IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20771 of 2008(W)
1. SAVITHA P., KANNANKARA PUTHEN VEEDU,
... Petitioner
2. SHERLY K.C.,
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. THE DIRECTOR OF VOCATIONAL HIGHER
3. THE PUBLIC SERVICE COMMISSION,
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :15/12/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NOs. 20771, 21783, 24150 & 28075 OF 2008
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Dated this the 15th day of December, 2008
J U D G M E N T
In these writ petitions, the complaint is regarding the selection that
was conducted by the PSC to the post of Vocational Instructor in Clothing
and Embroidery.
2. In view of the common grievance highlighted by the
petitioners, these writ petitions are disposed of by this common judgment
and for the sake of convenience, I shall refer to the facts as pleaded in WP
(C) No.20771/08.
3. The prayer sought in this writ petition is to quash Ext.P4 to
the extend it has included additional respondents 4 to 7 at rank No.1,6,7
and 8.
4. Ext.P1 is a notification that was published by the PSC inviting
applications to the post of Vocational Instructor, Clothing and Embroidery.
Filling up of the post is governed by Kerala Vocational Higher Secondary
Education Subordinate Service Rules, 2004 (hereinafter referred to as
Special Rules for short).
5. For the post of Vocational Instructor, Clothing and
Embroidery, the method of recruitment is by promotion, by transfer and by
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direct recruitment. The qualification prescribed for the post reads as
follows:
Clothing By promotion A pass in Vocational
and By Transfer and by Higher Secondary
Embroidery direct recruitment Course in Clothing and
Embroidery conducted
by Government of
Kerala or its equivalent
with B.Sc Home Science
awarded by any of the
Universities in Kerala or
an equivalent
qualification
OR
Pre-Degree awarded by
any of the Universities
in Kerala or its
equivalent with Diploma
in Costume Designing
and Dress Making
awarded by the
Department of
Technical Education.
6. In Ext.P1 notification, qualifications as provided in the Special
Rules have been mentioned. Responding to Ext.P1, petitioners submitted
their applications and by Exts.P2 and P3, they were called for written test.
The PSC finalised the rank list and Ext.P4 is the ranked list that was
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published. In the ranked list, petitioners have been ranked at Sl.No.12
and 11 and respondents 4, 5, 6 and 7 were included at Rank Nos. 1,6,7
and 8.
7. In this writ petition petitioners contend that respondents 4 to
7 do not possess the qualifications prescribed in the Special Rules and
mentioned in Ext.P1. It is also their case that the 3rd respondent had not
issued any order declaring M.Sc in Home Science as equivalent to pass in
Vocational Higher Secondary Course in Clothing and Embroidery. It is
stated that it is despite the absence of such declaration, the 3rd respondent
has treated respondents 4 to 7 who are having M.Sc in Home Science and
Pre Degree as eligible and included them in the ranked list at Sl.Nos.1, 6,7
and 8 respectively. According to them, even as on 8/6/05, the last date for
submitting applications in response to the notification, no such declaration
of equivalency was made and therefore treating the aforesaid respondents
as eligible and their inclusion in the rank list is illegal.
8. In WP(C) No.28075/08 also, the challenge is against the
inclusion of the aforesaid respondents 4 to 7 at Sl No.1,6,7 and 8 in the
ranked list referred to above.
9. In WP(C) No.21783/08, the petitioner is a scheduled caste
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candidate. He is challenging the inclusion of additional 3rd respondent at
Sl.No.1 of the supplementary list.
10. In so far as WP(C) NO.24150/08 is concerned, she is
challenging the inclusion of the 4th respondent, who is also the 4th
respondent in WP(C) Nos.20771/08 and 28075/08. The petitioners in these
three writ petitions also impugne the inclusion of the aforesaid
respondents on the ground that they did not possess the qualifications
prescribed in the notification published by the PSC in terms of the Special
Rules referred to above.
11. Counsel for the petitioners relied on the judgments of this
court in Sobha Menon v. Kerala Public Service Commission(1994
(1) KLT 986), Lalitha Bai v. Public Service Commission (1999(2)
KLT 894), Union of India v. Chandrasekharan (1998(3) SCC 694)
and Madan Mohan Sharma v. State of Rajasthan (2008(3) SCC
724) to contend that although the PSC has the competence to equate
qualifications, any such equivalency shall be done before the issuance of
the notifications and that after the notification is issued, if the PSC decides
on such equivalency, the option open to the PSC is to cancel the
notification and issue a fresh one.
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12. On the other hand, the standing counsel for the PSC mainly
contended that the Special Rule itself recognised equivalent qualifications
and it was therefore permissible for the PSC to equate such qualifications.
