Shinto K. Eapen v. State of Kerala and Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936** **OP(KAT).No. 176 of 2014 (Z)** **----------------------------------------** ## **O.A.NO. 2769 OF 2013 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **-----------** ## **PETITIONER :** **---------------------** **SHINTO.K. EAPEN, AGED 31 YEARS, S/O. SHRI.K.A.EAPEN, KUMBALATTUKUNNEL HOUSE, PULIANMALA P.O., COMPANYPADI, IDUKKI - 685 515.** **BY ADVS.SRI.B.RAGUNATHAN SRI.G.GOPALAKRISHNA PILLAI SRI.M.SALIM SRI.R.SRINATH SRI.VIPIN VARGHESE** ## **RESPONDENTS :** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 695 001.** **R1 BY SENIOR GOVERNMENT PLEADER SRI.SYAMKUMAR R2 BY SRI.P.C.SASIDHARAN, SC, KPSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 20-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **OP(KAT).No. 176 of 2014 (Z)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **--------------------------------------** **EXHIBIT P1 : TRUE COPY OF THE ORDER DATED 04.12.2013 OF THE HON'BLE KAT.** - **EXHIBIT P2 : TRUE COPY OF OA.NO.2769 OF 2013 ALONG WITH ANNEXURE A1 TO A6.** - **EXHIBIT P3 : TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY JUDICIAL FIRST CLASS MAGISTRATE KATTAPANA, IDUKKI DATED 20.12.2013.** - **EXHIBIT P4 : TRUE COPY OF THE POST GRADUATE DEGREE CERTIFICATE ISSUED BY UNIVERSITY OF KERALA DATED 18.02.2014.** - **EXHIBIT P5 : TRUE COPY OF LETTER DATED 12.12.2013 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P6 : TRUE COPY OF THE RANK LIST DATED 20.03.2014 PUBLISHED BY 2ND RESPONDENT (RELEVANT PORTION)** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** ## **NIL** ## **//TRUE COPY//** ## **P.A.TO JUDGE.** Msd. ## **K.M.JOSEPH & A.K.JAYASANKARAN NAMBIAR, JJ.** **........................................................** OP(KAT) No.176 of 2014 **........................................................** Dated this the 20[th] day of June, 2014 ## **J U D G M E N T** ## **K.M.JOSEPH, J.** The petitioner was a candidate for the post of Assistant Public Prosecutor Grade-II, pursuant to Annexure -A3 notification published on 29.7.2011 by the Public Service Commission. The last date for receipt of the applications mentioned was 31-8-2011. The petitioner filed O.A.No.2769 of 2013, from which the Original Petition arises, on the basis of the provision in Annexure -A3 which essentially contemplates three years practice as a Lawyer to be reckoned with effect from 1[st] January 2011. Rule 7 of the Special Rules enacted in respect of the post in question reads as follows: “7. Qualification.- For appointment as Assistant Public Prosecutor Grade II, a candidate shall possess the following qualifications, namely:- (i) Must be a Graduate in Law and must not have completed 35 years of age on the first day of January of the year in which applications are invited and (ii) Must be member of the Bar and must have had not less than three years of active practice in Criminal Courts on the 1[st] day of January of the year in which applications are invited.” 2. The petitioner passed LLB in the year 2007 and enrolled as 2 OP(KAT) No.176 of 2014 an Advocate only on 20.07.2008. As on 01.01.2011 he did not have three years practice as a Lawyer. But he had completed three years practice before the last date published in the notification. The petitioner challenges the Rule itself which prescribes the possession of qualification of three years practice as on the first day of the year of recruitment. The challenge was turned down by the Tribunal on the ground that the Rule essentially manifests a policy decision and it cannot be described as arbitrary or discriminatory. Reliance is placed on the judgment of the Division Bench of this Court in **Pankajaksy and Others v. George Mathew and Others** (1987 (2) KLT 723) wherein it is held as follows: “14. In Kerala we have Government Schools under the control of the Government and aided and recognised schools covered by the Kerala Education Act and the Rules. The headmasters in all these schools practically discharge the same duties. The Government was therefore right when it decided to fix uniform qualifications for the headmasters of Lower Primary Schools, whether they be Government Schools or aided or recognised schools. An obligatory test, the Account Test (Lower) was prescribed for the headmasters of Government L.P. Schools by an executive order dated 4.8.1976. Two years thereafter, in 1978, it was held that the same obligatory test should be prescribed for headmasters of aided and recognised schools. The amendment to Rule 45-B in 1978 is thus not open to challenge and is not challenged. The teachers in Government Schools were given exemption for two years. 