Suresh Kumar, B. and Others vs Kerala Public Service Commission and Others

Mr. Justice A.M. Shaffique

Petitioners have applied for the post of Operator in Kerala Water Authority in terms with Ext. P-1 notification published in the Gazette on 24-4-

2006. The qualification prescribed was pass in S.S.L.C. examination or equivalent qualification and National Trade Certificate (N.T.C.) in

Mechanical (Motor Vehicle/Electrician). According to the petitioners, they have the required qualification. The Special Rules published as per

G.O. (P) No. 86/79/LA - SWD dated 25-9-1979 also provides for the same qualification for the post of Operator. But the complaint of the

petitioner is that while publishing Ext. P-4 probability list of candidates on 29-10-2008 the Kerala Public Service Commission (KPSC) added a

note indicating that candidates with certain other qualifications are also considered which are as follows:

Note.--1. Candidates with the following qualifications are also considered.

a. National Trade Certificate in

(i) Diesel Mechanic

(ii) Industrial Electrician

b. Diploma in

(i) Electrical Engineering

(ii) Mechanical Engineering

(iii) Automobile Engineering

c. B.Tech. Degree in

(i) Electrical Engineering

(ii) Mechanical Engineering

(iii) Electrical and Electronics Engineering.

d. National Apprenticeship Certificate in the trade of Electrician under the Apprenticeship Act, 1961 (Three year course)

The main contention urged by the petitioners is that when there is a notified qualification for the post of Operator in terms of Ext P-1, it is not open

for KPSC to include Diploma holders or Degree holders while preparing the probability list which, according to the petitioners, is illegal, arbitrary

and unreasonable. According to them, once a public announcement has been made notifying selection to a post as per the Special Rules,

subsequently a higher qualification cannot be prescribed which is clear from various judgments of the High Court as well as Supreme Court.

The petitioners also have a case that the higher degree which is stated in the Note is not an equivalent qualification to the National Trade

Certificate course which the petitioners had undertaken.

Pursuant to Ext. P-4, by an interim order dated 14-1-2011, the learned Judge of this Court had observed that in order to consider whether

Diploma in Electrical Engineering/Mechanical Engineering/Automobile Engineering and Degree in Electrical Engineering/Mechanical Engineering

and Electrical and Electronics Engineering are qualifications which presuppose acquisition of the qualification of National Trade Certificate in

Mechanic (Motor Vehicle/ Electrician) as stipulated in Rule 10 (a)(ii) of Kerala State & Subordinate Services Rules, 1958, it was necessary to get

expert opinion on this aspect from a competent authority under the Government of Kerala. Accordingly, the Director of Technical Education,

Thiruvananthapuram was suo motu impleaded as a respondent and there was a further direction that an affidavit of the Director of Technical

Education should be filed within a period of three weeks.

However, learned counsel for the petitioners did not urge the said contention at the time of hearing and confined his argument on the main legal

question as to whether a higher qualification can be prescribed without notifying the same either in the notification or in the Special Rules. Hence

the said'' issue alone is being considered in this writ petition.

It seems that pursuant to Ext. P-4, a rank list was published on 26-11-2009 in which also, according to the petitioners, persons who had higher

qualifications than what was prescribed under Ext. P-1 notification, were included. Ext. -13 is the said rank list. In the light of the aforesaid

statement of facts, the petitioners seek to quash Exts. P-4 and P-13 to the extent it includes candidates having a higher qualification as stated in the

note to the probability list and for a declaration that such persons are not eligible to be included in Exts. P-4 and P-13 rank list.

The learned counsel for the petitioners also relies upon the following judgments to support his contentions. Janardanan, K. and others v. State of

Kerala and others''2008 (3) K.H.C. 299 (F.B.), Abdul Salam v. Executive Officer, 2011 (3) KLT 204 and Suma v. Kerala Public Service

Commission 2011 (1) KLT 1 (F.B.).

