Shammas Salam v. Kerala Public Service Commission and others

W.P(C)Nos.16655/18, 35116/18 & COC.64/19 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940 WP(C).No. 16655 of 2018** ## **PETITIONER/S:** **SHAMMAS SALAM, AGED 29 YEARS, S/O P.M ABDUL SALAM, RESIDENT PUTHUPARAMBIL HOUSE, ERATTUPETTA – 2, KOTTAYAM – 686 122.** **BY ADV. SRI.SAJU JOHN** ## **RESPONDENT/S:** **1 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM,THIRUVANANTHAPURAM-695004. 2 KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR,JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033. 3 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT,WATER RESOURCE DEPARTMENT, GOVT. SECRETARIAT,THIRUVANANTHAPURAM-695001. BY ADVS. SRI.P.BENJAMIN PAUL SRI.P.C.SASIDHARAN, SC, KPSC SRI RON BASTIAL, GOVERNEMTN PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.02.2019, ALONG WITH Con.Case(C).64/2019, WP(C).35116/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C)Nos.16655/18, 35116/18 & COC.64/19 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940 Con.Case(C).No. 64 of 2019 IN WP(C). 35116/2018 AGAINST THE ORDER DT.29.10.18 IN WP(C) 35116/2018 of HIGHCOURT** ## **PETITIONER/1ST PETITIONER IN W.P** **REJEESH.K.S. AGED 33 YEARS S/O SUDHAN KALAPURAKKAL KUMARAN, RESIDING AT KALAPURACKAL, ALATTUCHIRA, KODANAD, ERNAKULAM-683 544.** **BY ADVS. SRI.P.SANKARANKUTTY NAIR SRI.SHANKAR V. VENU MENON** ## **RESPONDENT/1ST RESPONDENT IN W.P** **SAJU GEORGE SECRETARY, FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER, KERALA PUBLIC SERVICE COMMISSION, PATTOM, TRIVANDRUM-695 004.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC SC,KWA,SRI.P.BENCHAMIN PAUL, SRI.RON BASTIAN,GOVT.PLEADER** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 11.02.2019, ALONG WITH WP(C).35116/2018, WP(C).16655/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C)Nos.16655/18, 35116/18 & COC.64/19 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940** ## **WP(C).No. 35116 of 2018** ## **PETITIONER/S:** - **1 REJEESH K.S., AGED 33 YEARS, S/O.SUDHAN KALAPURAKKAL KUMARAN, RESIDING AT KALAPURACKAL, ALATTUCHIRA, KODANAD, ERNAKULAM -683544.** - **2 MUHAMMED SHANU, AGED 24 YEARS, S/O.KUNHI MAHIN KUTTY.A.M, ADHUR HOUSE, CHARLADKA.P.O, NEKRAJE, KASARAGOD-671544.** - **3 MEGHANATH, AGED 29 YEARS, S/O.PARAMESWARAN RESIDING AT KOTTAKATHIL HOUSE, FAROOK COLLEGE, KOZHIKODE-673632.** - **4 SHAN.K.K, AGED 35 YEARS, S/O.KORATH, KADAMBATHUPARAMBIL, KUTTIKAD.P.O., MUKUNDAPURAM, TRICHUR-680724.** - **BY ADVS. SRI.P.SANKARANKUTTY NAIR SRI.SHANKAR V.** - **:** - **1 THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, TRIVANDRUM-695004.** ## **RESPONDENT/S:** - **2 THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033.** - **3 DIRECTOR OF TECHNICAL EDUCATION, DIRECTORATE OF TECHNICAL EDUCATION, PADMAVILASAM STREET, FORT.P.O., TRIVANDRUM-695023.** **BY ADV. SRI.P.BENJAMIN PAUL ADV.SRI.P.C.SASIDHARAN,SRI RON BASTIAN,GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.02.2019, ALONG WITH WP(C).16655/2018, Con.Case(C).64/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C)Nos.16655/18, 35116/18 & COC.64/19 4 ## _**P.V.ASHA, J.**_ **==> picture [161 x 5] intentionally omitted <==** **==> picture [257 x 78] intentionally omitted <==** ## _**JUDGMENT**_ The petitioners in both these Writ Petitions are candidates who submitted applications for appointment to the post of Plumber in Kerala Water Authority, pursuant to Ext.P1 notification issued by the Kerala Public Service Commission ('PSC' for short). As they are having a common grievance, the Writ Petitions are heard together and are disposed of by this common judgment. Parties and documents referred to in this judgment are as described in W.P.