Akhilesh Ravi C vs State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 21[ST] DAY OF JULY 2022 / 30TH ASHADHA, 1944** **WA NO. 1246 OF 2021** **AGAINST THE JUDGMENT DATED 05.08.2021 IN WP(C) 36780/2018 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** AKHILESH RAVI C, AGED 28 YEARS OFFICE ATTENDANT, N.S.S. COLLEGE OF ENGINEERING, PALAKKAD, PIN-678 008. BY ADVS. S.P.ARAVINDAKSHAN PILLAY N.SANTHA V.VARGHESE PETER JOSE CHRISTO S.A.ANAND K.N.REMYA L.ANNAPOORNA ## **RESPONDENTS/RESPONDENTS 1 TO 4:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 DIRECTOR OF TECHNICAL EDUCATION DIRECTORATE OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM, PIN-695 033. 3 JOINT DIRECTOR REGIONAL DIRECTORATE OF TECHNICAL EDUCATION, KOZHIKODE, PIN-673 001. 4 CHAIRMAN GOVERNING BODY, N.S.S. COLLEGE OF ENGINEERING, PALAKKAD, ADMINISTRATIVE OFFICE, N.S.S. HEAD OFFICE, PERUNNA P.O., CHANGANACHERRY, PIN-686 002. SR.G.P SMT.V.VINITA FOR R1 TO R3 SRI.P.GOPAL FOR R4. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No.1246 of 2021 2 **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-----------------------------------------Writ.Appeal No. 1246 of 2021** **----------------------------------------------------Dated this the 21[st] day of July, 2022** **J U D G M E N T** ## **C.S.Sudha, J.** This Writ Appeal is against the judgment dated 05/08/2021 in W.P(C) No. 36780/2018. The appellant is the petitioner and the respondents herein, the respondents in the writ petition. The parties and the documents in this writ appeal will be referred to as described in the writ petition. 2. The petitioner possessing the qualification of Bachelor of Engineering Degree (B.E. Degree, Civil Engineering) is working as Office Attendant (Last Grade Staff in the N.S.S. College of Engineering, Palakkad), pursuant to Ext.P1 appointment order dated 30/06/2016 issued by the 4[th] respondent, the Manager of the aforesaid College. The appointment of the petitioner was approved by Ext.P2 order dated 15/10/2016. Ext.P4 is the order by which the probation of the petitioner has been declared. The petitioner is qualified for being appointed by transfer as Tradesman (Plumber). The prescribed qualification for the post is a pass in Technical High School Leaving Certificate/ITI or pass in W.A.No.1246 of 2021 3 Vocational Higher Secondary School Examination (THSLC/ITI/VHSC Examination). However, B.E Degree in Civil Engineering is an equivalent or higher qualification for the aforesaid post and the petitioner who possess B.E Degree in Civil Engineering is therefore eligible for appointment by transfer as Tradesman (Plumber), which is evident from Ext.P5 letter dated 28/11/2017 issued by the 2[nd] respondent to the 4[th] respondent. 2.1. A vacancy in the post of Tradesman(Plumber) arose in the college on 01/04/2015 by promotion of an incumbent to the higher post of Trade Instructor. The petitioner being the senior most qualified last grade staff, is entitled to be promoted by transfer to the said vacancy of Tradesman (Plumber). The vacancy was not being filled up due to extraneous and irrelevant considerations and hence the petitioner submitted Exts.P8 and P9 representations to the 4th respondent Manager. As no action was taken, the petitioner submitted Ext.P10 representation to the Government. However, no action has been taken so far. Aggrieved by the inaction on the part of the respondents in the matter of filling up the vacancy in the post of Tradesman (Plumber) in the College, the writ petition was moved by the petitioner seeking a declaration that he is entitled and eligible to be promoted forthwith to the post of Tradesman (Plumber) in the College against the existing vacancy ; for issuing a writ of W.A.No.1246 of 2021 4 mandamus directing the 4th respondent to promote the petitioner to the aforesaid post and for issuance of a writ of mandamus directing the 1st and 4th respondents to pass expeditious orders on Ext.P10 and Exts.P8 and P9 representations. 3. The 4th respondent filed counter affidavit contending that the petitioner does not possess the prescribed qualification and hence cannot be promoted, as prayed for by the petitioner. 4. The learned Single Judge by the impugned judgment, dismissed the writ petition holding that the petitioner does not have the necessary qualifications as provided in the Kerala Technical Education Subordinate Service Special Rules, 2012 (the Special Rules). Aggrieved, the petitioner has come up in appeal. 5. Heard Adv.V.Varghese, the learned counsel for the appellant, Adv.B.Vinita, the learned Government Pleader and Adv.P.Gopal, the learned counsel for the 4[th] respondent. 6. Admittedly as per Rule 3 of the Special Rules, the method of appointment of a Tradesman is by transfer from Non-technical Attender Class-IV employees of the Technical Education Department having not less than two years' regular service in the Department. As per Rule 4, the qualification for appointment as a Tradesman is - (1) a pass in Technical W.A.No.1246 of 2021 5 High School Leaving Certificate Examination with specialisation in the appropriate trade, OR, (2)(i) pass in Secondary School Leaving Certificate Examination or equivalent. (ii) National Trade Certificate in the appropriate trade/Pass in Kerala Government Certificate in Engineering Examination in the appropriate trade/pass in Vocational Higher Secondary Certificate course in the appropriate trade. 