Counter-affidavits have been filed by respondents. They are persons who have got appointments based on higher qualification prescribed in Ext.

P-4 probability list. They supported the stand taken by KPSC on the basis of the judgment in Jothi, K. K. & ors. v. Kerala Public Service

Commission & ors. J.T. 2002 (Suppl.1) S.C. 85.

It is the case of respondents that if a person has acquired higher qualification in the same faculty, such qualification can certainly be stated to

presuppose the acquisition of lower qualification prescribed for the said post. According to them, it is open for KPSC to consider the applications

of candidates who had an equivalent higher qualification and all of them had submitted their applications to the said post as per Ext. P-1 notification

in terms of the law laid down by the Supreme Court in Jothi, K. K.''s case (supra) and in that view of the matter, having obtained an appointment

in terms with the said law laid down by the Supreme Court and KPSC, having acted upon it and having prepared Ext. P-4 probability list and later

Ext. P-1 rank list, it may not be proper on the part of the petitioners to challenge their appointments contending that the qualification they are

having is not a higher qualification.

The learned counsel Sri K. Sugathan leading the arguments on behalf of respondents had referred to the Special Rules by contending that the

Kerala Water Authority was established with effect from 1-4-1984 and they had adopted Special Rules of Kerala Public Health Engineering

Subordinate Service for various posts specified in the said Special Rules. According to him, in the Special Rule, category 12 is the Assistant Shift

Operator/Shift Operator/ Mechanical Operator/Operator and the minimum higher promotion to Category 12 is Category 11 which is Head Shift

Operator/Head Operator.

The learned counsel submits on the basis of the counter-affidavit that no separate qualification is prescribed for the promotion post. The

method of appointment prescribed for Category 2 Mechanical Superintendent/Chief Mechanical Foreman/Chief Driller and Master Driller is:

(i) promotion from Category 3 (Driller/Driller Mechanical) Category 11 (Operator) in the ratio of 1:1 (or)

(ii) in the absence of qualified candidates for promotion, by direct recruitment.

It is further contended that as per the Special Rules, the Operators are entitled to get promotion first to the Category of Head Shift

Operator/Head Operator. They are further entitled to get promotion to the Category of 2, that is Mechanical Superintendent. One of the

qualifications prescribed for promotion category is Diploma in Mechanical Engineering from a recognised institution. Qualification prescribed for

direct recruitment to these categories being either Degree or Diploma in Mechanical Engineering, it is not possible to contend that such a candidate

who is having the qualification prescribed in the promotion post of Operator is not qualified to be appointed as Operator- In that view of the

matter, it is the contention of the learned counsel for the Respondent that possessing a higher qualification to that of National Trade Certificate is

eligible to be considered. In the counter-affidavit, they also referred to circular R 26(a) dated 11-7-2003 of KPSC in which it is stated that after

the Supreme Court Judgment in Jothi, K. K-''s case (supra), applications of candidates who possess qualification equivalent to the prescribed ones

declared as equivalent by executive orders or standing orders will be admitted irrespective of the fact whether acceptance of equivalent

qualification is provided for in the notification or not. It is also the case of the respondent that 5% seats in the Diploma courses of various

institutions in the State are reserved for those who have passed in National Trade Certificate. This was to enable them to get a higher qualification

which is essential for getting promotion in service which will equip them in discharging their duties. According to the learned counsel this situation

also indicates that higher qualification of National Trade Certificate is an equivalent higher qualification which could be considered by KPSC.

The learned counsel also contends that in so far as the note was made long before final rank list was prepared, there is sufficient notification

and the probability list by itself will not give any right to the candidates. The learned counsel also referred to the judgments in Janardanan, K.''s

case (supra) and Abdul Salam''s case (supra).

