OP(KAT) No.218 of 2018 (Kerala High Court) — Kerala Public Service Commission vs Shobha T.C.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** **OP(KAT).No.218 of 2018** **AGAINST THE ORDER IN OA 789/2017 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/RESPONDENT:** **KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY THE SECRETARY, P.S.C OFFICE, PATTOM P.O, THIRUVANANTHAPURAM-695004.** **BY SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENT/APPLICANT:** **SHOBHA T.C AGED 38 YEARS, W/O NARAYANAN NAMBOODIRI T.V, COMMERCIAL TAX INSPECTOR, DEPARTMENT OF COMMERCIAL TAXES, INVESTIGATION BRANCH, TAX TOWERS, 5TH FLOOR,KILLIPALAM, KARAMANA P.O, THIRUVANANTHAPURAM-2,RESIDING AT SREE VALSAM, 158A/14,KANJIRAMPARA P.O, THIRUVANANTHAPURAM-30,KERALA.** **BY ADVS.** **SRI.KALEESWARAM RAJ KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 05.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(KAT).218/2018 2 ## **JUDGMENT** Ravikumar, J. The sole respondent in O.A.No.789 of 2017 on the files of the Kerala Administrative Tribunal viz, The Kerala Public Service Commission (for brevity 'the PSC' only) filed the captioned original petition challenging the order dated 22.12.2017 passed thereon, by the Tribunal. The respondent herein viz., the applicant therein filed the aforesaid Original Application seeking the following reliefs:- - “i) To declare that the applicant is entitled to be considered for selection and appointment to the post of Commercial Tax Officer (category No.387/13) based on Annexure A2 and A3 certificates; - ii) To set aside Annexure A7 as unjust, arbitrary and unsustainable; - iii) To direct the respondent to permit the applicant to participate in the interview for selection to the post of Commercial Tax Officer (category No.387/13) scheduled from 3.5.2017 to 19.5.2017; - iv) To direct the respondent to include the name of the O.P.(KAT).218/2018 3 applicant in the final ranked list for the post of Commercial Tax Officer (category no.387/13) based on the marks obtained by her in the selection process; - v) To direct the respondent to advice the applicant to the post of Commercial Tax Officer (category No.387/13) on the basis of her ranking in the ranked list;” 2. The applicant Smt.Shobha.T.C./the respondent herein filed the said Original Application seeking such reliefs in the following circumstances:- The applicant applied for appointment to the post of Commercial Tax Officer in response to Annexure-A1 (in Ext.P1) dated 15.11.2013. She possessed Annexure-A2 MBA Degree awarded by the Kannur University. The following are the qualifications prescribed under Annexure-A1 notification for the said post:- “7. Qualifications: Graduation with a degree in law OR A pass in Chartered Accountant (Inter) as defined in the Chartered Accountants Act, 1949 (Central Act 38 of 1949). O.P.(KAT).218/2018 4 OR Masters Degree in Commerce OR Masters Degree in Business Administration (Finance).” As part of the selection process, OMR test was held on 7.2.2015 and on successful participation in the test, she was included in the main list of the short list published on 22.8.2016. The relevant extract of the same is produced as Annexure-A4 in Ext.P1. Subsequently, she participated in verification of certificates conducted on 25.10.2016 and the said fact is evident from Annexure-A5 verification certificate dated 25.10.2016. Later, as per Annexure-A7 (in Ext.P1) she was informed about the rejection of her application on the following lines:- “You are not qualified as per the gazette notification. One of the prescribed qualification for the post is MBA (Finance). As per the certificates produced, your elective subjects for MBA are Marketing and Finance and not solely Finance.” It is in the aforesaid circumstances that the applicant approached the Tribunal by filing O.A.No.789 of 2017 seeking _inter alia_ , the afore- O.P.(KAT).218/2018 5 extracted reliefs. 3. The appellant herein viz., the respondent therein did not file reply affidavit in the proceedings before the Tribunal. However, the learned Standing Counsel for PSC, contended that the applicant's Degree could not be treated as a Degree in MBA (Finance), the prescribed qualification under Annexure-A1 notification. It was further contended that Annexure-A2 (in Ext.P1) certificate issued by the Kannur University would not reveal that the applicant's Degree is in Finance. With reference to the mark list produced along with Annexure-A2 it was submitted that it could not be taken that Finance was the major elective subject of the applicant for the MBA Degree. That apart, the learned Standing Counsel for PSC relied on the judgment of this Court in W.P.