also not be attracted in the subject case."
7. Virtually, the learned standing counsel appearing for the third respondent fully endorsed the contentions raised on behalf of respondents 1 and 2 based on the aforequoted contention made in paragraph 10 of the counter affidavit. I have already adverted to the rival contentions. The crux of the contentions of the respondents is that Rule 10 (a)(ii) of the General Rules is applicable only in a case W.P.(C).26694/13 8 where the concerned candidate actually possesses the lower qualification prescribed besides the higher qualification that presupposes the acquisition of the said lower qualification prescribed for a particular post whereas the contention of the petitioners is that such an interpretation would defeat the very purpose and intent of the beneficial aspects of the said provision. In this case, the petitioners possessed M.Com Degree and admittedly, they acquired the same without acquiring B.Com Degree. A perusal of Ext.P1 notification would reveal that one of the prescribed qualifications for appointment to the aforesaid post is B.Com with first class and in other words, the lower qualification prescribed for the purpose of this case is B.Com. The term 'presuppose' is employed in Rule 10(a)(ii), Part II, KS & SSR and the said word also got a meaning 'to accept something as true or existing and act on that basis before it has been proved to be true'. Its synonym is presume. Therefore, it may appear that the contention of the respondents is having substance. However, a close scrutiny of Rule 10(a)(ii) in the light of Jyoti's case (supra) is W.P.(C).26694/13 9 required to decide whether it is tenable or not. It is nobody's case that the qualification in question viz., M.Com possessed by the petitioners is equivalent to the prescribed qualification and therefore, the question is whether it presupposes the acquisition of lower qualification prescribed for the post viz., B.Com. The latter limb of Rule 10(a)(ii) permits recognition of a higher qualification which presupposes the acquisition of lower qualification prescribed for a particular post provided it is also sufficient for the said post. Thus, the requirement to consider sufficiency or otherwise for appointment to the post in question is to be made with respect to the higher qualification which is not the prescribed one or one of the prescribed qualifications for the post if it is found as a higher qualification that presupposes the acquisition of the lower qualification prescribed. In the context of the contentions, the decision of the Hon'ble Apex court in Jyoti's case (supra) assumes relevance. In that case, for appointment to the post of Sub Engineers (Electrical), Diploma in Electrical Engineering of three years course was prescribed as the qualification. The concerned W.P.(C).26694/13 10 applicants for the post were lacking the said prescribed qualification whereas they possessed the Degree in Electrical Engineering. In that case, the P.S.C, on the ground that the concerned applicants did not possess the necessary qualification, found them ineligible for selection. They approached this Court contending that they possessed higher qualification and therefore rejection of their candidature is illegal and invalid in view of Rule 10(a)(ii) of the General Rules in KS & SSR and consequently, prayed for a direction to the PSC to consider them as eligible candidates. The contention of the PSC before this Court was that the graduates in Engineering or persons possessing such other qualifications could not be taken as persons with higher qualification that presupposes acquisition of the lower qualification prescribed and that they are not equivalent qualification prescribed for that post and therefore, persons possessing higher qualification could only be considered as eligible candidates only if they had acquired such higher qualifications after acquiring the prescribed qualification. Thus it is obvious that the specific W.P.(C).26694/13 11 contentions now taken up by the respondents, as referred above, were actually taken up in that case before this Court by the third respondent and the said fact is obvious from paragraph 6 of the Jyoti's case (supra). This Court held that when a qualification was set out under the relevant rules, the same could not be in any manner whittled down and a different qualification could not be adopted. Further it was held that all those who had similar or even better qualifications than those candidates would not have applied for the post because they did not possess the qualifications mentioned in the advertisement and therefore, any such presupposition and consequential appointment of persons with inferior qualifications would result in 'fraud on public' unless it was clearly stated in the notification that qualifications would be relaxable. After considering all such contentions, as is obvious from paragraphs 6 and 7 therein and even after considering admitted position that the concerned persons did not possess the prescribed qualification of Diploma in Electrical Engineering of a recognized W.P.(C).26694/13 12 institution for three years course of study and possessed only the Degree in Electrical Engineering the Hon'ble Apex Court accepted their contention relying on Rule 10(a)(ii). Consequently, the Hon'ble Apex Court held as hereunder and allowed the appeals with the following directions:-
6.The commission contended before the High Court as is done before us now that the graduates in engineering or persons possessing other qualifications, as held by the appellants, that may not be taken as higher qualifications, they are not equivalent qualifications prescribed for that post and persons who possessed higher qualifications can only be taken note of, in cases where they acquired such higher qualifications after acquiring the prescribed qualifications. Rule 10(a)(ii) of Part I of the rules was also adverted to contend that such of those higher qualifications which presuppose the acquisition of the lower qualifications prescribed for the post shall be sufficient for the post. The qualifications, it was stated, possessed by the appellants do not presuppose the acquisition of the prescribed lower qualifications and, therefore, they were not eligible to be considered.
