IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15304 of 2005(V)
1. ABDUL MAJEED, CHEMBIRIKA,
... Petitioner
2. JAFFER K.C., KAELOTH CHALAHYIL,
3. JAYASREE M.V., KALLADATHIL HOUSE,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. KERALA STATE PUBLIC SERVICE
For Petitioner :SRI.T.A.UNNIKRISHNAN
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :14/07/2010
O R D E R
"C.R"
C.T.RAVIKUMAR, J.
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W.P.(C)Nos.15304, 17048, 17114 of 2005,
12408 & 22868 of 2007
----------------------------
Dated 14th July, 2010
JUDGMENT
Since common issues based on common facts arise for
consideration in these writ petitions, they were jointly heard and are
being disposed of by this common judgment. For the sake of
convenience W.P.(C)No.15304 of 2005 is treated as the leading case
and facts and documents are referred to hereafter in this judgment in
the manner they are set out therein unless otherwise specified.
2. The petitioners in these writ petitions are graduates
possessing B.Sc. (Co-operation & Banking) Degree awarded by the
Kerala Agricultural University. As per Ext.P1 draft rules, the said
qualification was prescribed as one of the qualifications for
appointment to the post of Non-vocational Teacher in General
Foundation Course in the Kerala Vocational Higher Secondary
Education Department. Subsequently, Ext.P2 special rules have been
brought into force. The grievance of the petitioners is that the
qualification of B.Sc. (Co-operation & Banking) Degree awarded by
the Kerala Agricultural University which was prescribed as one of the
qualifications under Ext.P1 was not included as one of the
WP(C).No.15304/2005 & connected cases 2
qualifications for the post of Non-vocational Teacher in General
Foundation Course in Ext.P2 special rules. Ext.P3 is a representation
dated 24.3.2004 from the Associate Dean of the Kerala Agricultural
University to the Secretary to Higher Education Department virtually
highlighting the necessity to include the aforesaid qualification as one
of the qualifications for the aforesaid post. In fact, as per Ext.P3, it
was requested to include the aforesaid qualification as a qualification
for the post of Non-vocational Teacher in General Foundation Course.
Ext.P4 is a recommendation by the subject committee of the
Legislative Assembly.
3. While so, the Kerala Public Service Commission issued
Ext.P5 notification dated 26.4.2005 inviting applications for
appointment to the post of Non-vocational Teacher in General
Foundation Course in the Kerala Vocational Higher Secondary
Education Department. Admittedly, in Ext.P5 notification
qualifications were prescribed in tune with Ext.P2 special rules.
Obviously, B.Sc. (Co-operation & Banking) Degree possessed by the
petitioners was not included as a qualification in Ext.P5. Though the
petitioners are ineligible to submit applications in response to Ext.P5
notification, they submitted applications for selection to the post of
WP(C).No.15304/2005 & connected cases 3
Non-vocational Teacher in General Foundation Course in response to
Ext.P5. Apprehending that they would not be permitted to appear for
the written examination held as part of the selection process, they
approached this Court by filing these writ petitions. On 7.6.2005 this
Court passed an interim order in W.P.(C)No.17048 of 2005. Based
on the same and similar orders, the respondents permitted the
petitioners therein to participate in the selection process to the post
of Non-vocational Teacher (General Foundation) in pursuance of
Ext.P5 notification provisionally and subject to the result of the writ
petitions. Thereupon the petitioners appeared in the written test.
However, the petitioners were not included in Ext.P6 (Ext.P6 in W.P.
(C)No.17048/2005) short list of candidates selected to be invited for
interview. Consequently, the petitioners were not called for the
interview. Later, Ext.P7 (Ext.P7 in W.P.(C)No.17048/2005) rank list
was brought into force on 18.12.2007. Naturally, the petitioners
were not included therein. On 23.6.2007, an amendment was
brought into the special rules and the qualification of B.Sc. (Co-
operation & Banking), the degree possessed by the petitioners has
been included as one of the qualifications for appointment to the
post of Non-vocational Teacher in General Foundation Course.