3 OP(KAT) No.176 of 2014 The same period of exemption was granted under Rule 45-B (3) in 1978. That also cannot be in challenge and is not in challenge. Thereafter departing from the rules applicable to headmasters of Government schools, the teachers in aided and recognised schools alone were given extension of exemption continuously from 1980, for eight years, a favoured treatment which has no rational nexus with the object sought to be achieved namely, to issue competency, efficiency and efficacy in headmasters, as the head of educational institutions. Proficiency of the headmasters of Lower Primary Schools should be the same, whether the school is Government or aided or recognised. Nobody has a case, and none can have any, that the headmasters of aided and recognised L.P.School need not be as efficient as the headmasters of Government L.P.Schools. If so, the dilution of the essential qualifications and the continuous extension granted from 1978 specially to the aided and recognised school headmasters cannot have judicial approval as a reasonable classification. It is in fact, no classification at all, much less any reasonable classification. It is in fact, no classification at all, much less any reasonable classification. In this view, the impugned exemption from 1986 to 1988 is plainly violative of Article 14 of the Constitution.” 3. The Tribunal also reasoned that in regard to the qualification regarding age, the Kerala Government have issued Public Services (Date for Determination of Eligibility for appointment Rules, 1977 which say that the qualification regarding the age shall be reckoned with reference to the 1[st] day of January of the year in which applications are invited. Being aggrieved, 4 OP(KAT) No.176 of 2014 petitioner is before us. 4. We have heard the learned counsel for the petitioner Sri.B.Ragunathan, Sri.P.C.Sasidharan the learned counsel for the Public Service Commission and Sri.C.R.Syam Kumar, the learned Government Pleader. 5. The learned counsel for the petitioner would point out that in fact Annexure-A6 provides for general conditions and therein, clause 17 inter alia provides as follows: “17. Qualifications prescribed including experience, for a post shall be one acquired by the candidate on or before the last date fixed for receipt of applications for that particular post. The date for determining whether a candidate does possess a particular qualification including experience shall be the last date fixed for receipt of application.” 6. He would submit that, therefore, notwithstanding Annexure -A3, in view of the fact that qualification including experience is to be determined with reference to the last date and the petitioner has attained the said qualification by the last date, he must be treated as qualified. He would further contend that at any rate, the statutory rule which was impugned before the Tribunal was further vulnerable to attack on the ground that it is bereft of 5 OP(KAT) No.176 of 2014 any rationale. He would further submit that the Tribunal erred in relying on the judgment of the Division Bench which turned on the facts before it and he would further submit that it was a clear case where there was no rationale for insisting that a person to be appointed as Assistant Public Prosecutor should exclude the experience which he has gained between the first day of the year in which the recruitment process commenced and the last date of making the application. He would submit that as far as prescription of possession of qualification as to age, with reference to first of the year, it is a different matter altogether and applying the said prescription to a qualification regarding experience was irrational. There is no rationale or fairness in excluding the subsequent experience acquired from the beginning of the year till the last date of making the application. He drew our attention in the following case law: **Pandurangarao etc. v. The Andhra Pradesh Public Service Commission, Hyderabad and Another** (AIR 1963 SC 268), **D.Stephen Joseph v. Union of India and Others** (AIR 1997 SC 2602), **Anil Kumar Gupta and Others v. Municipal Corporation of Delhi and Others** [(2000) 1 SCC 128], **East Coast Railway and Another v. Mahadev Appa Rao and Others** [(2010) 7 SCC 678] and **Maheen v. State of Kerala** (2013 (3) KLT 6 OP(KAT) No.176 of 2014 639). On the strength of the same, he would submit that he is entitled to succeed. Lastly, he would contend that this is a case where, apprehending