The first respondent has filed a counter-affidavit relying upon Circular dated 11-7-2003 in order to contend that after the judgment of the

Supreme Court in Jothi, K. K.''s case (supra), candidates who possess an equivalent qualification to the prescribed ones declared as equivalent by

executive orders or standing orders will be admitted irrespective of the fact whether the acceptance of equivalent qualification is provided in the

notification or not and it is in that background that in the probability list, the note had been included and all applications received by them in

pursuance of R 26(a) circular was considered and Ext. P-4 probability list was prepared.

They have also filed an additional affidavit contending that all parties who are affected are not impleaded in the case and reiterating the

contentions with reference to Jothi, K. K.''s case (supra). It is also contended that as per Rule 10 (a)(ii) of Part II of KS & SSR, it is clearly

indicated that:

Notwithstanding anything contained in these rules or in the special rules, the qualifications recognised by executive orders or standing orders of

Government as equivalent to a qualification specified for a post in the special rules or found acceptable by the Commission as per Rule 13 (b)(i) of

the said rules in case where acceptance of equivalent qualifications is provided in the rules and such those qualifications which pre-suppose the

acquisition of lower qualification prescribed for the post shall also be sufficient for the post.

It is in the said circumstances, they have supported Exts. P-4 and P-13. It is further contended that approximately more than 300 candidates

with higher qualification the above rank No. 857 and 285 candidates above the rank No. 737 and 284 candidates above rank No. 737 were

included in the main list of the ranked list and non of these affected parties are made as respondents in the writ petition.

An affidavit has been filed on behalf of Deputy Director of Curriculum Centre, Department of Technical Education, Kerala, 38th respondent

pursuant to interim Order dated 14-1-2011 in which it is stated that the matter was placed before the Equivalence Committee Meeting held on 3-

2-2011 at the Directorate of Technical Education, Thiruvananthapuram in which the Committee had taken the following decisions.

(a) Diploma/Degree in Electrical Engineering or Electrical and Electronics Engineering are Higher qualification which pre-supposes the acquisition

of National Trade Certificate in Mechanic (Electrician).

(b) Diploma/Degree in Mechanical Engineering or Automobile Engineering are Higher qualification which pre-supposes the acquisition of National

Trade Certificate in Mechanic (Motor Vehicle).

(c) National Trade Certificate in Diesel Mechanic can be considered equivalent to the National Trade Certificate in Mechanic (Motor Vehicle) for

appointment as Operator in Water Authority.

(d) National Trade Certificate in Industrial Electrician can be considered equivalent to the National Trade Certificate in Mechanic (Electrician) for

appointment as Operator in Water Authority.

Therefore, according to them, the higher qualifications mentioned in (a) and (b) pre-suppose the acquisition of basic qualification prescribed for

the post and qualifications mentioned in (c) and (d) are equivalent qualifications for the same post.

The other counter-affidavits filed by additional respondents 5 to 15 support the stand taken by KPSC and therefore, they are not separately

dealt with.

Having heard Sri Kaleeswaram Raj, learned counsel appearing for the petitioners and other counsel appearing for the party respondents,

Standing Counsel for KPSC and learned Government Pleader, the question for determination is whether after Ext. P-1 notification in terms with

Ext. F-3 special rules, is it possible for KPSC to consider the applications of persons holding higher qualification in the probability list Ext. P-4 and

include them in the rank list Ext. P-13.

In regard to the question of non-joinder of necessary parties, the learned counsel for the petitioners submits that persons who are already

appointed in terms with the rank list, Ext. P-13 does not require to be disturbed; but in so far as future appointments are concerned, the same

method cannot be adopted by KPSC.