9.It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification W.P.(C).26694/13 13 prescribed for that post in order to attract that part of the rule to the effect that such of those higher qualifications which presuppose the acquisition of the lower qualifications prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far. Under the relevant rules, for the post of assistant engineer, degree in electrical engineering of Kerala University or other equivalent qualification recognised or equivalent thereto has been prescribed. For a higher post when a direct recruitment has to be held, the qualification that has to be obtained, obviously gives an indication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of sub-engineer. In that view of the matter the qualification of degree in electrical engineering presupposes the acquisition of the lower qualification of diploma in that subject prescribed for the post, shall be considered to be sufficient for that post. In the event the government is of the view that only diploma holders should have applied to post of sub-engineers but not all those who possess higher qualifications, either this rule should have excluded in respect of candidates who possess higher qualifications or the position should have been made clear that degree holder shall not be eligible to apply for such post. When that position is not clear but on the other hand rules do not disqualify per se the holders of higher qualifications in the same faculty, it becomes clear that the rule could be understood in an appropriate manner as stated above. In that view of the matter the order of the High Court cannot be sustained. In this case we W.P.(C).26694/13 14 are not concerned with the question whether all those who possess such qualifications could have applied or not. When statutory rules have been published and those rules are applicable it presupposes that everyone concerned with such appointments will be aware of such rules or make himself aware of the rules before making appropriate applications. The High Court, therefore, is not justified in holding that recruitment of appellants would amount to fraud on the public.
10.However, we must notice one aspect of the matter. The diploma holders who had been selected by the Public Service Commission have already been appointed and, therefore, it would not be appropriate for us to disturb those appointments.
They shall continue in such appointments. Such of those eligible degree holders who fulfil the qualifications referred to above and found suitable to be appointed shall be appointed taking note of the vacancies which are available within a period of three months from the date of receipt of this order.
8. It is thus obvious that in Jyoti's case (supra), the Hon'ble Supreme Court repelled the aforementioned contention of the third respondent that presupposition of a lower qualification prescribed is possible in respect of a person having higher qualification only if such person actually possesses such lower qualification prescribed for the post. Going by the decision of the Hon'ble Apex Court, if a person has acquired higher qualifications in the same faculty, such qualification W.P.(C).26694/13 15 could certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. Therefore, the third respondent should not have raised the same contentions which were thus rejected. At the same time, a scanning of the contentions raised by the third respondent in the light of the decisions in Sajan's case (supra) and in Sunil's case (supra) would make it clear that the third respondent raised such contentions bonafidely. Evidently, after Jyoti's case (supra) in respect of certain subsequent selections the third respondent followed the said dictum. However, on some occasions, this Court interfered with the action on the part of the third respondent in accepting applications from persons lacking the prescribed qualifications relying on Rule 10(a)(ii) of the General Rules in KS & SSR upon finding that in those cases the directions in Jyoti's case (supra) was inapplicable.
