Venugopal C. and Satheesh Kumar B.S. v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN`** ``` WEDNESDAY, THE 7[TH] DAY OF JUNE 2023/17TH JYAISHTA, 1945 ``` ``` OP(KAT) NO.194 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN OA (EKM) 1916/2018 DATED 02.06.2022 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (ADDITIONAL BENCH, ERNAKULAM) ``` ## **`PETITIONERS/RESPONDENTS 5 & 6 IN THE O.A:`** ``` 1VENUGOPAL.C, AGED 47 YEARS, S/O.K.CHANDRASEKHARAN PILLAI, INSTRUCTOR, GOVT. COMMERCIAL INSTITUTE, KANCHIYAR, KANCHIYAR P.O., IDUKKI DISTRICT, PIN 685 511, RESIDING AT NANDANAM, THOTTATHRA, ARKKANNOOR P.O., AYOOR, KOLLAM DISTRICT, PIN - 691 533. ``` - `2 SATHEESH KUMAR B.S., AGED 47 YEARS, S/O.B.SATHASIVAN NAIR, INSTRUCTOR, GOVERNMENT COMMERCIAL INSTITUTE, MANNANTHALA, MANNANTHALA P.O., THIRUVANANTHAPURAM DISTRICT, PIN - 695 015. RESIDING AT AMMA VEEDU, KUNDAMUZHI, VILAPPILSALA P.O., THIRUVANANTHAPURAM PIN - 695 573.` ``` BY ADV. SRI.BABU CHERUKARA ``` ## **`RESPONDENTS/APPLICANT/RESPONDENTS 1 TO 4 IN THE O.A.:`** - `1 RAJEESHA K.B, AGED 32 YEARS, POOLAKKAL PARAMBU HOUSE, THOLANUR, PALAKKAD, PIN - 678 722.` - `2 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001.` - `3 DIRECTOR OF TECHNICAL EDUCATION, DIRECTORATE OF TECHNICAL EDUCATION, PADMAVILASOM ROAD, FORT P.O., THIRUVANANTHAPURAM, PIN- 695 024.` OP KAT.No.194/2022 ``` 4KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY IT'S SECRETARY, PATTOM PALACE P.O., THIRUVANANTHAPURAM, PIN 695 004. 5SUMA E.C., AGED 57 YEARS, W/O.VASANTHAKUMAR, INSTRUCTOR (HIGHER GRADE), GOVERNMENT COMMERCIAL INSTITUTE, KALLACHI, KOZHIKODE DISTRICT-PIN 673 506, RESIDING AT NEELAMBARI, NEAR CIVIL STATION, CIVIL STATION P.O., KOZHIKODE DISTRICT, PIN 670 320. BY ADVS. SRI.S. P. ARAVINDAKSHAN PILLAY SMT.N.SANTHA(S-176) SRI.V.VARGHESE(K/514/1996) SRI.PETER JOSE CHRISTO(K/1216/2004) SRI.S.A.ANAND(K/1216/2006) SMT.K.N.REMYA(K/712/2010) SMT.L.ANNAPOORNA(K/952/2013) SRI.VISHNU V.K.(K/001396/2018) SMT.ABHIRAMI K. UDAY(K/001426/2018) SRI.UNNIKRISHNA KAIMAL, SR.GOVERNMENT PLEADER. ``` ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 07.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **ALEXANDER THOMAS & C.JAYACHANDRAN, JJ. -------------------------------------------------------------------** ## **OP KAT No.194 of 2022** _(arising out of the impugned order dated 02.06.2022 in O.A. (Ekm) No. 1916/2018 of Kerala Administrative Tribunal, Thiruvananthapuram (Additional Bench, Ernakulam))_ ## **---------------------------------------------------------------------------Dated this the 7[th] day of June, 2023** ## **JUDGMENT** ## **C.Jayachandran, J.** Whether the qualification stipulated for a post by virtue of statutory rules can be lowered, amended or modified by an executive order is the issue involved in this original petition. The petitioners are respondents 5 and 6 in O.A No.1919/2018 of the Kerala Administrative Tribunal (Ernakulam Bench). The above O.A., along with two other original applications, were disposed of by the Tribunal as per Order dated 02.06.2022, as per which, Annexure-A6 executive order - G.O.(Rt) No.1807/ 2018/H.Edn. dated 04.10.2018 – was set aside and the 3[rd] respondent P.S.C was directed to issue advice in respect of six vacancies - admitted in the reply statement filed on behalf of the 2[nd] respondent (Director of Technical Education) in O.A. - from Annexure-A1 ranked list. OP KAT.No.194/2022 2 ## 2. The facts: Pursuant to Annexure-A4 Gazette notification dated 30.11.2013 for selection to the post of Superintendent in the Technical Education Department, the 3[rd] respondent P.S.C published Annexure-A1 ranked list, which was brought into force with effect from 19.03.2018. The method of appointment, qualifications etc., for the said post are governed by the Special Rules for the Kerala Technical Education Service, as amended vide S.R.O No.1056/2010 dated 08.11.2010 (hereinafter referred to as 'the Special Rules'). Accordingly, the post of Superintendent is to be filled up firstly, by transfer from the category of Instructor in Government Commercial Institutes; and in the absence of qualified candidates from the said category, by direct recruitment. Both for promotion (by transfer appointment) and direct