Maria Virony T.J. & Jose Milton T.J. v. State of Kerala; Kerala Public Service Commission; District Officer, Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929** - **OP.No. 1016 of 2000(U)** **---------------------------------** **PETITIONERS:** - **----------------------** **1. MARIA VIRONY T.J., AGED 28 YEARS, W/O.P.J.THOMAS, PARAKKAL HOUSE, GOTHURUTHY P.O., PIN – 683 523.** **2. JOSE MILTON T.J., THATTAKATH HOUSE, GOTHURUTHY P.O.** **BY ADV. SRI.P.SANTHALINGAM** **RESPONDENTS:** - **------------------------** **1. STATE OF KERALA, REP. BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REP. BY SECRETARY.** **3. DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, ERNAKULAM.** **R1 BY GOVERNMENT PLEADER SRI. SALIM P.A. R2 & R3 BY SRI.ALEXANDER THOMAS,SC,KPSC** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/01/2008, THE COURT ON 11/01/2008 DELIVERED THE FOLLOWING:** _Kss_ ## **ORDER ON C.M.P.NOS.1581 & 30562/2000 IN O.P.NO.1016/2000 U** ## **DISMISSED** ## **11/01/2008** **SD/- P.N.RAVINDRAN, JUDGE** **/TRUE COPY/** **P.S.TO JUDGE** ## _Kss_ ## **P.N.Ravindran, J. ============= O.P.No. 1016 of 2000** ## **==============** ## **Dated this the 11th day of January, 2008.** ## **JUDGMENT** The petitioners herein, who are Diploma holders in Civil Engineering awarded by the State Board of Technical Education, challenge Exts.P7 and P8 letters sent by the District Officer, Kerala Public Service Commission, Ernakulam informing them of the rejection of their applications for appointment to the post of Overseer Grade II in the Kerala Panchayath Common Service. The Kerala Public Service Commission (herein after referred to as "the Commission") invited applications from eligible candidates for appointment to the post of Overseer Grade II in the Panchayath Common Service for seven Revenue Districts including Ernakulam as per Ext.P4 notification published in the Kerala Gazette dated 1.2.1994. Ext.P4 states that applicants for the post of Overseer Grade II should possess any one of the following qualifications:- OP 1016/00 -: 2 :- - "(a) S.M.T. Overseer's Course (2 years course) - (b) Draftsman Course, College of Engineering Guindy. - (c) Group Certificate under MGTE. Note:- Group Certificate will include all the four Groups:Building Drawing, Building Construction. Survey and Irrigation. Alternatively a pass in 8 subjects namely Surveying and Levelling (Higher), Applied Mechanics (Higher), Building Materials and Construction (Higher), Hydraulics and Irrigation (Higher), Building Drawing and Estimating (Higher), Earthwork and Roadmaking (Higher), Geometrical Drawing (Lower) or Practical Plane and Solid Geometry (Lower) and Menstruation (Lower). (d) certificate course of College of Engineering, Thiruvananthapuram (2 years course). Note:- (Omitted since irrelevant) (e) Draftsman (Civil) or Draftsman (Mechanical), Diploma obtained after 18 months course followed by 6 months practical training at the Industrial Training Centres conducted by the Government of India, Ministry of Labour at Thiruvananthapuram, Thrissur, Chalakudy, Kannur or elsewhere. (f) Pass in Overseer's Course conducted by the Government. ## OR Surveying and Levelling (Higher) KGTE/MGTE. with any three of the following subjects: OP 1016/00 -: 3 :- 1. Building Drawing and Estimating (Higher). 2. Building Materials and Construction (Higher). 3. Earthwork and Roadmaking (Higher). 4. Hydraulics and Irrigation (Higher) ## OR Any of the qualification mentioned below: (a) Draftsman's Course (Mech.), Diploma in I.T.C. (MTI), Trichur, II Grade Certificates secured by Draftsman (Civil) or Mechanical Trainees under T.T. Scheme, College of Engineering or under Industrial Training Centre conducted by the Ministry of Labour, Government of India after a course of 18 months. ## OR Surveying and Levelling (Higher) KGTE or MGTE with any two of the following subjects: 1. Building Drawing and Estimating (Higher). 2. Earthwork and Road making (Higher). 3. Geometrical Drawing (Higher). 4. Building Material and Construction (Higher). Two years service as Tracer in any of the Institutions recognised by the State or Central Government. (g) Class III Certificate of the College of Military Engineering." 2. Pursuant to Ext.P4 notification, the petitioners submitted their applications and they were called to appear for the written examination held on 4.11.1995, as per the memos evidenced by OP 1016/00 -: 4 :- Exts.P5 and P6. Thereafter, by Exts.P7 and P8 letters, the District Officer of the Commission at Ernakulam informed them that their applications have been rejected, since they do not possess the qualifications prescribed in Ext.P4 notification. 