IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 WP(C).No. 29327 of 2008(N) ----------------------------------------- PETITIONER(S): ------------------------- 1. ANI G.,MATTATHIL , EDAKKARA, MALAPPURAM 679 331, NOW WORKING AS PEON, C.H.C. CHUNGATHARA. 2. YAMUNA P., MARIGEETH, P.O. NADUVATH, VIA WANDOOR 679 328 NOW WORKING AS PEON, P.H.C. PORUR, MALAPPURAM DISTRICT. BY ADV.MR.P.GOPINATH MENON RESPONDENT(S): --------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHPURAM. R1 & R2 BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29327/2008 N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF G.O.(MS) NO.24/89/H&FWD DTD. 23/01/1989. EXT.P2: COPY OF G.O.(P) NO.344/2008/H&FWD DTD. 08/07/2008. EXT.P3: COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER DTD. 10/01/2008. EXT.P4: COPY OF THE LIST CIRCULATED BY THE 2ND RESPONDENT. EXT.P5: COPY OF THE ORDER NO.EG-116040/2007/DHS DTD.22/07/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P6: COPY OF THE DIPLOMA CERTIFICATE DTD. 10/05/2006 ISSUED TO THE 1ST PETITIONER. EXT.P7: COPY OF THE DIPLOMA CERTIFICATE DTD. 08/01/2008 ISSUED TO THE 2ND PETITIONER. EXT.P8: COPY OF THE CERTIFICATE OF THE REGIONAL MANAGEMENT COLLEGE DTD. 25/01/2006. EXT.P9: COPY OF THE NO OBJECTION CERTIFICATE DTD. 02/05/2005 ISSUED TO THE 1ST PETITIONER. EXT.P10: COPY OF THE CIRCULAR NO.9/2005 DTD. 05/07/2005 OF THE KPSC. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R.RAMACHANDRAN NAIR, J -------------------------------------------------- W.P.(C) NO: 29327 of 2008 --------------------------------------------------- Dated this the 10th day of February, 2009 JUDGMENT Both the petitioners are working as Peons in the Health Services Department. Qualified Peons are entitled for appointment by transfer to the post of Junior Health Inspector Gr.II in the department. The higher qualification required in the absence of technical qualification prescribed as item (ii) is Sanitary Inspector's Training Certificate (Diploma)/ Health Inspectors Training Certificate. This was further amended by Ext.P2, providing that the technical qualification of diploma in Health Inspector Course will be treated as the qualification required. 2. The question is whether petitioners who acquired the qualification by distance education are eligible to be considered to have satisfied the qualification prescribed in Ext.P2. The objection taken is that they have not availed any eligible leave for acquiring the said qualification and therefore, the same cannot be accepted. The learned counsel for the petitioner relied upon the decisions of this Court reported in Mohananan Nair v. State of Kerala 1994 (2) KLT 537 and State of Kerala v. Suja Kumari 2006(1) KLT 846 and another decision of the Division Bench of this Court in Public Service Commission v. Abdul Resheed 2007 (3) KLT 881to contend that apart from prescribing the qualification nothing more wpc:29327 of 2008 2 have been provided therein and there is no bar in accepting the qualification acquired through distance education and hencethe petitioner's eligibility cannot be disputed. 3. Initially, the qualification was prescribed by Ext.P1 dated 23-1- 1989 wherein it was specified that the Health Inspectors Training Certificate/Sanitary Inspector's Training Certificate (Diploma) of the All India Institute of Local Self Government, Bombay or its equivalent as one of the alternate qualification in the absence of the qualification prescribed in para (ii). This was modified by Ext.P2. It was specified that Diploma in Health Inspector Course (DHIC) will be the qualification for appointment to the post of Junior Health Inspector Grade-II from the date of effect of the said order or from the date of expiry of the existing PSC rank list, whichever is earlier. Apart from providing so, there is no other prescription as per the terms in Ext.P2 as to the mode by which they should acquire the qualification. 4. The petitioners submitted application by Ext.P3 for appointment by transfer/promotion to the post of Junior Health Inspector Gr.II. Thereafter, a State vide list of persons considered as eligible for appointment by transfer as Junior Health Inspector Grade II was published. In the said list, the 1st petitioner was included as serial No.158 and the 2nd petitioner was included as Serial No.211 respectively. A true copy of the said list circulated by the 2nd respondent Director of Health Services, is produced as Ext.P4. Both the petitioners wpc:29327 of 2008 3 have obtained 'Diploma in Health and Sanitary Inspector', from the Vinayaka Mission Deemed University Ariyanoor, Salem, Tamilnadu, which is a deemed University recognised as such under the University Grants Commission Act, 1996. But when the final list was published as per Ext.P5, their names have been excluded. The petitioners are challenging the said exclusion from Ext.P5 by the respondents. 5. The stand taken in the counter affidavit is that as per G.O.(Rt) No.1577/2008/H&FWD dated 30.04.2008 and Kerala Service Rules, for study purpose, in service candidates must take Leave Without Allowance etc. for the entire course period. In this case, the petitioners have not availed any type of eligible leave as per Rule 88 or Rule 91 of Part I KSR or Leave Without Allowance during the entire course period. Hence the petitioners are not eligible for selection and appointment by transfer to the post of Junior Health Inspector Grade II in the Health Service Department. Therefore, the crux of the issue is whether the petitioners could be denied the eligibility for appointment by transfer because they have attained the qualification by distance education. 6. This Court has considered the said question in different situations. In Mohanan Nair v. State of Kerala 1994 (2) KLT 537, the question considered was whether the qualifications prescribed for higher secondary schools in Kerala make any distinction between degrees obtained by regular attendance in colleges and those obtained by correspondence study. This Court considered the issue in the light of wpc:29327 of 2008 4 the National Education Policy which was acted upon by the Government of Kerala also. While considering the relevant qualification, it was held in paragraph 6 that the Government order dated 27-6-1990 prescribes “a Master's degree” and not “a Master's degree by attending regular college”. Again in paragraph 9 it was observed that “There is no reason for considering distance education degree any less of degree than the degree obtained by attending classes”. This finding was rendered after considering various aspects relating to the said method of education. 