W.P.(C) Nos. 20771/2008, 21783/2008, 24150/2008 and 28075/2008 (Savitha P. v. State of Kerala & Others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930** **WP(C).No. 20771 of 2008(W)** **-----------------------------------------** ## **PETITIONER(S):** **------------------------** **1. SAVITHA P., KANNANKARA PUTHEN VEEDU, ANNOOR AMPALATHUMKALA P.O., EZHUKONE, KOLLAM - 691 505.** ## **2. SHERLY K.C.,** **VATTAPPARAMBIL SHERLY BHAVAN, KOKKADU, KOTTARAKKARA, KOLLAM - 691 538.** **BY ADV. SRI.ELVIN PETER P.J.** **RESPONDENT(S):** **---------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM.** **3. THE PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM.** ## ***ADDL.R4 TO R7 ARE IMPLEADED:** **R4. JISHA MATHEW, VATTOM HOUSE, KUDIYANMALA P.O., NADUVILA VIA, KANNUR – 670 582.** _Kss_ **..2/-** **...2.....** ## **WPC.NO.20771/2008 W** **R5. LIXY JOHN, PERIYAPPURAM HOUSE, KALLANODE P.O.,KAKKAYAM VIA, KOZHIKODE – 673 615.** **R6. REMYA M.S., GOVINDA MANGALAM, KAWADIAR P.O., TC 411310, THIRUVANANTHAPURAM-695 003.** **R7. SREEJA K.P., PULIKKAL HOUSE, POONGODE P.O., THUVOOR, MALAPPURAM.** - **(*ADDL.R4 TO R7 ARE IMPLEADED AS PER ORDER DTD. 15/12/2008 IN I.A.NO.11331/2008)** **GOVERNMENT PLEADER SMT. T.B.REMANI FOR R1 & R2 ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R3 SRI.S.B.PREMACHANDRA PRABHU FOR R4 SRI.M.RAMESH CHANDER FOR R5 SRI.RAM MOHAN FOR R6 SRI.V.B.PREMACHANDRAN FOR R7** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/12/2008 ALONG WITH WPC.NO.21783 OF 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **ANTONY DOMINIC, J. ==============** ## **W.P.(C) NOs. 20771, 21783, 24150 & 28075 OF 2008 ================================** ## **Dated this the 15[th] day of December, 2008** ## **J U D G M E N T** In these writ petitions, the complaint is regarding the selection that was conducted by the PSC to the post of Vocational Instructor in Clothing and Embroidery. 2. In view of the common grievance highlighted by the petitioners, these writ petitions are disposed of by this common judgment and for the sake of convenience, I shall refer to the facts as pleaded in WP (C) No.20771/08. 3. The prayer sought in this writ petition is to quash Ext.P4 to the extend it has included additional respondents 4 to 7 at rank No.1,6,7 and 8. 4. Ext.P1 is a notification that was published by the PSC inviting applications to the post of Vocational Instructor, Clothing and Embroidery. Filling up of the post is governed by Kerala Vocational Higher Secondary Education Subordinate Service Rules, 2004 (hereinafter referred to as Special Rules for short). 5. For the post of Vocational Instructor, Clothing and Embroidery, the method of recruitment is by promotion, by transfer and by **WPC 20771, 21783, 24150 & 28075/08** **:2 :** direct recruitment. The qualification prescribed for the post reads as follows: |Clothing<br>and<br>Embroidery|By promotion<br>By Transfer and by<br>direct recruitment|A pass in Vocational<br>Higher<br>Secondary<br>Course in Clothing and<br>Embroidery conducted<br>by Government of<br>Kerala or its equivalent<br>with B.Sc Home Science<br>awarded by any of the<br>Universities in Kerala or<br>an<br>equivalent<br>qualification<br>OR<br>Pre-Degree awarded by<br>any of the Universities<br>in Kerala or its<br>equivalent with Diploma<br>in Costume Designing<br>and Dress Making<br>awarded<br>by<br>the<br>Department<br>of<br>Technical Education.| |---|---|---| 6. In Ext.P1 notification, qualifications as provided in the Special Rules have been mentioned. Responding to Ext.P1, petitioners submitted their applications and by Exts.P2 and P3, they were called for written test. The PSC finalised the rank list and Ext.P4 is the ranked list that was **WPC 20771, 21783, 24150 & 28075/08** **:3 :** published. In the ranked list, petitioners have been ranked at Sl.No.12 and 11 and respondents 4, 5, 6 and 7 were included at Rank Nos. 1,6,7 and 8. 7. In this writ petition petitioners contend that respondents 4 to 7 do not possess the qualifications prescribed in the Special Rules and mentioned in Ext.P1. It is also their case that the 3[rd] respondent had not issued any order declaring M.Sc in Home Science as equivalent to pass in Vocational Higher Secondary Course in Clothing and Embroidery. It is stated that it is despite the absence of such declaration, the 3[rd] respondent has treated respondents 4 to 7 who are having M.Sc in Home Science and Pre Degree as eligible and included them in the ranked list at Sl.Nos.1, 6,7 and 8 respectively. According to them, even as on 8/6/05, the last date for submitting applications in response to the notification, no such declaration of equivalency was made and therefore treating the aforesaid respondents as eligible and their inclusion in the rank list is illegal. 