IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 27TH APRIL 2007 / 7TH VAISAKHA 1929 WP(C).No. 32939 of 2005(U) ------------------------------------ PETITIONER: ----------------- MANU M., S/O.G.MADHAVAN PILLAI, AGED 28 YEARS, GUEST VOCCATIONAL TEACHER (PRINTING TECHNOLOGY) GOVT. V.H.S.S., MUTTARA, KOTTARAKKARA, RESIDING AT THANNOLIL HOUSE, KOOTTIKADA P.O., KOLLAM. BY ADV. SRI.M.R.RAJENDRAN NAIR (SR.) SRI.P.G.HARIKUMAR SRI.C.UNNIKRISHNAN (KOLLAM) RESPONDENTS: --------------------- 1. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, P.S.C. OFFICE, PATTOM, TRIVANDRUM. 2. THE SECRETARY TO GOVT. OF KERALA, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, TRIVANDRUM. R1 BY SHRI P.C. SASIDHARAN,A SC, KPSC. R2 BY GOVERNMENT PLEADER (SHRI T.T. MUHAMMED) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.2.2007, THE COURT ON 27.4.2007 DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.32939 OF 2005 U PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE CERTIFICATE ISSUED FROM THE ` SCHOOL DURING 2003 - 2004. EXT.P2 TRUE COPY OF THE CERTIFICATE ISSUED FROM THE SCHOOL DURING 2004-2005. EXT.P3 TRUE COPY OF THE DIPLOMA CERTIFICAZTE ISSUED IN THE YEAR 1997 BY THE STATE BOARD OF TECHNICAL EDUCATION. EXT.P4 TRUE COPY OF THE PROVISIONAL DEGREE CERTIFICATE ISSUED IN THE YEAR 2003 BY THE UNIVERSITY OF KERALA. EXT.P5 TRUE COPY OF THE DUTY CERTIFICATE DATED 4.7.2003 ISSUED BY THE ASSISTANT DIRECTOR, V.G.S.C. IN FAVOUR OF THE PETITIONER. EXT.P6 TRUE COPY OF THE ORDER DATED 15.3.2004 ISSUED BY SECRETARY, VHS EXAMINATION IN FAVOUR OF THE PETITIONER. EXT.P7 TRUE COPY OF THE G.O.(P) NO.80/2004/ EDN. DATED 12.3.2004 AND THE SAME WAS PUBLISHED IN KERALA GAZETTE DATED 12.3.2004. EXT.P8 TRTUE COPY OF THE LETTER NO.20251/SCI/04/GL. EDN. DATED 19.4.2004 ISSUED BY THE FIRST RESPODENT. EXT.P9 TRUE COPY OF THE PSC LETTER DATED 26.7.2004. EXT.P10 TRUE COPY OF THE NOTIFICATIONS ISSUED BY THE PSC. EXT.P11 TRUE COPY OF THE RELEVANT PAGES OF PSC BULLETIN DT. 15.10.2004. EXT.P12 TRUE COPY OF THE REPRESENTATION DATED 20.10.2004 SENT BY THE PETITIONER BEFORE 2ND RESPONDENT. EXT.P13 TRUE COPY OF THE REPRESENTATION DATED 30.7.2005 SENT BY PETITIONER BEFORE 2ND RESPONDENT. EXT.P13(A) TRUE COPY OF THE COMMUNICATION DATED 15.6.2005 ISSUED BY THE PSC REJECTING THE APPLICATION OF THE PETITIONER. EXT.14 TRUE COPY OF INTERIM ORDER DATED 31.8.2005 IN W.P.(C) NO.25872/05. EXT.P15 TRUE COPY OF THE G.O.(RT) NO.5317/05/G.E. DATED 14.11.2005 ISSUED BY THE 2ND RESPONDENT. EXT.P16 TRUE COPY OF THE COMMUNICATION NO.G.R.2 C (3) 35853/04/G.D. DATED 15.12.2005 ISSUED BY THE PSC TO THE PETITIONER. // TRUE COPY// PS TO JUDGE K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 32939 OF 2005 U -------------------------------------- Dated this the 27th April, 2007 JUDGMENT The case of the petitioner in the amended Writ Petition is as follows: Petitioner has Diploma in Printing Technology. He also has a Degree in Sociology. According to him, he has been working as Guest Teacher for the last six years in the Government VHS School. He relies on Ext.P5 to show that he was included as Subject Expert in the Interview Board for selection of candidates to the post of Laboratory Assistant in Printing Technology for a Government VHS School. Ext.P6 is produced to show that he was appointed as Examiner for valuation of answer scripts of the 2004 March Examinations in the centralised valuation camp. Government promulgated Special Rules for Kerala Vocational Higher Secondary State Service (Ext.P7). As per the same, the qualification prescribed is Degree in Printing Technology for the post of Vocational WP(C) NO.32939/05 U 2 Teacher in Printing Technology. He took up the matter with the Government vide letters 3.4.2004 and 4.4.2004. But, he was informed by Ext.P8 that the qualification having been fixed in consultation with the PSC, there can be no alteration. Ext.P9 evidences intimation from the PSC to the effect that it is the Government which is competent authority which can initiate amendments to the Rules. Ext.P10 is a Notification issued by the Union Public Service Commission, for the post of Lecturer in Printing Technology in Government Polytechnics. Diploma in training and allied trades along with five years experience is also provided therein as qualification. Ext.P11 is a PSC Bulletin dated 15.10.2004 inviting applications for the post of Vocational Teacher in Printing Technology. Degree in Printing Technology is the notified qualification. Last date for submission of application is 24.11.2004. Petitioner submitted Ext.P12 representation dated 20.10.2004 before the Government. He filed Writ Petition No.32619/04 seeking a declaration and direction for amendment of the Special Rules for WP(C) NO.32939/05 U 3 incorporating Diploma in Printing Technology as the alternate qualification and also to consider Ext.P12. The Writ Petition came to be dismissed by this Court and it was confirmed in Writ Appeal also. Petitioner, however, applied