Aparna S. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` THURSDAY, THE 16TH DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943 ``` ``` WP(C) NO. 28845 OF 2021 ``` ## **`PETITIONER/S:`** ``` APARNA.S., AGED 28 YEARS W/O.AKHILESH S.NAIR, 'VAISAKH', KADAMAPATTUKONAM, MALAYAMADOM, KILIMANOOR P.O., THIRUVANANTHAPURAM-695 601. BY ADVS. KALEESWARAM RAJ VARUN C.VIJAY THULASI K. RAJ ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM-695 014. 3DIRECTOR,LBS CENTER FOR SCIENCE AND TECHNOLOGY, NANDAVANAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033. ``` ``` WP(C) NO. 28845 OF 2021 ``` ``` 2 ``` ``` SMT SHAMEENA SALAHUDHEEN SC SRI BIJOY CHANDRAN SR GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 28845 OF 2021 ``` ``` 3 ``` ## **J U D G M E N T** The State Eligibility Test (SET) is an eligibility criterion for the selection of Higher Secondary Teachers. A SET pass is stipulated as a mandatory qualification for Higher Secondary School Teachers as per Rule 6 Chapter XXXII of the Kerala Education Rules, 1959. 2. As per orders issued by the Government, the 3[rd] respondent has been entrusted with the responsibility to conduct the test based on the syllabus approved by the Board of Examinations. The test is conducted twice a year. 3. Exhibit P1 notification dated 27.12.2019 was issued by the 3[rd] respondent inviting applications from the students. The eligibility as stated in Ext.P1 is as follows: **==> picture [468 x 235] intentionally omitted <==** ``` WP(C) NO. 28845 OF 2021 ``` ``` 4 ``` 4. The notification states that 50% marks in Postgraduate or equivalent grade and B.Ed is the basic qualification fixed for candidates. However, in respect of certain students who have acquired postgraduation in certain subjects exemption is granted from acquiring B.Ed. Those who have acquired only one of the basic qualifications are required to fulfil the following conditions to make themselves eligible for appearing in SET. The conditions are: - i) Candidates who are holders of Post Graduate Degree and are pursuing B.Ed can appear for the test only if they are in their final year of B.Ed. course. - ii) Candidates who are in their final year of Post Graduate degree must possess B.Ed qualification. - iii) Candidates who are appearing for the said SET are required to submit their Post Graduate/ B.Ed. Certificate within a period of one year from the date of declaration of result failing which, they shall not be declared as passed in the said chance. 5. Ext.P2 is the prospectus issued by the 3[rd] respondent detailing the scheme of the test, requirement of pass, conditions of eligibility etc. What is of relevance is clauses 5.1 and 5.7 of the prospectus. ``` WP(C) NO. 28845 OF 2021 ``` ``` 5 ``` ## **5. Conditions of Eligibility** 5.1 Those who have acquired Master's Degree in the subjects concerned with not less than 50% marks or equivalent grade and B.Ed. degree in any discipline from any one of the universities in Kerala or have acquired these qualifications from any other university recognised as equivalent - thereto are eligible to apply for the SET Feb 2020 with certain exceptions as mentioned in the following paragraphs *********** ******** ******** 5.7. Candidates who have acquired their Master’s Degree with the minimum required marks for eligibility to appear for SET and are undergoing the final year course for B.Ed Degree are eligible to appear for the test. Similarly candidates who have acquired their B.Ed Degree and are undergoing the final year of their Post Graduate Programme are also eligible to appear for the test. Such candidates must produce the Certificates of their qualifying examinations passed with the minimum required marks within one year from the date of publication of the results of the State Eligibility Test, failing which they shall be treated as disqualified. 6. Thus, those candidates who have acquired their Master’s Degree with the minimum required marks for eligibility to appear for SET and are undergoing the final year course for B.Ed Degree are eligible to appear for the test. Similarly, candidates who have acquired their B.Ed Degree and are undergoing the final year of their Post Graduate Programme are also eligible to ``` WP(C) NO. 28845 OF 2021 ``` ``` 6 ``` appear for the test. As is evident from Exhibit P1, the candidates were to register for the test online between the period from 28.12.2019 and 10.01.2020. 