(C)No.24426 of 2007 and connected cases to resist the claims and contentions of the respondent which were upheld by the Tribunal. A decision of the Tribunal in O.A.No.765 of 2017 was also relied on, in that regard. O.P.(KAT).218/2018 6 4. The learned counsel for the applicant/respondent herein contended that MBA Degree of the applicant is a Degree with Double Main and there was no major elective. In such circumstances, the decision of a Division Bench of this Court in O.P.(KAT)No.126 of 2016 squarely applies, it was contended. Relying on the said decision, it was contended that going by the same MBA Degree of the applicant could be treated as an MBA Degree in Marketing and also in Finance viz., a degree with 'Double Main' pattern. Hence, according to the applicant, she could be treated as a holder of Masters Degree in Business Administration in Finance and as such entitled to be considered for selection to the post of Commercial Tax Officer. 5. Shortly stated, the submission of the learned counsel for the respondent based on the aforesaid contentions is that the conclusions, findings and consequential directions of the Tribunal call for no interference. It is to be noted that based on an interim order passed by the Tribunal in the above mentioned Original Application, the applicant O.P.(KAT).218/2018 7 participated in the further stage of selection process provisionally and though the ranked list was published, her result was withheld due to the pendency of the aforesaid Original Application viz., O.A.No.789 of 2017. The Tribunal repelled the aforementioned contentions of the respondent therein viz., the petitioner herein, and disposed of the Original Application, after holding that the applicant/respondent herein should be treated as a holder of Masters Degree in Business Administration in Finance, with direction to consider her candidature and include her in the ranked list for appointment to the post of Commercial Tax Officer (category No.387 of 2013) at the appropriate place based on her performance in the selection process. It was further ordered that it should not affect the advices and appointments already made. A time limit was also fixed for complying with the directions. It is in the said circumstances that PSC filed the captioned original petition challenging the order, on the aforesaid lines, passed in the Original Application. O.P.(KAT).218/2018 8 6. Heard the learned Standing Counsel for PSC, the petitioner and the learned counsel appearing for the respondent/the applicant. 7. We have already narrated the facts. Admittedly, at the time of submission of application in response to Annexure-A1 notification, the respondent herein was holding Annexure-A2 certificate issued by the Kannur University. True that in Annexure-A2, it is only stated thus:- “Whereas it has been certified by duly appointed Examiners that SHOBHA.T.C. is qualified to receive the Degree of Master of Business Administration (M.B.A.) she having passed and been placed in SECOND Class at the examination held in NOVEMBER 2003. (Reg.No.601) The Syndicate of the Kannur University hereby confers on her the Degree of **Master of Business Administration** ” Thus, a perusal of Annexure A2 certificate would reveal that the respondent had undergone the course in the faculty of Commerce and Management Sciences and she was conferred with the Degree of Master of Business Administration, without specifying the electives viz., the subject of specialisation. To appreciate the contention of the O.P.(KAT).218/2018 9 respondent/the applicant that Ext.P2 Degree certificate she possessed is one issued to her for passing MBA Degree Examination with Finance as also with Marketing as electives viz., in 'Double Main Pattern', it is necessary to refer to certain decisions. As noticed hereinbefore, the petitioner herein took up the contention that the issue involved and to be resolved is squarely covered by the judgment of this Court in W.P. (C)No.24426/2007 and connected cases and a Division Bench order of the Tribunal in O.A.No.765/2017 and connected cases. On the contrary, the contention of the respondent herein was that as regards the question whether her MBA Degree is a degree with 'Double Main' to determine her eligibility, the decision of a Division Bench of this Court in O.P.(KAT) No.126/2016 is the relevant authority. As noticed hereinbefore, the said contentions were actually raised before the Tribunal. In the contextual situation, it is only appropriate to refer to paragraph 7 of W.P.(C)No.24426/2007 and connected cases as extracted in the impugned order. It reads thus:- O.P.