IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 WP(C).No. 32104 of 2009(G) --------------------------------------- PETITIONER: ------------------- SHIMY JAMES P.J.,D/O.JAMES, AGED 28,PLATHOTTAM HOUSE, ATHIRAMPUZHA P.O.,NALPATHIMALA- 686 562, KOTTAYAM DISTRICT. BY ADV. MR.TIBU DE PARAI. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS P.O., ATHIRAMPUZHA- 686 560,KOTTAYAM DISTRICT. R1 BY SR. GOVT. PLEADER SMT. T.B. REMANI, R2 BY MR.O.V.RADHAKRISHNAN, SENIOR ADVOCATE, MR. T.A. SHAJI, S.C, M.G.UNIVERSITY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON 16/12/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.32104/2009-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTIFICATION DTD. 27/10/2005. EXT.P.2: COPY OF THE NOTIFICATION DTD. 25/09/06. EXT.P.3: COPY OF RELEVANT PAGE OF ORDINANCE OF KERALA UNIVERSITY. EXT.P.4: COPY OF THE MEMO DTD. 26/08/2009. EXT.P.5: COPY OF THE NOTIFICATION DTD. 06/11/2009. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE RELEVANT PAGES OF THE SCHEDULE TO KERALA UNIVERSITY FIRST ORDINANCES, 1978. EXT.R2.B: COPY OF THE JUDGMENT DTD. 20/07/2009 IN W.P.(C).NO.19353/2009 OF THIS HONOURABLE COURT. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 32104/2009-G, 32545/2009-K and 33300/2009-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of December, 2009. JUDGMENT These writ petitions concern the challenge against the proceedings of the University produced as Ext.P5 in W.P.(C) No.32104/2009 whereby, candidates who are having qualifications like S.S.L.C. and above, have been excluded from consideration for appointment as Last Grade Servants in the University. In W.P.(C) No.32104/2009 the University has filed a detailed counter affidavit justifying the action. 2. Heard learned counsel for the petitioners Shri Tibu De Parai and Shri A.V. James and Shri O.V. Radhakrishnan, learned Senior Counsel and Shri T.A. Shaji, learned Standing Counsel for the respondents. 3. The case pleaded by the petitioners is that the notification for the appointment of Last Grade Servants was published by the University as early as on 25.9.1996 (Ext.P2 in W.P.(C) No.32104/2009). The only qualification required is “ability to read and write”. After nine years, by Ext.P1 notification dated 27.10.2005 fresh applications were invited and the same qualifications have been shown therein also. It was specified therein wpc 32104/09, 32545/09 & 33300/09 2 that persons who had applied pursuant to the notification dated 25.9.1996, need not submit fresh applications. 4. It is submitted that the present attempt to exclude persons having higher qualification amounts to re-writing the qualification for which the selection committee has no power. It is pointed out that all the persons who have the required qualification, viz. ability to read and write, form a class themselves and a distinction and differentiation now shown to be made by excluding persons having higher qualification amounts to discrimination. The present attempt is clearly in violation of the prescriptions of the notifications also. As the minimum qualification, viz. ability to read and write is common to the candidates, a screening like this even before the written test is conducted, cannot be justified. Learned counsel for the petitioners placed reliance on the decisions of the Apex Court in Y. Srinivasa Rao v. Veeraiah and others (AIR 1993 SC 929) as well as Mohd. Riazul Usman Gani and others v. District & Sessions Judge, Nagpur {(2000) 2 SCC 606}, Sunu v. Union of India (2000 (2) KLT 747) and that of a Division Bench of this Court in K.P.S.C. v. Vivina and others (ILR 2009 (2) Ker. 420). 5. Learned Senior Counsel appearing for the University submitted wpc 32104/09, 32545/09 & 33300/09 3 that more than one lakh applications have been received and going by the relevant provisions of the Mahatma Gandhi University First Statutes, 1997 the selection committee has got power to shortlist the applicants. It is submitted that actually persons having lesser qualification alone are required and the persons having higher qualifications, if allowed to compete with the persons having lesser qualifications, that will result in an unhealthy competition. It will go against the policy of law. It is pointed out that the process of elimination is a well accepted method and even before the written test is conducted, such elimination is possible, especially in the light of the provisions of the Statutes. Candidates like the petitioners who are having higher qualifications are ineligible to apply. Learned Senior Counsel relied upon an unreported judgment of a learned Single Judge of this Court in W.P.(C) No.3607/2006 rendered in similar circumstances as well as the decision of a Division Bench in Jeslet v. State of Kerala (1987 (2) KLT 984) and that of the Apex Court in Smt. Subhadran Devi and others v. Sunder Dass (AIR 1965 Punjab 188) and P.M. Latha and another v. State of Kerala and others {(2003) 3 SCC 541}. 