(C) No.16655 of 2018 unless specified otherwise. 2. The petitioners in both these cases, are Diploma Holders in Mechanical Engineering. Their applications are rejected/their names were not included in the ranked list on the ground that they do not have the qualification prescribed. The technical qualification prescribed for the post of Plumber in the Kerala Water Authority is the following: _National Apprenticeship Certificate in Plumbing Trade awarded after completion of full term apprenticeship for a minimum period of three years or national Trade Certificate in Plumbing._ The PSC had also issued Ext.P2 notification for appointment to the post of Tradesman in the Technical Education Department in various trades. One of the W.P(C)Nos.16655/18, 35116/18 & COC.64/19 5 trades was Plumbing. The qualifications prescribed for the post were the following: _“1. A pass in Technical High School Leaving Certificate Examination with specialization in the appropriate trade. Or_ _2. (i) Pass in Secondary School Leaving Certificate Examination or Equivalent._ _(ii) National Trade Certificate in the appropriate trade/pass in Kerala Government Certificate in Engineering Examination in the appropriate trade/pass in vocational Higher Secondary Certificate course in the appropriate trade.”_ 3. Petitioners had submitted applications pursuant to both the notifications i.e for appointment as Plumber in Water Authority as well as Tradesman (Plumbing) in Technical Education Department. PSC issued a common admit card to them for appearing in the common test conducted for appointment to the post of Plumber in Water Authority as well as Tradesman (Plumbing) in the Technical Education Department in the trade of Plumbing. All of them were included in Ext P5 ranked list published for appointment to the post of Tradesman in the trade of Plumbing. In Ext.P5 ranked list for appointment in Palakkad District, the petitioner in W.P.(C) No.16655 of 2018 was included at rank no.1 in the supplementary list of Muslim with 63.67 marks. At the same time, his application for appointment as Plumber was rejected as per Ext.P6 intimation appeared in his profile on the ground that he does not have the qualification prescribed. Similar is the case of petitioners in the other Writ Petition. Consequent to this, they were not included in the rank list also for appointment as Plumber in the Kerala Water Authority. 4. The reason for rejection is that they do not have the prescribed W.P(C)Nos.16655/18, 35116/18 & COC.64/19 6 qualification of NTC in the trade of Plumber. The petitioners rely on the judgment in W.A.No.1874 of 2012, in which this Court considered the issue as to whether the Diploma in Mechanical Engineering/Electrical Engineering is a higher qualification which presupposes lower qualification of NTC. The post in question was that of Operator in Water Authority for which qualification was NTC in the trade of Mechanic (Motor Vehicle)/Electrician. In that case this Court had called for a report from the Technical Education Department. The Director of Technical Education, after constituting a committee of experts to look into the qualification, had furnished a report before this Court, in which it was stated that the Diploma/Degree in Electrical Engineering/Electrical and Electronics Engineering ares higher qualification which pre-supposes the acquisition of NTC in Mechanic (Electrician); Diploma/degree in Mechanical Engineering or Automobile Engineering are higher qualification which pre-supposes the acquisition of NTC in Mechanic (Motor Vehicle), etc. NTC in Industrial Electrician can be considered as equivalent to the NTC in Mechanic (Electrician) for appointment as Operator in Water Authority, etc. Accepting that report and relying on the judgment of the Apex Court in _**Jyoti K.K & Ors. v. KPSC and Ors.