recruitment, the educational qualification prescribed as per the Special Rules is a Bachelor's Degree in Commerce with not less than 55% marks from a recognised University. A qualification in Type writing English (Higher) and Malayalam 3 OP KAT.No.194/2022 (Lower), coupled with Shorthand English (Higher) and Malayalam (Lower) and a further qualification in Computer Word Processing is also common to both methods of appointment. In the case of promotion, an added qualification of three years experience in the post of Instructor is also stipulated. Annexure-A3 is the relevant extract of the Special Rules. A few candidates, who were not apparently qualified in terms of the Special Rules, filed representations before the Government to dilute the qualifications prescribed, on the premise that the stipulation of 55% marks in B.Com affect their promotional opportunities. The Tribunal, as per Annexure-A5 order dated 20.10.2016 in O.A. (Ekm) No.1552/2016, directed the Government to pass orders on the representations within three months. Accordingly, the Government issued Annexure-A6 G.O dated 04.10.2018 modifying the educational qualification as, a Bachelor’s Degree in Commerce with not less than 50% marks (as against the 55% prescribed in Annexure-A3 Special Rules) or Masters Degree in Commerce. A reading of Annexure-A6 G.O would OP KAT.No.194/2022 4 indicate that stipulating 55% marks in Commerce deprives the opportunity of promotion to several employees, who deserve promotion otherwise and that the Supervisory posts lying vacant, seriously affect the functioning of the Commercial Institutes, wherefore the G.O. mitigating the educational qualification was necessitated. Annexure-A6 also directs provisional promotion to be given from the seniority list prepared on the basis of the amended qualification in Annexure-A6 as per Rule 9(a)(i), Part II, KS&SSR and they are to be regularised, once the Special Rules are amended. The applicant, who was Rank No.2 in the supplementary list for Scheduled Caste vide Annexure-A1 ranked list, filed the subject O.A. contending that Annexure-A6 is illegal and arbitrary, since it seeks to override the provisions of the Special Rules by way of an executive order and sought to set aside the same. 3. The 2[nd] respondent, Director of Technical Education filed reply/counter statement contending that a proposal for dilution of the educational qualification was made from his OP KAT.No.194/2022 5 office, pursuant to instructions in this regard by the Government for the purpose of examining the possibility of introducing a saving clause in the Special Rules for the benefit of the Instructors working in the Government Commercial Institutes as on 07.11.2010, the date on which the then existing Special Rules came into force. It was further contended that Annexure-A6 order was issued in compliance of the Order of the Tribunal in O.A.No.1552/2016. To sustain Annexure-A6, Rule 39 of the KS&SSR was also pressed into service. 4. Additional respondents 4 to 6 filed reply/counter statements contending that they have passed B.Com and M.Com Degree, however without securing 55% marks for B.Com Degree. They are also possessed of other technical qualifications prescribed. As per Annexure-R4(a), the 2[nd] respondent recommended amendment of the qualifications prescribed for the post of Superintendent. A committee was constituted for amending the Special Rules in the year 2014. There was a submission before the Committee that direct OP KAT.No.194/2022 6 recruitees have no experience and that experience is a must for the head of the Institution, wherefore teachers must be given a chance of promotion, for which Rules are to be modified. Apart from modifying the qualification, a proposal was made in the draft amendment of the Special Rules to prescribe a ratio of 3:1 for by transfer appointment and direct recruitment. As per the Special Rules, which existed prior to the amendment of the year 2010, the additional respondents were eligible for promotion. It is the amendment of the Special Rules effected in the year 2010, which stipulated 55% marks for B.Com Degree, thereby closing the doors for promotion for several employees serving as Instructors. Realising the necessity for amendment in the case of promotees, the amendment was proposed. On such premise, the said respondents sought for dismissal of the O.A. 5. On an analysis of the rival contentions, the Tribunal, vide the impugned Order dated 02.06.2022, set aside Annexure-A6 order, taking stock of the settled legal position that the statutory rules cannot be amended or modified by an OP KAT.No.194/2022 7 executive order like Annexure-A6. 