9. As noticed hereinbefore, the third respondent relied on the decisions in Sajan's case (supra) which was affirmed by a Division W.P.(C).26694/13 16 Bench in Sunil's case (supra) besides the decision in Abdul Salam's case (supra) to contend that the decision of the Hon'ble Supreme Court in Jyoti's case is not applicable in the facts and circumstances of this case. It is contended that in Sajan's case, a learned Judge of this Court distinguished the decision in Jyoti's case and held that the PSC had committed an error in permitting the persons with Degree/Diploma in Civil Engineering to participate in the written test conducted as part of the selection process to the post of Surveyor Gr.II pursuant to Ext.P1 application, referred as such in W.P.(C).No.29998 of 2006, and directed to eschew them from consideration. The contention of the third respondent is that the reasoning in Sajan's case (supra) is more applicable in this case and therefore, the petitioners are not entitled to get the benefit of Rule 10(a)(ii) of Part II, KS & SSR and get treated as qualified candidates for selection to the post in question. In Sajan's case (supra), the concerned notification was issued for selection to the post of surveyor Gr.II in the Department of Survey and Land Records. As per the concerned notification the W.P.(C).26694/13 17 qualifications prescribed were ITI (Surveyor Trade) Certificate introduced with effect from 1996 or the other prescribed qualification of ITI Surveyor Trade Certificate issued prior to 1996 and satisfactory completion of six months in inplant training in tune with the Rules approved by the Board of Revenue or any other alternative qualifications prescribed. The petitioners who were certificate holders approached this Court raising challenge against the action on the part of the PSC in accepting the applications from the Diploma or Degree holders in Civil Engineering though they were not prescribed as qualifications in the concerned notification and in view of their non- possession of the prescribed qualifications under the concerned notification. Evidently, PSC treated applications from Diploma/ Degree holder-applicants as valid applications going by the dictum laid down in Jyoti's case (supra). This Court considered the rival contentions taking into account the relevant provisions under the Survey and Subordinate Service Special Rules 1959 and Rule 10(a)(ii) Part II KS & SSR and SSR and also the decision in Jyoti's case W.P.(C).26694/13 18 (supra) and also the fact that the Degree or Diploma in Civil Engineering was not treated as a qualification or even as an alternative qualification in anyone of the posts in the hierarchy of posts comprehended by the same set of Rules and also that the petitioners therein produced materials to show that the said courses are different and that neither the party respondents (the applicants holding Diploma or Degree) nor the PSC produced materials to debunk the same. On a cumulative consideration of all such aspects it was held that the Degree or Diploma possessed by such applicants could not have been treated as the natural progression of the prescribed qualification of ITI Surveyor Trade certificate and consequently, directed to eschew them from consideration. In paragraph 21 thereunder it was held thus:-
21. Some of the relevant aspects to decide whether a qualification could be treated as higher qualification, the acquisition of which presupposes the acquisition of the lower qualification, in the context of R.10(a)(ii) of the General Rules, could be derived by referring to certain other parameters also. Apart from the factor that was laid down by the Supreme Court in Jyoti's case, one other factor that could be taken note of by the PSC is the course content in the syllabi for the courses under comparison. Obviously, this exercise would be subjective to a certain extent. Nevertheless it would be reasonable W.P.(C).26694/13 19 to consider a Diploma or a Degree in the same faculty as one constituted in a vertical hierarchy. A comparison of the syllabi in such cases would normally be an exercise to find out whether a Degree could be treated as a natural progression of a Diploma. If the answer is in the affirmative, the Commission could legitimately treat the Degree as a higher qualification for the purpose in question.
10. It is evident from the decision in Sajan's case (supra), the consideration undertaken was to ascertain whether a Degree or Diploma in Civil Engineering could be treated as a higher qualification that presupposes the acquisition of ITI Surveyor Trade Certificate or the other certificates mentioned in the notification concerned. Paragraph 21 as extracted above would also reveal that the factor a Degree or Diploma could be treated as a natural progression of the lower qualification prescribed viz., trade certificate was held only as another factor apart from the one that was laid down by the Hon'ble Supreme Court in Jyoti's case (supra). Against the decision in Sajan's case (supra), appeals were preferred and they ultimately culminated in the decision in Sunil's case (supra). The Division Bench held in paragraph 5 therein thus:-
W.P.(C).26694/13 20
" The Hon'ble Supreme Court in Jyothi's case (supra) held that if the higher qualification is obtained in the same faculty, that can be considered. Here, it is not in same faculty. Acceptance of the higher qualification when the qualification prescribed is the basic qualification for getting the higher qualification is legally permissible. But, I.T.I. certificate in Surveyor trade is not the basic qualification for getting admission to diploma or degree course in Civil Engineering. Therefore, holding of diploma or degree in Civil Engineering will not presuppose the acquisition of I.T.I. certificate in Surveyor Trade."
