O.P.(KAT) No.305 of 2019: Kerala Public Service Commission & District Officer, Kerala Public Service Commission v. Sreeja L and The Registrar, University of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED MUSTAQUE** ## **&** ## **THE HONOURABLE MR. JUSTICE S.MANU** **WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 OP(KAT) NO. 305 OF 2019** **AGAINST THE ORDER IN OA(EKM) NO.127 OF 2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DTD.20.03.2019 PETITIONERS/RESPONDENTS 1 & 2:** - **1 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695004, KERALA.** - **2 DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, CIVIL STATION, PALAKKAD-678001, KERALA.** **BY ADV SRI.P.C.SASIDHARAN, SC, KPSC** - **RESPONDENTS/APPLICANT & 3rd RESPONDENT: 1 SREEJA.L AGED 33 YEARS W/O.RAJESH K.A., KOLATHAPPILLY HOUSE, KANNIKULANGARA P.O., PUTHENCHIRA, THRISSUR, KERALA-680682.** **2 THE REGISTRAR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM-695034, KERALA. BY ADVS.SRI.KALEESWARAM RAJ SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.RIYA RAYMOL IYPE** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 03.07.2024, THE COURT ON 17.07.2024 DELIVERED THE FOLLOWING:** O.P.(KAT).No.305 of 2019 2 **A.MUHAMED MUSTAQUE, Acg.C.J. & S.MANU, J.** -----------------------------------------------------------------------------------O.P.(KAT).No.305 of 2019 -----------------------------------------------------------------------------------Dated this the 17[th] day of July, 2024 ## **JUDGMENT** ## **S.MANU, J.** The Kerala Public Service Commission (hereinafter referred to as 'PSC') is challenging the order dated 20.3.2019 in O.A.(Ekm)No.127/2018 of the Kerala Administrative Tribunal, Additional Bench, Ernakulam in this O.P.(KAT). 2. By the impugned order the Tribunal directed PSC to consider Annexure-A9 Government order by which B.Ed degree in Biological and Physical Sciences (Regular) awarded by the University of Mysore has been recognized as equivalent to B.Ed. degree in Natural Science of University of Kerala and to include the 1[st] respondent who was the applicant in the O.A. in the ranked list for the post of High School Assistant (Natural Science) by issuing an addendum notification. O.P.(KAT).No.305 of 2019 3 3. By Annexure-A1 notification, the PSC invited applications from qualified candidates for the post of High School Assistant (Natural Science) Malayalam medium for filling up anticipated vacancies. A degree in the concerned subject and B.Ed/BT in the concerned subject conferred or recognized by the Universities in Kerala (Concerned subjects were specified in Note (ii) of the notification) was the qualification stipulated. Note (ii) specified that the applicants should have taken Botany or Zoology or Home Science or Microbiology as main subject for graduation or post graduation. The 1[st] respondent was short listed. She had uploaded copies of the degree certificates of B.Sc. Botany degree acquired from the University of Calicut and B.Ed. (Physical Science and Biological Science) double main degree acquired from the University of Mysore. The PSC was of the view that the training qualification possessed by the 1[st] respondent was not recognized as equivalent to the training qualification prescribed for the post by any orders of the Government. The 1[st] respondent had produced an O.P.(KAT).No.305 of 2019 4 equivalency certificate dated 12.9.2013 issued by the University of Calicut. However, the certificate was only to the effect that the B.Ed degree of University of Mysore has been recognized as equivalent to the B.Ed degree of University of Calicut. Optional subject of B.Ed was not specified in the certificate. Therefore, the PSC refused to act on it. 4. The 1[st] respondent was provisionally permitted to participate in the interview held on 17.1.2018 in compliance with the interim order dated 15.1.2018 of the Tribunal. During the pendency of the O.A, Government issued G.O. (Rt)No.160/2019/H.EDN. dated 31.1.2019 recognizing the training qualification of the 1[st] respondent as equivalent to the B.Ed. degree in Natural Science of the University of Kerala. Said order was produced as Annexure-A9 before the Tribunal. Taking note of the Government order, the Tribunal disposed the O.A. directing the PSC to include the 1[st] respondent in the ranked list by issuing an addendum notification. In the order the learned Tribunal stated that a O.P.(KAT).No.305 of 2019 5 similar order was passed in O.A.(Ekm)No.126/2018. 