8. In WP(C) No.28075/08 also, the challenge is against the inclusion of the aforesaid respondents 4 to 7 at Sl No.1,6,7 and 8 in the ranked list referred to above. 9. In WP(C) No.21783/08, the petitioner is a scheduled caste **WPC 20771, 21783, 24150 & 28075/08** **:4 :** candidate. He is challenging the inclusion of additional 3[rd] respondent at Sl.No.1 of the supplementary list. 10. In so far as WP(C) NO.24150/08 is concerned, she is challenging the inclusion of the 4[th] respondent, who is also the 4[th] respondent in WP(C) Nos.20771/08 and 28075/08. The petitioners in these three writ petitions also impugne the inclusion of the aforesaid respondents on the ground that they did not possess the qualifications prescribed in the notification published by the PSC in terms of the Special Rules referred to above. 11. Counsel for the petitioners relied on the judgments of this court in **Sobha Menon v. Kerala Public Service Commission(1994 (1) KLT 986), Lalitha Bai v. Public Service Commission (1999(2) KLT 894), Union of India v. Chandrasekharan (1998(3) SCC 694) and Madan Mohan Sharma v. State of Rajasthan (2008(3) SCC 724)** to contend that although the PSC has the competence to equate qualifications, any such equivalency shall be done before the issuance of the notifications and that after the notification is issued, if the PSC decides on such equivalency, the option open to the PSC is to cancel the notification and issue a fresh one. **WPC 20771, 21783, 24150 & 28075/08** **:5 :** 12. On the other hand, the standing counsel for the PSC mainly contended that the Special Rule itself recognised equivalent qualifications and it was therefore permissible for the PSC to equate such qualifications. He also relied on the judgments in WP(C) Nos.12356/07 and 12969/07 as confirmed in WA Nos.2379/07 and 1852/07. In addition to this, he also relied on the Division Bench judgments in **Viswam v. Kerala Public Service Commission (2001(3) KLT 170)** and the Apex Court judgment in **Jyoti K.K & Ors. v. Kerala Public Service Commission (JT 2002 (Suppl.1) SC 85)** . According to the standing counsel for the PSC, by resolution dated 12/5/2008, it was resolved to accept applications submitted by those who possess MSC in Home Science with Pre Degree. It is stated that it was in pursuance to this resolution that the PSC accepted the application submitted by the party respondents. 13. On behalf of the party respondents, it was contended that the writ petitioners did not have the locus standi to challenge the select list. It is stated that at best the consequence of the decision of the PSC is that the field of choice is enlarged and that even if it is so, the petitioners who are even otherwise eligible cannot complain that they are affected by such decision. It was also argued that even if relief is granted as sought for, **WPC 20771, 21783, 24150 & 28075/08** **:6 :** petitioners are not benefited. It was also contended that so long as recruitment rule provided for acceptance of equivalent qualifications, the decision of the PSC cannot be faulted. 14. Party respondents also relied on the judgment of the Division Bench in **Viswam v. Kerala Public Service Commission** ( **2001(3) KLT 170)** , relied on by the standing counsel for the PSC and also the judgment in **Basic Education Board, U.P v. Upendra Rai** ( **2008(3) SCC 432)** to contend that equation of qualification is fully within the domain of the appointing authority and that such a decision is not ordinarily subject to judicial review. 15. The 6[th] respondent in WP(C) No.20771 and 28075 referring to the counter affidavit, contended that only those who lost opportunity to be considered as a consequence of the resolution of the PSC can maintain a writ petition challenging the ranked list. It was also contended that if the selection process is vitiated for any reason, the whole selection has to be held to be vitiated and that in that event also, according to them, the petitioners are not benefited in any manner. 