(KAT).218/2018 10 “After having heard the contentions of the parties, having perused the certificates produced by the petitioners in these cases and having taken note of Exhibit-R3 (a) produced by the PSC., I am of the view that petitioners' case should be reconsidered by the PSC. There is prima facie material to show that the petitioner has passed M.B.A Degree Examination with Finance either as elective or area of specialisation. An elective in the circumstances would mean the same as specialisation. If Finance or Financial Management is only one of the areas of specialisation, then it may not be possible for the holder of the Degree to say that he has acquired the Degree in Master of Business Administration (Finance). But if the only area of specialisation or the main elective is Finance or Financial Management then the holder of the Degree is legitimately entitled to claim that he is a holder of M.B.A (Finance). These are the materials to be considered by the P.S.C.” 8. As noticed hereinbefore, in the said decision, this Court held that if Finance or Financial Management is only one of the areas of specialisation, then, it may not be possible for the holder of the degree to say that he acquired the Degree in Master of Business Administration (Finance). However, if the only area of specialisation or O.P.(KAT).218/2018 11 the main elective is Finance or Financial Management, then the holder of the degree is legitimately entitled to claim that he is a holder of MBA (Finance). In O.A.765/2017 and connected cases, the Tribunal had held that even in cases where more than one subject had been taken as elective subjects by the candidate concerned, the question which was the major elective has to be considered and further that the degree concerned could be treated as a degree in the major elective only. In the decision of this Court in O.P(KAT) No. 126/2016, the decision which was relied on by the Tribunal virtually to allow the original application, the Division Bench formulated the question for consideration:- “Can the Degree given by the Calicut University in Malayalam and Sociology (Double Main) be taken as the requisite/notified qualification of 'Degree in Sociology' for appointment to the post of Social Education Organiser in the Union Territory of Lakshadweep Administration?” As a matter of fact, the decision rendered by this Court in O.P.(KAT).218/2018 12 O.P(KAT)No.126/2016 was challenged before the Hon'ble Apex Court and the decision thereon is reported as **Thahira.P v. The Administrator, UT of Lakshadweep and others (AIR 2018 SC** **1973).** Paragraph 14 therein which is relevant for consideration of this case reads thus:- “At this stage, it may be mentioned that in the meanwhile the University of Calicut looked into the equivalent issue and concluded on or about 9[th] May, 2016 that the Degree in Malayalam and Sociology (Double Main) was equivalent to a degree in Sociology (Single Main) awarded by the University. That being the position, there cannot be any doubt that Thahira was entitled to be considered for appointment to the post of Social Education Organiser.” 9. The Hon'ble Apex Court set aside the judgment of the Division Bench of this Court in O.P(KAT) No.126/2016 dated 9[th] September, 2016 as also the order dated 15[th] March, 2016 passed by the Tribunal from which the said original petition had arisen. Obviously, the interference was on another score. The Apex Court held that the only grievance of the applicant was with regard to eligibility of Thahira O.P.(KAT).218/2018 13 who had a Degree in Malayalam and Sociology (Double Main) which according to the respondent therein, namely Khadeeja, was insufficient to make her an eligible candidate owing to non-possession of a Degree in Sociology (Single Main). In fact, it was after considering the said question and taking note of the fact that the University which awarded Thahira the Degree in question considered the anomalous situation and issued Ext.P8 (marked as such in that case) to the effect that the Degree awarded to Thahira with 'Double Main' in Malayalam and Sociology is equivalent to the Degree in Sociology awarded by the same University that the Division Bench in O.P(KAT).No.126/2016 held that the said declaration would date back to the date of awarding the degree and consequently held that Thahira was also qualified to be considered for the post of Social Education Organiser. Thus, it is evident that virtually the Apex Court did not reverse the said finding of the Division Bench. Evidently, after answering the question regarding the eligibility of Thahira in that manner, the Division Bench had proceeded to O.P.