Chandana R. v. State of Kerala and Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941** ## **OP(KAT).No.22 OF 2020** **AGAINST THE ORDER IN O.A.67/2020 DATED 13-01-2020 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/ APPLICANT IN O.A.:** **CHANDANA R., AGED 22 YEARS D/O. PURUSHOTHAMAN PILLAI, MALAMEL KUTTIYIL, MEMANA, OACHIRA P.O., KOLLAM - 690 526** **BY ADVS. SRI.P.NANDAKUMAR SRI.S.ANEESH** ## **RESPONDENTS/ RESPONDENTS IN O.A.:** **1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001** - **2 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 004** ## **OTHER PRESENT:** **SR.GP SRI.P.N.SANTHOSH FOR R1. SRI.P.C.SASIDHARAN, SC, PSC FOR R2.** **THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD ON 22.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **OP(KAT) No.22 of 2020** **K.Vinod Chandran & V.G.Arun, JJ. ---------------------------------------O.P(KAT) No.20 of 2020 ---------------------------------------Dated this the 22[nd] day of January, 2020** ## **JUDGMENT** ## **K. Vinod Chandran,J:** **The applicant in the O.A is the petitioner before us, who is aggrieved with her disqualification to apply under Annexure A4 notification published by the Kerala Public Service Commission ['PSC' for short]. Annexure A4 notification is published for selection to the post of Assistant Professors in various subjects, to the Kerala Collegiate Education. The petitioner applied for the post of Assistant Professor in English, having secured the required qualifications. The petitioner falls short of the minimum age prescribed by four months.** **2. The petitioner-applicant before the Tribunal contended that the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010 ['UGC Regulations' for short] does not prescribe any minimum or maximum age. The prescription made by the State is bad and is in violation of the UGC Regulations, was the contention.** **- 3 -** **OP(KAT) No.22 of 2020** **3. The Tribunal, according to us, rightly found that merely because the UGC Regulations do not provide a minimum or maximum age limit, that does not circumscribe the power of the State to so prescribe. Rule 4 of the Special Rules for the Kerala Collegiate Education was held to be not in conflict with the UGC Regulations. The Hon'ble Supreme Court in** _**Dr.Ami Lal Bhat v. State of Rajasthan**_ **[** _**JT 1997 (6) SC 72**_ **] was also relied on to uphold the State Government's right as an appointing authority to fix age limit. It is also argued by the Learned Standing Counsel for the PSC that the minimum age is prescribed only because of an Assistant Professor enjoined to teach in a college requires an amount of maturity. We are of the definite opinion that the finding of the Tribunal is perfectly in order.** **4. The UGC Regulations of 2010 only prescribes the qualification and it does not speak of any age; either minimum or maximum, for appointment. The Special Rules is prescribed by the Government invoking power under Article 309 of the Constitution of India. Similar provisions made, for age of superannuation, which was alleged to be in conflict with the UGC norms prescribed, was upheld in** _**Jagdish Prasad Sharma v. State of Bihar**_ **[** _**(2013) 8 SCC 633**_ **].** **- 4 -** **OP(KAT) No.22 of 2020** **We do not think any interference can be caused to the order of the Tribunal.** **5. Before leaving with the matter, we cannot but notice that the petitioner is disabled from applying only by reason of vagaries of fate. The Public Services (Date for Determination of Age for Eligibility for Appointment) Rules, 1977 provide that the age prescribed in any notification issued has to be reckoned from the 1[st] of January of the year in which the notification is published. The notification itself was issued on 11.12.2019, at the fag end of the year, and the last date fixed for receipt of application was on 15.01.2020. The petitioner has acquired the minimum age of 22 years as on the date of notification; but, however, is disqualified from applying for reason of she having not attained the age as on 01.01.2019. The petitioner attained such age only on 11.05.2019 which all the same is before the notification.** **6. We also pertinently notice the Tribunal having upheld the age prescription on the basis of the minimum required time to obtain the necessary qualifications, being 14 years for completing the Secondary education,** **2 years for Senior Secondary, 3 years for Graduation,** **2 years for Post-Graduation and minimum 1 year for NET** **- 5 -** **OP(KAT) No.22 of 2020** **qualification. There is no requirement to complete Post Graduation for qualifying the NET. We see from the certificate produced at Annexure-A3 that for eligibility to apply for the post of Assistant Professor, NET qualification is valid from the date of declaration of result of UGC-NET or on the completion of Masters Degree within two years from that date. Hence a Post-Graduate student can appear for the NET. The petitioner obtained the NET qualification even before she finished her Masters and obtained Post-Graduation within two years as evidenced from Annexure A2.