11. Virtually, the reasoning of the learned Single Judge in Sajan's case (supra) rendered after distinguishing the decision in Jyoti's case (supra) were also affirmed by the Division Bench in Sunil's case. The application of Rule 13(b)(i) was also looked into in that case and it got no application in this case. In Abdul Salam's case (supra), the prescribed qualification was ITI Certificate in Wireman and Electronics Course. The applicability of Jyoti's case (supra) was dealt with in paragraph 22 and 23 of the said decision. The said decision was rendered, as is obvious from the decisions thereunder, taking into consideration also of the contentions of the party canvassing the position that the legitimate right of a candidate for W.P.(C).26694/13 21 selection to a post could not be denied on the ground of being overqualified. The Division Bench after extracting the crucial observation made by their Lordships in Jyoti's case (supra), in Paragraph 22 thereunder, held in paragraph 23 that the Diploma holder in Electrical and Electronic Engineering could not be treated on par with I.T.I certificate holder in Wireman and Electronics Course. Paragraphs 22 and 23 of the said decision read thus:-
22. However, Sri.Radhakrishnan, learned standing counsel for the Administration, invites our attention to the decision of their Lordships of the Supreme Court in Jyoti.K.K. & Ors. v. Kerala Public Service Commission & Ors. (JT 2002 (Suppl.1) SC 85) and contends that the legitimate right of a candidate for selection to a post cannot be denied to him on the ground that he is over qualified. The following observation of their Lordships has been highlighted by the learned counsel in this context:
"If a person has acquired higher qualifications in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post." (emphasis supplied by us).
23. It may at once be noticed that the above dictum will have no application to the facts available in the case on hand. As has been noticed already, the Diploma obtained by the selected candidates can, by no stretch of imagination, be said to be in the same faculty. They have obtained their Diplomas in Electrical and Electronics Engineering and Mechanical Engineering. The I.T.I. Certificate prescribed for the post of W.P.(C).26694/13 22 Oilman/Mazdoor is in Electrician and Wireman or Mechanic Diesel. Obviously therefore, a Diploma holder in Electrical and Electronics Engineering cannot be treated on par with an I.T.I. Certificate holder in Wireman and Electrician course. In that view of the matter, we do not find any merit in the contention raised by the learned standing counsel for the Administration.
12. In short, after taking note of the said observation in Jyoti's case (supra), the question whether applicability of the factum laid down in Jyoti's case (supra) was examined and ultimately it was found that the dictum in Jyoti's case (supra) got no application to the facts available in that case and that the Diploma obtained by the candidates selected pursuant to the notification concerned could, by no stretch of imagination, be said to be in the same faculty. In Suresh Kumar's case (supra), the PSC while preparing the probable list decided to include Diploma holders/Degree holders who responded to the concerned notification despite their non-possession of any of the prescribed qualifications by putting a note to the effect that candidates with diploma and degree also would be considered as having equivalent qualifications. Aggrieved by the said action from the part W.P.(C).26694/13 23 of the PSC after the commencement of the selection process the persons possessing the prescribed qualifications under the notification in question raised the challenge. It was held therein that the special rules did not indicate that higher qualification was equivalent to the prescribed qualifications. Essentially, taking note of the said factor as also the other rival contentions and the dictum laid down in Jyoti's case (supra) it was held the decision in Jyoti's case (supra) as inapplicable and the action on the part of the PSC in declaring the degree and diploma qualifications as equivalent to the prescribed qualification after the commencement of the selection process was held bad in law. The factual situation obtaining in this case is totally different and naturally, the legal position applicable also should be different.