(KAT).218/2018 14 consider the issue of award of marks. The Apex Court held that by doing so, the Division Bench opened up a new avenue for challenging the appointment of Thahira as Social Education Organiser and holding that it was unnecessary for the Tribunal, as also the Division Bench of this Court, to open such a new avenue, the order of the Tribunal and judgment of this Court were set aside. Now, the fact is that the judgment of this Court in O.P(KAT)No.126/2016 dated 9.9.2016 was set aside by the Hon'ble Apex Court only on 17.4.2018 and the Tribunal had relied on said decision of the Division Bench and passed the impugned order in O.A.No.789/2017 on 22.12.2017. Hence, we do not find any reason to hold that the Tribunal had committed an illegality in relying on the said decision of the Division Bench in O.P. (KAT).126/2016. As already stated, as a matter of fact, in **Thahira** 's case (supra), the Apex Court virtually did not interfere with the finding of the Division Bench in O.P.(KAT)No.126/2016 regarding the entitlement of Thahira for being considered for appointment to the post O.P.(KAT).218/2018 15 of Social Education Organiser, as can be seen from paragraph 14 of the said judgment. In such circumstances, the respondent is justified in contending that the Degree possessed by her viz., Annexure A2 in Ext.P1 is a Degree with Double Main viz., MBA Degree in Finance and also in Marketing and she should be treated as a holder of Master Degree in MBA (Finance) (provided it is actually a degree in Double Main Pattern) and in that regard in placing reliance on the decision in **Thahira** 's case (supra). 10. The question, therefore, to be considered is whether on facts the respondent is justified in relying on the decision of the Apex Court in **Thahira** 's case (supra) in the light of Annexure A2 certificate and whether it can be treated as a Degree with Double Main? As noticed hereinbefore, in Annexure A2, besides stating that she was conferred with the Degree of Master of Business Administration, nothing more is stated therein regarding the subject/subjects in which she was conferred the said degree. But, at the same time, the fact is that the O.P.(KAT).218/2018 16 respondent had produced her marklists of third and fourth semesters MBA Degree Examinations to establish that she had actually undergone MBA Course with Double Main viz., two electives, but with no major elective. We do not think it necessary to consider the correctness of the said claim and contention by referring to those marklists as the said fact is not at all disputed by the petitioner- PSC. The pleadings of the petitioner in this original petition and also the recital in Annexure A7 (in Ext.P1) would reveal the same. At the risk of repetition, we will refer to the relevant recital in Annexure A7 (in Ext.P1). It reads thus:- “You are informed that your application has been rejected for the following reason. You are not qualified as per the gazette notification. One of the prescribed qualification for the post is MBA (Finance). As per the certificates produced, your elective subjects for MBA are Marketing and Finance and not solely Finance.” In this original petition, the petitioner-PSC raised contentions only as O.P.(KAT).218/2018 17 hereunder :- “6...............The petitioner was called for certificate verification and interview. It is submitted that at the time of verification of certificate it is found that the petitioner possess the MBA degree with dual specialization i.e. in Finance and Marketing whereas the prescribed qualification is MBA (Finance). The mark list produced by the petitioner proves that she has Marketing as Optional I and Finance as Optional II. 7. It is submitted that since MBA Degree is not one obtained by the petitioner with Finance as major/sole elective which is the required mandated qualification, the application of the petitioner was rejected.” 11. In paragraph 8 of the original petition, the petitioner has taken up the contention that the respondent/the applicant could not claim that she had acquired Degree in MBA with 'Finance' as sole elective subject. The further contention is that she had neither produced any certificate to the effect that MBA with Marketing and Finance is equal to MBA in Finance or Finance is the major elective. As noticed hereinbefore, in Annexure-A7 itself, it is virtually admitted O.P.