KERALA PUBLIC SERVICE COMMISSION v. HARISH KUMAR P.N. and THE SECRETARY TO GOVERNMENT, DEPARTMENT OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** ## **OP(KAT).No.240 OF 2018(Z)** **ORDER IN OA 2273/2015 DATED 11-07-2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/2ND RESPONDENT:** **KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY,THULASI HILLS,PATTOM PALACE.P.O, THIRUVANANTHAPURAM-695004.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENTS/APPLICANT & 1ST RESPONDENT:** - **1 HARISH KUMAR P.N. S/O.K.M.NARAYANAN NAIR, AGED 37, PUTHUPALLIL HOUSE, KURINJI.P.O, RAMAPURAM BAZARA(VIA), KOTTAYAM, KERALA-686576.MOBILE-9645679017.** **2 THE SECRETARY TO GOVERNMENT DEPARTMENT OF TECHNICAL EDUCATION, GOVERNMENT SECRETARIAT, STATUE, THIRUVANANTHAPURAM-695001.** **R1 BY ADV. SRI.P.NANDAKUMAR SR.GP SRI.T.RAJASEKHARAN NAIR** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 06-02-2019, THE COURT ON 4.09.2019 PASSED THE FOLLOWING:** O.P.(KAT) 240 of 2018 2 ## **JUDGMENT** ## V.G.ARUN, J. The Kerala Public Service Commission (for short “the PSC”) has filed this original petition, aggrieved by the order in O.A.No.2273 of 2015, by which the Kerala Administrative Tribunal allowed the original application filed by the first respondent/applicant and directed the PSC to reconsider the claim of the applicant for participating in the selection process for appointment to the post of Head of Section in Computer Application and Business Management (Government Polytechnics). 2. The PSC had issued Annexure A1 notification inviting applications to the post of Head of Section in Computer Application and Business Management O.P.(KAT) 240 of 2018 3 ## (Government Polytechnics). The qualifications prescribed in the notification issued in tune with the Kerala Technical Education Service Special Rules are as follows: - “1. M.B.A with Computer Application as an optional paper with not less than 60% marks in aggregate from a University recognised by any University in Kerala after undergoing a regular course of study. ## OR MCA Degree with not less than 60% marks in aggregate from a recognised University after undergoing a regular course of study and Post Graduate Diploma in Business Management from a Government recognised institution. ## OR B.Tech Degree with not less than 60% marks in Computer Science with a Post Graduate Diploma in Business Management from a Government recognised Institution after undergoing a regular course of study. ## AND 2. Eight years' experience in teaching/industry after acquiring the qualification, out of which, three years shall be at the level of Lecturer in Polytechnics.” ## 3. The first respondent, who had the qualification of O.P.(KAT) 240 of 2018 4 MBA with first class from the University of Kerala (Faculty of Management Studies), BBA, DCA and eight years’ experience in the industry, out of which three years was teaching experience at the level of Polytechnics, submitted application for the notified post. According to the first respondent, he had undergone the study of 'MGT 541, MIS-Information Technology for Management' in the fourth semester of his MBA course and the topic 'Computer Application' falls under 'Information Technology for Management' and therefore, he had the qualification equivalent to the notified qualification. The PSC apparently had a different opinion and therefore, the first respondent's application was rejected on the ground that he did not have the requisite qualification. Aggrieved, the first respondent approached the Tribunal and apart from the contention regarding sufficiency of his qualification, relied on O.P.(KAT) 240 of 2018 5 the decision of the Tribunal, rendered in a similar case. Before the Tribunal, the PSC reiterated its stand that the notified qualification and the qualifications of the first respondent are different and in the absence of any order issued by the Government recognising the first respondent's qualification to be equivalent to the notified qualification, his candidature cannot be considered. 