He also relied on the judgments in WP(C) Nos.12356/07 and 12969/07 as
confirmed in WA Nos.2379/07 and 1852/07. In addition to this, he also
relied on the Division Bench judgments in Viswam v. Kerala Public
Service Commission (2001(3) KLT 170) and the Apex Court judgment
in Jyoti K.K & Ors. v. Kerala Public Service Commission (JT 2002
(Suppl.1) SC 85). According to the standing counsel for the PSC, by
resolution dated 12/5/2008, it was resolved to accept applications
submitted by those who possess MSC in Home Science with Pre Degree. It
is stated that it was in pursuance to this resolution that the PSC accepted
the application submitted by the party respondents.
13. On behalf of the party respondents, it was contended that the
writ petitioners did not have the locus standi to challenge the select list. It
is stated that at best the consequence of the decision of the PSC is that
the field of choice is enlarged and that even if it is so, the petitioners who
are even otherwise eligible cannot complain that they are affected by such
decision. It was also argued that even if relief is granted as sought for,
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petitioners are not benefited. It was also contended that so long as
recruitment rule provided for acceptance of equivalent qualifications, the
decision of the PSC cannot be faulted.
14. Party respondents also relied on the judgment of the Division
Bench in Viswam v. Kerala Public Service Commission (2001(3)
KLT 170), relied on by the standing counsel for the PSC and also the
judgment in Basic Education Board, U.P v. Upendra Rai (2008(3)
SCC 432) to contend that equation of qualification is fully within the
domain of the appointing authority and that such a decision is not
ordinarily subject to judicial review.
15. The 6th respondent in WP(C) No.20771 and 28075 referring to
the counter affidavit, contended that only those who lost opportunity to be
considered as a consequence of the resolution of the PSC can maintain a
writ petition challenging the ranked list. It was also contended that if the
selection process is vitiated for any reason, the whole selection has to be
held to be vitiated and that in that event also, according to them, the
petitioners are not benefited in any manner.
16. From the submissions made, what emerges is that neither of
the parties are disputing the competence of the PSC to equate a
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qualification with what is prescribed in the recruitment rule. In fact, from
the recruitment rule itself, it can be seen that qualification equivalent to
the Vocational Higher Secondary Course in Clothing and Embroidery or Pre
Degree is recognised in the Special Rules. However, the question that
arises is at what stage of the proceedings, can the PSC equate a
qualification. The last date for submitting applications specified in the
notification is 8/6/05. Even according to the Standing counsel for the PSC,
the resolution to accept applications submitted by those having M.Sc Home
Science with Pre Degree was taken by the PSC only on 12/5/2008.
Therefore, the resolution equating the qualification was taken almost three
years after the last date of submitting applications. In my view, it is not
permissible for the PSC to adopt such a course. As already found, even
though it is not in dispute that the PSC is competent to equate
qualifications, such equation should take place before the issuance of the
notification and the same should find a place in the notification. Only in
such an event can candidates who are possessing the equated qualification
can make their applications. On the other hand, what the PSC in this case
has done is, long after the applications were received, they have equated
qualifications and treated the aforesaid party respondents as qualified. It
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is on that basis alone they were included in the ranked list, and this is
impermissible.
17. This position is fully supported by the judgments relied on by
the counsel for the petitioners. In Sobha Menon v. Kerala Public
Service Commission (1994(1) KLT 986), this Court interfered with the
action of the PSC on the ground that such subsequent equivalence of the
qualification would prejudice various prospective applicants who might not
have applied since the notification did not provide for any alternate
qualification. Similarly in the decision reported in Lalitha Bai v. Public
Service Commission(1999(2) KLT 894), a Division Bench of this Court
held that any such equivalency can only be of prospective effect and
cannot affect the notifications that are already issued.
18. Learned counsel for the petitioners also relied on the Apex
Court Judgment in Madan Mohan Sharma v. State of Rajasthan
(2008(3) SCC 724) wherein para 12, it has been held as follows:
As per the circular which was obtaining at the time when
the advertisement was issued dated 24.7.1995, the criteria
for selection to the post of teacher Grade III was
Secondary Examination though this was changed during
the pendency of the advertisement. Subsequent
amendment of the Rules which was prospective cannot be
made retrospective so as to make the selection on the
basis of the rules which were subsequently amended. IfWPC 20771, 21783, 24150 & 28075/08
:9 :this was to be done, then the only course open was to
recall Advertisement No.1 of 1996 and to issue fresh
advertisement according to the Rules which had come into
force. Secondly, this was not done and erroneously the
authorities made the amended Rules applicable and
proceeded with the selection which resulted into litigation
and ultimately Radhey Shyam Sharma succeeded in that
litigation and it was held that the selection should be made
as per Secondary Examination marks, the criteria which
was prevalent at the time when the advertisement was
issued.