7. The only point that needs to be considered in this appeal is whether the petitioner possessing a higher qualification of Degree of Bachelor in Civil Engineering can be said to be qualified for the post of Tradesman (Plumber). Learned counsel for the petitioner referred to Annexures I to VIII marklists and syllabus containing the various topics, the petitioner had studied for his degree course and argued that the petitioner is certainly qualified for the post, as Civil Engineering degree course includes several topics relating to plumbing also. In support of the argument that the petitioner can be considered for the post, reference has been made to the decision in **Jyoti K.K. vs. Kerala Public Service Commission, 2010 KHC 5231** . The said case dealt with the qualifications required for the selection to the post of Sub-Engineers (Electrical) in the Kerala State Electricity Board. As per the notification issued, the qualifications for the post were - (1) SSLC or its equivalent. (2) Technical W.A.No.1246 of 2021 6 qualifications – (a) Diploma in Electrical Engineering of a recognised institution after 3 years' course of study, or (b) a certificate in Electrical Engineering from any one of the recognised technical schools shown below with five years' service under the Kerala State Electricity Board, (c) Mgte / Kgte in electrical light and power (higher) with five years' experience as IInd Grade Overseer (Electrical) under the Board. 8. The appellants in the cited case, who were holders of B.Tech Degree in Electrical Engineering or Bachelor's Degree in Electrical Engineering, were held not eligible for the post as they did not possess the necessary qualifications. It was contended that the appellants possessed higher qualifications and therefore non consideration of their candidature, was wrong. This Court held that when qualifications have been prescribed for a post, the same cannot be diluted and persons not possessing those qualifications cannot be held to be eligible. Holding so, the writ petitions were dismissed. The matter was taken in appeal before the Hon'ble Supreme Court. The Apex Court interpreting Rule 10(a)(ii) of the Kerala State and Subordinate Services Rules, 1958, held that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for that post in order to attract that part of the Rule to the effect that such of those higher qualifications which presuppose W.A.No.1246 of 2021 7 the acquisition of the lower qualifications prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same Faculty, such qualifications can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. The qualification of degree in Electrical Engineering presupposes the acquisition of the lower qualification of Diploma in that subject prescribed for the post and that the same shall be considered to be sufficient for the said post. The Apex Court also held that if the Government was of the view that only Diploma holders should have applied to the post of SubEngineers and not all those who possess higher qualifications, the Rule should have excluded those candidates who possess higher qualification or the position should have been made clear that the Degree holders would not be eligible for such posts. When the Rules do not disqualify _per se_ the holders of higher qualifications in the same Faculty, the Rule cannot be understood as excluding persons with higher qualification for the post. 9. In our opinion, the decision in **Jyoti K.K.** ( _Supra_ ), is not applicable to the facts of the present case, because the candidates therein were holding B.Tech Degree in Electrical Engineering. One of the technical qualifications required for a candidate to apply for the post of SubEngineers (Electrical) is Diploma in Electrical Engineering, which W.A.No.1246 of 2021 8 qualification is certainly a lower qualification to a Degree in Electrical Engineering. The same is not the position here. A Degree in Civil Engineering cannot be stated to be the higher qualification of the qualifications prescribed in Rule 4 of the Special Rules. Here we refer to the decision in **Latha vs. State of Kerala, 2003(1)KLT 949** . That was a case in which candidates seeking recruitment to the post of Lower Primary/Upper Primary teachers in the Government Schools, questioned their non-selection to the post due to inclusion of B.Ed candidates in the select list published by the Kerala Public Service Commission (PSC). Their contention before this Court was that in the advertisement issued for recruitment to the post of teachers in Government Primary Schools, B.Ed is not the prescribed qualification and only candidates with the prescribed educational qualification for Teachers Training Certificate (TTC) were entitled to compete for the selection and seek appointment. This Court allowed the writ petition holding that B.Ed candidates could not have been included in the select or rank list as they were not eligible under the terms of the advertisement and so it was declared that the B.Ed holders who are not having T.T.C and who have been included in the rank list should be deleted from the rank list. In an intra-court appeal, a Division Bench of this Court reversed the decision. Aggrieved, the holders of T.T.C certificate W.A.No.1246 of 2021 9 took up the matter in appeal before the Hon'ble Supreme Court. 