Geovilji Paliakara v. State of Kerala & Others (OP(KAT) No.3388 of 2012)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934 OP(KAT).No. 3388 of 2012 (Z) ---------------------------AGAINST THE ORDER IN OA.1787/2012 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 6.9.2012 PETITIONER/APPLICANT IN O.A.: -------------------------------------------------------------- GEOVILJI PALIAKARA, AGED 31 YEARS, W/O.SAJIT THOMAS, EDAKALATHUR HOUSE, KOLANGATTUKARA, CHOOLISERY.P.O, THRISSUR-680541. BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH ## RESPONDENTS/RESPONDENTS IN O.A.: -------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, KERALA VOCATIONAL HIGHERSECONDARY EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR OF KERALA VOCATIONAL HIGHER SECONDARY EDUCATION, DIRECTORATE OF KERALA, HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN-695001. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-695004. 4. SMT.ANUSHA.S, VOCATIONAL INSTRUCTOR IN COSMETOLOGY AND BEAUTY PARLOUR MANAGEMENT , GOVERNMENT MODEL V.H.S.S.FOR GIRLS, THRISSUR-680020. R1-R2 BY SPECIAL GOVT. PLEADER SMT.GIRIJA GOPAL R3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP FOR ADMISSION ON 05-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(K.A.T.) 3388/12 APPENDIX PETITIONER(S) EXHIBITS:- EXT-P1 TRUE COPY OF THE O.A.1787/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM. ANNEXURE A1: TRUE COPY OF CERTIFICATE OF VOCATIONAL HIGHER SECONDARY COURSE IN COSMETOLOGY AND BEAUTY PARLOUR MANAGEMENT AWARDED BY THE GOVERNMENT OF KERALA TO THE PETITIONER. ANNEXURE A2: TRUE COPY OF CERTIFICATE OF B.Sc. (HOME SCIENCE) AWARDED BY THE UNIVERSITY OF CALICUT TO THE APPLICANT. ANNEXURE A3: TRUE COPY OF CERTIFICATE OF M.Sc. (HOME SCIENCE) AWARDED BY THE M.G.UNIVERSITY TO THE APPLICANT. ANNEXURE A4: TRUE COPY OF RANK LIST PUBLISHED BY THE 3RD RESPONDENT. ANNEXURE A5: TRUE COPY OF RANK LIST DATED 14.1.08 PUBLISHED BY THE 3RD RESPONDENT. ANNEXURE A6: TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT WITH TRUE ENGLISH TRANSLATION. ANNEXURE A7: TRUE COPY OF REPLY DATED 6.8.12 ISSUED BY THE INFORMATION OFFICER IN THE OFFICE OF THE PUBLIC SERVICE COMMISSION WITH TRUE ENGLISH TRANSLATION. ANNEXURE A8: TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER'S MOTHER-IN-LAW BEFORE THE 3RD RESPONDENT DATED 5.7.12 WITH TRUE ENGLISH TRANSLATION. ANNEXURE A9: TRUE COPY OF COMMUNICATION DATED 16.8.12 ALONG WITH CERTIFICATES SHOWING THE QUALIFICATION POSSESSED BY THE 4TH RESPONDENT WITH TRUE ENGLISH TRANSLATION. EXT-P2 TRUE COPY OF THE ORDER DATED 6.9.2012 IN O.A.1787/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM. EXT-P3 TRUE COPY OF THE COMMUNICATION DATED 18.9.2012 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER TO THE PETITIONER'S HUSBAND WITH ENGLISH TRANSLATION. EXT-P4 TRUE COPY OF THE ORDER NO.E1/7626/07(3)DATED 1.6.2007 ISSUED BY THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION,APPOINTING THE 4TH RESPONDENT AS VOCATIONAL INSTRUCTOR IN COSMETOLOGY & BEAUTY PARLOUR MANAGEMENT. RESPONDENTS' EXHIBITS:- NIL. Srd (True copy) P.S. To Judge. ## **MANJULA CHELLUR, C.J. & K. VINOD CHANDRAN, J. ---------------------------------------------------O.P.(KAT) No.3388 of 2012 ---------------------------------------------------Dated this the 5[th] day of February, 2013** ## **Judgment** ## **Manjula Chellur, C.J.** Heard learned counsel for the petitioner. It is not in dispute that the petitioner was one of the candidates whose name appeared in the rank list published by the 3[rd] respondent, the Kerala Public Service Commission (for short 'the Commission') for appointment to the post of Vocational Instructor in Cosmetology and Beauty Parlour Management in the Kerala Vocational Higher Secondary Education Department. The rank list came to be published on 15.7.2006 and was valid till 14.7.2009. According to the petitioner, who was the applicant before Kerala Administrative Tribunal (for short 'K.A.T.'), only after securing information under the Right to Information Act on 16.8.2012 she learnt the actual qualification possessed by the 4[th] respondent and therefore, having regard to the notification required a particular qualification, the qualification possessed by the 4[th] respondent was not in accordance with the required qualification prescribed in the notification. Therefore, the appointment to the O.P.