Kerala High Court
The Kerala Public Service Commission vs Dhanyasree Nair (Deleted) on 4 March, 2022
Author: Alexander Thomas
Bench: Alexander Thomas
OP(KAT) No.64/2022 1/9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
Friday, the 4th day of March 2022 / 13th Phalguna, 1943
OP(KAT) NO. 64 OF 2022
(AGAINST THE ORDER DATED 02/12/2021 IN OA (EKM) NO.147/2021 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM,ADDITIONAL BENCH ERNAKULAM)
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PETITIONER/RESPONDENT NO.4:
KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY,
KERALA PUBLIC SERVICE
COMMISSION,PATTOM,THIRUVANANTHAPURAM-695004,KERALA.
RESPONDENTS/APPLICANTS & RESPONDENT NOS.1 TO 3 & 5:
1. DHANYASREE NAIR, AGED 28, D/O.M.P. BALAN, VNRA 100, VALLIKATTIL,
MEKKAD P.O., ANGAMALLY,PIN-683 589.
2. NEETHU JOSE, AGED 29,W/O. SAJAN C.C., KANJIRATHINGAL HOUSE,
KOTTAPADY P.O., THRISSUR, KERALA-680505.
3. HUSNA AMEENA P.K., AGED 29,D/O. ABDUL JABBAR P.K. KAITHOTT
HOUSE,VATTOLI BAZAR P.O., KOZHIKODE, KERALA-673612.
4. STATE OF KERALA, DEPARTMENT OF HEALTH AND FAMILY WELFARE,
SECRETARIAT, THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS PRINCIPAL
SECRETARY,KERALA.
5. THE PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER
EDUCATION,THIRUVANANTHAPURAM-695001, KERALA.
6. KERALA UNIVERSITY OF HEALTH SCIENCES,MEDICAL COLLEGE P.O.,
THRISSUR-680596, REPRESENTED BY ITS REGISTRAR, KERALA.
7. INDIRA GANDHI NATIONAL OPEN UNIVERSITY, KALOOR, KOCHI, ERNAKULAM
PIN-682017, REPRESENTED BY ITS VICE CHANCELLOR, KERALA.
OP (Kerala Administrative Tribunal) praying inter alia that in the
circumstances stated in the affidavit filed along with the OP(KAT) the
High Court be pleased to issue an interim order of stay of Exhibit-P3
order of the Hon'ble Tribunal dated 02/12/2021 in OA(EKM)
No.147/2021,pending disposal of the OP(KAT).
This petition coming on for admission on 04.03.2022, upon perusing
the petition and the affidavit filed in support of OP(KAT) and upon
hearing the arguments of SRI. P.C.SASIDHARAN, STANDING COUNSEL for the
petitioner,and of SRI.P.K.SREEVALSAKRISHNAN, ADVOCATE for the Respondents
1,2 & 3, SRI.SAIGI JACOB PALATTY, SENIOR GOVERNMENT PLEADER for the
Respondents 4 & 5, SRI.P.SREEKUMAR, STANDING COUNSEL for the Respondent 6
and SRI.K.MOHANAKANNAN, STANDING COUNSEL for the respondent 7, the court
passed the following:
P.T.O.
OP(KAT) No.64/2022 2/9
EXT.P3:TRUE COPY OF THE TRIBUNAL ORDER DATED 02.12.2021
IN O.A.(EKM) NO.147/2021.
ANNEXURE A2:TRUE COPY OF THE DEGREE CERTIFICATE FOR OPTOMETRY TO THE
1ST APPLICANT ISSUED BY IGNOU DATED 14.08.2014.
ANNEXURE A3:TRUE COPY OF THE CERTIFICATE DATED 11.01.2021 ISSUED
BY THE 5TH RESPONDENT TO THE 1ST APPLICANT.
ANNEXURE A4:TRUE COPY OF THE ELIGIBILITY CERTIFICATE
DATED 19.06.2015 ISSUED BY THE 3RD RESPONDENT.
ANNEXURE A10:TRUE COPY OF THE LETTER OF UNIVERSITY GRANTS
COMMISSION OF FEBRUARY 1992.
ANNEXURE A12:TRUE COPY OF GOVERNMENT ORDER NO.272/2018/HEDN
DATED 13.11.2018.
ANNEXURE A13:TRUE COPY OF THE NOTIFICATION DATED 19/12/2018 FOR
CATEGORY NO.217/2018.
ANNEXURE A23:TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT
TO THE 1ST APPLICANT DATED 15.02.2020.
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OP(KAT) No.64/2022 3/9
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
=================================
O.P(KAT) No.64 of 2022
[arising out of the order dated 02.12.2021
in O.A(Ekm) No.147/21 on the file of the KAT, ]
=================================
Dated this the 04th day of March, 2022
ORDER
Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission, appearing for the petitioner in the O.P/R4 in the O.A and Sri.P.K.Sreevalsakrishnan, learned counsel appearing for R1 herein (1st applicant in the O.A) submits that now there is no dispute regarding the eligibility of R1 herein (Dhanyasree Nair) in respect of the abovesaid selection process, since she has M.Sc Optometry Degree, which has been found acceptable by the PSC and that she has been duly included in the rank list, which has been subsequently published for the post of Optometrist Grade-II in the Health Service Department, which is covered by Annexure-A13 selection notification dated 14.11.2018. Further that, the 1 st respondent is an unnecessary party and that this Court may strike off the said party from the respondent array in this O.P.