WP(C).No.15304/2005 & connected cases 4
Taking into account the amendment brought into as per Ext.P8 the
petitioners in W.P.(C)Nos.17048 and 17114 of 2005 filed petitions for
amending the writ petition. The said amendment was filed for the
purpose of incorporating the prayers to issue a writ of mandamus to
the first respondent to issue an order giving effect to the amendment
in Ext.P8 from 12.3.2004, that is the date of Ext.P2 special rules. In
the aforesaid circumstances, the petitioners contend that the
respondents should have permitted the petitioners to participate in
the interview and based on the outcome successful candidates
among them should have been included in the rank list.
4. The first respondent has filed a counter affidavit. It is
stated therein that the petitioners are not at all entitled to be
considered for selection to the post of Non-vocational Teacher in
General Foundation Course. Essentially, the contention is founded on
the fact that such a qualification possessed by the petitioners was not
included as a qualification in Ext.P2 special rules and therefore, its
possession could not have and would not have conferred any right to
the petitioners for being considered in the selection process initiated
as per Ext.P5 since Ext.P5 was issued in terms of Ext.P2 special rules.
In Ext.P2 special rules, admittedly, B.Sc. (Co-operation & Banking)
WP(C).No.15304/2005 & connected cases 5
Degree was not included as a qualification for the post of Non-
vocational Teacher in General Foundation Course. It is further stated
thereunder that Ext.P8 amendment brought into Ext.P2 special rules
was not given retrospective effect and therefore the petitioners
cannot as a matter of right claim for consideration for appointment
pursuant to the selection process initiated as per Ext.P5. At any rate,
Ext.P7 rank list is not liable to be interfered with.
5. The second respondent has also filed a counter
affidavit in this writ petition. Virtually, the contentions raised by the
first respondent also find place in it. After incorporating the
qualifications prescribed as per Ext.P2 special rules, it has been
stated thereunder that Ext.P5 notification has been issued strictly in
terms of Ext.P2 special rules. The Kerala Public Service Commission
can prescribe qualifications in a notification only in tune with the
qualifications prescribed in the special rules. In Ext.P5, the
qualification possessed by the petitioners has not been included as a
qualification for selection to the post of Non-vocational Teacher
(General Foundation Course) and therefore in terms of Rule 10 of
General rules, the petitioners have no right to get appointment
against the said post. Apart from the above contentions it is stated
WP(C).No.15304/2005 & connected cases 6
thereunder that the petitioners were permitted to partake in the
written test only to comply with the interim order passed by this
Court and even going by the interim order such participation would
confer any right on the petitioners.
6. It is common case that the qualification of B.Sc. (Co-
operation & Banking) Degree awarded by the Kerala Agricultural
University that was prescribed as one of the qualifications in Ext.P1
draft rules was not included as a qualification in Ext.P2 special rules.
The contention of the petitioners is that subsequent to the issuance
of Ext.P5 notification amendment was brought into Ext.P2 rules as
hereunder:-
“4. In Serial Number 6, against item (10)-
(i) after the words “Commerce or Business Economics”
occurring in the first paragraph the words “OR Economics”
shall be inserted, and
(ii) after the existing entries the following entries shall be
added, namely:-
“OR
B.Sc. Cooperation & Banking (four year course) with
not less than 60% marks awarded by the Kerala
Agriculture University or equivalent qualification.”
The said amendment has been brought in admittedly, as per G.O.
(MS)No.123/07/G.Edn. dated 20.6.2007 which is produced as Ext.P8
in W.P.(C)No.17114 of 2005. The relevant portion of Ext.P8 reads
WP(C).No.15304/2005 & connected cases 7
thus:-
“Since the amendment to Special Rules as well as
formulating rules are statutory functions, so many
statutory procedures as laid down by Government are to
be followed which are time consuming processes.
