Kerala High Court
Anoop.P.V vs Kerala Public Service Commission
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 27TH DAY OF MARCH 2013/6TH CHAITHRA 1935
WP(C).No. 19434 of 2012 (D)
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PETITIONER:
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ANOOP.P.V.
S/O VIJAYAN, PARACKALETHU HOUSE,
PUTHUSSERIMALA P.O
RANNI 689672, PATHANAMTHITTA
BY ADVS.SRI.P.N.MOHANAN
SMT.I.VINAYAKUMARI
RESPONDENTS:
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1. KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY
THIRUVANANTHAPURAM 695001
2. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT
CO-OPERATIVE DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM 695001
R1 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
R2 BY GOVERNMENT PLEADER SMT.LILLY K.T.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 27-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VK
WP(C).No. 19434 of 2012 (D)
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APPENDIX
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PETITIONER'S EXHIBITS
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EXT. P1 TRUE COPY OF THE DEGREE CERTIFICATE OBTAINED FROM THE
UNIVERSITY
EXT. P2 TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE GAZETTEE
DATED 30-04-2010 HAVING CATEGORY NO 117/10 ISSUED BY THE PUBLIC SERVICE
COMMISSION
EXT. P3 TRUE COPY OF THE SHORT LIST PUBLISHED BY THE PUBLIC SERVICE
COMMISSION
EXT. P4 TRUE COPY OF THE COMMUNICATION DATED 28-07-2012 OF THE
PUBLIC SERVICE COMMISSION
EXT. P5 TRUE COPY OF THE APPENDIX III SHOWING THE BASIC SALARY OF
CLERK GRADE I AS ON 1-1-74
EXT. P6 TRUE COPY OF THE RELEVANT PORTION OF THE DRAFT RULE IN THE
GAZETTE DATED 23-07-2012
EXT. P7 TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION OF
THE MAHATMA GANDHI UNIVERSITY
EXT. P8 TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION OF THE
CALICUT UNIVERSITY
EXT. P9 TRUE COPY OF THE NOTIFICATION OF THE PUBLIC SERVICE
COMMISSION DATED 15-06-2011
RESPONDENTS' EXHIBITS : NIL
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/ TRUE COPY /
P.A. TO JUDGE
VK
A.M. SHAFFIQUE, J
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W.P.(C). NO. 19434 OF 2012
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Dated this the 27th day of March, 2013
JUDGMENT
Petitioner seeks for the following reliefs:-
i) Call for the records leading to issue Ext.P4 and quash the same by issuing a writ of certiorari or any other appropriate writ order or direction.
ii) declare that Bachelor of Business Administration is an equivalent qualification for graduation and petitioner is entitled to be included in the rank list as per the test conducted by the Public Service Commission
ii) declare that petitioner is eligible to be included in the rank list prepared by the Public Service Commission to the post of Clerk Grade I as per Ext. P2 notification.
iv) Grant such other relief as this Hon'ble Court may deem fit and proper in the circumstances of the case.
2. Ext.P4 is the letter issued by the Kerala Public Service Commission (PSC) informing the petitioner that he is not qualified as per the Gazette notification by which applications were invited for appointment to the post of Clerk Grade I in Kerala State Co-operative Bank. It is stated that BBA is not a qualification prescribed in that Gazette notification. The petitioner is a Bachelor of Business W.P.(C). NO. 19434/2012 2 Administration (BBA) holder and Ext. P1 is the Degree Certificate. Ext.P2 is the notification published by the PSC inviting applications for the post of Clerk Grade I. The qualifications prescribed inter alia includes Degree in Commerce/BA/BSc./B.Com Degree etc. BBA is not included as a qualification for the said post. The petitioner in addition to having BBA has also the qualification of JDC which is prescribed by Ext. P2. Ext. P3 is the probability list prepared by PSC in which petitioner's number was also included. But by Ext. P4 he is informed that since his qualification is BBA and it is not a degree recognised as per Ext. P2 notification, he cannot be considered for the said post.
3. The contention of the petitioner is twofold. The first contention is that BBA itself is a Graduate Degree and it is equivalent to any other Degree and therefore PSC ought to have accepted the same as an equivalent qualification.
4. Another contention raised is that as per Rule 186 (1)(ii) the qualification prescribed for the post of Ministerial Cadre including Clerk Grade I is Secondary School Leaving W.P.(C). NO. 19434/2012 3 Certificate with Junior Diploma Course in Co-operation(JDC). Therefore the contention is that since the petitioner is having the said qualification he is entitled to be considered ignoring the qualification prescribed in Ext. P2 notification.