On an overall consideration of the facts and circumstances involved in the matter, the only question to be considered is whether Jothi, K. K.''s

case (supra) applies to the facts and circumstances of the present case. In Jothi, K. K.''s case (supra), KPSC invited applications for selection to

the post of Sub Engineers (Electrical) in the Kerala State Electricity Board. The Technical qualification prescribed were Diploma in Electrical

Engineering of a recognised institution after three years course of study or a certificate in Electrical Engineering from any one of the recognised

technical schools shown below with five years service under Kerala State Electricity Board or MGTE/ KGTE in Electrical light and power

(Higher) with five years experience as Grade II Overseer (Electrical) under the Board. B.Tech. Degree holders in Electrical Engineering applied for

the post. Admittedly, they had a higher qualification. KPSC did not accept their applications stating that they did not possess necessary

qualification. It was contended that B.Tech. Degree may not be taken as higher qualification as the same is not an equivalent qualification

prescribed for the post and persons who had acquired such higher qualification, after acquiring the prescribed qualification alone, can be

considered relying upon Rule 10 (a)(ii) of Part I of KS & SSR. High Court accepted the contentions urged by KPSC. The Supreme Court, while

approving the finding of the High Court stating that the higher qualification must clearly indicate or pre-suppose the acquisition of lower qualification

prescribed for that post in order to attract that part of the Rule to the effect that such higher qualification which pre-suppose acquisition of lower

qualification prescribed for the post shall be sufficient for the post, found that if a person has acquired higher qualification in the same faculty, such

qualification can certainly be stated to pre-suppose the acquisition of the lower qualification prescribed for the post. In the said case, Supreme

Court came to a conclusion that under the relevant rules for the post of Assistant Engineer, Degree in Electrical Engineering of Kerala University or

other equivalent thereto had been prescribed for a higher post when a direct recruitment has to be held, the qualification that has to be obtained

obviously gives an indication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of

Sub Engineer. In that view of the matter, the qualification of Degree in Electrical Engineering pre-supposes the acquisition of the lower qualification

of Diploma in that subject prescribed for the post, shall be considered to be sufficient for the post. It is further held that in the event the

Government is of the view that only Diploma holders should have applied to the post of Sub Engineer but not all those who possess higher

qualifications either this rule should have excluded in respect of candidates who possess higher qualifications or the position should have been made

clear that Degree holder shall not be eligible to apply for such post. It is therefore found that when that position is not clear but on the other hand

rules do not disqualify per se the holders of higher qualifications in the same faculty, it becomes clear that the Rule could be understood in an

appropriate manner as stated above. Taking such a view, the Supreme Court indicated that when statutory rules have been published and those

rules are applicable, it pre-supposes that everyone concerned with such appointments will be aware of such rules or make himself aware of the

rules before making appropriate applications.

Therefore, what has been considered in Jothi, K. K.''s case (supra) was apparently with reference to Rule 10 (a)(ii) of Part I of KS & SSR. It

is indicated that if for the higher post, the basic qualification is the higher degree, it pre-supposes the acquisition of the basic qualification prescribed

for the post.

However, in Janardanan''s case (supra), a Division Bench of this Court, while considering the scope of Rule 10 (a)(ii) and Rule 13 (b)(i) in

regard to higher qualification with reference to Surveyor Grade II held that when the qualification prescribed for the post was I.T.I. Trade

Certificate in Surveyor Trade, the holders of Diploma or Degree in Civil Engineering cannot be treated as a higher qualification. It is found by the

Division Bench that the question of application of Rule 13 (b)(i) of KS & SSR will arise only if special Rules authorise concession of an equivalent

qualification which is made clear in Rule 10(a)(ii). The Division Bench referred to the Judgment of the Supreme Court in Latha v. State of Kerala

[2003 (1) KLT 949] in which it is held that when for a particular post, the source of recruitment should be from the candidates with T.T.C.

qualification or B.Ed., it is a matter of recruitment policy. The Supreme Court held as follows:

We find sufficient logic and justification in the State prescribing qualification for the post of primary teachers only as T.T.C. and not B.Ed. Whether

B.Ed. can also be prescribed for primary teachers is a question to be considered by the authorities concerned, but, we cannot consider B.Ed.

candidates for the present vacancy advertised as eligible.

