IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 WP(C).No. 19408 of 2008(I) -------------------------- PETITIONER(S): --------------- V.RAJENDRAN, TASSHILL HOUSE, ANAVILASAM P.O., MURUKADY VIA, IDUKKI DISTRICT, PIN 685 535. BY ADV. SMT.P.K.SANTHAMMA SRI.M.T.MURALEEDHARAN RESPONDENT(S): --------------- 1. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM -4. 2. THE SECRETARY, GENERAL EDUCATION DEPARTMENT, VOCATIONAL HIGHER SECONDARY EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -1. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2010 ALONG WITH WPC NO. 22279 OF 2008 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19408 of 2008 EXT.P1:-COPY OF PUBLICATION OF DATE FOR WRITTEN TEST. EXT.P2:- COPY OF SHORTLIST DTD.19.4.2007 EXT.P3:- COPY OF CALL LETTER DT.18.7.2007 BY R1 TO PETITIONER EXT.P4:- COPY OF INTIMATION DTD.28.3.2008 BY R1 TO PETITIONER EXT.P5:- COPY OF THE SELECT LIST EXT.P6:- COPY OF RESULT PUBLISHED IN THE NEWS PAPER. EXT.P7:- COPY OF CALL LETTER DT.4.7.2007 BY R1 TO THE PETITIONER. EXT.P8:- COPY OF COMMUNICATION DT.2.1.2008 BY R1 TO THE PETITIONER EXT.P9:- COPY OF THE SELECT LIST. EXT.P10:- COPY OF THE RELEVANT PORTIONS OF KERALA GRAZETTE, EXTRAORDINARY XLIX DT.12.10.2004 EXT.P11:- COPY OF GENERAL CONDITIONS NOTED IN THE KERALA GAZETTE, EXTRAORDINARY XLIX EXT.P12:- COPY OF REPRESENTATION DT.24.3.2008 BY THE PETITIONER TO R1 & R2 EXT.P13:- COPY OF NOTIFICATIONS FOR EMPLOYMENT MADE BY PUBLIC LIMITED COMPANIES. EXT.P14:- COPY OF GAZETTE NOTIFICATION EXT.P15:- REPRESENTATION DTD.10.4.2009 BY PETITIONER TO R2. EXT.P16:- COPY OF ORDER DTD.20.8.2009 BY THIS COURT EXT.P17:- COPY OF ORDER DTD.15.10.2009 ISSUED BY R2. EXT.P18:- COPY OF ORDER DTD.23.6.2007 ISSUEDBY R2. EXT.P19:- COPY OF REPRESENTATION DT.24.3.2008 BY PETITIONER TO R2. RESPONDENTS EXTS: EXT.R1(a):- COPY OF JUDGMENT IN WP(C) 27941/2005 /TRUE COPY/ P.A.TO JUDGE AMENDED WP(C).No. 19408 of 2008 EXT.P1:-COPY OF PUBLICATION OF DATE FOR WRITTEN TEST. EXT.P2:- COPY OF SHORTLIST DTD.19.4.2007 EXT.P3:- COPY OF CALL LETTER DT.18.7.2007 BY R1 TO PETITIONER EXT.P4:- COPY OF INTIMATION DTD.28.3.2008 BY R1 TO PETITIONER EXT.P5:- COPY OF THE SELECT LIST EXT.P6:- COPY OF RESULT PUBLISHED IN THE NEWS PAPER. EXT.P7:- COPY OF CALL LETTER DT.4.7.2007 BY R1 TO THE PETITIONER. EXT.P8:- COPY OF COMMUNICATION DT.2.1.2008 BY R1 TO THE PETITIONER EXT.P9:- COPY OF THE SELECT LIST. EXT.P10:- COPY OF THE RELEVANT PORTIONS OF KERALA GRAZETTE, EXTRAORDINARY XLIX DT.12.10.2004 EXT.P11:- COPY OF GENERAL CONDITIONS NOTED IN THE KERALA GAZETTE, EXTRAORDINARY XLIX EXT.P12:- COPY OF REPRESENTATION DT.24.3.2008 BY THE PETITIONER TO R1 & R2 EXT.P13:- COPY OF NOTIFICATIONS FOR EMPLOYMENT MADE BY PUBLIC LIMITED COMPANIES. EXT.P14:- COPY OF EXTRA ORDINARY GAZETTE VOLUME 49, DTD.12.3.2004 COVER PAGE AND 4TH PAGE EXT.P15:- REPRESENTATION DTD.15.6.2009 TO R2 BY THE PETITIONER. EXT.P16:- COPY OF ORDER DTD.20.8.2009 BY THIS COURT EXT.P17:- COPY OF ORDER DTD.15.10.2009 ISSUED BY R2. EXT.P18:- COPY OF ORDER DTD.23.6.2007 ISSUEDBY R2. EXT.P19:- COPY OF REPRESENTATION DT.24.3.2008 BY PETITIONER TO R2. RESPONDENTS EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T. SANKARAN, J. ------------------------- W.P(C). Nos. 19408, 14336 & 22279 of 2008 ------------------------------------------------------- Dated this the 15th day of July, 2010 J U D G M E N T These Writ Petitions are being disposed of by this common judgment as common questions arise for consideration. 2. Since there are slight variations in the matter of the posts as well as the requirements regarding qualification, the facts in the cases are stated separately. W.P.(C) No. 14336 of 2008: 3. The petitioner, Sheena V.S, belongs to Hindu Vannan Community, a Scheduled Caste. She passed B.Sc degree in Medical Laboratory Technology in Second Class with 57.28% marks. She also passed M.Sc Degree with Medical Laboratory Technology and she secured 58.29% marks. 