6. Heard Sri.Babu Cherukara, learned counsel for the petitioners and Sri.Unnikrishna Kaimal, learned Senior Government Pleader for respondents 2 and 3 and Sri.P.C.Sasidharan on behalf of the 4[th] respondent P.S.C. 7. Having perused the records produced and the impugned judgment and having heard the learned counsel appearing for the respective parties, we find no reason to interfere with the Order impugned of the Tribunal. It is not disputed that the educational qualification prescribed as per the Special Rules stipulates a Bachelor’s Degree in Commerce, with not less than 55% marks from a recognised University for appointment to the post of Superintendent for both methods of recruitment, that is to say, by way of transfer and direct recruitment. A perusal of Annexure-A6 would indicate that the same is only a Government Order, as per which, the educational qualification was diluted by stipulating 50% marks in Commerce. That apart, the G.O. also purports to add an additional qualification of M.Com, as a substitute to the OP KAT.No.194/2022 8 Bachelor’s Degree in Commerce. It is clear from Annexure-A6 that the Special Rules have not been amended, but the same is only contemplated. Annexure-A6 also directs provisional promotion to be made, which is to be regularised upon amendment of the Special Rules. The exercise undertaken is surely impermissible in law. It is trite that a field occupied by statutory rules cannot be modified/amended/altered by virtue of an executive order in the nature of Annexure-A6 G.O. [see in regard, 1) **Delhi Development Authority v. Joginder S.Monga** – **(2004) 2 SCC 297** and 2) **Rakhi Ray and Others v. High Court of Delhi and Others - (2010) 2 SCC 637** ]. We, therefore confirm the finding of the Tribunal that Annexure-A6 is bad in law and the same being consequentially set aside. Going by the judgment in **Rakhi Ray (supra)** the Honourable Supreme Court held that policy decisions cannot override the stipulations in statutory rules (see paragraphs 17 and 20 of the judgment). Once Annexure-A6 is set aside, the resultant position is that the appellant remained ineligible for want of educational qualification as prescribed in the Special OP KAT.No.194/2022 9 Rules and therefore, they cannot stake any claim for appointment by transfer to the post in question. 8. We also cannot appreciate the contention raised in Ground (5) of the Original Petition on the alleged illegality in reporting six vacancies to be filled up from Annexure-A1 ranked list. In this regard, the petitioners rely on AnnexureR4(e) G.O. dated 28.12.2017, an order passed in their representations to dilute the educational qualifications, which directed vide clause (iv) that the existing vacancies need be reported to P.S.C only after the amendment proposed to the Special Rules. We notice that as per interim order dated 04.03.2021, the Tribunal directed the 2[nd] respondent Director to report six provisional vacancies to the post in question, which were duly complied with. The same is not subjected to any challenge at the instance of the 2[nd] respondent, or for that matter by the Government. The said contention is therefore rejected. 9. One final contention raised by the petitioners vide Ground (8) of the Original Petition is to the effect that the OP KAT.No.194/2022 10 petitioners, by virtue of their Post Graduate Degree in Commerce are more qualified than the educational qualifications stipulated in the Special Rules, wherefore they should have been considered for appointment by transfer. We discount the said contention for reasons more than one. The qualification stipulated is a Bachelor's Degree in Commerce with not less than 55% marks. Even if it is taken that a Post Graduate Degree in Commerce would imply the qualification of a degree in Commerce, still