** **7. Petitioner, a visually impaired candidate, acquired all the qualification for Assistant Professor, before the time normally taken. She is disabled from competing in the selection only for reason of the age prescription, which she has attained even before the date of notification. Only the archaic prescription of the age to be as on the 1[st] of January of the year in which the notification is published stands against the petitioner. Already she has been fighting against her disability, which is of visual impairment coming to 40% as evidenced from Annexure A1. Despite such odds having been thrust upon her by fate, she had been strenuously fighting against the same** **- 6 -** **OP(KAT) No.22 of 2020** **and has, like any normally endowed person or better than a person endowed with the full faculties, acquired all the qualifications before even the minimum time taken, as found by the Tribunal. In such circumstances, we direct the State Government to place the matter before the appropriate authority to consider exemption in the case of the petitioner, who is visually impaired, under Rule 39 of Part II of Kerala State & Subordinate Services Rules, 1958. The appropriate authority shall consider the case keeping in mind the observations made by us. We also direct the PSC to participate the petitioner in the selection** _**de hors**_ **the disability, subject, however, to the exemption being granted under Rule 39 of KS&SSR.** **8. The Original Petition (KAT) is disposed of as indicated above, making it clear that the aforesaid orders were issued only on the facts of this particular case. The State Government could also look at whether the Rules making the age prescription to be satisfied on the 1[st] of January of an year, in which the notification is published, require an amendment or not. A more realistic approach would be to prescribe the minimum age as on the date of notification or still better as on the last date of application, when the rule would be more inclusive while** **- 7 -** **OP(KAT) No.22 of 2020** **1[st] January could be retained for maximum age. In fact en-masse notifications come out in the close of the year to enable candidates at the maximum age to apply. A like inclusive measure could be introduced for the brilliant young. We cannot but notice that the contention of the PSC, of a desirable maturity on attaining 22 years, the petitioner satisfies even when the notification is published, more so when the eventual selection materializes, after a couple of years. Parties are left to suffer their respective costs.** **The Registry shall transmit a certified copy of this order to the Chief Secretary, Government of Kerala, who shall comply with our direction to place it before the appropriate authority. We direct that the matter shall be posted on 02.03.2020 for the Chief Secretary to apprise us of the steps taken.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** **Vku/-** **- 8 -** **OP(KAT) No.22 of 2020** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF ORDER DATED 13.01.2020 IN O.A.NO.67 OF 2020.** - **EXHIBIT P2 TRUE COPY OF O.A. NO.67 OF 2020 ALONG WITH ANNEXURES.** - **EXHIBIT P2-A1 TRUE COPY OF THE DISABILITY CERTIFICATE NO.1276/16 DATED 27.05.2016 ISSUED BY THE DISTRICT MEDICAL BOARD.** - **EXHIBIT P2-A2 TRUE COPY OF MA MARK LIST ISSUED BY THE UNIVERSITY OF KERALA DATED 20.12.2019.** - **EXHIBIT P2-A3 TRUE COPY OF NET CERTIFICATE NO.JUN19U39496 DATED 29.11.2019 ISSUED TO THE APPLICANT.** - **EXHIBIT P2-A4 TRUE COPY OF NOTIFICATION FOR APPOINTMENT TO THE POST OF ASSISTANT PROFESSORS IN VARIOUS SUBJECTS IN THE KERALA COLLEGIATE EDUCATION DEPARTMENT UNDER CATEGORY NO.283/2019-304/2019 DATED 11.12.2019.** - **EXHIBIT P2-A5 TRUE COPY OF THE SCREENSHOT OF THE REJECTION OF THE ONLINE APPLICATION OF THE APPLICANT FOR THE POST OF ASSISTANT PROFESSOR IN ENGLISH AS SHOWN IN THE WEBSITE OF THE 2ND RESPONDENT.** - **EXHIBIT P2-A6 TRUE COPY OF UGC REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF IN UNIVERSITIES AND COLLEGES AND MEASURES FOR THE MAINTENANCE OF STANDARDS IN HIGHER EDUCATION 2010 NO.F3-1/2009 DATED 30.06.2010.** **EXHIBIT P2-A7 TRUE COPY OF G.O.(P) NO.10/2017/H.EDN DATED 19.03.2017 ISSUED BY THE 1ST RESPONDENT.** **[TRUE COPY]**