W.P.(C) Nos. 31477/2022 & 21220/2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944** ## **WP(C) NO. 31477 OF 2022** ## **PETITIONER:** AJIMON E K AGED 31 YEARS S/o Kesavan, Erupatumpathil House. Arpookara West P.O, Vaikom, Kottayam-686 008. 2 Yedukrishnan V.M. aged 29 years, S/o Mohanan Nair PC. Valeveli, Panavally P.O, Alappuzha -688 526 BY ADV S.ANEESH ## **RESPONDENTS:** - 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. - 2 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LABOUR AND SKILLS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 - 3 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF WATER RESOURCES, GOVERMENT SECRETARIAT, THIRUVANANTHAPURAM695 001. - 4 THE DIRECTOR OF TRAINING, DEPARTMENT OF EMPLOYMENT AND INDUSTRIAL TRAINING, LABOR BHAVAN, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM -695 033. - 5 KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 033. - 6 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM P.O. THIRUVANANTHAPURAM-695 004. BY SRI. RAJEEV, GOVERNMENT PLEADER BY P.C.SASIDHARAN, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.10.2022, ALONG WITH WP(C).21220/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)Nos.31477 & 21220 OF 2022 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944** **WP(C) NO. 21220 OF 2022** ## **PETITIONERS:** 1 VIPIN C. AGED 39 YEARS S/O. C H HARIDASAN, CHATHOTH HOUSE, CHOLA, PATTANNUR PO, KANNUR, PIN-670595. 2 SAJU T P, AGED 39 YEARS, SAJU NIVAS, PORORA P O, MARUTHAI, MATTANNUR (VIA), KANNUR DISTRICT PIN.670702. BY ADV I.S.LAILA ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, 695001. 2 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THULSI HILLS, PATTOM PALACE P.O., THIRUVANANTHAPURAM 695004. 3 KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM 695033 REPRESENTED BY ITS MANAGING DIRECTOR. 4 STATE OF KERALA, DEPARTMENT OF HIGHER EDUCATION. REPRESENTED BY ITS SECRETARY, SECRETARIAT, ANNEXE-2, THIRUVANANTHAPURAM 695001. BY ADVS. P.C.SASIDHARAN P.M.JOHNY BY SRI. SUNILKUMAR KURIAKOSE, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.10.2022, ALONG WITH WP(C).31477/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)Nos.31477 & 21220 OF 2022 3 ## **JUDGMENT** **Dated this the 11[th] day of October, 2022** These writ petitions are filed seeking directions to the respondents to permit the petitioners to participate in further selection process for the post of Operator in the 5[th] respondent Water Authority. 2. Heard the learned counsel for the petitioners, the learned Government Pleader, learned counsel appearing for the Kerala Water Authority as well as the learned counsel appearing for the Kerala Public Service Commission . 3. It is submitted by the learned counsel for the petitioners that the Kerala PSC had invited application to the post of Operator in the Kerala Water Authority by notification dated 16.11.2020.. The prescribed qualification is pass in SSLC or equivalent and National Trade Certificate in W.P.(C)Nos.31477 & 21220 OF 2022 4 Mechanic (Motor Vehicle/Electrician). It is submitted that the petitioners are fully qualified and had applied and appeared for the OMR test and were included in the short list published by the Kerala Public Service Commission. However, it is submitted that the PSC has included persons with B.Tech and Diploma qualifications in the short list prepared by them. It is contented by the learned counsel for the petitioners that the Special Rules do not permit acceptance of equivalent qualifications. It is further contended that Diploma or B.Tech qualifications are not the higher qualifications which pre-suppose the acquisition of National Trade Certificate in Mechanic (Motor Vehicle/Electrician) which is the prescribed qualification. It is submitted that Government Order dated 30.07.2022 was issued declaring that Diploma issued by the Department of Technical Education and B.Tech are W.P.(C)Nos.31477 & 21220 OF 2022 5 higher qualifications which pre-suppose the acquisition of National Trade Certificate. The same has been issued without proper consideration and after the issuance of the notification, which according to the petitioners would not enable the PSC to prepare a ranked list with persons having those qualifications as well. W.P.