16. From the submissions made, what emerges is that neither of the parties are disputing the competence of the PSC to equate a **WPC 20771, 21783, 24150 & 28075/08** **:7 :** qualification with what is prescribed in the recruitment rule. In fact, from the recruitment rule itself, it can be seen that qualification equivalent to the Vocational Higher Secondary Course in Clothing and Embroidery or Pre Degree is recognised in the Special Rules. However, the question that arises is at what stage of the proceedings, can the PSC equate a qualification. The last date for submitting applications specified in the notification is 8/6/05. Even according to the Standing counsel for the PSC, the resolution to accept applications submitted by those having M.Sc Home Science with Pre Degree was taken by the PSC only on 12/5/2008. Therefore, the resolution equating the qualification was taken almost three years after the last date of submitting applications. In my view, it is not permissible for the PSC to adopt such a course. As already found, even though it is not in dispute that the PSC is competent to equate qualifications, such equation should take place before the issuance of the notification and the same should find a place in the notification. Only in such an event can candidates who are possessing the equated qualification can make their applications. On the other hand, what the PSC in this case has done is, long after the applications were received, they have equated qualifications and treated the aforesaid party respondents as qualified. It **WPC 20771, 21783, 24150 & 28075/08** **:8 :** is on that basis alone they were included in the ranked list, and this is impermissible. 17. This position is fully supported by the judgments relied on by the counsel for the petitioners. In **Sobha Menon v. Kerala Public Service Commission (1994(1) KLT 986)** , this Court interfered with the action of the PSC on the ground that such subsequent equivalence of the qualification would prejudice various prospective applicants who might not have applied since the notification did not provide for any alternate qualification. Similarly in the decision reported in **Lalitha Bai v. Public Service Commission(1999(2) KLT 894)** , a Division Bench of this Court held that any such equivalency can only be of prospective effect and cannot affect the notifications that are already issued. 18. Learned counsel for the petitioners also relied on the Apex Court Judgment in **Madan Mohan Sharma v. State of Rajasthan (2008(3) SCC 724)** wherein para 12, it has been held as follows: As per the circular which was obtaining at the time when the advertisement was issued dated 24.7.1995, the criteria for selection to the post of teacher Grade III was Secondary Examination though this was changed during the pendency of the advertisement. Subsequent amendment of the Rules which was prospective cannot be made retrospective so as to make the selection on the basis of the rules which were subsequently amended. If **WPC 20771, 21783, 24150 & 28075/08** **:9 :** this was to be done, then the only course open was to recall Advertisement No.1 of 1996 and to issue fresh advertisement according to the Rules which had come into force. Secondly, this was not done and erroneously the authorities made the amended Rules applicable and proceeded with the selection which resulted into litigation and ultimately Radhey Shyam Sharma succeeded in that litigation and it was held that the selection should be made as per Secondary Examination marks, the criteria which was prevalent at the time when the advertisement was issued. 19. Although, it is pointed out by the standing counsel for the PSC that this judgment deals with the alteration of selection criteria, in my view, it hardly makes any difference. The Apex Court has pointed out at what stage can alteration be made and it has been held that once selection process is initiated, the specified criteria cannot be altered and that if criteria is to be altered, the option available is to cancel the notification and issue a fresh one. In my view, law laid down by the Apex Court fully applies to the facts of this case. 20. As already noticed, the standing counsel for the PSC invited my attention to the judgment of the learned Single Judge in WP(C) No.12356/07 and 12969/07. In that judgment, after referring to the facts of the case, the learned Judge declined to interfere on the basis that though subsequent to the issuance of the notification, the PSC by its **WPC 20771, 21783, 24150 & 28075/08** **:10 :** decision had restricted the field of choice, but not enlarged the same as in this case and on that reasoning, the learned Judge held that the decision of the PSC did not cause any prejudice to the persons, who had filed the writ petition as they were eligible even by the decision restricting the field of choice. 