Raman Unni, E. vs State of Kerala and Another

C.S. Rajan, J.—These Original Petitions involved a common question regarding the legality of selection made by the 2nd Respondent to the posts of part-time Sweepers in Kozhikode District. The Employment Exchange sponsored 1001 candidates for selection to the post of Part-time Sweepers in the Health Department in Kozhikode District. The total number of vacancies were 113. The method of appointment and qualifications are prescribed in the Special Rules for the Kerala Part-time Contingent Servants. Category 2 of the above Special Rules includes Sweepers. The qualification prescribed in the table under Rule 5(b) is good physique. All the Petitioners in these Original Petitions satisfied the above qualification of having ''good physique''. The 2nd Respondent followed Exts. P-1 and P-2 Government Orders (produced in O.P. No. 4689 of 1996). According to the above Government Orders marks are allotted for persons who are having S.S.L.C. qualification and above. Preference was to be given for the older in age (by date of birth). In the counter-affidavit filed on behalf of the 2nd Respondent, the above fact has been detailed as follows:

Government therefore prescribed certain norms as per G.O. (Ms) No. 295/95/H and FWD, dated 7th June 1995 for making provisional appointment through Employment Exchange. Government in G.O. (Ms) No. 436/95/H and FWD, dated 24th August 1995 have further ordered that (1) preference will be given to higher qualification and marks obtained in the qualifying examination (2) qualification/marks being equal preference will be given to the senior in age (3) 30 marks will be given for candidates with qualification upto S.S.L.C. The introduction of the above norms have helped in selecting eligible candidates having higher standard and good physique.

The Petitioners in O.P. No. 4689/96 have impleaded the 3rd Respondent in a representative capacity representing the persons who were selected by the 2nd Respondent. Paper publication was also made as enjoined by the Rules. In C.M.P. 3751/96 in O.P. No. 2151/96 this Court by order dated 20th February 1996 ordered the 2nd Respondent not to fill up one post of Part-time Sweepers until further orders from this Court. This Court again in C.M.P. No. 17163/96 in O.P. 4689/96, dated 19th August 1996 directed the 2nd Respondent not to make further appointment to the post of Part-time Sweepers until further orders. In C.M.P. No. 5452/96 in O.P. No. 3119/96 this Court on 20th February 1996 ordered the 2nd Respondent not to fill up two posts of Part-time Sweepers in the Health Services under the 2nd Respondent until further orders from this Court. Later, by order dated 28th June 1996 this Court ordered that any appointments made will be subject to the result of the Original Petitions.

Shri M.C. Sen, learned Counsel appearing for some of the Petitioners, argued that when the Special Rules prescribed the qualification of good physique only for the purpose of selection and appointment to the post of Part-time Sweepers, it was illegal on the part of the 2nd Respondent to take into consideration the cases of persons with higher qualification on the basis of Exts. P-1 and P-2. In support of this contention, the Learned Counsel relied on the decision of the Division Bench of this Court reported in Jesilet v. State of Kerala 1987 (2) K.L.T 984. In the above judgment the qualifications for the post of sewing teachers were prescribed in Rule 3(3)(iv) of Chapter XXXI of the Kerala Education Rules. But the Government by executive order prescribed higher qualification of S.S.L.C. Considering the validity of the above order, this Court held that the Government cannot prescribe higher qualification, in exercise of its executive powers, than what is prescribed under the Rules. Therefore it was argued that the selection of the candidates on the basis of higher qualification is illegal.

The reason for adopting Exts. P-1 and P-2 in the matter of selection has been stated in paragraph 4 of the counter-affidavit as follows:

As per Rule 5(a) Category 2 of the Kerala Special Rules for P.T. Contingent Service the qualification prescribed to the posts which included the Sweeper is only good physique. But as per G.O. (P) No. 438/71/PD, dated 15th December 1971 the posts of Hospital Attendant Grade II in Health Services Department are to be filled up by promoting P.T. Sweepers. So also the vacancies of Nursing Assistants are to be filled up by promoting Hospital Attendants Grade II/Grade I as per G.O. (P) No. 151/71/PD, dated 25th May 1971 for which educational qualification is essential since they are being given theoretical and practical know-how. By prescribing the norms for selection there is no version that the rules have been overridden. It can be seen that candidates having primary education also have been selected eg. Si. No. 3, 5, 8, 11 etc. It can also be seen that Si. Nos. 1 to 27 who were appointed as P.T. Sweepers have crossed the age of 40 years and most of them are having qualification below S.S.L.C.

It was further stated as follows in paragraph 5:

Therefore candidates having good physique with higher qualification were also been selected as P.T. Sweepers. Before the introduction of specific norms the selection and appointment to the post of P.T. Sweepers were made in accordance with special rules for the Kerala Part-time Contingent Service only where in the appointing authority was at liberty to select candidates at his own discretionary powers, even without considering the educational qualification, upper age limit etc.

Therefore according to the learned Government Pleader there is nothing wrong in applying Exts. P-1 and P-2 orders which will not go against the provisions contained in the Special Rules.

The learned Counsel appearing for some of the contesting Respondents brought to my notice the decision of the Division Bench of this Court reported in Sreekumar v. High Court of Kerala 1995 (2) KLT 88 wherein this Court upheld the action of the High Court in short-listing applicants who applied for the post of District Judges on the basis of the duration of practice at the Bar. The learned Counsel also brought to my notice two decisions of the Supreme Court reported in Dr. Krushna Chandra Sahu and others Vs. State of Orissa and others, wherein the Supreme Court held that by executive orders the Government can fill up the gap or omissions which are not in the Special Rules. To the same effect is the decision reported in State of Maharashtra v. Jagannath AIR 1989 S.C. 1133.

Here, all the candidates applied for the selection were interviewed by the 2nd Respondent. Therefore there was no question of short-listing the candidates for the purpose of making selection on the basis that there are large number of candidates to be interviewed. This is a case where the selection was made on the basis of higher qualifications as indicated in Exts. P-1 and P-2. When the qualification prescribed was only good physique in the Special Rules, candidates were selected on the basis that they were having higher qualifications like S.S.L.C. So persons with higher qualifications got an unmerited advantage which was not in the Special Rules. Therefore what the 2nd Respondent did was not to limit the number of candidates to be interviewed on the basis of higher qualification, but selection was made taking into consideration higher qualification as the sole basis for selection. Such a procedure was not warranted in the Special Rules. Therefore actually the 2nd Respondent followed not the Special Rules but Exts. P-1 and P-2 executive orders. Under these circumstances the selection made by the 2nd Respondent on the basis of Exts. P-1 and P-2 is liable to be set aside.

Among the selected candidates there are candidates who are not S.S.L.C. holders. But it does not legalise the selection. As can be seen from the list supplied along with the counter-affidavit, there are only 23 candidates who are non-S.S.L.C. A reading of the counter-affidavit will go to show that majority of the candidates selected belongs to S.S.L.C. Group and only a few candidates belonging to non-S.S.L.C. were selected. Under these circumstances I declare that the selection made to the post of Part-time Sweeper by the 2nd Respondent to the Kozhikode District which is under challenge in these Original Petitions is illegal. Second Respondent is free to make selection to the post of Part-time Sweepers from among candidates who had already been sponsored by the Employment Exchange. This process must be completed by the 2nd Respondent within one month from the date of receipt of a copy of this Judgment. Persons who are already selected are allowed to continue till fresh selection is made.

Original Petitions are disposed of as above.