that he might not be called for the interview for the post, he approached the Tribunal by filing O.A.No.2769 of 2013 to redress his grievance. But he has been interviewed subsequently. Therefore, whatever be the position, he is entitled to be considered for the post. 7. The learned Government Pleader would submit that the court's limited power of judicial review of subordinate legislation is not attracted in this case as the requirement of qualification cannot be treated as irrational. It is essentially a policy decision and it does not fit within the established grounds of judicial review. The learned Standing counsel for the Public Service Commission would also support this by saying that the requirement cannot be treated as irrational. He would rely on the following case laws:- **Rekha Chaturvedi v. University of Rajasthan** (1993 (3) Supplementary SCC 168), **M.A.Maruthy v. State of Karnataka and Others** [(2003) 7 SCC 517), **Sudhir Kumar Consul v. Allahabad Bank** [(2011) 3 SCC 486). As regards the contention that the petitioner was interviewed, it is submitted that he is interviewed on a provisional basis and that by itself cannot confer a 7 OP(KAT) No.176 of 2014 right on him. 8. We would now address the case law. The learned counsel for the petitioner relied on the decision reported in **Pandurangarao etc. v. The Andhra Pradesh Public Service Commission** (AIR 1963 SC 268) wherein it was held as follows:- “ 10. Dealing with this latter argument first, it seems to us that the plea that all the rules must be considered together is entirely misconceived. It is quite clear that in testing the validity of any one of these rules, we will have to consider the true scope and effect of the impugned rule itself and the decision of the question would have to be confined to the relevant considerations in respect of the said rule and no more. Just as the presence of one invalid rule cannot invalidate the other rules which may be valid, so the presence of a member of valid rules would not help to validate an impugned rule if it is otherwise invalid. If, while prescribing relevant tests which must be satisfied by an applicant, the rule had stated that the applicant should satisfy the test of a particular height or colour for instance, -which factors are irrelevant for judicial service- the respondents could not be heard to say that because the other rules are valid, the irrelevant rule about the requirement of the applicants 8 OP(KAT) No.176 of 2014 height or colour must also be treated as valid. If the height or colour of the applicant is wholly irrelevant in making an appointment to a judicial post, it must be treated as irrelevant and invalid though it may have been placed in a code of rules and the rest of the rules my be perfectly valid. Therefore, we cannot accept the argument urged by the learned Solicitor General that the impugned rule cannot and need not be considered by itself but must be treated as a part of a bigger scheme of rules and since the other rules are valid, the impugned rule must also be treated as valid.” That was a case where the court was called upon to consider an argument that Article 14 was violated on the basis that classification was not reasonable. **D.Stephen Joseph v. Union of India** (AIR 1997 SC 2602) related to a case where the Court took the view that the respondents who were holding the post of Junior Engineers and had three years, regular service in the grade and also possessed degree in Electrical Engineering would be entitled to get such promotion to 50% reserved quota and their experience of three years was not to be reckoned from the date of acquisition of the degree in Electrical Engineering. 9. We do not see how the said decision can be adopted in a 9 OP(KAT) No.176 of 2014 case where a statutory rule, as in this case, specifically mandates that three years experience must be computed as on the first day of the year in question. The decision in **East Coast Railway and Another v. Mahadev Appa Rao and Others** [(2010) 7 SCC 678] is essentially relied on to contend that after having conducted the interview, it is not open to the authorities to deny the selection of the petitioner. 10. We do not think that the decision cited is an authority for the proposition that a statutory rule, which is also sought to be enforced by Annexure-A3 conditions, can be permitted to be violated merely because the petitioner was permitted to appear for the interview on a provisional basis. 