without waiting for a final decision. It is submitted that he has submitted a statutory representation dated 30.7.2005 under Rule 39 of KS & SSR requesting to exempt him from possessing the qualification of Degree in Printing Technology under Rule 39. In the meanwhile, by Ext.P13(a), his application was rejected by the PSC on the ground that he did not possess Degree in Printing Technology. Petitioner approached this Court anticipating delay in considering Ext.P13 representation. This Court by Ext.P14 interim order directed the same to be considered. By Ext.P15, Government ordered that the qualifications held by the petitioner are sufficient for Vocational Teacher and he is exempted from the qualifications prescribed in the Rules. Petitioner submitted Ext.P15 before the PSC on 19.11.2005. It is stated that there was no written test, but only an interview WP(C) NO.32939/05 U 4 which was to be held on 30.11.2005. But, the Public Service Commission did not take any steps to include the petitioner in the selection process. Ext.P16 was issued by the Public Service Commission wherein reference is made to rejection on account of the petitioner not possessing the requisite qualification. Referring to Ext.P15 order of the Government, it is stated that after elaborate examination that there is no need to exempt only one candidate from the qualification mentioned in the Special Rules. On that basis, it is stated that the application of the petitioner was rejected. Petitioner challenges Exts.P13(a) and Ext.P16 and seeks a direction to allow him to participate in the interview. There is a further prayer to declare that the petitioner is entitled to be considered for the post of Vocational Teacher in Printing Technology on the basis of his application dated 10.11.2004 submitted pursuant to Notification dated 2.10.2004 in view of Ext.P15 GO. This Court passed an interim order dated 28.11.2005 making it clear that interview, if any, held by the PSC shall not prejudice the rights of the petitioner in case WP(C) NO.32939/05 U 5 this Court is inclined to grant the main relief prayed for in the Writ Petition. 2. Petitioner would contend as follows: Having regard to Ext.P15, Ext.P16 is unsustainable. It is not open to the Public Service Commission to sit in appeal over the order passed by the Government. He relies on a Bench decision of this Court in K.P.S.C. v. Tessymol Sebastian and Another (2005 (3) ILR 486). It is submitted that Ext.P15 order passed by the Government was after considering the entire aspects and also consulting the Director of Vocational Higher Secondary Education. The points specifically considered included the following: 1) Petitioner was working as Guest Lecturer in Printing Technology in the Government Vocational Higher Secondary School, Muttara for the last six years. 2) Petitioner has Diploma in Printing Technology and is a Graduate in Sociology. Only Calicut University has started Degree Course in Prining Technology and the first batch will pass out only in 2006. WP(C) NO.32939/05 U 6 3) Two teachers with Graduation and Diploma in Printing Technology working in two Aided Vocational Higher Secondary School have been permanently employed and duly approved. 4) Petitioner's good work has been acknowledged by the Department by making him a Subject Expert for selection as Lab Assistant in Printing Technology and as Examiner in the Vocational Higher Secondary Examinations. He would further submit that even in a case where the application for exemption under Rule 39 was filed after the last date fixed for filing applications, the candidate can be considered for selection on the basis of the exemption order issued by the Government. He relies on a Bench decision of this Court in W.P.(c) No.24527/04. He also relies on the Judgment of the Apex Court in M. Venkateswarlu and Others v. Govt. of A.P. And Others ((1996) 5 SCC 167) for the proposition that relaxation can be done with retrospective effect in the interest of WP(C) NO.32939/05 U 7 justice and equity. 3. Per contra, the stand of the Public Service Commission is as follows: The last date fixed in the present case for receipt of applications was 24.11.2004. Petitioner did not possess the qualification as on 24.11.2004. He did not secure any exemption as on 24.11.2004. Ext.P15 order is dated 14.11.2005. It is the Commission's case that the petitioner suppressed the filing of W.P.