5. Reference is made to Ext.P5 to substantiate that as on 01.01.1974 the post of Clerk Grade I was having a starting pay less than Rs. 250/-. Still further it is contended that by way of notification dated 19.01.2013 the Kerala Co- operative Societies Rules were amended by which in Sub Rule(1) of Rule 186 against clause (i), the sub-clause B(i) has been substituted by "any Bachelors Degree from a recognised University". Therefore according to the counsel for the petitioner, the Government intended to clarify the position that any Graduation would be sufficient even if going by the qualification prescribed under Rule 186(1)(i).
6. Counter affidavit is filed by the PSC inter alia indicating that the qualification prescribed under Ext. P2 cannot be diluted for the petitioner in so far as BBA is not mentioned in the notification, as held by the Full Bench W.P.(C). NO. 19434/2012 4 judgment of this Court in Suma v. KPSC [2011 (1) KLT 1], as the question of equivalency cannot be considered by PSC. Therefore qualification of BBA cannot be accepted by PSC as a qualification in terms with Ext. P2 notification.
7. The qualification under Rule 186(1)(i) is based on the pay scale of above Rs.250/- which is applicable as on 1.1.1974. The qualification coming under Rule 186(1)(ii) in respect of "other supervisory and Ministerial other than those requiring Technical qualifications, the starting pay which is below Rs. 250/- is shown as SSLC or its course equivalent and successful completion of Subordinate (Junior) Personnel Co-operative Training Course (Junior Diploma in Co-operation)". Apparently Rs.250/- mentioned in Rule 186(1)(ii) is with reference to the pay scale as on 1.1.1974.
8. The question is whether PSC can prescribe a higher qualification in regard to appointment of Clerks Grade I. If we go by the Rules as such, it cannot be doubted that SSLC with additional qualification of JDC is the required W.P.(C). NO. 19434/2012 5 qualification for the post of Clerk Grade I. The PSC had included a higher qualification which prescribed BA, BSc., B.Com and other equivalent Degrees but BBA apparently has not been included in the same.
9. The learned counsel for the 1st respondent relies upon a Division Bench judgment of this Court in Public Service Commission v. Ramesan [2005 (4) KLT 466] to contend for the proposition that the scale of pay mentioned in Rule 186 is with reference to the scale of pay as on the date of notification. The following paragraph have been highlighted by the learned counsel for the 1st respondent which reads as under:-
"16. The Division Bench has, therefore, with reference to a position obtainable on a date after 1-7-1985, taking note of the revision of pay scales, has come to a definite finding that "the relevant criterion for the purpose of R.186 would be the pay attached to the pay scale as on the date when promotion is to be made".
The case considered by the Division Bench in the said judgment involved a promotion, whereas the case on hand is on direct recruitment. That makes no difference in relation to qualification based on pay scales. Necessarily, the relevant criterion regarding qualification for the purpose of application to R.186 shall be the appropriate pay attached to the posts namely, Clerks/Cashier, when such direct recruitment is notified. The direct recruitment was notified on 16- W.P.(C). NO. 19434/2012 6 10-1999 stipulating the pay scale at Rs. 1665-3955. Therefore, that is the relevant pay scale applicable on the date of notification for direct recruitment and that shall be the relevant criterion for the purpose of application of R.186. Therefore, the contention that the scale of pay prevalent when R.186 was originally introduced cannot be accepted going by the said Division Bench judgment."
10. It is also contended that this judgment was approved by the Supreme Court in Civil Appeal No. 917/2008 and connected cases. On this basis, it is contended that SSLC with JDC can never be treated as a qualification for Clerks and what is applicable is only Clause
(i) of Rule 186(1) and the qualification prescribed therein is the same as the qualification prescribed in Ext. P2 notification. Still further it is argued that in so far as the petitioner did not challenge Ext. P2 notification, it is not open for the petitioner to contend that the qualification ought to have been SSLC with JDC as provided under Clause
(ii) of Rule 186(1) of the Rules.