The Division Bench also considered Jothi, K. K.''s case (supra) and made a distinction in so far as in Jothi, K. K.''s case (supra) it is stated

that if the higher qualification is obtained from the same faculty, that can be considered. In the case which was the subject-matter before the

Division Bench, it is held that if I.T.I. Certificate in Surveyor Trade is not the basic qualification for getting admission to diploma or degree course

in Civil Engineering. Therefore, the holding of diploma or degree in Civil Engineering will not pre-suppose the acquisition of I.T.I. Certificate in

Surveyor Trade. I think the very same facts apply to the present case on hand.

Still further, in Suma''s case (supra), the Full Bench had occasion to consider the issue as to whether KPSC is competent to deal with the

question of ''equivalence'' of educational or other qualification prescribed by the special rules unless the special rules provide for recognition of

qualifications other than the prescribed qualifications as equivalent to the qualifications prescribed and it is held that KPSC is incompetent to deal

with the question of ''equivalence'' of educational or other qualifications prescribed by the special rules unless special rules provide for recognition

of qualifications other than the prescribed qualifications as equivalent to the qualifications prescribed.

In Abdul Salam''s case (supra), while dealing with the question whether Diploma in Electrical and Electronics Engineering as well as

Mechanical Engineering were included in the select list in respect of a qualification prescribed for the post of Oilman/Mazdoor as pass in S.S.L.C.

and I.T.I. Certificate in Electrician, Wireman or Mechanic Diesel the Division Bench held after referring to the various decisions on the point that

since the Diploma obtained by the selected candidates is not in the same faculty and when I.T.I. Certificate prescribed for the post of

Oilman/Mazdoor is in Electrician and Wireman or Mechanic Diesel, Diploma holders in Electrical and Electronics Engineering cannot be treated on

par with an I.T.I. Certificate holder in Wireman and Electrician course. In that view of the matter, the Division Bench held that such appointments

were bad.

Therefore, it is a question of fact as to what is the prescribed qualification and whether the higher qualification can be accepted or not.

Apparently, as per the notification what is required is the National Trade Certificate in Mechanic (Motor Vehicle/Electrician). As per Ext. P-4,

note other categories are included as N.T.C. in Diesel Mechanic, Industrial Electrician, Diploma in Electrical Engineering, Mechanical Engineering,

Automobile Engineering and B.Tech. Degree in Electrical Engineering, Mechanical Engineering, Electrical and Electronics Engineering. Apparently,

going by the Full Bench Judgment of this Court, KPSC cannot declare that certain qualifications are equivalent to that of the prescribed

qualifications. Qualifications to the post is prescribed in terms with the special rules of the particular department which is Ext. P-3. Special Rules

does not indicate that the qualification mentioned in the note to Ext. P-4 are equivalent qualifications. It is nowhere stated and it is nobody''s case

that a certificate holder of N.T.C. is entitled to get selection for a Diploma or a B.Tech. Degree. Though there is 5% reservation as far as diploma

is concerned, it is not as if stating that N.T.C. holder is entitled to get admission for a diploma course. That apart, even going by the argument of

the learned counsel for the respondents, the minimum higher post of Operator is Head Shift Operator which is item No. 11 in the category of

services with reference to Kerala Public Health Engineering Support Service and the qualification for that post is by promotion from Category 12.

Apparently, the person who is appointed as Operator does not climb the ladder in order to reach the post to be held by a Diploma holder or a

Degree holder. Taking into consideration the aforesaid judgments relied upon by either side, I am of the view that prescribing an equivalent

qualification by KPSC in Ext. P-4 is bad in law since the special rules does not indicate that higher qualification was equivalent to the prescribed

qualifications. In that view of the matter, the writ petition is only to be allowed as follows:

(i) The appointments made in terms with Ext. P-13, as matters stand now, does not require to be disturbed.

(ii) In regard to future appointments, Ext. P-13 rank list shall be suitably modified by excluding persons who does not possess the prescribed

qualifications in terms of Ext. P-1.

(iii) Future postings may be done only in the manner prescribed above.