High Court Kerala High Court

Savitha P. vs State Of Kerala on 15 December, 2008

Kerala High Court
Savitha P. vs State Of Kerala on 15 December, 2008
       

  

  

 
 
  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.
                          ==============
        W.P.(C) NOs. 20771, 21783, 24150 & 28075 OF 2008
         ================================

              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

WPC 20771, 21783, 24150 & 28075/08
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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.

WPC 20771, 21783, 24150 & 28075/08
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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. If

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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