5. The PSC is aggrieved by the order issued by the Tribunal. It is pointed out by the Commission that the 1[st] respondent was directed to produce Government order regarding equivalency on or before 10.1.2018. The order regarding equivalency produced as Ext.A9 was issued only on 31.1.2019 nearly 8 months after the publication of the ranked list. It is submitted by the Commission that if candidates are included in the ranked list on the basis of orders regarding equivalency issued by the Government after publication of ranked list, the Commission will not be in a position to finalize the ranked list. Inclusion of candidates who produced equivalency certificates after publication of the ranked list will alter the ranks of candidates already included and will adversely affect the advises issued from the ranked list. It will result in injustice as far as other candidates are concerned whose applications were rejected for the same reason. Candidates shall be careful in understanding the qualifications mentioned in the O.P.(KAT).No.305 of 2019 6 notification and to ascertain whether they are eligible to apply. In case the qualification acquired by the candidate is not specified in the notification but is an equivalent qualification then the candidate shall obtain and produce orders regarding equivalency within the permitted time limits. Belated production of equivalency certificates and directions issued by judicial forums for inclusion of candidates after publication of ranked list will adversely affect the functioning of the Commission. 6. It is also contended by the PSC that the Tribunal was wrong in following in the present case, the order passed by it in O.A.No.126/2018. It is pointed out by the Commission that the equivalency order in the case of the training qualification of the applicant in O.A.No.126/2018 was issued by the Government well before the publication of the ranked list in that case. The Commission therefore decided to accept her qualification and included her in the ranked list. Consequently, the said case cannot be compared with the case of the 1[st] respondent as the order O.P.(KAT).No.305 of 2019 7 regarding equivalency of the training qualification of the 1[st] respondent was issued much after the publication of the ranked list in her case. 7. The counsel for the 1[st] respondent on the other hand contended that the Tribunal has rightly issued the order directing to include her in the ranked list. The learned counsel submits that the Government examined the issue and issued Annexure-A9 and refusal of the PSC to act on the same is arbitrary and unjust. She also submitted that inclusion of the 1[st] respondent in the ranked list will not cause any difficulties as highlighted by the PSC and on the other hand rejection of her candidature will result in substantial injustice. She also referred to Rule 10(a) (ii) of Part II of KS & SSR. 8. The learned Standing Counsel for the PSC relied on the judgment in **Lalitha Bai v. Public Service Commission** [1999 (2) KLT 894] and submitted that a Division Bench of this Court in the said case had held that a qualification recognized as equivalent can be considered O.P.(KAT).No.305 of 2019 8 only for later selections. His contention is that in the light of the law laid down by the Division Bench, Annexure-A9 can be of any help to the 1[st] respondent only in a later selection as the selection process pursuant to Annexure-A1 concluded with the publication of the ranked list before issuance of Annexure-A9 by the Government. 9. We have analysed the contentions of both sides and perused the pleadings. The Tribunal issued the impugned order mainly relying on its own order in O.A. (Ekm)No.126/2018 which was complied with by the Commission. However, as rightly pointed out by the learned Standing Counsel for the PSC, factual situation in the said case was different. The order regarding equivalency of the qualification possessed by the applicant in the said case was issued by the Government well before the publication of the ranked list in that case. In the present case the order was issued after publication of the ranked list. Hence, we are of the view that the Tribunal was not correct in following the order passed in O.A.(Ekm)No.126/2018 in the present case. O.P.(KAT).No.305 of 2019 9 10. Impact of Rule 10(a) (ii) of Part II of KS & SSR in the recruitments conducted by PSC was considered recently by a Division Bench comprising one of us [A.Muhamed Mustaque, Acg.C.J.] in **Sanjai v. State of Kerala** [2024 (3) KLT 254]. In the said case, as noted in paragraph 10 of the judgment there was a note appended to the notification stating that Rule 10(a) (ii) of Part II of KS & SSR is applicable for selection to the post involved. This Court held as follows in paragraph 11 of the judgment: “11. In the light of the note as above, any candidate who is possessing similar qualifications could apply for the post in anticipation of obtaining equivalency from the Government. It is for the Government to decide thereafter to consider whether the qualification is equivalent or not. That means, an open invitation is given to all candidates to apply for the post who feels that their qualification is equivalent. That itself is an equal opportunity given to all similarly situated candidates. The applicants who did not possess qualification prescribed in the notification did not make the application by chance, but consciously believed that their qualification is equivalent to the qualification notified by K.P.S.C. In the absence of note stipulating Rule 10(a)(ii) of Part II, K.S. & S.S.R., the candidates whose qualification has been declared as equivalent O.P.