(C) No.31477/2022 is, therefore filed challenging the shortlist to the extent it includes persons who do not possess the prescribed qualification and W.P.(C) No.21220/2022 is filed challenging Exts. P8 to P10 Government Orders and seeking a declaration that the said Government Orders are not applicable to the selection initiated by Ext.P5 notification dated 16.11.2020. It is submitted that short list to the extent it includes persons with B.Tech and Diploma qualifications and the Government Order dated 30.07.2022 which has been issued without W.P.(C)Nos.31477 & 21220 OF 2022 6 considering the qualifications prescribed for the higher posts are illegal and are arbitrary and are liable to be set aside. 4. A counter affidavit has been placed on record by the Kerala PSC in W.P.(C) No.21220 of 2022. Since these writ petitions were considered together, I have considered the contentions raised in the said counter affidavit as applicable in both the cases. It is submitted in the counter affidavit that the notification was published as Category No.22/2006 and 272/2014. The qualifications were as follows: _“1. A pass in SSLC examination or equivalent qualification._ _2. National Trade Certificate in Mechanic (Motor Vehicle/Electrician).”_ It is submitted that Rule 10(a) ii of Part II of KS & SSR provides for acceptance of qualifications which pre-suppose the acquisition of a lower qualification prescribed for the post. W.P.(C)Nos.31477 & 21220 OF 2022 7 5. It is contended that the decision of the Apex Court in **Jyothi K.K. v. Kerala Public Service Commission and Others** [(2010)15 SCC 596] covers the issue and where the higher qualifications which pre-suppose the acquisition of the lower qualifications prescribed for the post are possessed by candidates, the higher qualification should be treated as sufficient for the post. It is submitted that as far as equivalence of qualifications is concerned, the Special Rules do not mandate the acceptance of equivalent qualifications. It is further submitted that this Court by judgment dated 14.09.2012 in W.P.(C) No.36709 of 2008 relating to the very same post had held that prescribing of an equivalent qualification by the Kerala PSC is bad in law, since the Special Rules do not provide for consideration of any such equivalency. It was, therefore, ordered W.P.(C)Nos.31477 & 21220 OF 2022 8 that the appointments made from the ranked list in force at the relevant time should not be disturbed. For future appointments, the ranked list was directed to be suitably modified by excluding persons who do not possess the prescribed qualifications in terms of the notification. 6. It is submitted that W.A.No.2193 of 2012 was filed against the judgment and the Division Bench directed the Director of Technical Education to examine the matter and give an expert opinion with regard to the alternate qualifications. It is submitted that the Committee of Technical Education Department discussed the issue and it was held that Diploma/Degree in Mechanical Engineering/Automobile Engineering are higher qualifications which pre-supposes the acquisition of NTC in Mechanic (Motor Vehicle). It is submitted that the Division Bench of this Court had W.P.(C)Nos.31477 & 21220 OF 2022 9 considered the decision taken by the Committee and had held that this Court cannot disagree with the stand taken by the Director of Technical Education with the assistance of the Committee. The judgment of the learned Single Judge was, therefore, set aside and the selection was upheld. It is submitted that in the meanwhile, applicability of Rule 10(a)ii of Part II of KS & SSR was incorporated in the notifications after issuance of Circular No.27 of 2014 dated 10.08.2014. 7. It is further submitted that in a common judgment OP(KAT) Nos.319 of 2018 and 466 of 2019, a Division Bench again examined the issue and held that the acceptance of Bachelor's Degree in Mechanical Engineering as a higher qualification presupposes the acquisition of the lower qualification of NTC in Welder trade was legal and proper. It is contended that it is within the W.P.