7. This decision was approved in the subsequent decision of the Division Bench of this Court in State of Kerala v. Suja Kumari 2006 (1) KLT 846. There the question considered was regarding the regularisation of Higher Secondary School Teachers. The dispute was regarding the acceptability of B.Ed. degree acquired by the appointees by undergoing Correspondence Course. Mohanan Nair's case (supra) was considered in paragraph 7 and the dictum laid down was approved also. It was found that the teachers concerned, who are having Masters Degrees in the subject, and degree in education by a recognised method. 8. In the decision in Public Service Commission v. Abdul Rasheed 2007 (3) KLT 881, the question considered was whether the Public Service Commission has power to go beyond qualification prescribed by the appointing authority which is reflected in notification. Public Service Commission excluded the petitioner therein from the rank list wpc:29327 of 2008 5 on the ground that he has not obtained the Degree through regular course of study and also did not undergo the study in the 10+2+3 pattern but he obtained it through correspondence course. After considering the matter in detail it was held that the stand taken by the PSC is not correct. In paragraph 5, it was observed thus. “PSC has taken up the stand that they can weed out those candidates who had not undergone the course in 10+2+3 pattern. As we have already indicated, petitioner has obtained Master's Degree in Arabic from the Calicut University and also the Bachelor's Degree (B.Ed) and has passed the State Eligibility Test. Above mentioned qualifications would satisfy the qualifications prescribed in the notification”. 9. The learned Government Pleader submitted that the Government as per Order No.54/2005/Fin. dated 27.09.2005 has clarified the position, thus: “Those who wish to acquire any qualification /training for appointment to a higher post outside their normal line of promotion by any mode of appointment shall undergo the course on their own accord after availing eligible leave/leave without allowance”. 10. Therefore, it is contended that the persons who want to acquire any qualification/training for getting appointment to higher post outside their normal line of promotion by any mode of appointment shall undertake the course on their own accord after availing eligible wpc:29327 of 2008 6 leave/Leave Without Allowance. It is therefore, pointed out that as the petitioners have undergone the course of study without availing Leave/Leave Without Allowance, they cannot be said to have acquired the eligibility. 11. The Government order only clarifies that deputation benefit will be allowed only for undergoing course of study/training prescribed for promotion to posts in the regular line of promotion of the post held by the employee and also in cases where approved scheme exits for such deputation. That does not mean that without availing deputation benefit, a person cannot undergo a course of study for promotion. Apart from that, the method of acquiring qualification by correspondence course is not a matter considered by the Government Order. In Mohanan Nair's case [1994 (2) KLT 537] this Court considered the ambit and scope of distance education. It was held that “the fundamental principle of distance education is that it provides equality of opportunity of education access to higher education.” This court was pleased to hold further that “distance education marks the transformation of the closed formal rigid, elitist, educational system into an open and fexible system.” 12. There is no contention that the syllabi of the correspondence course does not match the syllabi of the former course in diploma. In that view of the matter also, there is nothing wrong in accepting the qualification acquired by the petitioner. The University in question is a wpc:29327 of 2008 7 deemed University also. 13. Apart from that, in Ext.P2, the qualification prescribed is Diploma in Health Inspector Course. There is nothing to show that the acquisition of the said qualification must be through a regular course of study or they should acquire it from specified educational institutions. Therefore, it is clear that the mode of acquiring qualification from distance education is not at all excluded therein. In that view of the matter also, there cannot be any justification in this case as sought to be drawn by the respondents. 14. Much reliance is placed on Rules 88 and 91 of Part I KSR to contend that the petitioners have not availed any type of eligible leave as per the above rules. True, Rules 88 and 91 give powers to the authority to grant the leave specified therein. But the contrary is not that without availing such leave, a person cannot acquire qualification by a course of study recognised under law. The provisions of granting leave in such cases will apply to officers who seek the benefit of the above provision. That does not mean that others who acquire qualification by different methods are not entitled to claim the benefit of the higher qualification thus obtained. Therefore, the contention that since the petitioners have not availed No Objection Certificate from the department or have not availed any eligible leave during the entire course of period, cannot be accepted. Going by the decisions referred to above, this Court considered cases where, for entering service, a wpc:29327 of 2008 8 qualification acquired by correspondence course is sufficient or not. The view taken is unanimous after referring to the relevant rules that the said qualification cannot be discarded. In that view of the matter, even after entering service, merely because the person did not avail leave for having the course of study, the right cannot be denied. If even without taking leave, they can undergo the course by the method of distance education, the benefit cannot be denied based on the plea that they have not availed of the leave and the course cannot be recognised. Therefore, the petitioners are entitled to succeed. In the result, the writ petition is allowed. It is declared that the petitioners are eligible and entitled to be considered for appointment by transfer to the post of Junior Health Inspector Gr.II in terms of Exts.P1 and P2 Government Orders. There will be a direction to include their names in the appropriate place in Ext.P5 and they will be entitled for consequential benefits in accordance with their rank. T.R.RAMACHANDRAN NAIR, JUDGE bps