4. The petitioner applied to the post of Vocational Teacher in Medical Laboratory Technology, which is item No.24 of Rule 4 of the Kerala Vocational Higher Secondary Education State Service Rules, 2004. The qualification prescribed for Vocational Teacher in Medial Laboratory Technician is Degree in W.P(C). Nos. 19408, 14336 & 22279 of 2008 2 Medical Laboratory Technology with not less than 60% marks from any of the Universities in Kerala or a qualification recognised as equivalent thereto. In several other categories of posts, the qualification prescribed is either Degree with not less than 60% marks or Post Graduate Degree with not less than 50% marks. The petitioner did not have 60% marks in B.Sc.- MLT, but she had secured more than 50% marks for M.Sc.-MLT. Therefore, she applied to the post. The petitioner appeared for the written test. The petitioner made an application to the Kerala Public Service Commission claiming relaxation in the educational qualification. It was contended that relaxation of 5% was provided at the Masters level for Scheduled Castes and Scheduled Tribes category by the University Grants Commission. The Chairman of the Public Service Commission replied stating that there was no provision for relaxation of the minimum qualification. On 28/3/2008, the Public Service Commission published short list containing names of eligible candidates for participation in the interview. Though the name of the petitioner was included in the list, she apprehend that she would not be called for the interview on the ground that she did not secure W.P(C). Nos. 19408, 14336 & 22279 of 2008 3 60% marks for B.Sc- MLT. The Writ Petition was filed for the following reliefs: i)Declare that the exclusion of the petitioner from participating in the interview pursuant to Exhibit P8 short list is illegal and unconstitutional; ii)Declare that Exhibit P4 Special Rules and Exhibit P5 notification to the extent they do not treat M.Sc. Degree with MLT with more than 50% marks as sufficient qualification for Vocational Teacher in MLT is illegal and unconstitutional; iii)Direct the respondents to permit the petitioner to participate in the interview for the post of Vocational Teacher MLT pursuant to Exhibit P8 and give her appropriate ranking and appointment on the basis of her performance in the written test and interview; iv)Direct the respondents to reserve one seat of Vocational Teacher MLT in the Kerala Vocational Higher Secondary Department for the petitioner till the disposal of the Writ Petition; v)issue such other and further relief as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case; and vi)award costs of this petition. 5. An interim order dated 26/6/2008 was passed permitting the petitioner to participate in the interview and directing the first respondent to permit the petitioner to appear for the interview. The interim order was on provisional basis and W.P(C). Nos. 19408, 14336 & 22279 of 2008 4 the P.S.C was directed not to include the name of the petitioner in the rank list without further orders from this court. 6. The contention of the petitioner is two fold. (i) Subsequent to the filing of the Writ Petition, the Kerala Vocational Higher Secondary Education State Service Rules (hereinafter referred to as the 'rules') were amended by S.R.O. No. 809/2009 dated 17/9/2009 whereby the qualification for Vocational Teacher in Medical Laboratory Technician was modified and the minimum mark required was reduced from 60% to 55%. Even before the issuance of S.R.O. No. 809/2009, the Government had issued an Executive Order as G.O.(MS)No.123/2007/G.Edn dated 23/6/2007 relaxing the minimum marks from 60% to 55%. However, retrospective effect was not given to the amendment and therefore, the petitioner is aggrieved. (ii) For very many categories of posts under the Rules, the qualification prescribed is Degree with 60% marks or Post Graduate Degree with 50% marks, whereas in the case of item No.24, Vocational Teacher in MLT, the only qualification prescribed is a Degree with 60% marks, which was reduced to 55% by the amendment brought out only W.P(C). Nos. 19408, 14336 & 22279 of 2008 5 prospectively. It is submitted that there was no justification for not considering the Post Graduate Degree qualification as sufficient qualification in the case of Vocational Teacher in MLT, which was provided for other posts under the rules. 