3. I have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. The petitioners challenge the rejection of their applications contending that they possessed the qualifications prescribed for the post of Overseer Grade II and that the subjects mentioned in Ext.P4 notification were taught for the Diploma course in Civil Engineering undergone by them. They further contend that there is practically no difference between Civil Engineering and Overseer course and that Diploma in Civil Engineering is not in any way inferior to some of the courses mentioned in Ext.P4. The petitioners also contend that Ext.P4 notification also takes in Diploma in Civil Engineering awarded by the State Board of Technical Education. The learned counsel for the petitioners also relied on a decision of the Apex Court in **Jyoti K.K. & Others** v. **Kerala Public Service Commission & Others** - JT 2002 (Suppl.1) S.C. 85 to contend for the position OP 1016/00 -: 5 :- that if a person possess a higher qualification in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. The contention of the petitioners is that Diploma in Civil Engineering is a qualification higher than the qualifications set out in Ext.P4 and extracted above. The learned counsel for the petitioners further submitted that this Court had in O.P.Nos.14736 of 2001 and 24713 of 2001 applied the dictum laid down by the Apex Court in the aforesaid decision and held that Diploma holders in Civil Engineering, who had applied for the post of Draftsman Grade II/Overseer (Civil) in the Irrigation Department, are eligible to apply for the said post, since the qualification of Diploma in Civil Engineering held by them can be said to presuppose the acquisition of the qualification possessed by certificate holders. 4. Per contra, the learned counsel appearing for the Commission contended that the petitioners do not possess any of the qualifications prescribed for the post of Overseer Grade II and set out in Ext.P4 notification and that possession of a Diploma in Civil Engineering does not presuppose the acquisition OP 1016/00 -: 6 :- of the qualifications prescribed for the post of Overseer Grade II. The learned counsel appearing for the Commission also relied on an unreported decision of this Court in O.P.No.3067 of 1998, in support of the said contention. 5. In the case disposed of by the Apex Court, the Commission had invited applications for the post of Sub Engineer (Electrical) in the Kerala State Electricity Board, "KSEB" for short. The qualifications prescribed for the said post were: "1. SSLC or its equivalent. 2. Technical qualifications- a) Diploma in electrical engineering of a recognised institution after 3 years course of study. Or b) A certificate in electrical engineering from any one of the recognised technical schools shown below with five years service under Kerala State Electricity Board. (Not fully extracted as not relevant) ## Or c) MGTE/KGTE in electrical light and power (higher) with five years experience as II Grade Overseer (Electrical) under the Board." 6. The appellants before the Apex Court were B.Tech. OP 1016/00 -: 7 :- degree holders in Electrical Engineering. Their applications for the post of Sub Engineer (Electrical) in the KSEB were rejected by the Commission on the ground that they do not possess the prescribed qualifications. The appellants before the Apex Court contended that they possessed a higher qualification and hence the rejection of their applications was illegal. The Commission contended that graduates in Electrical Engineering or persons possessing other qualifications cannot be said to be possess equivalent qualifications prescribed for the post and that the candidates who possess higher qualifications can be considered eligible only in cases where they have acquired the higher qualification after acquiring the qualification prescribed for the post. The Commission also contended that the qualifications possessed by the appellants before the Apex Court do not presuppose the acquisition of the lower qualification prescribed for the post and therefore, the appellants are not eligible. The Apex Court had, in the said decision, held that when a qualification has been set out under the relevant rules, the same cannot be in any manner whittled down and a different