**_ [2010 (15) SCC 596], this Court held that the candidates with Diploma were eligible for appointment. 5. The only reason stated in the counter affidavit of the PSC is that there is no Special Rules for the post in Kerala Water Authority; whereas under the Special Rules, G.O(P).No.503/2012/H.Edn dated 12.10.2012 in the Technical W.P(C)Nos.16655/18, 35116/18 & COC.64/19 7 Education Department, the trade `Plumbing' comes under the faculty of Mechanical Engineering and the trade Plumber comes under the faculty of Civil Engineering. According to them, the petitioner can be considered as possessing higher qualification of the prescribed qualification in the same faculty, as per the Special Rules in the Technical Education Department. 6. The petitioners in W.P(C).No.35116/18 have produced the curriculum of studies for the trade of Plumber under the apprentice training scheme issued by the Government of India, Ministry of Skill Development and Entrepreneurship, Directorate General of Training, which provides for the syllabus for the trade Plumber. The qualification for Instructors in the trade of Plumber is Degree/Diploma in Civil/Mechanical Engineering from a recognised University/Board with one/two year post qualification experience or NTC/NAC in Plumber trade with 3 year post qualification experience in the relevant field. They have also produced Ext.P18 syllabus of semester system for the trade of Plumber under the Craftsmen Training Scheme redesigned by the Government of India, Ministry of Labour and Employment in which also Instructor's/Trainer's qualification for the trade of Plumber in the Engineering Trade is Degree or Diploma in Civil/Mechanical Branch of Engineering with one or 2 years post qualification experience. Therefore, the petitioners have claimed that they are entitled to be considered as fully qualified for appointment to the post of Plumbers in the Kerala Water Authority. 7. The qualification for appointment to the post of Junior Instructor W.P(C)Nos.16655/18, 35116/18 & COC.64/19 8 (Plumber) in the Industrial Training Department is also NTC in the particular trade with 3 years experience or Diploma in the concerned branch of Engineering or its equivalent qualification as seen from Ext.P12 notification. 8. Having heard the contentions on either side, it is seen that PSC has accepted the position that Diploma in Mechanical Engineering is the higher qualification of NTC in the trade of Plumbing for appointment of Tradesman in Plumbing in Technical Education Department. It is relevant to note that Ext.P2 notification was one inviting applications for appointment of Tradesman. The qualification prescribed was NTC in the concerned trade. The petitioners applied for the trade of Plumbing. They are found qualified for the same, accepting their Diploma in Mechanical Engineering as the higher qualification of NTC in Plumbing. 