2. Hence, with the consent of both sides, it is ordered that R1 in this O.P (Dhanyasree Nair) will stand struck off and deleted from the respondent OP(KAT) No.64/2022 4/9 O.P(KAT) No.64 of 2022 2 array in this O.P. The Registry will make necessary changes in the cause title.
Hand Over Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
VIJU ABRAHAM, JUDGE vgd (.......continued) OP(KAT) No.64/2022 5/9 O.P(KAT) No.64 of 2022 3 ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
================================= O.P(KAT) No.64 of 2022 [arising out of the order dated 02.12.2021 in O.A(Ekm) No.147/21 on the file of the KAT, ] ================================= Dated this the 04th day of March, 2022 ORDER Admit O.P(KAT).
2. Sri.P.K.Sreevalsakrishnan, learned Advocate has taken notices for contesting respondent Nos.2 & 3 in this O.P/2 nd & 3rd applicants in the O.A, Sri.Saigi Jacob Palatty, learned Senior Government Pleader has taken notice for official respondent Nos.4 & 5 and Sri.P.Sreekumar, learned Standing Counsel for Kerala University of Health Sciences has taken notice for R6 and Sri.K.Mohanakannan, learned Standing Counsel for IGNOU has taken notice for R7. The Registry will show the names of the abovesaid Advocates in the cause list. Service complete.
3. It is urged by Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission, that the qualification prescribed for the post of Optometrist Gr.II in Health Service Department as per Annexure-A13 selection notification dated 14.11.2018 in terms of clause.7 thereof are as follows :
"7. Qualifications (1) Pass in Pre-degree with Physics, Chemistry and Biology OR Physics, Chemistry and Mathematics as optional subjects or OP(KAT) No.64/2022 6/9 O.P(KAT) No.64 of 2022 4 equivalent qualification.
(2) Diploma in Ophthalmic Assistants Course (2 Years) conducted by the Medical Colleges in Kerala or equivalent qualification."
Note:- 1. Rule 10(a)(ii) of Part II KS&SSR is applicable.
2. Candidates who claim equivalent qualification instead of qualification mentioned in the notification shall produce the relevant Government Order to prove the equivalency at the time of verification,then only such qualification shall be treated as equivalent to the prescribed qualification concerned.
3. In the case of difference in original caste/community claimed in the application and that entered in SSLC book, the candidate shall produce a Gazette notification in the regard, along with Non Creamy Layer Certificate/Community Certificate at the time of certificate verification."
4. Further that, the qualifications said to have been acquired by R2 & R3 herein, are those at Annexures-A3 & A4, which is a B.Sc degree in Optometry and Ophthalmic degree, awarded by the Indira Gandhi National University (IGNOU) under the distance education mode. Further that, the Kerala University of Health Sciences (KUHS) has issued Annexure-A23 letter dated 15.02.2020 stating that the said B.Sc degree of IGNOU offered in the distance education mode has not been recognized to the B.Sc degree in Optometry course awarded by the KUHS, in terms of syllabus, pass percentage, etc. Hence, it is urged that this vital aspect of the matter has not been taken into consideration by the Tribunal and that OP(KAT) No.64/2022 7/9 O.P(KAT) No.64 of 2022 5 hence, the stand of the PSC that the abovesaid qualifications of R2 & R3 herein cannot be treated as equivalent to the notified qualifications, is legally correct, etc.
5. Per contra, Sri.P.K.Sreevalsakrishnan, learned counsel appearing for R2 & R3 would urge that though Annexures-A2 & A3 degrees are awarded by IGNOU as styled as "offered in the distance education mode", the said course has been run in institutions accredited to the IGNOU and run on full-time basis and face-to-face program. Further that the competent authority of the State Government in the Higher Education Department has issued Annexure-A12 G.O.(Ms.) No.272/2018/HEDN dated 13.11.2018, wherein it has been inter alia ordered that as per clause.3 of the norms/guidelines therein that no equivalency/recognition shall be insisted upon for degrees obtained from National Institutes like IITs, IISc, NITs, IISERs or other institutions recognized by University Grants Commission (UGC). Further that, R7-IGNOU is a Central University established by an Act of the Parliament and has been duly recognized by the University Grants Commission, as can be seen from Annexure-A10. Hence, it is urged that no formal recognition of Annexures-A3 & A4 degrees awarded by the IGNOU are necessary in the instant case and since the B.Sc degree in Optometry and Ophthalmic Sciences, secured by the applicants, is a higher qualification which pre-supposes the acquisition of the lower qualification, as per Rule 10 (a)(ii) of KS&SSR Part-II, the applicant has to be OP(KAT) No.64/2022 8/9 O.P(KAT) No.64 of 2022 6 legally treated as having the said requisite qualifications, etc.
6. Having heard both sides, we are of the view that the petitioner- PSC has made out a strong prima facie case, on the basis of Annexure-A23 communication issued by the Kerala University of Health Sciences. Moreover, the matters in relation to clause 8 of Annexure-A12 G.O dated 30.12.2018 would also have to be appropriately examined by this Court. Since a prima facie case has been made out and since the petitioner apprehends institution of coercive proceedings for enforcement of the verdict of the Tribunal, it is felt that the balance of convenience is also tipped in favour of the petitioner.
7. In that view of the matter, interim stay is warranted and accordingly, it is ordered that the operation and enforcement of the impugned Ext.P-3 final order dated 02.12.2021, to the extent it is in relation to 2nd & 3rd applicants in O.A No.147/2021, will remain stayed. This order will be in force for a period of two weeks.
List this case on 08/03/2021.
Hand Over Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
VIJU ABRAHAM, JUDGE
vgd
04-03-2022 /True Copy/ Assistant Registrar
OP(KAT) No.64/2022 9/9