6. Herein, the qualification is prescribed as per the relevant Ordinance and as far as the Mahatma Gandhi University is concerned, the wpc 32104/09, 32545/09 & 33300/09 4 Kerala University First Ordinances, 1978 has been made applicable. The same is produced as Ext.R2(a). Against the post of Peon, the qualification prescribed is “ability to read and write”. The notifications of the year 1996 and 2005 have clearly prescribed the said qualification and even at the time of re-issuance of the notification in the year 2005, the very same prescriptions have been adopted. It is in these circumstances, learned counsel for the petitioners contend for the position that the exclusion of persons having higher qualifications like pass in SSLC and above, amounts to discrimination and it actually re-writes the qualification prescribed in the notifications and the Ordinance. 7. The writ petitions have been heard on 19.11.2009. Subsequently, a judgment of a Division Bench of this Court in W.A. No.1117/2007 and connected cases, was noticed and thereafter the cases were again posted for further hearing on 8.12.2009 and the learned counsel on either side raised various arguments. 8. First I will refer to the decisions relied upon by the learned counsel for the petitioners in support of their argument. In Y. Srinivasa Rao's case (AIR 1993 SC 929), the subject matter concerned was the claim for appointment of the appellant as fair price shop dealer under the Essential wpc 32104/09, 32545/09 & 33300/09 5 Commodities Act. He was excluded as being a graduate. It was held that preference to less educated persons is arbitrary. The head note itself reads thus: “Where the appellant who is an unemployed graduate with experience of running fair price shop was not appointed as fair price shop dealer whereas a matriculate person was given dealership in view of the Govt. policy of giving preference to less educated person assuming that a better qualified person has got a better chance to succeed in life elsewhere, it clearly amounts gross arbitrariness and illegal discrimination and the settlement in favour of the less educated person is liable to be set aside. The policy of Govt. to prefer an uneducated person over an educated person amounts to allowing premium on ignorance incompetence and consequently inefficiency and is unconstitutional.” 9. The decision in Sunu's case (2000 (2) KLT 747) was based on the principle that when a particular qualification is prescribed under the recruitment rules, the administrative instructions cannot override, enlarge or reduce the scope of a rule. The Bench was of the view that the “rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the bypassing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit. Government will have no power to override the rules framed wpc 32104/09, 32545/09 & 33300/09 6 under the proviso to Art.309 of the Constitution of India by executive orders. Statutory rules cannot be overridden by executive orders or executive practice.” Therein, under the recruitment rules, diploma was shown as a necessary qualification and as per the clarification issued by the department, degree holders were entitled to be recruited. It was held that the same is contrary to the Rules. 10. In Mohd. Riazul Usman Gani's case {(2000) 2 SCC 606}, it was held that the candidature cannot be denied on the principle that one is having a higher qualification. Paragraph 21 lays down the following principles: “A criterion which has the effect of denying a candidate his right to be considered for the post on the principle that he is having higher qualification than prescribed cannot be rational. We have not been able to appreciate as to why those candidates who possessed qualifications equivalent to SSC Examination could also not be considered. We are saying this on the facts of the case in hand and should not be understood as laying down a rule of universal application.” 11. In Vivina's case (ILR 2009 (2) Ker.420), the Public Service Commission issued a notification for appointment to the post of Vocational Instructor in Clothing and Embroidery and the particular qualification was wpc 32104/09, 32545/09 & 33300/09 7 also shown in the notification. After publication of the rank list, it was found that the P.S.C. decided to treat candidates having M.Sc. degree in Home Science as qualified for the post. This was under attack in the writ petition and the Bench was of the view that even though the Public Service Commission has the power to decide which qualification is equivalent to the qualification prescribed by the rules, after issuing the notification they cannot treat another qualification as equivalent to the one prescribed. In para 11, the legal position was laid down in the following words: “If the PSC wanted to treat a particular qualification, which is different from the notified qualification as sufficient qualification, it should have taken a decision before the issuance of the notification inviting applications. But, in this case, the PSC has taken the decision two days before the holding of the interview and that too, after coming to know who all are the candidates in the field of choice. The decision taken by the PSC can be applied validly only to future selections. It can govern only selections for which notifications were issued after the said decision. We agree with the views of the learned Single Judge that equivalency or sufficiency of M.Sc. Home Science with Pre-degree for the post of Vocational Instructor is relevant only to notifications for selection issued after 12.5.2008. The decision of the PSC dated 12.5.2008 could not have been made applicable during the middle of the selection, after it was revealed to all, including the PSC members, who were the wpc 32104/09, 32545/09 & 33300/09 8 contestants in the field.” 