13. A careful scrutiny of the decisions of the Hon'ble Supreme Court in Jyoti's case (supra) on one hand and the decision of this Court in Sajan's case (supra) which was affirmed in Sunil's case W.P.(C).26694/13 24 (supra) would virtually reveal that different factors were considered in those cases. In Jyoti's case (supra), as noticed hereinbefore, the Hon'ble Supreme Court held that if a person acquired a higher qualification in the same faculty as that of the lower qualification prescribed for a particular post, such higher qualification could certainly be stated to presuppose the acquisition of the lower qualification prescribed for the post. The decision in Sajan's case (supra) affirmed in Sunil's case (supra) is to the effect that the qualification claimed as the higher qualification must be a natural progression of the lower qualification prescribed in order to take the presupposition of the acquisition of the lower qualification prescribed for the concerned post. Going by paragraph 5 of Sunil's case (supra) acceptance of the higher qualification when the lower qualification is prescribed as the basic qualification for getting the higher qualification is legally permissible. In the instant case, as already noticed, one of the lower qualifications prescribed for appointment to the post of Divisional Accountant in KSEB is B.Com and the higher W.P.(C).26694/13 25 qualification possessed by the petitioners is M.Com. In the said factual situation obtained in this case there cannot be any doubt with respect to the fact that the higher qualification possessed by the petitioners is in the same faculty and also that the lower prescribed qualification of B.Com. is also a basic qualification for getting admission the said higher qualification of M.Com.. Indisputably, the lower qualification prescribed in the instant case is the Bachelor's Degree in the faculty of Commerce and the higher qualification possessed by the petitioners is its Master Degree. In an over all consideration of all those decisions and the indisputable position thus obtained I am of the view that when the higher qualification possessed by an applicant is in the same faculty as that of the lower qualification prescribed for the post concerned the inescapable conclusion must be that it is a higher qualification presupposing the acquisition of the lower qualification prescribed. Any contra construction for the purpose of Rule 10(a)(ii) of the General Rules in KS & SSR would defeat the very soul of the law and it would result in deprivation of beneficial aspects of the provision. W.P.(C).26694/13 26
14. Now, the next question is whether the said higher qualification of M.Com is sufficient for the post? A careful and closer scanning of Jyoti's case and Sunil's case (paragraph 5) would go to show that sufficiency of the higher qualification for the post is required to be examined when the higher qualification and the lower qualification prescribed are in different faculties. When the higher qualification is in the same faculty as that of the lower qualification prescribed, going by the decision in Jyoti's case (supra) and also paragraph 5 of Sunil's case (supra), I am of the view that the higher qualification in the same faculty is bound to be taken as sufficient for the post unless it is shown demonstrably insufficient. The position that M.Com and B.Com. belongs to the same faculty is incontestable and I have already held that M.Com. Degree presupposes the acquisition of B.Com., the lower qualification prescribed for the post. A comparison of syllabi to decide the sufficiency of the higher qualification is not required to decide whether M.Com Degree is W.P.(C).26694/13 27 sufficient for appointment to the post of Divisional Accountant in KSEB going by the decision in Jyoti's case. In the contextual situation the observations and findings of the Hon'ble Apex Court in paragraph 9 therein, extracted hereinbefore, will be apt and appropriate for application. Adopting the reasoning discernible from there, in this case, it has to be stated that in the event the respondents were of the view that only the persons holding the academic qualifications prescribed in the notification should have applied for the post of Divisional Accountant and not at all those who possess the higher qualifications, either Rule 10(a)(ii) should have specifically excluded in respect of candidates who possess higher qualification or the position that such higher qualification holders who lack the lower prescribed qualification are not eligible to apply for the post should have been made clear in the notification. I am of the view that when once the higher qualification is proved to be one that presupposes the lower qualification prescribed for the post concerned and when the application of Rule 10(a)(ii) is not specifically excluded in respect of W.P.(C).26694/13 28 candidates possessing such higher qualifications in the notification, the position that such higher qualification holders who actually lack the lower prescribed qualification would be ineligible to apply for the post is not made clear in the notification, going by the sum and substance of paragraph 9 of Jyoti's case (supra), such higher qualification in the same faculty of the lower qualification prescribed shall have to be treated as sufficient for appointment to the post concerned. There is no case for the respondents that such higher qualification holders who actually lack the lower qualification prescribed have been specifically made ineligible to apply for the post of Divisional Accountant as per the notification concerned. So also, Rule 10(a)(ii) of the General Rules in KS & SSR was not specifically made inapplicable in respect of such higher qualification holders, like the petitioners, as per the notification concerned. In the said circumstances, in the light of the reasoning in Jyoti's case (supra) the higher qualification of M.Com possessed by the petitioners is bound to be treated as sufficient for appointment to the post of Divisional W.P.(C).26694/13 29 Accountant in KSEB. The respondents who dispute its sufficiency did not adduce materials at least to establish prima facie the basis for the dispute though they were to produce such materials for establishing the contra position. When once the reasoning in the decision of the Hon'ble Apex Court is found squarely suitable for application in a case the concerned party will be entitled to claim for its application especially when the disputing side failed to adduce materials to dissuade the court from arriving at such conclusion. In this case, the respondents did not adduce any material to show that M.Com. Degree possessed by the petitioners is not sufficient for appointment to the post of Divisional Accountant apart from making a general statement that it is not sufficient. It cannot be said that in order to treat a particular qualification as a higher qualification that qualification must have been prescribed as a qualification in respect of anyone of the posts in the hierarchy of posts comprehended by the same set of rules as otherwise it cannot be treated as a higher degree that presupposes the acquisition of the basic qualification for the post and W.P.(C).26694/13 30 sufficient for the post. I am of the considered view that Jyoti's decision cannot be understood to have laid down such a dictum and in fact, at the risk of repetition it has to be said that what has been held by the Hon'ble Apex Court is only thus:-
"If a person has acquired higher qualifications in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualification prescribed for the post."