21. This reasoning of the learned Judge is obvious from para 7 of the judgment, the relevant portion of which is extracted below for reference. But, by the impugned order, the Public Service Commission has introduced a restriction, stating that certificates issued by the Central or State Government Departments and the institutions mentioned therein alone will be accepted. Persons like the petitioners, who are already having such certificates are not really affected. Candidates who have acquired qualifications from other institutions, not covered by the order of the Public Service Commission, alone are affected adversely. Therefore, the petitioner being persons not aggrieved, cannot challenge the impugned order of the Public Service Commission. By the present order, the field is further restricted, which, in effect, restricts the number of candidates. It is a decision favourable to the petitioners, who are qualified candidates. Therefore, I find no reason to interfere with the impugned order issued by the Public Service Commission, at the instance of the writ petitioners. This judgment of the learned Judge was confirmed by the Division Bench in WA Nos.1852 and 2379/07. **WPC 20771, 21783, 24150 & 28075/08** **:11 :** 22. In my view, unlike the case dealt with by the learned Judge where by the decision of the PSC the field was restricted, in this case consequence on the resolution passed by the PSC on 12/5/2008, the field was enlarged. Therefore, the reasoning adopted in the judgments referred to above can have no application. 23. So far as the judgment in **Viswam v. Kerala Public Service Commission (2001(3) KLT 170)** relied on by the counsel for the PSC is concerned, the decision therein turned on the interpretation of Rule 13 of Kerala State and Subordinate Service Rules and therefore, in my view cannot be relied on. In so far as Jyotis case **(JT 2002(Suppl.1) SC 85)** is concerned, it was contended that the judgment is based on the principle that acquisition of a superior qualification it pre -supposess the acquisition of the possession of the lower qualification. In my view that judgment cannot be made use of in this case. As already noticed, what has been decided to be adopted is M.Sc Home Science with Pre Degree. A reading of the Special Rules show that the M.Sc cannot be considered as a qualification superior to pass in Vocational Higher Secondary Course in Clothing and Embroidery included in the Special Rules. If that be so, the law laid down by the Apex Court in Jyotis case will be of no assistance to **WPC 20771, 21783, 24150 & 28075/08** **:12 :** sustain the ranked list. 24. Now what remains are the contention raised by the party respondents. On the question locus standi of the petitioners, as already noticed, this contention was raised on the basis that the petitioners are not affected and that only those who were denied opportunity consequent on the resolution of the PSC dated 12/5/2008 can maintain a writ petition. As already noticed, going by the Special Rules, petitioners are qualified. Their case is that the party respondents, are unqualified in terms of the Special Rules and the notification and therefore their inclusion in the selection process and in the ranked list is erroneous. Admittedly, by virtue of their inclusion, not only that the field of choice has been enlarged, but also that their chance of getting advised is reduced. If that be so, I cannot accept the plea that the petitioners are unaffected and therefore cannot maintain the writ petition. 25. Similarly, for this reason itself, the further contention that only those who were denied opportunity by virtue of the resolution passed by the PSC on 12/5/2008 can maintain the writ petition. 26. Then what remains is the contention raised by the 6[th] respondent that if the selection process is vitiated, the whole selection list **WPC 20771, 21783, 24150 & 28075/08** **:13 :** is vitiated and rank list should be cancelled as such. In my view that contention also does not merit acceptance. The reason is that it is possible to exclude the ineligible candidates and still maintain the rank list. By virtue of the inclusion of the ineligible candidates, it cannot be said that the inclusion of the petitioners in the rank list is also vitiated for any reason. For that reason, I cannot accept that the whole selection is also vitiated. For these reasons, I am satisfied that the petitioners are entitled to the reliefs sought for. 27. Therefore, the rank list published by the PSC for the post of Vocational Instructor in Clothing and Embroidery (Ext.P4 in WP(C) NO.20771/08 will stand quashed to the extent it includes rank Nos.1,6,7 and 8 and Rank No.1 in the supplementary list of scheduled castes who is the additional 3[rd] respondent in WP(C) No.21783/08. Writ petitions are allowed as above. ## **ANTONY DOMINIC, JUDGE** Rp