the qualification prescribed in the Special Rules is not merely Bachelor's Degree in Commerce, but also with “not less than 55% marks on the same”. This requirement cannot be construed as implicit in the Post Graduate Degree. The issue was considered by the Honourable Supreme Court in **Zahoor Ahmad Rather and Others v. Sheikh Imtiyaz Ahmad and Others [(2019) 2 SCC 404]** . The Honourable Supreme Court found in paragraph No.10 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 cannot be adopted. Distinguishing the OP KAT.No.194/2022 11 dictum laid down in **Jyoti K.K. v. Kerala Public Service Commission [(2010) 15 SCC 596],** the Honourable Supreme Court held thus: _“22. …...............The decision in Jyoti KK turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily pre-supposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The state as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the state, as the recruiting authority, to determine. The decision in Jyoti KK turned on a specific statutory rule under which the holding of a higher qualification could pre-suppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench of the High Court was justified in reversing the judgment of the learned Single Judge and in coming to the 10 id at page 177 conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision of the Division Bench.”_ 10. We make it clear that this judgment will not preclude the rule making authority to effect amendment of the statutory rules in the manner known to law. OP KAT.No.194/2022 12 We find little merit in this appeal and the same is therefore dismissed. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** ww ## **`APPENDIX OF OP(KAT) 194/2022`** ## `PETITIONERS’ ANNEXURES:` ``` ANNEXURE A1 IN EXHIBIT P1 ``` ``` TRUE COPY OF THE RANKED LIST NO.221/18/SSVII (CATEGORY NO.457/2013)W.E.F.19.03.2018. ``` ``` ANNEXURE A2 IN EXHIBIT P1 ``` ``` TRUE COPY OF APPOINTMENT CHART FOR CATEGORY NO.457/2013, DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE P.S.C. ``` ``` ANNEXURE A3 IN EXHIBIT P1 ``` ``` TRUE COPY OF THE RELEVANT EXTRACT OF SPECIAL RULES FOR THE KERALA TECHNICAL EDUCATION SERVICE, AS AMENDED AS PER SRO NO.1056/2010 DATED 08-11.2010. ``` ``` ANNEXURE A4 IN TRUE COPY OF THE RELEVANT EXTRACT OF EXHIBIT P1NOTIFICATION DATED 30.11.2013 FOR CATEGORY NO.457/2013. ``` ``` ANNEXURE A5 IN EXHIBIT P1 ``` ``` ANNEXURE A6 IN EXHIBIT P1 ``` ``` TRUE COPY OF THE ORDER DATED 20.10-2016 IN O.A. (EKM)1552/2016 OF THIS HON'BLE TRIBUNAL. TRUE COPY OF THE G.O.(RT) NO.1807/2018/H.EDN. DATED 04-10-2018. ``` ``` ANNEXURE R4(A) IN TRUE COPY OF LETTER NO.EGI/50027/2010/DTE EXHIBIT P4DATED 13-03-2012 ISSUED BY THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. ``` ``` ANNEXURE R4(B) IN TRUE COPY OF ORDER DATED 11-07-2016 OF THE EXHIBIT P4HON'BLE KAT, THIRUVANANTHAPURAM, CAMP SITTING - ERNAKULAM. IN O.A. NO.1543/2016. ``` ``` ANNEXURE R4(C) IN TRUE COPY OF GO (RT) NO.3105/2016/HEDN DATED EXHIBIT P415-11-2016 ISSUED BY HIGHER EDUCATION (L) DEPARTMENT, GOVERNMENT OF KERALA. ``` ``` ANNEXURE R4(D) IN TRUE COPY OF ORDER DATED 20-06-2017 OF THE EXHIBIT P4HON'BLE KAT, THIRUVANANTHAPURAM IN OA 116/2017. ``` ``` ANNEXURE R4(E) IN TRUE COPY OF G.O. (RT.) NO.2355/2017/HEDN EXHIBIT P4DATED 28-12-2017 ISSUED BY HIGHER EDUCATION (L) DEPARTMENT, GOVERNMENT OF KERALA. ``` ## OP KAT.No.194/2022 |`EXHIBIT P1`|`TRUE COPY OF ORIGINAL APPLICATION O.A(EKM)`| |---|---| ||`NO.1916 OF 2018 OF THE KERALA ADMINISTRATIVE`| ||`TRIBUNAL, THIRUVANANTHAPURAM (ADDITIONAL`| ||`BENCH ERNAKULAM) DATED 10-10-2018.`| |`EXHIBIT P2`|`TRUE COPY OF THE IMPLEADING PETITION M.A.`| ||`(EKM)`<br>`NO.2348`<br>`OF`<br>`2018`<br>`IN`<br>`O.A`| ||`(EKM)NO.1916/2018 FILED BY THE ADDL.`| ||`RESPONDENTS 4 TO 6 DATED 10-11-2018.`| |`EXHIBIT P3`|`TRUE COPY OF THE REPLY STATEMENT FILED BY THE`| ||`2ND RESPONDENT IN THE O.A.(EKM) NO.1916 OF`| ||`2018 DATED 28-02-2019.`| |`EXHIBIT P4`|`TRUE COPY OF THE REPLY STATEMENT FILED BY THE`| ||`ADDL. RESPONDENTS 4 TO 6 IN THE O.A.(EKM)`| ||`NO.1916 OF 2018 DATED 3-10-2018.`| |`EXHIBIT P5`|`TRUE COPY OF THE ORDER IN O.A.(EKM)`| ||`NO.1916/2018 DATED 02-06-2022 OF THE HON'BLE`| ||`KERALA`<br>`ADMINISTRATIVE`<br>`TRIBUNAL,`| ||`THIRUVANANTHAPURAM (ADDL.BENCH EKM).`|