IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 WP(C).No. 33046 of 2006(H) --------------------------------------- PETITIONER: ------------------- MADHU M.R., AGED 36 YEARS, S/O. RAGHAVAN, UPPER DIVISION CLERK, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, PIRAPPANCODE, THIRUVANANTHAPURAM. BY ADVS. MR.V.A.MUHAMMED, MR.K.E.HAMZA. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR, VOCATIONAL HIGHER SECONDARY DIRECTORATE, THIRUVANANTHAPURAM. 3. PRINCIPAL, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, PIRAPPANCODE, THIRUVANANTHAPURAM. 4. SECRETARY, KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM. W.P.(C). NO.33046/2006-H: *ADDL.R5 IMPLEADED: 5. ASHA RANI.S, `SANNIDHANAM', ULIYACOIL, KOLLAM. *IS IMPLEADED AS ADDL.R5 AS PER ORDER DTD. 19/02/08 IN I.A. NO. 2422/2008. R1 & R2 BY GOVT. PLEADER MR. K. RAMESH, R4 BY MR. ALEXANDER THOMAS, SC, KPSC, ADDL. R5 BY ADV. DR.GEORGE ABRAHAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.33046/2006-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER OF THE PETITIONER. EXT.P.2: COPY OF THE POST GRADUATE DEGREE CERTIFICATE (MA) OF THE PETITIONER. EXT.P.3: COPY OF THE B.ED. CERTIFICATE ISSUED BY THE DAKSHINA BHARATH HINDI PRACHARA SABHA, MADRAS. EXT.P.4: COPY OF THE EQUIVALENT CERTIFICATE ISSUED BY KERALA UNIVERSITY. EXT.P.5: COPY OF THE EQUIVALENT CERTIFICATE ISSUED BY THE MAHATMA GANDHI UNIVERSITY. EXT.P.6: COPY OF THE STATE ELIGIBILITY TEST CERTIFICATE. EXT.P.7: COPY OF THE GAZETTE NOTIFICATION DTD. 02/11/2004. EXT.P.8: COPY OF THE HALL TICKET. EXT.P.9: COPY OF THE SHORT LIST PUBLISHED BY THE PUBLIC SERVICE COMMISSION. EXT.P.10: COPY OF THE CIRCULAR NO. 17/57 DD. 04/07/1987 ISSUED BY THE PUBLIC SERVICE COMMISSION. EXT.P.11: COPY OF THE CIRCULAR NO. 30/2003 DTD. 01/12/2003 ISSUED BY THE PUBLIC SERVICE COMMISSION. EXT.P.12: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C). NO.36481/2004. EXT.P.13: COPY OF THE JUDGMENT IN W.A. NO. 2684/2005. EXT.P.14: COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHOOMI DAILY DTD. 02/01/2007. EXT.P.15: COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHOOMI THOZHIL VARTHA. DTD. 13/11/2004. EXT.P.16: COPY OF THE LETTER NO. E4/3764/04 OF THE DIRECTOR DTD. 25/04/2007. EXT.P.17: COPY OF THE CALL LETTER OF THE COMMISSION DTD. 16/01/2007. W.P.(C). NO.33046/2006-H: EXT.P.18: COPY OF THE RANK LIST DTD. NIL. EXT.P.19: COPY OF THE I.A. NO. 16561/2006 IN W.P.(C).NO.17352/2006 DTD. 12/12/2006. EXT.P.20: COPY OF THE INTIMATION NO. KLR.3(3)6532/06 OF THE PUBLIC SERVICE COMMISSION DTD. 26/07/2007. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.33046/2006-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10th day of July, 2009 J U D G M E N T The petitioner herein is working as an Upper Division Clerk in Vocational Higher Secondary School, Pirappancode, Thiruvananthapuram. He is having Post Graduate Degree from Annamalai University, which is recognised as equivalent to M.A English Degree of Kerala University and also Degree of Bachelor of Education (Social Studies) conducted by Dakshina Bharat Hindi Prachar Sabha, Madras, which is recognised as equivalent to B.Ed degree course of Mahatma Gandhi University, Kottayam. He has also passed State Eligibility Test which is prescribed as one of the qualifications for appointment as Higher Secondary School Teacher. 2. The Public Service Commission as per Ext.P7 published a notification inviting applications for the post of Non-Vocational Teacher in English. Category No.215/2004 is the post of Non- Vocational Teacher (English) to be filled up by way of by-transfer method. Accordingly, he submitted application for Non-Vocational Teacher (English). The total number of vacancies for the said post W.P.(C). No.33046/2006 -:2:- by by-transfer is nine and the short list published by the P.S.C, namely, Ext.P9 contains only three persons. 