7. The petitioner is a Post Graduate and admittedly was pursuing her 1st-year B.Ed Course as on the date of notification. 8. The test got delayed due to the Pandemic. The test was held only on 10.1.2021 which meant that when she appeared for the exam, she was pursuing her final year B.Ed Course. 9. She passed the test and the result was announced as is evident from Exhibit P4 result sheet. 10. When the petitioner sought for issuance of SET certificate, the 3[rd] respondent refused the same on the ground that the petitioner is not eligible to appear for the test as she was not in the final year of the B.Ed Course at the time of filing the application. 11. The petitioner contends that the 3rd respondent has grievously erred in refusing to issue the certificate. It would be possible for her to apply for the selection to the post of High School Teacher as notified by the PSC only ``` WP(C) NO. 28845 OF 2021 ``` ``` 7 ``` if she is armed with the SET certificate. Exhibit P1 and P2, according to the petitioner, if interpreted liberally insists only that a candidate with PG qualification, in order to apply for the SET exam, should be in the final year of B.Ed course. The petitioner clearly satisfies the said requirement, and she would have to be regarded as eligible. 12. It is in the afore circumstances that this writ Petition is filed seeking the following reliefs: - (i) Issue a writ of mandamus directing the 3[rd] respondent to issue the Certificate of the State Eligibility Test to the petitioner; - (ii) To declare that the petitioner is entitled to get her State Eligibility Test certificate, which she wrote on 10.02.2021 and came out successful. 13. I have heard Sri. Kaleeswaram Raj, the learned counsel appearing for the petitioner, Sri. Shameena Salahudheen, the learned standing counsel appearing for the 3[rd] respondent and the learned Government pleader. 15. I have carefully considered the submissions advanced. 16. There can be no dispute to the settled legal proposition that the selection process commences on the date when applications are invited. Any ``` WP(C) NO. 28845 OF 2021 ``` ``` 8 ``` person eligible on the last date of submission of the application has a right to be considered provided he/she fulfils the requisite qualification. 17. In **U.P. Public Service Commission, U.P., Allahabad and** **Another v. Alpana** [1994 (2) SCC 723], the Apex Court, after considering a large number of its earlier judgments, held that eligibility conditions should be examined as on the last date for receipt of applications by the Commission. The Apex Court held that as the result does not relate back to the date of examination and eligibility of the candidate is to be considered on the last date of submission of applications. ## 18. A three-Judge Bench of the Apex Court, in **Dr. M.V. Nair v. Union of India and Others** [1993 (2) SCC 429] held as under: "9. ... It is well settled that suitability and eligibility have to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date." 19. In **Smt. Harpal Kaur Chahal v. Director, Punjab Instructions, Punjab and Another** [1995 Supp (4) SCC 706], the Apex Court held as follows: ``` WP(C) NO. 28845 OF 2021 ``` ``` 9 ``` "2. ... It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications, such of those candidates, who possessed of all the qualifications as on that date, alone are eligible to apply for and to be considered for recruitment according to Rules." (Emphasis added) ## 20. In **Rekha Chaturvedi v. University of Rajasthan** [1993 Supp (3) SCC 168],it was held: "10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to he stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement / notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. Reference in this connection may also be made ``` WP(C) NO. 28845 OF 2021 ``` ``` 10 ``` to two recent decisions of this Court in A.P. Public Service Commission v. B. Surat Chandra, 1990 (2) SCC 669 and District Collector and Chairman. Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, 1990 (3) SCC 655." (Emphasis added) ## 21. The Apex Court in **Ashok Kumar Sharma v. Chander Shekhar** , ## [1997 (4) SCC 18] had occasion to observe as follows: "6. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates - shall have to be judged with reference to that date and that date alone, is a well established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued / published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment." (Emphasis added) ## 22. In **State of Gujarat v. Arvind Kumar T. Tiwari** [AIR 2012 SC ## 3281] it was held as under: "14. A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the ``` WP(C) NO. 28845 OF 2021 ``` ``` 11 ``` statutory rules, and would therefore, he void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (Sec Prit Singh v. S.K. Mangal - 1993 Supp (1) SCC 714 and Pramod Kumar v. U.P. Secondary Education Services Commission, 2008 (7) SCC 153. (Emphasis added) 23. In the light of the principles laid down by the Apex Court, I have considered the materials on records. 24. The petitioner is a postgraduate. It is admitted that as on the date of submitting the application for SET, she was pursuing her First-year B.Ed Course. A reading of Exhibit P1 notification and P2 prospectus will leave no manner of doubt that only candidates who had acquired their Master’s Degree with the minimum required marks for eligibility to appear for SET and were undergoing the final year course for B.Ed Degree were eligible to appear for the test. Similarly, candidates who have acquired their B.Ed Degree and were undergoing the final year of their Post Graduate Programme were also eligible to appear for the test. Such candidates had to produce the Certificates of their qualifying examinations passed with the minimum required marks within one year from the date of publication of the results of the State Eligibility Test, failing which they shall be treated as disqualified. Admittedly, the petitioner did ``` WP(C) NO. 28845 OF 2021 ``` ``` 12 ``` not have the basic eligibility on the last date when the application has to be submitted. If the petitioner did not possess the requisite qualification on the date of application, she was not entitled to apply for the test. Lacking eligibility for the test cannot be cured at any stage. If a lenient view is taken as requested by the learned counsel appearing for the petitioner and the requirement of eligibility is relaxed, it may result in chaos. 25. Sri. Kaleeswaram Raj had vehemently contended that the notification of examination and the prospectus has not been happily worded and both interpretations are possible. He would also contend that if that be the case, an interpretation, which would further the interest of the petitioner should be taken. I am afraid that I am unable to accept the said submission. Thousands of applicants, similarly placed as the petitioner usually apply for the said test as it is a mandatory qualification for Higher Secondary school teachers. The experts in the field with due regard to the various factors have imposed a condition that only a final year student can apply. This is clearly borne out from the notification as well as the prospectus. The mere fact that the petitioner herein had applied notwithstanding that she had not acquired the prescribed qualification by the prescribed date, cannot be a reason to treat her on a preferential basis. If she was not entitled to apply, she cannot claim any ``` WP(C) NO. 28845 OF 2021 ``` ``` 13 ``` equity on the ground that she managed to clear the exam. A person who does not possess the requisite qualification cannot even apply for the test for the reason that his/her selection would be contrary to the notification and the prospectus. As held by the Apex court, lacking eligibility at the time of application cannot be cured at any stage and allowing the issuance of the certificate in violation of the stipulation in the prospectus to such a person would result in serious illegality. 26. Though my sympathy is with the petitioner, in view of the settled principles of law as detailed above, it would not be proper for this Court to grant the prayer sought for. For the aforementioned reasons, I am not inclined to grant the relief as prayed for by the petitioner. This writ petition will stand dismissed. However, there will be no order as to costs. **Sd/RAJA VIJAYARAGHAVAN V, JUDGE** avs ``` WP(C) NO. 28845 OF 2021 ``` ``` 14 ``` ## **`APPENDIX OF WP(C) 28845/2021`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` TRUE COPY OF THE NOTIFICATION DATED 27.12.2019 ISSUED BY THE 3RD RESPONDENT. ``` ``` Exhibit P2TRUE COPY OF THE RELEVANT PORTION OF THE PROSPECTUS FOR SET, FEBRUARY 2020. ``` ``` Exhibit P3TRUE COPY OF THE ADMIT CARD BEARING REGISTRATION ID NO.300152. ``` ``` Exhibit P4TRUE COPY OF THE MARK LIST ISSUED BY THE 3RD RESPONDENT. ``` ``` Exhibit P5TRUE COPY OF THE APPLICATION BEARING NO,300152. ```