Devadas P.V. v. State of Kerala and others

W.P.(C).No.19933 of 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944 WP(C) NO. 19933 OF 2022** ## **PETITIONER:** DEVADAS P.V., AGED 41 YEARS S/O. GOPALAKRISHNA WARRIER, KRISHNA NIVAS, MANNAMPATTA (P.O), PALAKKAD DISTRICT 678 633. BY ADV MAHESH V RAMAKRISHNAN ## **RESPONDENTS:** 1 STATE OF KERALA, REP. BY SECRETARY TO GOVT. REVENUE - DEVASWOM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 2 KERALA DEVASWOM RECRUITMENT BOARD , REP. BY ITS SECRETARY, THIRUVITHAMCORE DEVASWOM BOARD BUILDING, M G ROAD, AYURVEDA COLLEGE JUNCTION, THIRUVANANTHAPURAM, 695 001. 3 MALABAR DEVASWOM BOARD, REP. SECRETARY, HOUSEFED COMPLEX, ERANHIPALAM P.O, KOZHIKODE 673 006. 4 COMMISSIONER MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM P.O, KOZHIKODE, 674 006. 5 ASST. COMMISSIONER, MALABAR DEVASWOM BOARD, PALAKKAD DIVISION, CIVIL STATION, PALAKKAD 678 001. 2 W.P.(C).No.19933 of 2022 6 SREE PACHAYIL DEVASWOM , REP. BY ITS EXECUTIVE OFFICER, MANNAMPATTA P.O, PALAKKAD 678 633. BY ADV V.V.NANDAGOPAL NAMBIAR ADV.R.LAKSHMI NARAYANAN FOR R3 **OTHER PRESENT:** M.RAJEEV-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON 05.08.2022 DELIVERED THE FOLLOWING:- W.P.(C).No.19933 of 2022 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(C).No.19933 of 2022 = = = = = = = = = = = = = = = = Dated this the 5[th] day of August, 2022** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following prayers:- “a). to Declare that the petitioner has 10 years of approved service as a temple employee and also the sufficient qualifications to satisfy the qualification prescribed as per Ext.P4 notification for appointment to the post of Clerk (by transfer. b) To Issue a writ of Certiorari or other appropriate writ or order direction to call for the entire documents culminated in Ext.P10 and to quash the same; c) To Issue a writ of Mandamus or other appropriate writ or order directing the Respondents 2 to 4 to publish the final rank list for appointment to the post of Clerk (by transfer), which was notified by Ext.P4, forthwith, and to issue advise Memo to the petitioner; d) Issue a writ of Certiorari or other appropriate writ or order to call for the entire records culminated in Ext.P4 notification and to quash the same so far it stipulates that the vacancies notified shall be filled by direct recruitment in the absence of candidates for appointment by transfer.” W.P.(C).No.19933 of 2022 4 2. Heard the learned counsel for the petitioner, the learned counsel appearing for the Kerala Devaswom Recruitment Board and the learned standing counsel appearing for the Malabar Devaswom Board. Though notice is not served on the 6[th] respondent, in view of the contentions being considered in this writ petition, notice to the 6[th] respondent is dispensed with. 3. The petitioner is a person shortlisted for selection to the post of Clerk in the Malabar Devaswom Board by transfer. It is submitted that the final ranked list issued by the 2[nd] respondent shows that there was no qualified candidates available for appointment by transfer. The petitioner is working as Kazhakam in the 6[th] respondent Devaswom. He joined on 1.12.2006 and his appointment was approved by order dated 28.2.2009 with effect from 1.12.2006. The petitioner contends that he has all the qualifications for appointment by transfer, as provided in Exhibit P4 notification. It is submitted that though Diploma in W.P.(C).No.19933 of 2022 5 Computer Application (DCA for short) or its equivalent and ten years approved service as an employee in a temple under the Malabar Devaswom Board are the qualifications provided for appointment by transfer, there is no condition in the notification that the DCA qualification is to be the one obtained from any Government institution. It is submitted that the petitioner has the qualification of DCA, as evident from Exhibit P14 certificate. The petitioner was not considered for appointment on the ground that the Diploma is not one obtained from any Government institution. A further contention is raised that the condition provided in the notification that if persons are not available for appointment by transfer, the vacancies would be filled up by direct recruitment is against the rules. 4. A detailed counter affidavit has been placed on record by the 2[nd] respondent, wherein it is stated that the qualifications for appointment of clerk in the Malabar Devaswom Board By transfer were, (1) pass in plus two or W.P.