4. The Tribunal allowed the original application mainly relying upon its own order in O.A.No.2480 of 2014, in which the question relating to the appointment to the post of Lecturer in Computer Application and Business Management under the Technical Education Department (Polytechnic stream) was considered. In that decision, it was held that the qualification of the candidate therein, _viz;_ BCA course and MBA can be treated as sufficient qualification _vis-a-vis_ the O.P.(KAT) 240 of 2018 6 notified qualification of MBA with Computer Application as an optional paper. In the light of the findings in O.A.No.2480 of 2014, the Tribunal held that the first respondent’s MBA Degree Course contained a paper covering several topics of Computer Application and that additionally he also had a Diploma in Computer Application and hence the first respondent was having the qualification prescribed under Annexure A1 notification. Based on its findings, the Tribunal directed the PSC to reconsider the claim of the applicant for participating in the selection process, if he is otherwise eligible for the same. 5. At the outset, we take note of the fact that the order in O.A.No.2480 of 2014 relied by the Tribunal in the impugned order has been set aside by this Court as per the judgment dated 3.09.2019 in O.P.(KAT) No.332 of 2015. The only other O.P.(KAT) 240 of 2018 7 question is as to whether the Tribunal could have equated the qualification of the first respondent, to the notified qualification. The answer to that question is succinctly stated by the Honourable Supreme Court in **Zahoor Ahmad Rather and others v. Sheikh Imtiyaz Ahmad and others (Civil Appeal Nos.11853 of 2018 and connected cases)** , in the following words: - “The prescription of qualifications for a post is a matter of recruitment policy. The state as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the state, as the recruiting authority, to determine. While prescribing the qualifications for a post, the State, as O.P.(KAT) 240 of 2018 8 employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The state is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision making. The state as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily.” 6. In the instant case, the Tribunal has undertaken the exercise of clubbing together two entirely different qualifications for the purpose of equating the qualification of the first respondent with the notified qualification. Such exercise by the Tribunal, as has been held by the Apex Court in _Zahoor Ahmad_ ’s case, is no part of the role or function of O.P.(KAT) 240 of 2018 9 judicial review. Whether a particular qualification should or should not be equivalent is the matter for the State to decide as a public employer, taking into account the social perspectives that require the creation of job opportunities across the societal structure. Hence, we are unable to subscribe to the reasoning in the impugned order and the findings rendered based on that reasoning. For the reasons mentioned above, we allow the original petition. Consequently, O.A.No.2273 of 2015 will stand dismissed. **Sd/-** **C.T.RAVIKUMAR** **JUDGE** **Sd/JUDGE** **V.G.ARUN** Scl/04.09.19 O.P.(KAT) 240 of 2018 10 ## **APPENDIX OF OP(KAT) 240/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A.NO.2273/2015 WITH ITS ANNEXURES.** **EXHIBIT P2 TRUE COPY OF THE REPLY SUBMITTED FILED ON BEHALF OF THE RESPONDENT DATED 08.02.2016** **EXHIBIT P3 TRUE COPY OF THE MISCELLANEOUS APPLICATION FILED BY THE APPLICANT.** **EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT TO THE ADDITIONAL REPLY STATEMENT** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 11.07.2017 IN O.A.2273/2015.** **EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 20.01.2016 IN O.P.(KAT)NO.332/2015.** **RESPONDENT'S EXHIBITS:** **R1(A): TRUE COPY OF NOTIFICATION DATED 30.6.2010 FOR THE POST OF LECTURER IN COMPUTER APPLICATION AND BUSINESS MANAGEMENT ISSUED BY THE PETITIONER.** **R1(B): TRUE COPY OF RANKED LIST DATED 6.2.2016 FOR THE POST OF LECTURER IN COMPUTER APPLICATION AND BUSINESS MANAGEMENT.** **R1(C): TRUE COPY OF ORDER DATED 16.4.2016 ISSUED BY THE DIRECTOR OF TECHNICAL EDUCATION.** **R1(D): TRUE COPY OF QUERY UNDER RTI ACT DATED 8.8.2016.** **R1(E): TRUE COPY OF REPLY DATED 1.9.2016 ISSUED BY THE PUBLIC INFORMATION OFFICER.** **R1(F): TRUE COPY OF RANKED LIST DATED 20.3.2018 FOR THE POST OF HEAD OF SECTION IN COMPUTER APPLICATION AND BUSINESS MANAGEMENT (GOVT. POLYTECHNICS).**