(C) No.32619/04 in which he sought declaration of his qualification as an alternate qualification for the post. That Writ Petition was dismissed and the dismissal was confirmed in Writ Appeal. It is without arraying the PSC as a party that W.P. (C) No.25872/05 was filed in which the Government was directed to take a decision on the representation submitted by the petitioner. There is suppression of the filing of the earlier Writ Petition for the same relief, it is submitted. The rank list for the post was published on December, 2005. None of the rank-holders are made parties in the Writ Petition. Their non- WP(C) NO.32939/05 U 8 joinder is fatal, it is pointed out. The decision in K.P.S.C. v. Tessymol Sebastian and Another (2005 (3) ILR 486) has no application in this case. It related to appointment under by- transfer category in which Government granted exemption from experience qualification prescribed for the post. The application of the petitioner in that case was pending before the Government for exemption and the petitioner participated in the test provisionally. In this case however, the question relates to exemption from basic academic qualification and the candidature of the petitioner stands rejected. The Commission relies on the Judgment of this Court in W.P.(C) No.32170/05 and connected matters, to contend that identical matter stands dismissed. Ext.P15 has no retrospective effect, it is contended. Qualification is a fundamental requirement and should be determined and finalised before setting in motion the process of selection, it is contended. It is contended that the crucial date for scrutiny of the qualification is the last date for receipt of applications. Reliance is placed on the decision of the Apex WP(C) NO.32939/05 U 9 Court in Ashok Kumar Sharma And Others v. Chander Shekhar and Another (1997) 4 SCC 18). Reliance is also placed on a decision of the learned Single Judge in Sobha Menon v. Public Service Commission (1994 (1) KLT 986). 4. The qualification prescribed for the post of Vocational Teacher in Printing Technology is Degree in Printing Technology. Diploma in Printing Technology is not a qualification provided in the Special Rules. The Notification fixed 24.11.2004 as the last date for receipt of applications. Petitioner admittedly does not possess qualification of Degree in Printing Technology. Petitioner possesses Diploma in Printing Technology. He had earlier made representations to the Government in April, 2004 seeking a change in the law. That came to be rejected by the Government vide Ext.P8 stating that qualifications were fixed in consultation with the Public Service Commission. Of course, Ext.P9 would show that the Public Service Commission rightly took the stand that it is for the Government to initiate amendments in which case, the Public WP(C) NO.32939/05 U 10 Service Commission would offer its advice. Upon Ext.P11 Notification dated 15.10.2004 inviting applications for the post in question being published, petitioner submitted Ext.P12 representation dated 20.10.2004 before the Government. The request in the same was to carry out amendment in the Special Rules by including Diploma in Printing Technology with a Degree in any Discipline with five years experience as an alternate qualification for the post of Vocational Teacher in Printing Technology. Reference is made to 24.11.2004 being the last date for submission of applications and the qualification being Degree in Printing Technology alone. Petitioner filed W.P.(C) No.32619/04. That came to be dismissed by a learned Single Judge by taking the view that the law is well settled and no Writ of Mandamus can be issued by this Court directing the Legislature or Authority entrusted with the responsibility to exercise the power of subordinate legislation to enact a law or to amend the law, whether it be plenery or a piece of subordinate legislation. This Judgment was affirmed in Writ Appeal. The WP(C) NO.32939/05 U 11 application filed by petitioner came to be rejected by Ext.P13 (a) dated 15.6.2005. Apparently thereafter, the petitioner filed a representation dated 30.7.2005 describing it as a statutory representation claiming exemption under Rule 39 of the KS & SSR. The request was to exempt him from possessing the qualification of Degree in Printing Technology. It is on the same that Ext.P15 dated 14.11.2005 was issued by the Government, exempting the petitioner from the qualification prescribed by the Government. However, the Public Service Commission has rejected his request for being considered for the post on the ground essentially that the claim of petitioner need not be considered, stating that there is no need to except one candidate from possession of the prescribed qualification. In K.P.S.C. v. Tessymol Sebastian and Another (2005 (3) ILR 486), the facts were as follows: The first respondent was working as a L.D. Clerk in the PWD. She had earlier service in the Electricity Board as Assistant Engineer and Sub Engineer. She was a First Class WP(C) NO.32939/05 U 12 Graduate in Civil Engineering and had completed Graduate Apprenticeship also. Six years experience is required for departmental candidates for appointment to the post of Assistant Engineer (Civil) in PWD. First respondent applied as a departmental candidate. But, she did not have six years experience. The last date for receipt of application was 22.11.2000. She applied for the post. She had also filed a petition before the Government from exempting her