12. I will now refer to the decisions relied upon by the learned Senior Counsel appearing for the respondents. The decision in Jeslet's case (1987 (2) KLT 984) was concerning a case where, by an executive order a different qualification was prescribed. It was held that “as the rule has fully and adequately prescribed the qualifications for the post of Sewing teachers, the State Government in exercise of its executive powers cannot add other qualifications for eligibility.” The decision of the Apex Court in P.M. Latha's case {(2003) 3 SCC 541} concerned the selection to the post of Lower Primary/Upper Primary Teachers in Government Schools. The prescribed qualification as per the notification was pass in TTC, but B.Ed. holders were selected on the basis that the same is a higher qualification. It was held therein that “B.Ed. degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools.” It was further held that “whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed. qualification is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for post of primary teachers as only TTC and not B.Ed.” (para 10). It was argued that wpc 32104/09, 32545/09 & 33300/09 9 the respondents can therefore adopt a policy to go for candidates having qualification as SSLC failed. In Smt. Subhadran Devi's case (AIR 1965 Punjab 188), the meaning of the term “require” was explained, in that it is something “less than absolute necessity.” It is therefore submitted that even though the notification was published as such, the required candidates are only persons having ability to read and write and therefore a screening can be done. Learned Senior Counsel for the respondents heavily relied upon the decision of a learned Single Judge of this Court in W.P.(C) No.3607/2006 in relation to the appointment of Class IV employees in Sree Sankaracharya University of Sanskrit at Kalady. There also, the qualification prescribed for the post was ability to read and write. The exclusion of persons having higher qualification was upheld. In fact, the decisions in Y. Srinivasa Rao's case (AIR 1993 SC 929) and Mohd. Riazul Usman Gani's case {(2000) 2 SCC 606} have been distinguished, on facts in the said judgment. 13. In the light of the decision of the Division Bench in W.A. No.1117/2007, affirming the judgment of the learned Single Judge in W.P. (C) No.3607/2006, the issue will have to be considered whether the dictum laid down by the Division Bench squarely applies to the facts of this case wpc 32104/09, 32545/09 & 33300/09 10 apart from the dictum laid down in various decisions referred to by the parties. The legal position was expressed in the following terms in paragraphs 6, 7 and 10 of the judgment. “6. As we have already noted, the qualification prescribed in the notification dated 30.5.2005 was ability to read and write and it has been so laid down in the Schedule to the University Statutes. As is evident from Ext.R1(a) minutes of the Sub Committee, it was in view of the large number of applications that were expected to be received that the Sub Committee found it necessary to prepare a short list and screen the applicants, by eliminating those who have passed Plus Two and above. It is beyond controversy and is settled by various decisions of this court as also the Apex Court that while making selection, the appointing authority can undoubtedly regulate its procedure for restricting the number of candidates to be considered by eliminating candidates at a preliminary selection. However, it has been held that any such procedure of elimination must be fair and reasonable and answer the requirements of Article 14 of the Constitution. Essentially therefore, the question to be considered is whether the criteria laid down by the Sub Committee in this matter was reasonable or not” 7. It was the intention of the University to give opportunity in public employment to those with lesser qualification or no qualification, we are not prepared to hold that by excluding candidates with higher qualification, the University was acting wpc 32104/09, 32545/09 & 33300/09 11 unreasonably or unfairly in any manner. We are also of the view that if such candidates with higher qualifications are considered, the purpose of prescribing qualification as above for the post in question would itself be defeated. 10. However, in this case, we note that the decision of the University to exclude candidates was taking into account the fact that the post was intended for candidates with lesser or no qualification and that there was large number of applications available. That apart, nature of duties to be discharged was also taken into account. In these circumstances, we do not think the above judgment of the Apex Court which was decided on its own facts, can be of any help to the appellants.” 