However, Government in the meanwhile have followed
procedures like discussions with the representatives of
the service and teachers organizations, meeting of
secretaries committee etc. Since the further procedures
like the consultation with the KPSC, scrutiny by Subject
Committee etc. has to be completed. Government may not
be in a position to stick to the time limit specified by the
Honourable High Court in the Ops, WPs and Contempt of
Court Cases filed in this regard. As such Government
decided to give effect to the amendments through an
executive order and to follow the statutory procedures
simultaneously.
Accordingly, Government are pleased to amend
the Kerala Vocational Higher Secondary Education State
Service Rules 2004 and Kerala Vocational Higher
Secondary Education Subordinate Service Rules 2004
with immediate effect as follows:-”
A bare perusal of Ext.P8 would reveal that the said amendments
including the amendment prescribing the qualification of B.Sc.
Cooperation & Banking (four year course) with not less than 60%
marks awarded by the Kerala Agricultural University, was given effect
only from 23.6.2007. Thus, Ext.P8 amendment brought into Ext.P2
special rules was given effect only from 23.6.2007. In that context,
the following recital in Ext.P2 assumes relevance:
WP(C).No.15304/2005 & connected cases 8
“S.R.O.No.246/2004.- In exercise of the powers
conferred by sub-section (1) of Section 2 of the Kerala Public
Service Act, 1968 (19 of 1968) and in supersession of all rules and
orders on the subject, the Government of Kerala hereby make the
following rules for the Kerala Vocational Higher Secondary
Education State Service, namely:-
Rules
1. Short title and commencement:- (1) These rules may be
called the Kerala Vocational Higher Secondary Education State
Service Rules, 2004.
(2) They shall come into force at once.”
Therefore, there cannot be any doubt with respect to the position
that Ext.P2 special rules came into effect with effect from 12.3.2004.
When Ext.P2 special rules came into force, all the other orders or
rules including Ext.P1 draft rules should stand automatically
superseded. In fact, it is specifically stated in Ext.P2 itself.
Therefore, after the introduction of Ext.P2 no one can place reliance
on Ext.P1 draft rules. The petitioners do not have a case that in
Ext.P2 special rules the qualification possessed by them, that is B.Sc.
(Co-operation & Banking) Degree awarded by the Kerala Agricultural
University was included as a qualification for appointment to the post
of Non-vocational Teacher in General Foundation Course. Ext.P5 is
the relevant notification issued by the Kerala Public Service
WP(C).No.15304/2005 & connected cases 9
Commission for selection to the post of Non-vocational Teacher in
General Foundation Course. Again, no one has a case that the said
notification was issued disregarding the special rules. In fact, it was
issued strictly in terms of Ext.P2 special rules. Naturally, in Ext.P5
also the qualification B.Sc. (Co-operation & Banking) was not
included as a qualification for the said post. If that be so, merely
because the petitioners submitted applications on seeing Ext.P5
notification that cannot confer any right on them to get appointment
to the post of Non-vocational Teacher in General Foundation Course.