from the minimum service of six years. At the time of application, she informed the PSC that her application for exemption to the Government was pending. PSC allowed her to appear for the test and interview and ranked her provisionally. After the last date fixed for submission of applications, but before selection, an order was issued exempting her from the experience. The Government apparently took note of the recommendation based on her earlier experience as Assistant Engineer and Sub Engineer in the Electricity Board besides the dearth of departmental candidates. The Court took note of the Judgment WP(C) NO.32939/05 U 13 of the Apex Court to the effect that in the interest of justice and equity, power of relaxation can be exercised even without retrospective effect. The Court took the view that it is not necessary to consult with the Public Service Commission before an order of relaxation under Rule 39 is issued. The Division Bench further held that the Public Service Commission was also not sitting in appeal over the orders passed by the Government. In fact, the learned Single Judge has taken note of the fact that the Commission had not rejected the application of first respondent on the ground of her not possessing the service qualification of six years experience. 5. No doubt, it is true that the petitioner has not originally mentioned about the filing of Writ Petition No.32619/04 and it was incorporated only by virtue of the amendment carried out. However, I notice that the request in the representation was for amendment of the Rules by way of incorporation of the qualification of Diploma in Printing Technology with five years experience as an alternate qualification. WP(C) NO.32939/05 U 14 6. It is undoubtedly true that the title of a candidate is to be determined with reference to the possession of the requisite qualifications with reference to the last date fixed for submission of applications. The question in this case is whether notwithstanding the fact that the petitioner does not possess the qualifications prescribed under the Rules and the Notification, he has a right based on Ext.P15 order issued by the Government. Government is the appointing authority. Rule 39 confers a power of relaxation. The power of relaxation extends to the Rules contained in the KS & SSR and the Special Rules. The power of relaxation can be exercised with retrospective effect. One of the contentions taken by the Commission is that the decision in K.P.S.C. v. Tessymol Sebastian and Another (ILR 2005 (3) Ker. 486) is inapplicable for two reasons. Firstly, that was a case which related to appointment by transfer and all that the Government did was apparently taking note of the experience the applicant had in the Electricity Board, it decided to relax the requirement of experience and it did not relate to the WP(C) NO.32939/05 U 15 academic qualifications which is not the case in the facts of this case. No exemption order was passed as on the last date fixed for receipt of applications, namely 24.11.2004, it is submitted. Secondly, it is pointed out that, that was a case where the applicant had made an application seeking exemption prior to the last date fixed for receipt of applications. The order granting exemption under Rule 39 came to be passed after the last date fixed for receipt of applications. In this case, it is pointed out that the application itself seeking exemption was filed much after the last date fixed for receipt of applications. Learned counsel for petitioner would counter this by pointing out the decision of the Division Bench in W.P.(C). No.24527/04. Therein, the Division Bench took the view that the fact that the application was filed after the last date fixed for receipt of the applications would not make any difference. The Court therein took note of the fact that 13 vacancies should have been filed by departmental candidates, but only 11 were in the rank list. This case also related to grant of exemption from possession of WP(C) NO.32939/05 U 16 experience for appointment to the post of Assistant Engineer from departmental candidates. The facts were otherwise identical with the facts in Kerala Public Service Commission v. Tessymole Sebastian and another (2005 (3) ILR Ker. 486) except the date of filing of the application seeking exemption. 