9. In this case the petitioners have undergone the very same test for the posts notified in Exts.P1 and P2 notifications which require the very same qualification as far as NTC is concerned. PSC has not disputed the fact that a common test was conducted for the posts notified in Exts.P1 and P2. The rank list is published without subjecting them to any further test, except verification of certificate. Once the PSC accepted that the Diploma in Mechanical Engineering is the higher qualification of NTC in Plumbing and candidates with such qualification are included in the rank list even for the post of Tradesman (Plumber), as can be seen from Exts.P10 to P12 notifications/rank lists, there is no rationale in not accepting the qualification as the higher qualification of NTC in W.P(C)Nos.16655/18, 35116/18 & COC.64/19 9 Plumbing for appointment in Kerala Water Authority and in rejecting the application of the petitioners. Therefore, when the petitioners are selected and included in Ext.P5 rank list for appointment in the Technical Education Department, there is no justification for rejecting their application for the post of Plumber in the Kerala Water Authority. As pointed out by the petitioners, the Tradesman in Plumbing in Technical Education Department is to assist the students in plumbing work; whereas the Plumbers in Water Authority have to do the plumbing work. 10. The reason stated by the PSC is that the inclusion of the petitioners in the rank list for Technical Education Department was on the basis of the Special Rules. However, no Special Rule is stated to be available in the Kerala Water Authority which stands in the way of the petitioners for inclusion in the rank list for appointment to the post of Plumber. Therefore, in the light of the judgment in _**Jyothi**_ 's case ( _supra_ ) as well the Ext.P8 judgment in Writ Appeal, coupled with the action of the PSC in Ext.P5 rank list, I find that the rejection of application of the petitioners in both these cases is illegal and that they are liable to be included in the rank list at the appropriate place on the basis of their marks. Accordingly, Ext.P6 in W.P.(C) No.16655 of 2018 and Exts.P10 to P13 in W.P.(C) No. 35116 of 2018, memos rejecting the application of the petitioners, are set aside. The respondent Public Service Commission is directed to include the petitioners in the rank list at the appropriate place in accordance with their marks, within a period of one month from the date of receipt of a copy of this judgment. W.P(C)Nos.16655/18, 35116/18 & COC.64/19 10 ## COC.No.64 of 2018 In view of the disposal of W.P(C).Nos.16655/2018 and 35116/2018, this Contempt Case is closed. Sd/- _**(P.V.ASHA, JUDGE)**_ _rkc/rtr_ W.P(C)Nos.16655/18, 35116/18 & COC.64/19 11 ## **APPENDIX OF WP(C) 16655/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GAZATTE NOTIFICATION DATED 30/6/2016 UNDFER CATEGORY NO.164/2016. EXHIBIT P2 TRUE COPY OF THE GAZATTE NOTIFICATION DATED 29/12/2015 UNDER CATEGORY NO.525/2015 EXHIBIT P3 TRUE COPY OF DIPLOMA CERTIFICATE DATED 9/6/2009.** **EXHIBIT P4 TRUE COPY OF THE PRINT OUT OF THE DETAILS OF THE ADMISSION TICKET AVAILABLE IN THE PROFILE OF THE PETITIONER IN THE WEBSITE OF KPSC. EXHIBIT P5 TRUE COPY OF THE RANKED LIST NO.1137/17/DOP UNDER CATEGORY NO.525/2015 WHICH WAS BROUGHT INTO FORCE W.E.F 6/12/2017. EXHIBIT P6 TRUE COPY OF THE PRINT OUT OF MESSAGE APPEARED IN THE PROFILE OF THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE SHORT LIST NO.04/2018/ERXV DATED 24/4/2018 UNDER CATEGORY NO.164/2016. EXHIBIT P8 TRUE COPY OF THE COMMON JUDGMENT DATED 4/8/2015 IN WA 1874/2012 AND 2193/2012. EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 8/11/2017 IN WPC NO. 32075/2017.