15. Obviously, the Hon'ble Apex Court thereafter went on with the consideration as the qualification claimed as higher in that case was a degree and the lower qualification prescribed therein was a diploma. The factual position that the degree in a particular faculty was prescribed as a qualification in the higher post to be filled up by direct recruitment and for the lower post in the department only a diploma in the same faculty was prescribed as the qualification, was taken into account to arrive at the finding that it is an indication that such qualification is definitely higher qualification than what is prescribed for the post. At the same time, the above extracted position would reveal that the Hon'ble Apex Court held that if the higher W.P.(C).26694/13 31 qualification possessed by a candidate and the lower qualification prescribed for the post are in the same faculty then such higher qualification could be stated to presuppose the acquisition of the lower qualification prescribed for the post and thereafter made the aforequoted reasoning in paragraph 9 to hold such higher qualification as sufficient for the post. Therefore, there is no reason at all for repelling the contentions of the petitioners that they possess higher qualification (M.Com) that presupposes the acquisition of the lower qualification prescribed (B.Com) for the post and that the said higher qualification is sufficient for appointment to the post of Divisional Accountant pursuant to the notification concerned. When statutory rules have been published and those rules are applicable, it presupposes that everyone concerned with rules or make himself aware of the rules before making appropriate applications as held by the Hon'ble Apex Court and therefore, fraud on the public also cannot be attributed on account of failure to mention the application of Rule 10(a)(ii) in Part II of KS & SSR to contend that the petitioners are W.P.(C).26694/13 32 disentitled to claim its benefit.
16. Though a further consideration of sufficiency of the higher qualification for appointment to the post concerned is uncalled for in this case I think it only appropriate to advert to the contentions and submissions made by the learned counsel for the petitioners to fortify the petitioners' contention regarding the sufficiency of the higher qualification of M.Com for the post concerned. The learned counsel for the petitioners submitted that Ext.P8 assumes relevance in the said context. Ext.P8 would reveal that B.Com or BBA (earlier BBS) degree of University of Calicut or B.Com, BBA or BBS degree of any other university or institute in any state recognised by UGC or AICTE with a minimum of 45% marks was prescribed as eligibility for admission to the degree 'Master of Commerce (M.Com)' in the University of Calicut. Relying on Ext.P8 it is contended that it would reveal that all graduates irrespective of the faculty are not entitled to get admission to M.Com Course conducted by the University of W.P.(C).26694/13 33 Calicut whilst only those candidates who passed B.Com or BBA (earlier BBS) degree of Univeristy of Calicut, B.Com or BBA or BBS Degree of any other University or Institute of any other State recognised by the UGC or AICTE with minimum of 45% marks are eligible for admission to Master of Commerce (M.Com Degree. The subjects to be studied in the said course and, in fact, studied by the petitioners, are also evident from Ext.P8. Ext.P3 is the marklist of the BBS Course issued by the University of Calicut to the first petitioner. It reveals the subjects for study of BBS Course. Ext.P2 is copy of the BBS Degree certificate of the first petitioner. Ext.P6 is the BBS Degree certificate of the second petitioner. They would reveal that both of them secured BBS Degree from the University of Calicut with first class. Exts.P4 and P7 are respectively M.Com Degree certificates of the 1st and 2nd petitioners. They would reveal that both of them had secured M.Com Degree in first class from the University of Calicut. Ext.P5 is the marklist of the first petitioner in the final year M.Com Degree examination. It is thus obvious that the petitioners have W.P.(C).26694/13 34 undergone the same BBS Degree from the same University. The position obtained from those documents revealing the subjects for study and actually studied by the petitioners for BBS Degree and thereafter in M.Com Degree and according to the petitioners, they would fortify the contention of the petitioners that M.Com Degree possessed by the petitioners is sufficient for appointment to the post concerned. As noticed hereinbefore, the respondents have not adduced any materials to compel this Court to hold otherwise. In the circumstances, for all the reasons mentioned hereinbefore, I find absolutely no ground to hold that the higher qualification of M.Com that presupposes the acquisition of B.Com as not sufficient for the post of Divisional Accountant in KSEB.