7. Rule 39 of the KS & SSR reads as follows: “Notwithstanding anything contained in these Rules or in the Special Rules or in any other Rules or Government Orders the Government shall have power to deal with the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may appear to the Government to be just and equitable. Provided that where such Rules or Orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those Rules or Orders. WP(C) NO.32939/05 U 17 This amendment shall be deemed to have come into force with effect from 17.12.1958.” In my view, Rule 39 of the KS & SSR empowers the Government which is the appointing authority to grant exemption to a candidate from the provisions of the Special Rules. The qualification in this case is one fixed by the Special Rules. It is taking note of the recommendations of the Director of Vocational Higher Secondary Education also that Ext.P15 order has been passed. The facts that the petitioner was working as Guest Lecturer in Printing Technology for six years and that he has been considered as being a Subject Expert for selection of Laboratory Assistant in Printing Technology and as Examiner in the Vocational Higher Secondary Education were also borne in mind by the Government. The Government also of course took note of the fact that two Teachers with Graduation and Diploma in Printing Technology working in two Aided Vocational Higher Secondary Schools have been given WP(C) NO.32939/05 U 18 permanent employment and their appointments have duly been approved. The Director, apparently, was convinced about the competency of the petitioner as he was working for six years. Government has, of course, proceeded on the basis that Rule 39 empowers the Government to relax qualifications in Special Rules in specific case. If Rule 39 empowers the Government to relax qualifications prescribed under the Special Rules, I do not accept the argument of the Commission that the power under Rule 39 is not available to relax the qualifications in a special case. If that be so, it must be treated that the petitioner is fully qualified by virtue of the exemption granted vide Ext.P15. 8. The next question which arises is whether Ext.P15 order of exemption must be treated as one issued with retrospective effect and, therefore, enables the petitioner to claim the benefit of the same for selection under Ext.P11. A learned Single Judge in W.P.(C) No.32170/05 took the view that neither the recruiting agency, nor the appointing authority should be allowed to intervene mid-stream and change the terms WP(C) NO.32939/05 U 19 and conditions of appointment of the candidates. That is a case where the post was the same as in this case. Some candidates held the qualification of Master's Degree in Applied Science (Publishing Science and Printing Technology). The Commission informed them that they had to produce Equivalency Certificate. The University issued Certificate stating that the Post Graduation held by the candidates was a professional PG Course, a unique combination of Publishing and Printing designed to cater to the commercial and technical demands with syllabus covering all major portions. The Commission contended in the Writ Petition that Certificate issued by the University can be of no avail, as it is bound to follow the Special Rules and the qualifications prescribed and it is for the State Government to declare that another qualification is equivalent to prescribed qualification. Thereafter, on the basis of a direction to the Government to take a decision as to whether Post Graduate Degree of the candidates is equivalent to Printing Technology, Government issued an order which came to be WP(C) NO.32939/05 U 20 impugned by candidates who possessed the qualification prescribed under the Special Rules by the said Order. Government ordered that the qualifications prescribed for the post be modified by incorporating Master of Applied Science in Publishing Science and Printing Technology with not less than fifty per cent marks awarded from any of the Universities in Kerala or equivalent as an alternate qualification with effect from 12.3.2004 subject to amendment to the Special Rules. The Government again passed another order to the effect that Master's Degree in Applied Science (Publishing Science and Printing Technology) is an equivalent qualification to B.Sc. in Printing Technology for the purpose of selection and appointment to the post of Vocational Teacher in Printing Technology. The learned Single Judge took the view that the qualification had not been recognised as an equivalent qualification when the Notification was issued, nor was the same prescribed as equivalent to Degree in Printing Technology. The Rules were not amended. The Court also held that if the WP(C) NO.32939/05 U 21 appointing authority or recruiting agency is allowed to meddle with the qualifications or other conditions of appointment in the course of ongoing process of selection, it will give room for favouritism, nepotism and other illegitimate practices affecting the rights of those who had submitted their applications with the expectation that the criteria for appointment as indicated in the notification would be strictly adhered to. This Court also took the view that many candidates with the alternate qualifications would be denied an opportunity to apply to the post. I am of the view that, that is a case where by the first order, Government ordered the modification of the qualification and subject to amendment which had not been carried out. By the subsequent order, Government ordered that the qualification is