In fact, they were not at all qualified to apply for the said post in
terms of Ext.P5 notification. Ext.P3 is only a letter from the associate
dean whereby he had requested the Secretary to Higher Education
Department to include B.Sc. (Co-operation & Banking) Degree as a
qualification for the aforesaid post. True that the subject committee
has also recommended the same as can be seen from Ext.P4. But,
there cannot be any dispute with respect to the position that Ext.P3
or Ext.P4 cannot have any impact on Ext.P2 and it cannot be said
that in the light of Exts.P2, P3 and P4 the qualification prescribed
under Ext.P2 for selection to the post in question would stand
automatically amended. There is a prescribed procedure for
WP(C).No.15304/2005 & connected cases 10
amending the special rules and in fact, such an amendment was
brought into Ext.P2 special rules only as per Ext.P8. Evidently, the
amendment brought into force as per Ext.P8 was given its effect only
from 26.3.2007. Therefore, Ext.P8 amendment cannot have any
impact on the selection process initiated as per Ext.P5. A subsequent
amendment brought into a particular rule cannot have any impact at
all on a ranked list drawn by the Kerala Public Service Commission
based on a notification issued strictly in terms of the unamended
rule. The only impact it can have on such a ranked list is that
vacancies occurred subsequent to the amendment could not be filled
up from such a list. After completion of the selection process
initiated as per Ext.P5, the second respondent has brought into force
Ext.P7 rank list dated 18.12.2007. It was in the meanwhile that
Ext.P8 amendment was brought into force with effect from
26.3.2007. Therefore, there cannot be any legal impediment in
operating Ext.P7 rank list prepared pursuant to the selection process
initiated as per Ext.P5. Consequently, the petitioners who were, in
fact, ineligible to apply for appointment to the post of Non-vocational
Teacher in General Foundation Course in response to Ext.P5 cannot
legally claim that they should be included in the select list and should
WP(C).No.15304/2005 & connected cases 11
be given appointment after unsettling a ranked list brought into force
strictly in accordance with law. It is a fact that but for the interim
order passed by this Court the petitioners would not have been
permitted to participate in the selection process in the aforesaid
circumstances. Therefore, the petitioners cannot raise claim for any
undue advantage or appointment solely relying on the interim order
passed by this Court on 7.6.2005 in W.P.(C)No.17048 of 2005. In
this context it is also to be noted that several others who possessed
the same qualification might not have applied in response to Ext.P5
realizing their ineligibility.
7. Going by the decision of the Apex Court in Union of
India v. Pushpa Rani ((2008) 9 SCC 242), matters pertaining to
prescription of qualifications is an issue that falls within the
employer’s domain. On such matters, judicial review comes into play
only if the State action is contrary to constitutional or statutory
provisions or is patently arbitrary or vitiated by mala fides. A
scanning of the contentions in these writ petitions would reveal that
absolutely there is no challenge against Ext.P2 special rules. The
only grievance of the petitioners is that the qualification of B.Sc. (Co-
operation & Banking) Degree which was a prescribed qualification as
WP(C).No.15304/2005 & connected cases 12
per Ext.P1 draft rules was not included in Ext.P2 special rules. Such
a matter cannot be interfered with by this Court in the light of the
decision of the Apex Court in Union of India v. Pushpa Rani
( (supra) because it is up to the employer to decide or to prescribe
the qualifications. True that, in this case, subsequently Ext.P2 was
amended as per Ext.P8. But, in Ext.P8 itself it has been specifically
stated that Ext.P2 rules were amended only with immediate effect.
Therefore, all such amendments brought into Ext.P2 would have their
effect only with effect from the date of Ext.P8 i.e, only from
23.6.2007. Admittedly, Ext.P2 was brought into force on 12.3.2004.
In view of the said admitted position and also the fact that Ext.P5
dated 26.4.2005 was issued strictly in terms of Ext.P2 special rules, I
am of the considered view that the petitioners are not entitled to the
reliefs sought for in these writ petitions. The contention that it was
the efforts of the petitioners that led to Ext.P8 also cannot be a
reason for this Court to issue a writ of mandamus to the first
respondent to give effect to Ext.P8 amendment from the date of
Ext.P2 or to give appointment to the petitioners. The petitioners
have no legal right to insist that the rule should be framed or
amended in a particular manner and therefore there cannot be a
WP(C).No.15304/2005 & connected cases 13
corresponding duty on the concerned rule making authority to frame
or amend rules in a specific manner. In the absence of any such
right and duty, this Court would not be justified in issuing a writ of
mandamus to the rule making authority either to frame or to amend
the rules and to give effect to the rules with effect from a particular
date. The said issue has been covered squarely against the
petitioners in the decision of this Court in George.M.I. v. High
Court of Kerala and others (ILR 2010 (2) Ker. 213).
Going by the settled position that rights of parties have to
be decided in terms of the prevailing rule position on the relevant
date I am of the view that there is no merit at all in these writ
petitions. Accordingly, the writ petitions are dismissed.
C.T.RAVIKUMAR
Judge
TKS