** EXHIBIT P10 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 31.12.2014 ISSUED BY THE KPSC UNDER CATEGORY NO.681/2014. EXHIBIT P11 TRUE COPY OF THE RANKED LIST NO.777/17/DOD WHICH WAS BROUGHT INTO FORCE W.E.F 9.8.2017 ISSUED BY THE KPSC. EXHIBIT P12 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 30.12.2009 UNDER CATEGORY NO.457/2009 ISSUED BY THE KPSC. EXHIBIT P13 TRUE COPY OF THE RANKED LIST 01/2019/ERXV UNDER CATEGORY NO.164/2016 ISSUED BY THE KPSC. W.P(C)Nos.16655/18, 35116/18 & COC.64/19 12 ## **APPENDIX OF Con.Case(C) 64/2019** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1: TRUE COPY OF THE ORDER IN W.P.(C) NO. 35116/2018 DATED 29/10/2018.** **ANNEXURE 2: TRUE COPY OF THE POSTAL RECEIPT EVIDENCING SENDING OF ANNEXURE 1 ORDER DATED 1.11.2018.** **ANNEXURE 3:** **TRUE COPY OF THE RANKED LIST BROUGHT WEF 1.1.2019 BY THE RESPONDENT HAVING NO:01/2019/ERXV.** W.P(C)Nos.16655/18, 35116/18 & COC.64/19 13 ## **APPENDIX OF WP(C) 35116/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GAZETTE NOTIFICATION NO.164/2016 DATED 30/06/2016 ISSUED BY THE PSC.** **EXHIBIT P2 THE TRUE COPY OF THE GAZETTE NOTIFICATION NO.518/2015 TO 532/2015 DATED 29/12/2015. EXHIBIT P3 TRUE COPY OF THE DIPLOMA CERTIFICATE NO.113464 ISSUED TO THE 1ST PETITIONER. EXHIBIT P4 TRUE COPY OF THE DIPLOMA CERTIFICATE NO.11021066 ISSUED TO THE 2ND PETITIONER. EXHIBIT P5 TRUE COPY THE DIPLOMA CERTIFICATE NO.86020565 ISSUED TO THE 3RD PETITIONER. EXHIBIT P6 TRUE COPY OF THE DIPLOMA CERTIFICATE NO.103576 ISSUED TO THE 4TH PETITIONER. EXHIBIT P7 TRUE COPY OF THE RANKED LIST FOR THE POST OF TRADESMAN PLUMBING IN PALAKKAD IN THE TECHNICAL EDUCATION DEPARTMENT NO.1137/17/DOP DATED 06/12/2017. EXHIBIT P8 THE TRUE COPY OF THE RANKED LIST NO.1122/17/DOM- CAT.NO.525/2015 DATED 04/12/2017. EXHIBIT P9 THE SHORT LIST NO.04/2018/ERXV CAT.NO.164/2016 DATED 24/04/2018 FOR SELECTION TO THE POST OF PLUMBER IN THE KERALA WATER AUTHORITY. EXHIBIT P10 TRUE COPY OF THE SCREEN SHOT OF THE MESSAGE PUBLISHED IN THE WEBSITE OF PSC OF THE 1ST PETITIONER. EXHIBIT P11 TRUE COPY OF THE SCREEN SHOT OF THE MESSAGE PUBLISHED IN THE WEBSITE OF PSC OF THE 2ND PETITIONER. EXHIBIT P12 TRUE COPY OF THE SCREEN SHOT OF THE MESSAGE PUBLISHED IN THE WEBSITE OF PSC OF THE 3RD PETITIONER. EXHIBIT P13 TRUE COPY OF THE SCREEN SHOT OF THE MESSAGE** W.P(C)Nos.16655/18, 35116/18 & COC.64/19 14 ||**PUBLISHED IN THE WEBSITE OF PSC OF THE 4TH**| |---|---| ||**PETITIONER.**| |**EXHIBIT P14**|**TRUE COPY OF THE JUDGMENT IN WA.NO.1874 OF**| ||**2012 DATED 04/08/2015.**| |**EXHIBIT P15**|**TRUE COPY OF THE JUDGMENT IN WP(C)32075 OF**| ||**2017 DATED 08/11/2017.**| |**EXHIBIT P16**|**TRUE COPY OF THE INTERIM ORDER DATED**| ||**23/05/2018 IN WP(C)NO.16655 OF 2018.**| |**EXHIBIT P17**|**TRUE COPY OF THE RELEVANT EXTRACT OF THE**| ||**OLD CURRICULUM OF THE TRADE OF PLUMBER**| ||**UNDER THE APPRENTICE TRAINING SCHEME OF THE**| ||**GOVERNMENT OF INDIA.**| |**EXHIBIT P18**|**TRUE COPY OF THE RELEVANT EXTRACT OF THE**| ||**CURRICULUM REDESIGNED IN THE YEAR 2014 OF**| ||**THE TRADE OF PLUMBER UNDER THE APPRENTICE**| ||**TRAINING SCHEME OF THE GOVERNMENT OF INDIA.**| |**EXHIBIT P19**|**TRUE COPY OF THE RELEVANT EXTRACT OF THE**| ||**CURRICULUM REDESIGNED IN THE YEAR 2017 OF**| ||**THE TRADE OF PLUMBER UNDER THE APPRENTICE**| ||**TRAINING SCHEME OF THE GOVERNMENT OF INDIA.**| |EXHIBIT P20|TRUE COPY OF THE RANK LIST NO.01/2019/ERXV-| ||Cat.NO.164/2016 DATED 1.1.2019.|