19. Although, it is pointed out by the standing counsel for the PSC
that this judgment deals with the alteration of selection criteria, in my
view, it hardly makes any difference. The Apex Court has pointed out at
what stage can alteration be made and it has been held that once
selection process is initiated, the specified criteria cannot be altered and
that if criteria is to be altered, the option available is to cancel the
notification and issue a fresh one. In my view, law laid down by the Apex
Court fully applies to the facts of this case.
20. As already noticed, the standing counsel for the PSC invited
my attention to the judgment of the learned Single Judge in WP(C)
No.12356/07 and 12969/07. In that judgment, after referring to the facts
of the case, the learned Judge declined to interfere on the basis that
though subsequent to the issuance of the notification, the PSC by its
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decision had restricted the field of choice, but not enlarged the same as in
this case and on that reasoning, the learned Judge held that the decision
of the PSC did not cause any prejudice to the persons, who had filed the
writ petition as they were eligible even by the decision restricting the field
of choice.
21. This reasoning of the learned Judge is obvious from para 7 of
the judgment, the relevant portion of which is extracted below for
reference.
But, by the impugned order, the Public Service
Commission has introduced a restriction, stating that
certificates issued by the Central or State Government
Departments and the institutions mentioned therein
alone will be accepted. Persons like the petitioners,
who are already having such certificates are not really
affected. Candidates who have acquired qualifications
from other institutions, not covered by the order of the
Public Service Commission, alone are affected
adversely. Therefore, the petitioner being persons not
aggrieved, cannot challenge the impugned order of the
Public Service Commission. By the present order, the
field is further restricted, which, in effect, restricts the
number of candidates. It is a decision favourable to
the petitioners, who are qualified candidates.
Therefore, I find no reason to interfere with the
impugned order issued by the Public Service
Commission, at the instance of the writ petitioners.
This judgment of the learned Judge was confirmed by the Division Bench
in WA Nos.1852 and 2379/07.
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22. In my view, unlike the case dealt with by the learned Judge
where by the decision of the PSC the field was restricted, in this case
consequence on the resolution passed by the PSC on 12/5/2008, the field
was enlarged. Therefore, the reasoning adopted in the judgments referred
to above can have no application.
23. So far as the judgment in Viswam v. Kerala Public Service
Commission (2001(3) KLT 170) relied on by the counsel for the PSC is
concerned, the decision therein turned on the interpretation of Rule 13 of
Kerala State and Subordinate Service Rules and therefore, in my view
cannot be relied on. In so far as Jyotis case (JT 2002(Suppl.1) SC 85)
is concerned, it was contended that the judgment is based on the principle
that acquisition of a superior qualification it pre -supposess the acquisition
of the possession of the lower qualification. In my view that judgment
cannot be made use of in this case. As already noticed, what has been
decided to be adopted is M.Sc Home Science with Pre Degree. A reading of
the Special Rules show that the M.Sc cannot be considered as a
qualification superior to pass in Vocational Higher Secondary Course in
Clothing and Embroidery included in the Special Rules. If that be so, the
law laid down by the Apex Court in Jyotis case will be of no assistance to
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sustain the ranked list.
24. Now what remains are the contention raised by the party
respondents. On the question locus standi of the petitioners, as already
noticed, this contention was raised on the basis that the petitioners are not
affected and that only those who were denied opportunity consequent on
the resolution of the PSC dated 12/5/2008 can maintain a writ petition. As
already noticed, going by the Special Rules, petitioners are qualified. Their
case is that the party respondents, are unqualified in terms of the Special
Rules and the notification and therefore their inclusion in the selection
process and in the ranked list is erroneous. Admittedly, by virtue of their
inclusion, not only that the field of choice has been enlarged, but also that
their chance of getting advised is reduced. If that be so, I cannot accept
the plea that the petitioners are unaffected and therefore cannot maintain
the writ petition.
25. Similarly, for this reason itself, the further contention that only
those who were denied opportunity by virtue of the resolution passed by
the PSC on 12/5/2008 can maintain the writ petition.
26. Then what remains is the contention raised by the 6th
respondent that if the selection process is vitiated, the whole selection list
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is vitiated and rank list should be cancelled as such. In my view that
contention also does not merit acceptance. The reason is that it is possible
to exclude the ineligible candidates and still maintain the rank list. By
virtue of the inclusion of the ineligible candidates, it cannot be said that
the inclusion of the petitioners in the rank list is also vitiated for any
reason. For that reason, I cannot accept that the whole selection is also
vitiated. For these reasons, I am satisfied that the petitioners are entitled
to the reliefs sought for.
27. Therefore, the rank list published by the PSC for the post of
Vocational Instructor in Clothing and Embroidery (Ext.P4 in WP(C)
NO.20771/08 will stand quashed to the extent it includes rank Nos.1,6,7
and 8 and Rank No.1 in the supplementary list of scheduled castes who is
the additional 3rd respondent in WP(C) No.21783/08.
Writ petitions are allowed as above.
ANTONY DOMINIC, JUDGE
Rp