11. On the other hand the learned counsel for the petitioner relies upon the Full Bench judgment of this Court in Udayan v. Kerala Agro Machinery Corporation Ltd. W.P.(C). NO. 19434/2012 7 [2011 (3) KLT 952 (F.B.)]. The relevant paragraph relied upon is as under:-
"32. Similarly, there can be no controversy that the recruiting agency like Union/State Public Service Commission is not vested with any power to deviate from the qualifications prescribed in the notification for the purpose of recruitment. Once certain norms are indicated in the notification for selection, those norms should be strictly followed. The recruiting agency/appointing authority can, for administrative reasons, prescribe norms or evolve a methodology to narrow down the zone of consideration by prescribing cut off marks, years of experience, etc., if there is possibility that there may be large number of aspirants for the post. But, once the norms or qualifications are notified, they will have to be strictly adhered to. In short, the underlying principle is that there shall be no room for any arbitrariness, favouritism, nepotism, etc., and the process of selection must be open, fair and wholly untainted, in any manner whatsoever. The faith reposed by the public in the purity of administration and fairness in public appointments shall never be eroded."
12. It is argued that judgment of the Division Bench in Ramesan's case (supra) has been explained by the finding of the Full Bench in Sathydevan v. Public Service Commission [2008 (1) KLT 289 (F.B.)]. It is held by the Full Bench as under:
"There is no dispute for the proposition that the qualification to be considered is the qualification prescribed for the test on the date of notification W.P.(C). NO. 19434/2012 8 calling for applications. In Valsala Devi v. Leela Bhai (2002 (3) KLT SN 18 (C.No. 26) (W.A.No.1716 of 1996), a Division Bench of this court held that the qualification at the time of recruitment has to be considered. But, the whole question is what is the qualification required at the time of Ext.P1 notification.
We have already seen that R.186 fixes the qualification. The rule can be amended only by making any rule under R.186, but, no rule was made to amend R.186."
"7. As held by this court in Abdul Rasheed v. Kerala Public Service Commission (2002 (3) KLT 405) & Public Service Commission v. Abdul Rasheed (2007 (3) KLT 881) P.S.C. has no power to go beyond qualification prescribed by the rule. Hence, considering R.186, Appendix III to K.C.S. Rules, Ext.P2 and Ext.P5 regulation as amended by Ext.P6, we are of the opinion that petitioners who had qualification of S.S.L.C. with J.D.C. and three years continuous experience are entitled to write the test under the 50% quota reserved for in-service candidates if they are otherwise eligible and rejection of their candidature for lack of qualification cannot be sustained. In Ramesan's case (supra) Ext.P5 regulation was relied on as a rule made under S.80(3), but, it was not pointed out that Ext.P5 was amended by Ext.P6. Since Ext.P5 was amended by Ext.P6, Ramesan 's case is no more applicable. Ext.P6 is still valid. We also note that by interim order of this court dated 3/10/2007 we have allowed the petitioners to participate in the test provisionally, if test is conducted subject to the result of the Writ Petitions. It is submitted that the test is yet to be conducted. So, petitioners herein also shall be allowed to write the test, if they are not otherwise ineligible. Ext.P1 notification was published in the Gazette dated 25.4.2006. More than one and a half years have passed. We make it clear that those who have not approached this court will not get the benefit as they are guilty of laches."W.P.(C). NO. 19434/2012 9
The learned counsel for the petitioner also relied upon a Division Bench judgment of this Court in Abdu Rahiman v. District Collector, Malappuram and Another [2009(4) KHC 283 (DB)] to contend that even if a matter is pending before the Supreme Court and even if there is a stay, still the judgment has to be complied with as long as the judgment is not set aside. This argument is made on the basis of the Full Bench judgment which indicates that in the absence of amendment to the Rules in accordance with law, a different qualification cannot be prescribed as that prevailing in the Rules.
13. State of Kerala v. Thulasibai [2011(3) KLT 181] is a Division Bench judgment of this Court which is relied upon to contend for the position that once the special Rules are framed and notified the same has to be followed and instructions issued by the Department Head has no relevance at all. This judgment is relied upon in support of the contention that qualification prescribed under Ext.P2 has no relevance at all.
W.P.(C). NO. 19434/2012 10
14. Consideration of the facts involved in the above case would disclose two things. One is that the qualification prescribed as per Ext.P2 notification by the PSC is not in accordance with the Rules. If we go by the Division Bench judgment in Ramesan's case (supra) then the qualification prescribed can be said to be correct. But if the Full Bench judgment in Sathydevan's case (supra) is followed, the Rule as it stands now alone has to be considered and the qualification prescribed in Ext. P2 notification is not in accordance with the Rules.
15. Under normal circumstances the Full Bench judgment has to be applied. But it is contended that the Division Bench judgment in Ramesan's case (supra) was confirmed by the Supreme Court. The Supreme Court judgment reads as under:-
"Civil Appeal Nos. 917, 916 and 915 of 2008 SLP(C) Nos. 25202/2005, 5723/2006 and 2703/2007 Leave granted.