qualification adopted and that the High Court was justified in OP 1016/00 -: 8 :- holding that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for the post in order to attract Rule 10(a)(ii) of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as "the K.S. & S.S.R."). However, taking note of the fact that under the rules applicable for the post of Assistant Engineer in the KSEB, a degree in Electrical Engineering of the Kerala University or any other qualification recognised as equivalent thereto is the prescribed qualification, the Apex Court held that the said qualification is definitely a higher qualification than what is prescribed for the lower post, namely, the post of Sub Engineer. In that factual situation, the Apex Court held that a degree in Electrical Engineering presupposes the acquisition of the lower qualification of Diploma in that subject and should be considered as sufficient for the post of Sub Engineer. The Apex Court also held that if the State Government was of the view that only Diploma holders should apply for the post of Sub Engineer, the Rules should have excluded candidates, who possess higher qualifications or the Government should have made it clear that degree holders are not eligible to apply. OP 1016/00 -: 9 :- 7. At first blush, it may appear that there is merit in the contention raised by the learned counsel for the petitioners. In O.P.No.14736 of 2001 and O.P.No.24713 of 2001, the qualification prescribed for the post of Draftsman Grade II/Overseer (Civil) was K.G.T.E. Group Certificate or equivalent qualification. In the instant case, Ext.P4 notification does not state that the persons who possess qualifications equivalent to those set out therein will also be eligible to apply for the post. 8. A similar question arose in O.P.No.1609 of 1998 and connected cases. The Commission had invited applications for the post of Overseer (Civil), Draftsman Grade II (Civil). Overseer Grade II (Civil) prescribing a two year Certificate course or Diploma course in Engineering in the concerned subject as the qualification for the post. The Commission rejected the applications submitted by the petitioners in O.P.No.1609 of 1998 and connected cases, who had undergone a three year Diploma course. A learned single Judge of this Court dismissed the Original Petitions holding that the qualifications possessed by the petitioners therein do not enable them to apply for the post. 9. After hearing the learned counsel appearing for the OP 1016/00 -: 10 :- petitioners and the Commission, I am of the opinion that the points raised in this writ petition are squarely covered against the petitioners by the decision of this Court in O.P.No.1609 of 1998 and connected cases. In the case on hand, the notification evidenced by Ext.P4 does not state that the persons possessing qualifications equivalent to the qualifications set out therein are also eligible to apply for the post. In order to attract Rule 10(a) (ii) of the K.S. & S.S.R. the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for the post. There is no material available on record to hold that the qualification possessed by the petitioners presupposes the acquisition of the qualification prescribed in Ext.P4 for the post of Overseer Grade II. Further, as held by the Apex Court when a qualification has been set out under the relevant rules, it cannot be whittled down and a different qualification cannot be adopted. There is hence no merit in the challenge to Exts.P7 and P8. 10. On yet another ground also the petitioners are not entitled to any relief. The Original Petition was filed on 10.1.2000. By an interim order passed on 11.1.2000 on OP 1016/00 -: 11 :- C.M.P.No.1581 of 2000, this Court had directed the third respondent to interview the petitioners, subject to the condition that their appearance in the interview will be subject to further orders from this court. Nearly 8 years have passed thereafter. The selection pursuant to Ext.P4 would have been completed long ago. The petitioners have not impleaded any of the selected candidates as parties to this Original Petition. Nor have they stated that they were included in the ranked list after the interview. Hence, on that ground also the Original Petition is liable to be dismissed. I therefore hold that there is no merit in the Original Petition and that it is liable to be dismissed. Accordingly, the Original Petition is dismissed. No costs. P.N.Ravindran, Judge. ess 4/1 OP 1016/00 -: 12 :-