(KAT) 3388/12 2 post of Vocational Instructor in Cosmetology and Beauty Parlour Management is per se illegal. Therefore, she approached K.A.T. with the following reliefs: a) Call for the records leading to Annexure-A4 rank list and set aside the same to the extent it includes Smt.Neelima.M and the 4[th] respondent as Rank No.1 and 2 for appointment to the post of Vocational Instructor in Cosmetology and Beauty Parlour Management. b) Call for the records leading to advise of the 4[th] respondent made by the 3[rd] respondent on the basis of her inclusion in Annexure-A4 rank list and also the consequential appointment order issued by the 2[nd] respondent to the 4[th] respondent as Vocational Instructor in Cosmetology and Beauty Parlour Management and set aside the same. c) Direction to the 3[rd] respondent to advise the applicant for appointment to the post of Vocational Instructor in Cosmetology and Beauty Parlour Management and a further direction to the 2[nd] respondent to appoint the petitioner w.e.f. the date of advice and appointment of Smt.Neelima.M and the 4[th] respondent. d) Declare that the advice and appointment of Smt.Neelima.M and the 4[th] respondent is void and O.P.(KAT) 3388/12 3 non est. e) Issue such other directions or orders as this Hon'ble Tribunal deems fit and proper in the interest of justice and circumstances of the case. 2. K.A.T., after considering the contentions raised by the petitioner mainly on the ground of delay and laches, opined that the claim is barred by limitation, dismissed the application. Aggrieved by the same, the petitioner is before us. 3. Learned counsel for the petitioner relies on a Full Bench decision of this Court in **Suma v. Kerala Public Service Commission** [ 2011 (1) KLT 1 (F.B.) ] wherein it was declared that unless it is prescribed by Special Rules, the Public Service Commission is incompetent to deal with the question of equivalence of educational or other qualifications. He also relies upon the decision of the Apex Court in **State of Gujarat v. Arvindkumar T.Tiwari** [ (2012) 9 S.C.C. 545 ] to contend that in the absence of requisite qualification, the very appointment itself would be contrary to the statutory rules and therefore, it is void in law (at para 14). According to learned counsel for the petitioner, irrespective of the fact that the petitioner approached O.P.(KAT) 3388/12 4 K.A.T. six years after the publication of the list, as the appointment was void ab initio, K.A.T. was not justified in dismissing the application. This Bench cannot have a second opinion about the law declared by the Full Bench of this Court and also the Apex Court. But one has to see the facts in order to understand whether the law declared in the above two decisions is applicable to the facts of the present case. So far as the requisite qualification in the present case admittedly is as follows: “i) A pass in Vocational Higher Secondary Course in Cosmetology and Beauty Parlour Management conducted by Government of Kerala or its equivalent with B.Sc. Home Science awarded by any of the Universities in Kerala or an equivalent qualification. ii) In the absence of qualified candidates under item (i) above, a Degree in any discipline awarded by any of the Universities in Kerala or equivalent and a Diploma in Cosmetology and Beauty Parlour Management awarded by the Department of Technical Education.” It is also not in dispute that the selected candidate (4[th] respondent) in this case had not only B.Sc. Home Science but also M.Sc. Home Science, apart from a Diploma in Cosmetology O.P.(KAT) 3388/12 5 and Beauty Parlour Management. According to learned counsel for the petitioner, in order to hold that post, the 4[th] respondent should have the requisite qualification, either she must come within the requirement at item (i) as stated above or the qualification must be as stated in item (ii). 4. The stand of the 3[rd] respondent-Commission is, if the Vocational Higher Secondary Course in Cosmetology and Beauty Parlour Management could be equated with the Diploma which the 4[th] respondent had; as per the Special Rules, there was no bar or impediment for the Commission to consider the case of the 4[th] respondent. Apparently, 4[th] respondent (Smt.Anusha.S.) had the qualification of Diploma in Beauty Therapy and Cosmetology from Continuing Education Sub Centre, Government College for Women, Trivandrum apart from B.Sc. Home Science and M.Sc. Home Science. The Special Rules prevailing in 2006 was perused. Equivalence of qualification was also mentioned in the Special Rules so far as the qualification to the post in question. In that view of the matter, having a Diploma in Beauty Therapy and Cosmetology from Continuing Education Sub Centre, Government College for Women being equivalent to a pass in Vocational O.P.(KAT) 3388/12 6 Higher Secondary Course in Cosmetology and Beauty Parlour Management conducted by Government of Kerala, rather a better qualification being a diploma, will not be illegal or void ab initio so far as the qualification is concerned. In that view of the matter, we are of the opinion, the Commission acted within the Special Rules and the 4[th] respondent did possess the qualification required for the post in question as notified in the gazette dated 26.4.2005. In that view of the matter, we are of the opinion, there is no need to interfere with the opinion of K.A.T. Accordingly, this Original Petition is dismissed. **MANJULA CHELLUR, CHIEF JUSTICE.** ## **K. VINOD CHANDRAN, JUDGE.** srd O.P.(KAT) 3388/12 7