11.The judgment of the Division Bench of this Court in **Preetha S. v. Secretary** [2012 (2) KHC 302 (DB)] laid down that insofar as postgraduate study in LLM is considered as Bar experience, the period undergone pursuing on Doctoral research can also be treated as Bar experience for the purpose of determining eligibility for selection as a lecturer. In the instant case, the statutory rule postulates practice of three years as on the first day of January 2011 and we do not see how the said decision would 10 OP(KAT) No.176 of 2014 come to the aid of the petitioner in this case. 12. Finally in **Maheen v. State of Kerala** (2013 KLT (3) 639) the Court took the view that an applicant has to possess the prescribed qualification as on the last date fixed for the receipt of applications by the P.S.C. Such qualification that an applicant possesses, has to continue to run with that person during the selection process, joining the service, and even while holding the post to which the incumbent was selected and appointed. While considering the applicability of the said ruling, we also answer the argument based on Annexure-A6 general conditions. It is true that in the general conditions, it is provided that experience must be possessed as on the last date of making the application. It is correctly pointed out by the learned Standing counsel for the Public Service Commission, when the special conditions are provided in Annexure-A3 specifically providing that qualification of experience must be possessed as on the first day of January 2011, necessarily those conditions must prevail. The Statutory rule in Annexure -A3 mandates that a candidate must produce a certificate showing that he had active practice in Criminal Courts as on the first day of January 2011. This prescription is intended to facilitate appointment in strict conformity with the rule. Therefore, we 11 OP(KAT) No.176 of 2014 cannot give importance to the general conditions so as to overwhelm the statutory provisions or the special conditions (Annexure- A3). If the contention is accepted it would tantamount to perpetuating a fraud on the Public, that is those candidates who would if the statutory rule was intended to be violated have applied. 13. The next argument is based on a challenge to the rule itself. The subordinate legislation can be challenged, no doubt on the ground that it would offend any constitutional provision. It can be challenged on the ground of it being ultra vires the parent legislation. A statutory rule made under a parent legislation must also bow down to the dictates any other parent legislation. 14. Apart from the judgment rendered by this this Court referred to by the Tribunal, we also refer to the following statement of law laid down in the decision of the Apex Court in ## **Supreme Court Employees Welfare Association v. Union of** **India** (AIR 1990 SC 334): “106. The true position thus appears to be that, just as in the case of an administrative action so also in the case of subordinate legislation (whether made directly under the Constitution 12 OP(KAT) No.176 of 2014 or a Statute), its validity is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of the laws of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.” ## 15. In **Sudhir Kumar Consul v. Allahabad Bank** [(2011) 3 SCC 486), the Apex Court took the view that it is well settled law that the vires of any subordinate legislation can be challenged on the ground that it is arbitrary, unreasonable and offends Article 14 of the Constitution. A rule can be challenged as being arbitrary not merely on the ground that the court perceives it to be a wrong decision. No doubt, if a rule is so unfair, that it cannot square with the mandate of Article 14 it may be declared void. In this case we are confined with the question as to prescription of experience with reference to the 1[st] day of January. It may be true that in a given case, a person may fall foul of the requirement in the rule and complaining injustice but constitutionality of law to be considered with reference to the consequences that may be reached to any individual as such or in any particular case. In choosing the first day of the year of recruitment, we cannot say that in itself it is so arbitrary that it invites interference at the hands of the court. It is apparently to avoid any kind of absence of 13 OP(KAT) No.176 of 2014 clarity that the rule provide for the first day of the year itself in which recruitment is made. In such circumstances, we do not see any reason to interfere with the order of the Tribunal. The Original Petition is dismissed. **K.M.JOSEPH JUDGE** **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/