(C).No.19933 of 2022 6 equivalent, (2) DCA or equivalent and (3) 10 years permanent service as temple employee under Malabar Devaswom Board. It is submitted that the petitioner had contended that he has successfully completed a course in Diploma in Computer Application from a private institution. It is further submitted that he had filed a representation stating that he had studied DCA from a private institution and joined Rutronix, a Government institution for DCA course, but the course got extended due to Covid. He had requested for time to produce a certificate from the Rutronix at the time of document verification. The said representation is produced as Exhibit R2(A). He had also produced a certificate stating that the DCA- Full Time Course of Kerala State Ruronix is approved by the Government/PSC. It is submitted that even thereafter, the petitioner had failed to produce any certificate and since he admittedly did not have a recognised qualification as on the date of submitting his application, he could not be deemed to be qualified in terms of the notification. It is submitted W.P.(C).No.19933 of 2022 7 that though the notification did not specifically state that the DCA qualification must be one approved by the Government, it is trite law that a qualification, to be accepted by the Recruitment Board, should be of a recognized qualification. It is submitted that in the absence of any recognition for the qualification, which the petitioner possessed, the petitioner would not be eligible to be considered for appointment in terms of Exhibit P4 notification. It is further submitted that the prescription in the notification that in the absence of eligible candidates, the vacancies for by transfer appointment would also be filled up by direct recruitment was an error and there is no provision in the Rules for such filling up. It is, therefore, submitted that in the absence of eligible candidates for appointment by transfer, the vacancies will have to be renotified. 5. The learned counsel for the petitioner places reliance on a decision of the High Court of Allahabad in **Vikas and** W.P.(C).No.19933 of 2022 8 **others v. State of U.P. And others** [W.A.Nos.656/20202 and connected cased decided on 17.9.2021] wherein a decision of the Apex Court in **Parvaiz Ahmad Parry v. State of Jammu and Kashmir and others** [(2015) 17 SCC 709] is relied on, where it is held that if there was any ambiguity or vagueness noticed in prescribing the qualification in the advertisement, then it should have been clarified by the authority concerned in the advertisement itself. If it was not clarified, then the benefits should be given to the candidate rather than to the respondents. It is, therefore, contended that since the qualification prescribed and notified was only DCA, the DCA qualification acquired by the petitioner from a private institution should also be considered as equivalent qualification. 6. The learned counsel for the respondents, on the other hand, places reliance on the decision of the Supreme Court of India in **The Maharashtra Public Service Commission through its Secretary v. Sandeep Shriram Warade and** W.P.(C).No.19933 of 2022 9 **others** [2019 AIR(SC) 2154] wherein it was held that where eligibility conditions are prescribed by the employer, the constitutional courts cannot lay down the conditions of eligibility or delve into the issue with regard to desirable qualification being at par with the essential eligibility by an interpretative re-writing of the advertisement. It was held that questions of equivalence will also fall outside the domain of judicial review. In **Zahoor Ahmad Rather and others v. Sheik Imtiyaz Ahmad and others** [(2019) 2 SCC 404) also, the Apex Court held that prescription of qualification for the post is a matter of recruitment policy and that the State, as an employer is entitled to prescribe qualification as a condition of eligibility, after taking into consideration the nature of job, aptitude required for efficient discharge of duties, functionality of qualification, course content leading up to acquisition of qualification, etc. It was clearly held that judicial review cannot expand upon the ambit of prescribed qualification, nor decide equivalence of qualification. Equivalence of qualification is W.P.(C).No.19933 of 2022 10 a matter for the State, as recruiting agency, to decide. It is further contended that the fact that a qualification as prescribed must be a recognised qualification does not have to be specifically provided in the notification and that it is understood that a qualification to be accepted must be a recognised qualification. 