7. It is submitted by the learned counsel for the petitioner that though the petitioner appeared for the interview as permitted by this Court as per the interim order, the name of the petitioner was not included in the rank list. The learned counsel appearing for the PSC submitted that the interim order specifically mentioned that the name of the petitioner should not be included in the rank list. W.P(C) No. 22279 of 2008: 8. The petitioner, Seena M.P., is a member of Scheduled Caste. She passed B.Sc-M.L.T. With 54.53% marks. The petitioner applied to the post of Vocational Teacher in MLT. She appeared for the written test. On 14/7/2008, the petitioner received a letter dated 28/6/2008 issued by the Public Service Commission stating that the application was rejected since the petitioner did not have 60% marks in the qualifying examination (Exhibit P6). The grievance of the petitioner is that though the W.P(C). Nos. 19408, 14336 & 22279 of 2008 6 qualifying mark was reduced to 55% by the amendment of the Rules, it was not given retrospective effect. The further contention of the petitioner is that she being a candidate belonging to Scheduled Caste, relaxation should have been provided to such candidates belonging to Scheduled Castes, as is being done in respect of almost all the posts in Government Services. It is submitted that there was no reason for not providing relaxation for Scheduled Castes candidates. The petitioner points out that in the general conditions of the notification issued by the PSC that there is mention of relaxation of marks in the case of candidates belonging to Scheduled Castes and Scheduled Tribes except for the posts in colleges. It is submitted that based on these general conditions, several candidates belonging to Scheduled Castes, who did not have 60% marks in the qualifying examination, applied to the posts and they were allowed to appear for the written test. Denying the benefit of relaxation of marks to candidates who belong to Scheduled Castes and Scheduled Tribes was not justifiable, particularly, in the light of the protection granted to Scheduled Castes and Scheduled Tribes under the Constitution of India. The W.P(C). Nos. 19408, 14336 & 22279 of 2008 7 learned counsel for the petitioner also submitted that after the amendment of the Rules, the qualification prescribed is degree with 55% marks. The petitioner has secured 54.53% marks and therefore, it should be treated as 55% and if the amendment is given retrospective effect, the petitioner would be able to maintain the application already submitted by her. In this Writ Petition also, an interim order was passed on 24/7/2008 directing the first respondent to allow the petitioner to appear for the interview. There was also a direction that the first respondent shall not include the name of the petitioner in the rank list without getting further orders from this Court. It is stated that the petitioner appeared for the interview. WP(C) No.19408 of 2008: 9. The petitioner, V. Rajendran, is a B. Tech degree holder with 59.22% marks. Pursuant to the notification issued by the Public Service Commission, the petitioner applied for the post of Vocational Teacher, Maintenance and Repairs Domestic Appliances (MRDA) and Vocational Teacher in Maintenance and Repairs of Radio and Television (MMR TV) which are respectively category Nos. 5(5) and 5(4) of Rule (2) of the Rules. The W.P(C). Nos. 19408, 14336 & 22279 of 2008 8 qualification prescribed under Rule (4) for category No. 5(4) is degree in the subject concerned with 60% marks. For category No. 5(5) also, the qualification is degree in the subject concerned with 60% marks. The petitioner appeared for the written test and he passed in the written test. It is stated that the petitioner is 39 years old and he is