(KAT).No.305 of 2019 10 could not have been included in the rank list as it would amount to denial of opportunity to all others. That is exactly the law laid down in para.16 of the judgment in W.A.No.1236/2006. In the notification, if such a stipulation was not made, PSC could not have accepted the application from a fortuitous applicant and equivalency given by the Government to such candidates after the last date of receipt of application prescribed in the notification cannot find a place in the rank list. Therefore, the law is clear. If KPSC stipulates that Part II Rule 10(a)(ii) of K.S. & S.S.R. would apply in such notification, it means that all candidates who do not possess the prescribed qualification can be considered for inclusion in the list on obtaining declaration as to the equivalency by the Government subsequently and they cannot be excluded stating that the equivalency was granted long after the last date prescribed for receiving application or after the publication of the rank list. In such circumstances, we are of the view that in the light of the clear stipulation in the notification, based on subsequent declaration of equivalency by the Government, KPSC rightly included the candidates who possessed NCTV or SCVT in the rank list and select list. That cannot be said to be illegal. Accordingly, all the Original Petitions are dismissed.” 11. Contrary to the facts involved in **Sanjai v. State** **of Kerala** the notification dated 31.12.2012 in this case O.P.(KAT).No.305 of 2019 11 which was produced as Annexure-A1 in the O.A. does not contain any statement as to the applicability of Rule 10(a) (ii) of Part II of KS & SSR. Moreover note (v) under paragraph 7 of the notification dealing with qualifications stipulated as follows:- “(v) Those candidates who secured B.Ed/B.T. Degree from the Universities outside Kerala should note in the application form the number and date of relevant orders declaring the said degree is equivalent to those prescribed for this selection. The copies of such order shall be produced before the commission when it is called for.” Therefore it was clearly stipulated in the notification that orders related to equivalence shall be produced before the Commission when it is called for by the candidates who secured the training qualification from Universities outside Kerala. Therefore, non-applicability of Rule 10(a) (ii) of Part II of KS & SSR in the selection process and also the necessity to produce orders regarding equivalency before the Commission as and when called for the Commission stipulated in Annexure-A1 gave no room for production of O.P.(KAT).No.305 of 2019 12 orders regarding equivalency at a later stage. Situation in the case on hand is totally different from that of **Sanjai v. State of Kerala** . We must therefore follow the judgment in **Lalitha Bai’s** case. (supra ) 12. We also find considerable merit in the submissions made by the learned Standing Counsel for the PSC regarding difficulties faced by the Commission when orders are issued for inclusion of candidates after publication of ranked list and making advises. We hence find that the order impugned in this O.P.(KAT) is liable to be set aside. We accordingly allow this O.P.(KAT). Order dated 20.3.2019 in O.A.(Ekm)No.127/2018 is set aside. The O.A. will stand dismissed. Sd/- **A.MUHAMED MUSTAQUE, ACTING CHIEF JUSTICE** Sd/- **S.MANU, JUDGE** skj O.P.(KAT).No.305 of 2019 13 ## **APPENDIX OF OP(KAT) 305/2019** ## **PETITIONERS' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE O.A.(EKM) NO.127 OF 2018.** **EXHIBIT P1(A1) TRUE COPY OF THE NOTIFICATION DATED 31.12.2012. EXHIBIT P1(A2) TRUE COPY OF THE B.SC. DEGREE CERTIFICATE AWARDED BY THE UNIVERSITY OF CALICUT. EXHIBIT P1(A3) TRUE COPY OF THE B.ED DEGREE CERTIFICATE ALONG WITH THE MARK LIST. EXHIBIT P1(A4) TRUE COPY OF THE CERTIFICATE DATED 12.09.2013. EXHIBIT P1(A5) TRUE COPY OF THE LETTER DATED 29.12.2017. EXHIBIT P1(A6) TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P1(A7) TRUE COPY OF THE SHORT LIST DATED 27.10.2017. EXHIBIT P1(A8) TRUE COPY OF THE INTERVIEW PROGRAMME FOR THE MONTH OF JANUARY, 2018 DOWNLOADED FROM THE OFFICIAL WEBSITE OF PSC.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE COMMISSION. EXHIBIT P3 TRUE COPY OF THE ORDER IN O.A.(EKM) NO.127 OF 2018 DATED 20.03.2019. EXHIBIT P4 TRUE COPY OF THE ORDER OF THE COMMISSION DATED 24.06.2019. EXHIBIT P5 TRUE COPY OF THE CONTEMPT PETITION ALONG WITH THE ANNEXURES. EXHIBIT P6 TRUE COPY OF THE M.A. ALONG WITH ANNEXURES.**