14. The next question whether the selection committee of the University was competent to take a decision with regard to the qualification, was also considered. After considering the relevant provisions of the Statute, it was held as follows in para 12: “............. This contention is also unsustainable for the reason that in terms of Statute 9 Chapter IV Part II of the University Statutes, Selection Committee is empowered to short list candidates, although Syndicate is to lay down the qualification. Since Ext.R1(a) is the decision of the Sub Committee of the Syndicate, which has been delegated with the power of selection, we see nothing irregular in the Sub Committee laying down the criteria in question. In view of this position, judgments in the cases of Dr. Krushna Chandra wpc 32104/09, 32545/09 & 33300/09 12 Sahu v. State of Orissa (1995 (6) SCC 1) and Antony P.A. and others v. Krishnadas and others (ILR 2007 (1) Ker. 244) also do not help the appellants in any manner.” I am, therefore, of the view that the dictum laid down by the Division Bench squarely applies here. 15. Herein, under the relevant Statute 9, it is specified that the selection committee, if it considers necessary that a short list of the applicants is necessary, the committee may screen the applications received and prepare a short list provided that the number of the applicants in the short list shall not be less than five for each vacancy. 16. Learned counsel for the petitioners vehemently argued that the decision of the selection committee to exclude candidates having the higher qualification, amounts to amendment of the relevant provisions of the Ordinances produced as Ext.R2(a). It is pointed out that if the University wanted to exclude such persons, at least in Ext.P1 the same could have been mentioned. It is further submitted that they have collected application fee from large number of candidates and have utilised the money and by the present method they are actually cheating the candidates after inviting them to submit application to the post by the successive notifications. 17. Learned Senior Counsel for the University answered the wpc 32104/09, 32545/09 & 33300/09 13 contentions by saying that the candidates should have understood while reading the notification, that the qualification required is ability to read and write and therefore only persons having lesser qualification are required. It is therefore, submitted that there had not been any attempt to cause hardship to the candidates, having higher qualifications. 18. The important question therefore is whether the decision by the selection committee can be termed as one which amounts to an amendment of the qualification. Going by the decision of the Division Bench in W.A.No.1117/2007, in identical circumstances it has been held that the selection committee is empowered to shortlist the candidates, although Syndicate is to lay down the qualification. The Bench was of the view that the selection committee has been delegated with the power of selection and therefore no irregularity could be attached to the decision to screen the applicants. In the light of the authoritative pronouncement by the Division Bench, there cannot be any dispute regarding the power of the selection committee in such matters. Of course, at least before publishing the second notification, viz. Ext.P1, the University could have taken measures as enjoined under law, to prescribe the necessary qualification so as to clear any doubt, in the mind of the prospective applicants. For 13 years, the wpc 32104/09, 32545/09 & 33300/09 14 University had not been doing anything in the matter, giving false hope to the candidates having higher qualification. Only at the stage of written test alone, the screening as now indicated, has been done. I am not subscribing to the argument raised by the petitioners that the screening done by the selection committee amounts to an amendment of the qualification and therefore the same is illegal. They have not attempted any amendment of the qualifications, but decided that persons having the qualification pass in SSLC and above, need not be considered for the written test, especially as the total number of candidates, which it is stated in the counter affidavit, may amount to above one lakh. It cannot therefore be said that their decision is so unfair warranting interference by this Court. Regarding the argument that unnecessarily the candidates who are now excluded had to remit application fee. I am not considering it since such an issue has not been raised in the writ petitions. Petitioners, if so advised, can resort to appropriate remedies permitted by law, and the dismissal of the writ petitions will not stand in the way of the same. 19. Since the decision of the Division Bench is to the point and the various decisions cited at the Bar were also considered by the Division Bench, the writ petitioners cannot successfully challenge Ext.P5 in W.P.(C) wpc 32104/09, 32545/09 & 33300/09 15 No.32104/2009. In that view of the matter, I find no reason to interfere with the matter. The writ petitions are hence dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/