9.1. The Apex Court took note of the fact that in the advertisement which was published, the qualifications for the post of Lower/Upper Primary teachers prescribed was - (i) pass in S.S.L.C or any other equivalent qualification, (ii) pass in T.T.C or pass in Pre-degree with pedagogy as optional subject or pass in basic T.T.C examination (Malayalam) conducted by the Government of Madras or pass in Malayalam Vidhvan examination. It was canvased on behalf of the appellants that when the terms of the advertisement was quite clear to indicate that B.Ed degree was not the prescribed qualification, candidates holding the said degree were clearly ineligible to compete and they could not have been allowed to take part in the selection test and to be included in the selection list. On behalf of the State of Kerala and the PSC, it was contended that, B.Ed is a higher qualification than T.T.C and as in the process of recruitment of Primary Teachers in Government Primary Schools, candidates with B.Ed degree were allowed to compete and that the Division Bench was right in not upsetting the select list and the appointments of B.Ed candidates on the undertaking given by the Authorities to suitably amend the recruitment Rules. These arguments advanced on behalf of the State and the PSC did not find favour with the W.A.No.1246 of 2021 10 Hon'ble Supreme Court. The argument that B.Ed qualification is a higher qualification than T.T.C and therefore B.Ed candidates are eligible to compete for the post was rejected. The Apex court accepted the argument advanced on behalf of the appellants/T.T.C holders, that Trained Teachers Certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed degree, the training imparted is to teach students of classes above primary. B.Ed degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. It has been further held that, whether for a particular post, the source of recruitment should be from the candidates with T.T.C qualification or B.Ed qualification, is a matter of recruitment policy. The Apex court found logic and justification in the State prescribing qualification for the post of primary teachers as only T.T.C and not B.Ed. 10. In the case on hand, it is true that the Director of Technical Education as per Ext.A5, has certified that candidates with B.Tech Degree in Civil Engineering are also eligible to be considered for the aforesaid post. The Director of Technical Education has no authority to say so. It is the Government which is the appropriate authority to say so. As long as the Special Rules laying down the qualifications are not amended, it is not for this Court to say otherwise. As held in **Latha** ( _Supra_ ), TTC is given to W.A.No.1246 of 2021 11 teachers specially trained to teach young children in primary classes and therefore B.Ed. degree holders who are trained to teach students of classes above primary, cannot be said to hold the qualification for appointment as teachers in primary schools. Apparently, the manner in which young children are to be handled and taught is different from how children above primary are to be handled and trained. That is the reason why it has been held that only TTC holders who have been trained to handle young children are eligible to be appointed as teachers to teach them. Likewise in this case, a reading of Rule 4 shows that specialisation in the appropriate trade is required. Here the appropriate trade is plumbing. The learned counsel for the appellant drew our attention to the subjects, namely, Fluid Mechanics; Hydraulics & Hydraulic Machines ; Building Planning & Drawing ; Hydrology & Irrigation Engineering ; Hydraulics & Hydraulic Machinery Lab ; Computer Aided Design Lab and Hydraulic Structure & Irrigation Design Drawing referred to in Annexures III to VII marklists and Annexure VIII, the extract of the syllabus of the various topics the petitioner had studied for the B.E. Degree course and submitted that all these topics relate to plumbing and so the petitioner is sufficiently qualified for the post. It may be true that the B.E.Degree course done by the petitioner includes topics or subjects on plumbing and allied matters too. However, that may W.A.No.1246 of 2021 12 not be sufficient and that probably must be the reason why the Rule specifically says that the candidates must have specialisation in the appropriate trade. An Engineer may know the theoretical aspects of plumbing and may supervise and direct plumbing works also. But the work on the field/site is executed by a plumber who is trained to execute the work, which skill the Engineer may not possess. There may be Engineers who are better skilled than plumbers. But that may not be the case always. There may also be persons without a B.E.Degree or who does not hold any of the qualifications in Rule 4, who are expert workers in the field of plumbing and better than those holding the qualifications under Rule 4. But that would not mean that they can be held to be holding/possessing the qualifications as provided for in Rule 4 and hence eligible for the post. Further, it is not for this Court to say that the aforesaid topics covered in the Engineering Degree done by the petitioner are sufficient substitute for the qualifications prescribed in Rule 4. What should be the source of recruitment for a particular post, should it be from candidates with B.E. Degree in Civil Engineering also in addition to candidates possessing the qualifications as prescribed in Rule 4, is a matter of recruitment policy to be decided by the Government and not by this Court. We do not find any infirmity in the impugned judgment. Hence, the W.A.No.1246 of 2021 13 writ appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **P.B. SURESH KUMAR JUDGE** **Sd/-** **C.S.SUDHA JUDGE** ami/Jms/15.07 W.A.No.1246 of 2021 14 ## **APPENDIX OF WA 1246/2021** RESPONDENT'S ANNEXURES Annexure R4(a) TRUE COPY OF THE COMMON JUDGMENT DATED 07/03/1995 IN W.A.NO.1202 OF 1994 AND CONNECTED CASES OF THIS HON'BLE COURT. Annexure R4(b) TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DATED 11/03/1998 IN CIVIL APEPAL NO.1899-1900 OF 1998 AND TYPED COPY. Annexure R4(C) TURE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 05/08/2021 IN W.P(C)NO.20708 OF 2013 AND CONNECTED CASES.