(C)Nos.31477 & 21220 OF 2022 10 competence and jurisdiction of the Kerala Public Service Commission to determine whether the application submitted was a valid one and that what has been done is well within the powers of the PSC. 8. The learned counsel for the petitioners places reliance on the decision of a Division Bench of this Court in **Janardanan K. and Others v. State of Kerala and Others** [2008 (3) KHC 299] to contend that where the qualifications prescribed for the higher posts are not the higher qualifications which have now been accepted by the PSC, the higher qualification cannot be accepted as sufficient. It is contended that the situation is identical in this case as well and that the Special Rules do not provide that the promotion posts are to be manned by the persons having the higher qualifications which are now W.P.(C)Nos.31477 & 21220 OF 2022 11 accepted. Having considered the contentions advanced on either side, I notice that the question with regard to the acceptance of the higher qualification of B.Tech and Diploma has been considered by a Division Bench of this Court, specifically with regard to the post in question. The Division Bench in W.A.No.2193 of 2012 has accepted that the Diploma and Degree in Mechanical Engineering is to be treated as higher qualification which pre-supposes the acquisition of NTC Mechanic (Motor Vehicle). In the above view of the matter, I am of the opinion that the contentions of the petitioners cannot be accepted, the writ petitions fail and the same are accordingly dismissed. **Sd/ANU SIVARAMAN JUDGE** SSK/11/10 W.P.(C)Nos.31477 & 21220 OF 2022 12 ## **APPENDIX OF 31477 OF 2022** ## PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF NOTIFICATION DATED 16.11.2020| |---|---| ||UNDER CATEGORY NO. 211/2020 ISSUED BY THE| ||PSC.| |EXHIBIT P2|TRUE COPY OF NATIONAL TRADE CERTIFICATE| ||ISSUED TO THE 1ST PETITIONER.| |EXHIBIT P3|TRUE COPY OF THE NATIONAL TRADE CERTIFICATE| ||ISSUED TO THE 2ND PETITIONER.| |EXHIBIT P4|TRUE COPY OF SHORT LIST DATED 02.09.2022| ||ISSUED BY THE PSC.| |EXHIBIT P5|TRUE COPY OF THE KERALA PUBLIC HEALTH| ||ENGINEERING SUBORDINATE SERVICE SPECIAL| ||RULES, 1975 ISSUED BY THE GOVERNMENT.| |EXHIBIT P6|TRUE COPY OF SRO NO. 666/79 DATED 21 MAY| ||1979 ISSUED BY THE GOVERNMENT.| |EXHIBIT P7|TRUE COPY OF QUERY UNDER THE RTI ACT DATED| ||25.07.2022.| |EXHIBIT P8|TRUE COPY OF REPLY ISSUED BY THE| ||DIRECTORATE GENERAL OF TRAINING DATED| ||29.08.2022.| |EXHIBIT P9|TRUE COPY OF LETTER DATED 02.07.2022 ISSUED| ||BY THE 4TH RESPONDENT.| |EXHIBIT P10|TRUE COPY OF G.O(RT) NO.1171/2022/HEDN| ||DATED 30.07.2022 ISSUED BY THE 1ST| ||RESPONDENT| |EXHIBIT P11|TRUE COPY OF COMMUNICATION DATED 05.07.2022| ||ISSUED BY THE 3RD RESPONDENT.| W.P.(C)Nos.31477 & 21220 OF 2022 13 ## **APPENDIX OF WP(C) 21220/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE PROVISIONAL NATIONAL TRADE| ||CERTIFICATE OF THE 1ST PETITIONER DATED 28-| ||10-2004| |Exhibit P2|TRUE COPY OF THE NATIONAL TRADE CERTIFICATE| ||OF THE 2ND PETITIONER DATED 20-01-2006| |Exhibit P3|TRUE COPY OF THE NOTIFICATION BASED ON| ||(CATEGORY NO.22/2006), DATED 24/04/2006,| ||ISSUED BY THE 3RD RESPONDENT| |Exhibit P4|TRUE COPY OF THE NOTIFICATION BASED ON| ||(CATEGORY NO. 272/2014), DATED 13/06/2014| ||ISSUED BY THE 3RD RESPONDENT| |Exhibit P5|TRUE COPY OF THE NOTIFICATION TIME| ||(CATEGORY NO.211/2020) DATED 16/11/2020| ||ISSUED BY THE 3RD RESPONDENT| |Exhibit P6|TRUE COPY OF THE G.O.(P) NO.P.86/79/LA &| ||SWD DATED 21-05-1979 (RELEVANT PAGES)| |Exhibit P7|TRUE COPY OF THE RELEVANT PAGES OF| ||WA.NO.351 OF 2021| |Exhibit P8|TRUE COPY OF THE G.O.(RI) NO 176/2021/11EDN| ||DATED 01-02-2021 NOTIFIED BY THE 4TH| ||RESPONDENT IS PRODUCED HEREWITH.| |Exhibit P9|TRUE COPY OF THE G.O.(RT)NO.233/2021/HEDN| ||DATED 08-02-2021 NOTIFIED BY THE 4TH| ||RESPONDENT DEPARTMENT.| |Exhibit P10|G.O.(RT)NO.375/2021/HEDN DATED 26-02-2021,| ||NOTIFIED BY THE 4TH RESPONDENT DEPARTMENT| |Exhibit P11|TRUE COPY OF THE RIGHT TO INFORMATION| ||APPLICATION FILED BY THE 2ND PETITIONER| ||DATED 18/12/2021| |Exhibit P12|TRUE COPY OF THE REPLY SUBMITTED BY THE| ||DIRECTOR OF TECHNICAL EDUCATION THE 2ND| ||PETITIONER DATED 04/01/22| |Exhibit P12a|TRUE COPY OF THE REPLY SUBMITTED BY THE 2ND| ||RESPONDENT DEPARTMENT TO THE 2ND PETITIONER| ||DATED 17/01/2022| |SSK|//TRUE COPY// PA TO JUDGE|