7. Having considered the contentions advanced on either side, I am of the opinion that the prescription of qualification is definitely a matter for the rule making authority to decide. In the instant case, the qualification prescribed is admittedly DCA. When the recruiting agency notifies the said qualification and insists that the qualification should be one which is acquired after undergoing a recognised course of instruction, I am of the opinion that this Court, exercising jurisdiction under Article 226 of the Constitution of India, would not be justified in holding that a qualification, which admittedly does not have such recognition, should be accepted as equivalent to a recognised qualification. As a W.P.(C).No.19933 of 2022 11 matter of fact, I am of the opinion that the question is not one of equivalence at all, but one of the qualification, _per se_ . When DCA is the qualification prescribed and when the candidate admittedly does not have a recognised DCA qualification, I am of the opinion that the contention that an unrecognised qualification should be treated as equivalent to a recognised qualification cannot be accepted. 8.With regard to the 4[th] prayer in the writ petition, it is submitted by the learned counsel appearing for the Board as well as the Recruitment Board that there is no provision in the Rules permitting the filling up of the post set apart for By transfer appointment by making appointments by direct recruitment. It is contended that the said provision in the notification was a mistake. It is trite law that selections are to be made in accordance with the provisions of the Rules governing appointment to the posts and the notification in so far as it departs from the Recruitment Rules is non est in law. In the above view of the matter prayer No.4 is liable to W.P.(C).No.19933 of 2022 12 be allowed. It is made clear that the provision in Exhibit P4 notification in so far as it stipulates that the vacancies notified shall be filled up by direct recruitment in the absence of availability of candidates for appointment By transfer is set aside. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.19933 of 2022 13 ## **APPENDIX OF WP(C) 19933/2022** ## **PETITIONER EXHIBITS** - Exhibit P1 TRUE COPY OF THE ORDER DATED 28.11.2006 ISSUED BY THE TRUSTEE OF 6TH RESPONDENT TEMPLE. - Exhibit P2 TRUE COPY OF THE SCHEDULE OF ESTABLISHMENT DT. 28.02.2009 OF THE 6TH RESPONDENT TEMPLE. - Exhibit P3 TRUE COPY OF THE SERVICE CERTIFICATE DATED 27.11.2021 OF THE PETITONER, ISSUED BY THE 6TH RESPONDENT AND COUNTER SIGNED BY THE 5TH RESPONDENT. - Exhibit P4 TRUE COPY OF THE NOTIFICATION NO. 329/R1/KDRB/2020 DATED 16.12.2020 ISSUED BY THE 2ND RESPONDENT. - Exhibit P5 TRUE COPY OF THE ADMISSION TICKET FOR COMMON TEST DATED NIL ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. - Exhibit P6 TRUE COPY OF THE NOTIFICATION DATED 05.11.2021 ISSUED BY THE 2ND RESPONDENT. - Exhibit P7 TRUE COPY OF THE LETTER DATED 09.11.2021 ISSUED BY THE 2ND RESPONDENT. - Exhibit P8 TRUE COPY OF THE NOTIFICATION NO. 329/R1/2020/KDRB DATED 16.12.2020 ISSUED BY THE 2ND RESPONDENT. - Exhibit P9 TRUE COPY OF THE APPOINTMENT CHART PUBLISHED BY THE 2ND RESPONDENT. - Exhibit P10 TRUE COPY OF THE NOTIFICATION DATED 22.12.2021 ISSUED BY THE 2ND RESPONDENT. W.P.(C).No.19933 of 2022 14 - Exhibit P11 TRUE COPY OF THE INTERIM ORDER DATED 29.03.2022 IN W.P.C 10990/2022 - Exhibit P12 TRUE COPY OF THE STATEMENT DATED 18.02.2022 SUBMITTED BY THE STANDING COUNSEL FOR THE 2ND RESPONDENT IN W.P.C NO. 10990/2022 - Exhibit P13 TRUE COPY OF THE MARK LIST DATED 05.04.1999 ISSUED BY THE CONTROLLER OF EXAMINATIONS , CALICUT UNIVERSITY. - Exhibit P14 TRUE COPY OF THE CERTIFICATE OF DIPLOMA IN COMPUTER APPLICATION (DCA) DATED NIL/APRIL/2017 ISSUED BY THE SSI EDUCATION. - Exhibit P15 TRUE COPY OF THE ONLINE APPLICATION DATED SUBMITTED BY THE 06.01.2021 PETITIONER BEFORE THE 2ND RESPONDENT. ## **RESPONDENT EXHIBITS** - Exhibit R2(A) TRUE COPY OF THE REPRESENTATION DATED 24/11/2021 - Exhibit R2(B) TRUE COPY OF THE CERTIFICATE ISSUED BY COMPEX - Exhibit R2(C) TRUE COPY OF THE REPRESENTATION - Exhibit R2(D) TRUE COPY OF THE OF THE LIST OF COURSES APPROVED BY GOVERNMENT Exhibit R2(E) TRUE COPY OF THE COMMUNICATION DATED 19/02/2022 FROM KDRB IN THIS REGARD ADDRESSED TO THE COMMISSIONER, MALABAR DEVASWOM BOARD W.P.(C).No.19933 of 2022 15 Exhibit R2(F) TRUE COPY OF THE RELEVANT EXTRACT OF THE MDB SPECIAL RULES True copy PS to Judge