a member of a Schedule Caste. The petitioner was also called for the interview and he appeared. Later, it is stated that the applications submitted by the petitioner were rejected by Exhibit P4 dated 23/8/2008 and Exhibit P8 dated 2/1/2008. The relief prayed for in the Writ Petition is mainly to quash Exhibits P4 and P8. There is also a prayer for quashing the rank list and for the issuance of a writ of mandamus to the respondents to consider the petitioner to the posts which he applied for. A declaration to the effect that relaxation of marks should be granted to SC/ST candidates is also prayed for. In the case of category Nos. 5(4) and 5(5), even after the amendment of the rules by S.R.O. No. 809 of 2009, the requirement of 60% marks in the qualifying examination was not reduced. 10. It is submitted that the petitioner being a Scheduled W.P(C). Nos. 19408, 14336 & 22279 of 2008 9 Caste candidate and who had secured 59.22 % marks should not have been denied the benefit of securing a job, only on the ground that the Government did not make relaxation for SC/ST candidates in the matter of minimum marks, as is usually being done in the case of Government jobs generally. 11. As per the interim order passed on 20/8/2009, the Government was directed to consider the question of relaxation in terms of the general conditions of the notification. The Government disposed of the matter as per Exhibit P17 order dated 15/10/2009 (G.O.(Rt) No.4308/2009/G.Edn.) holding that the Special Rules do not provide for any relaxation in the qualifying marks to any category and that as per the Special Rules, the rules regarding reservation of appointment contained in rules 14 to 17 of Part II of the Kerala State and Subordinate Service Rules, 1958 shall apply to appointments to the service by direct recruitment. 12. These Writ Petitions were argued in detail. During the course of the arguments, it emerged that the question was not under serious consideration by the Government at any point of time after the Rules were framed. It is true that the Government W.P(C). Nos. 19408, 14336 & 22279 of 2008 10 passed G.O. (Rt) No. 4308/2009 G. Edn dated 15/10/2009 in the case of petitioner in W.P.(C) No. 19408 of 2008. But that was a disposal of the representation in that particular case. Even in Exhibit P17, the Government does not appear to have considered the crucial question as to whether any relaxation could be made in the case of SC/ST candidates. It is not the role of the court to lay down the policy. Nor such policy would be normally interfered with by the court. Primarily, it is a question to be considered by the Government. The Government having not considered the matter after framing the Rules, SC/ST candidates were allegedly put to hardship. Therefore, this is a fit case for the Government to consider the grievance of the petitioners, taking into account all relevant aspects and after affording an opportunity of being heard to the petitioners. 13. The learned Standing Counsel appearing for the Public Service Commission submitted that even if the case of the petitioners were to be favourably considered by the Government, it may be made clear that persons who were advised for appointment from the rank list should not be affected by any such decision. This submission is just and reasonable. Persons W.P(C). Nos. 19408, 14336 & 22279 of 2008 11 who were advised for appointment from out of the rank list should not be affected by any order that may be passed by the Government after considering the request of the petitioners. The Writ petitions are accordingly disposed of as follows: The Government shall consider and dispose of the matter, as expeditiously as possible, and at any rate, within a period of three months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the parties concerned . If the Government were to take a decision in favour of the petitioners, consequential orders shall be passed by the Kerala Public Service Commission, subject to the reservation made above. K.T. SANKARAN, JUDGE scm