(KAT).218/2018 18 by the petitioner/PSC that going by the certificates produced by the respondent herein, her elective subjects for MBA were Marketing and Finance. Virtually, the reason for rejection of the application is that the certificate revealed that elective subjects for MBA were Marketing and Finance and not solely 'Finance'. The decision of this Court in W.P. (C)No.24426 of 2007, relied on by the petitioner/PSC, paragraph 7 of which was extracted hereinbefore, would reveal that this Court had held that an elective in the circumstances would mean the same as 'specialization'. In paragraph 6 of the original petition extracted hereinbefore, the petitioner admitted the fact that on verification of the certificate of the respondent, it was found that she possesses MBA Degree with dual specialization that is, in Finance and Marketing. When this be the admitted position, rather, the indisputable position, the question is whether in the light of the decision in **Thahira** 's case (supra) by the Hon'ble Apex Court, the finding of the Tribunal regarding the eligibility of the respondent as a candidate for the O.P.(KAT).218/2018 19 selection concerned invites interference. 12. We have already noted that the petitioner had verified the certificates of the respondent and found that the respondent herein possesses MBA Degree with dual specialisation i.e., in Finance and Marketing. The respondent/applicant has produced Annexure A3 virtually to establish that she possesses MBA Degree Examination with specialisation in both Finance and Marketing. Thus, on the said aspect, there is no dispute. Annexure A3 would reveal that Finance and Marketing carried equal weightage of marks. The fact that the said subjects carried equal weightage of marks is discernible from the marklist of the respondent's third and fourth semesters MBA Degree Examination produced along with Annexure A2. As already noticed, in Annexure A7, the petitioner-PSC stated that going by the certificates produced by the respondent before it, the elective subjects of the respondent, for MBA Course, were Marketing and Finance. These aspects have to be taken into account while considering the application O.P.(KAT).218/2018 20 of the decision of the Apex Court in **Thahira** 's case. As noticed hereinbefore, in the judgment of this Court in W.P.(C).No.24426/2007 and connected cases relied on by the petitioner herein, more particularly from paragraph 7 therein extracted in the impugned order, this Court had held that an elective in similar circumstances would mean 'specialization'. The pleadings of the petitioner in the original petition extracted hereinbefore would go to show that the petitioner also acknowledges and approve that elective would take in the meaning 'specialization' lest they would not have stated in paragraph 6 of the original petition that the respondent possesses MBA Degree with dual specialisation i.e., in Finance and Marketing. The certification in Annexure A3 that the aforesaid subjects carried equal weightage of marks is supported by the marklist produced along with Ext.P2 and found part of it. In such circumstances, the mere fact that the respondent had not obtained and produced a certificate from Kannur University that the MBA Degree conferred on the respondent was in O.P.(KAT).218/2018 21 Finance and Marketing and that it is equivalent to MBA Degree with Finance cannot be a factor which should go against the respondent. In the light of the decision in **Thahira** 's case, wherein the finding of a Division Bench of this Court that Thahira who was having Degree in Malayalam and Sociology is good enough to treat her as a degree holder in Sociology was virtually endorsed and affirmed, we are of the considered view that in the factual position obtained in this case, the finding of the Tribunal that the respondent herein, who possesses MBA Degree in Finance and Marketing, is to be considered as an eligible candidate with MBA Degree in Finance and the consequential directions require no interference. In the light of the aforesaid conclusions and findings, we find no merit in this original petition. Taking note of the fact that the respondent therein/petitioner herein was granted one month's time from the date of receipt of the order by the Tribunal for issuing necessary orders based on the impugned order, we are inclined to grant one month's time to the petitioner to comply with O.P.(KAT).218/2018 22 the directions of the Tribunal contained in the impugned order. Subject to the above, this original petition is dismissed. **Sd/-** **C.T.RAVIKUMAR JUDGE** **Sd/V.G.ARUN JUDGE** O.P.(KAT).218/2018 23 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A NO.789 OF 2017 WITH ITS ANNEXURES. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 22.12.2017 IN O.A NO.789 OF 2017. EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 07.12.2007 IN WP(C) NO.28752 OF 2007.** ## **RESPONDENTS' EXHIBITS:NIL** spc/