17. In this case, taking into account the duties attached to the post of Divisional Accountant, the respondents have prescribed possession of experience also as a qualification. What is prescribed in that regard under Ext.P1 is thus:-
W.P.(C).26694/13 35
''......... WfL . .
Nk .''
18. After securing such degrees referred to earlier the first petitioner entered service in the Public Works Department as Lower Division Clerk and Ext.P12 would reveal that the certificate submitted by him to prove his experience of three years as LDC in PWD was accepted by the third respondent. Ext.P12 would reveal that it was taken as sufficient to satisfy the prescribed qualification of experience in the case of the first petitioner as the sole reason for rejection of candidature was shown as non-possession of B.Com Degree. Evidently, it was with the same qualifications as that of the second petitioner the first petitioner put in only three years of service as LDC in PWD. When the said experience certificate was accepted in the case of the first petitioner I am at a loss to understand as to how and why the certificate of experience produced by the second petitioner revealing experience in the post of Special Grade Assistant in KSFE W.P.(C).26694/13 36 was declined to be accepted. The statements in paragraph 7 of the counter affidavit filed by the third respondent would reveal that the second petitioner had produced a certificate of experience showing that he had gained an experience of more than seven years as Special Grade Assistant in KSFE, a Government of Kerala undertaking. Respondents 1 and 2 sought to canvass the position that the petitioners do not possess the required experience and to lend support to the said contention the said respondents relied on the decision of the Hon'ble Apex Court in Bagiradhan's case (supra). The dictum laid down therein is that when two fold qualifications viz., educational qualification and requisite practical experience having prescribed as regards the particular post possession of better educational qualification would not obviate the need for prescribed practical experience. In other words the possession of such a higher qualification would not ipso facto lead to the conclusion that the concerned person had or must have had the required practical experience prescribed. In this case, evidently, Ext.P1 is the W.P.(C).26694/13 37 notification by the third respondent for appointment to the post of Divisional Accountant under the first respondent. It is taking note of the experience gained by the first petitioner in PWD as LDC that his certificate was accepted. In such circumstances, when the recruiting agency taking into account the experience prescribed in the relevant notification accepted the experience certificate produced by an applicant there is no reason to hold the said action as illegal especially when the appointing authority did not adduce any material to hold the same as illegal. In this case it is to be noted that thought the second respondent filed a counter affidavit with the knowledge that the certificate of experience produced by the first petitioner was accepted by the third respondent, the second respondent did not raise any objection rather any contention that the said action on the part of the third respondent is unsustainable as it would not satisfy the condition of experience prescribed under Ext.P1. Moreover, the respondents 1 and 2 did not adduce materials to show such qualifications or experience are not sufficient to mann the post of Divisional W.P.(C).26694/13 38 Accountant in KSEB. When that be the position the first and second respondents cannot be heard to contend that the first petitioner lacks the prescribed qualification of experience. When the said experience certificate of the first petitioner was accepted, the experience certificate of more than 7 years that too in a financial enterprises which is Government of Kerala undertaking produced by the second petitioner could not have been and should not have been rejected, rather, it should have been accepted as sufficient experience taking into account the fact that both the petitioners are possessing the same qualifications. This Court on 4.11.2013 passed interim order directing the respondents to permit the petitioners to participate in the interview scheduled to be conducted as part of the selection process for appointment to the post of Divisional Accountant as per Ext.P1 notification provisionally and subject to the outcome of the writ petition. However, it was ordered not to publish the result of the petitioners without obtaining further orders from this Court. Taking into account the fact that the petitioners have already appeared in the W.P.(C).26694/13 39 written test and partook in the interview pursuant to order dated 4.11.2013 and based on the findings made hereinbefore, this writ petition is disposed of as hereunder:-
In view of the conclusions and findings as above, Exts.P12 and P13 are quashed and it is declared that the petitioners are qualified candidates for the purpose of selection to the post of Divisional Accountant in KSEB pursuant to Ext.P1 notification. Consequently, there will be a direction to the third respondent to declare the result of the petitioners and subject to the result they shall be included in the list published by the PSC pursuant to the selection process in the appropriate slots if they are otherwise to be included therein. Needless to say that in case of such inclusion their eligibility to get appointment would depend upon their position in the list and the availability of vacancies. In other words, in the event of inclusion they shall be given appointment in accordance with law.
C.T. RAVIKUMAR
(JUDGE)
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