Heard the learned counsel for the appellants at great length. The appellant has challenged the advertisement dated 26.10.1999 before the High Court. The Learned W.P.(C). NO. 19434/2012 11 Single Judge dismissed the petition on the ground of laches. The appeal before the Division Bench of the High Court met with the same fate. Hence these appeals.
In the advertisement the qualification prescribed for the post of Cashier-cum-Clerk in the District Co-operative Societies is B.A./B.Sc./B.Com with HDC or JDC or B.Com with Co-operation or B.Sc. (Co-operation and Banking) of the Kerala Agricultural University. It is the contention of the counsel that in the relevant service rules the qualification prescribed is S.S.L.C with J.D.C. and three years experience in the affiliated Primary Co-operative Society. According to the counsel the qualification prescribed in the advertisement is contrary to the qualification prescribed in the service rules and discriminatory.
We see no substance in the contention. Since, the advertisement has been issued for all the candidates, we do not see any substance in the contention of the appellant that he has been thereby discriminated. We see nothing wrong in prescribing higher qualification in the advertisement.
These appeals being devoid of merit are accordingly dismissed."
16. It is relevant to note that the Supreme Court has not considered the said case in the manner in which it is considered by the Full Bench in Sathydevan's case (supra). The Supreme Court had only held that advertisement has been issued for all the candidates and therefore there is W.P.(C). NO. 19434/2012 12 nothing wrong in prescribing a higher qualification. The Full Bench in Sathydevan's case (supra) has indicated that in the absence of amendment to the Rules, a higher qualification cannot be prescribed by PSC. But the Full Bench was dealing with the case relating to in service candidates and not direct recruits. Even though the Sathydevan's judgment is challenged before the Supreme Court, necessarily the Full Bench judgment has to be followed. The Supreme Court had not considered the case in the light of the factual circumstances which had arisen in the Full Bench case nor has the Apex Court considered the relevant Rules. Therefore I am of the view that as matters stand today the Full Bench view in Sathydevan's case has to be followed especially in view expressed in Abdu Rahiman's case (supra).
17. The next question is whether in the absence of a petitioner challenging the notification whether he is entitled to contend that since he is having SSLC with JDC he should be treated as qualified for the said post. Petitioner did not W.P.(C). NO. 19434/2012 13 challenge the notification as according to him he is even otherwise qualified on account of having Graduation in Business Administration. But the Graduation in Business Administration is not a qualification prescribed in Ext. P2 notification. The petitioner refers to a notification issued by way of amendment to Rules. The Rule 186(1) (i) is amended to incorporate all Graduations as a qualification. However the said notification had come into effect only as on the date of the notification i.e., 19.01.2013 which will not enable the petitioner to claim the said benefit. Therefore the petitioner cannot contend that since he is having Business Administration Degree he is also entitled to apply as per Ext. P2 notification. The contention of the petitioner that the effect of the amendment relates back to the date of the enactment cannot be appreciated as no change could be affected by subsequent amendment to the notification published by the PSC.
18. The only question that remains to be considered is whether any relief can be granted to the petitioner. The W.P.(C). NO. 19434/2012 14 learned counsel for the petitioner submits that though the petitioner had not opted to challenge the vires of the qualification prescribed in Ext.P2 notification, still the Court can suitably mould the relief to give the petitioner the benefit of the rank list as the petitioner had a Graduate Degree. In fact the petitioner has raised a specific ground stating that the qualification prescribed in Ext.P2 notification is not in accordance with the Rules. Since the petitioner had already applied and the application is rejected on account of the fact that he does not have the qualification as prescribed whether the petitioner should be given the benefit of the qualification as prescribed in the Rules will be the question.
19. While approving Ramesan's case (supra) the Supreme Court observed that since the advertisement has been issued to all the candidates, there cannot be any discrimination. It is also held that there is nothing wrong in prescribing a higher qualification. That apart Sathydevan's case (supra) was in relation to in service candidates and not direct recruits. Therefore in the absence of any challenge to W.P.(C). NO. 19434/2012 15 the notification at the appropriate time, I do not think that this Court will be justified in directing the petitioner to be considered for the said post.
In that view of the matter I do not think that the petitioner is entitled to seek any relief. The writ petition is hence dismissed.
Sd/-
A.M. SHAFFIQUE JUDGE DCS