3. The petitioner contends that as the total number of candidates who had appeared for the post of Non-Vocational Teacher (English) for recruitment through by-transfer appointment is 5, all those persons have to be included in the list. The petitioner is relying upon Exts.P10 and P11 Circulars issued by the Commission as well as the decision of the learned Single Judge produced as Ext.P12 in support of the argument that the three times of number of candidates advised during the previous years are to be included in the ranked list/short list. 4. This Court by a detailed interim order dated 12/01/2007 directed the P.S.C to call the petitioner to participate in the interview provisionally which will be subject to further orders to be passed by this Court. Pending the writ petition, the petitioner was given a reply by Ext.P20 which is produced along with I.A.No.10684/2007. The stand taken therein to deny eligibility to the petitioner is that he is not having B.Ed in English and he did not get the minimum marks for inclusion in the ranked list. W.P.(C). No.33046/2006 -:3:- 5. The learned counsel for the petitioner mainly contended that the above view taken by the Commission that he is not having B.Ed in English cannot be accepted in terms of the Special Rules itself. In paragraph (3) of the writ petition, the Special Rules have been quoted. The qualification prescribed for the post of Non- Vocational Teacher (English) in Vocational Higher Secondary Department is as follows: 1. Non-Vocational Teacher in English By transfer or by direct recruitment i. Post graduate degree in English with not less than 50% marks awarded by any of the Universities in Kerala or an equivalent qualification ii.(i) B.Ed Degree in the concerned subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognized as equivalent thereto by a University of Kerala. 2. In the absence of persons with B.Ed degree in the concerned subject, B.Ed. Degree in the concerned faculty as specified in the Act and the Statute of the Universities in Kerala. W.P.(C). No.33046/2006 -:4:- 3. In the absence of persons with B.Ed degree as specified in item (1) and (2) above, persons with B.Ed degree in any subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognized as equivalent thereto by any of the Universities in Kerala. iii. Must have passed State Eligibility Test for the post of Non-Vocational Teacher conducted by the Government of Kerala, or by the agency authorized by the State Government. Therefore, when the candidates having B.Ed in the concerned subject are not available to fill up the vacancies, then the persons with B.Ed. Degree in the concerned faculty will have to be considered. In the absence of candidates with any of the B.Ed degrees as above, B.Ed degree certificates in any subject acquired after regular course of study will be sufficient. 6. As far as the petitioner is concerned, he is having M.A English degree from Kerala University and he is having Bachelors Degree of Education in Social Studies. The first method alone have been resorted to by the Commission while publishing the list. It was not found out whether there are candidates who are eligible as per second and third alternative methods. Admittedly, herein, there are W.P.(C). No.33046/2006 -:5:- no other candidates who are eligible under the second category, namely, having B.Ed Degree in the concerned faculty. Therefore, the persons having B.Ed degree in any subjects ought to have been given consideration. 7. Admittedly, there were nine vacancies. Only three persons have been included in the short list and the ranked list. In that view of the matter, the petitioner, going by his qualification is eligible to be included. Therefore, the view taken in Ext.P20 that as he is not having B.Ed in English he cannot be considered is not sustainable. 8. The notification did not fix a cut off mark for the purpose of selection. Going by the decision of the Full Bench of this Court in judgment dated 16/03/2009 in W.P.(C).No.11916/2005 and connected cases {Ravidas v. Public Service Commission [2009 (2) KLT 295 (F.B)]} unless there is a specification in the notification or there is some provision in the Rules to enable the P.S.C to fix cut off marks, the Commission is not empowered to fix a cut off mark. In that view of the matter also, the reasoning adopted by the Commission that he did not obtain minimum marks for inclusion in the ranked list cannot be sustained. W.P.(C). No.33046/2006 -:6:- 9. Therefore, the writ petition is allowed. Ext.P20 is quashed. There will be a direction to the fourth respondent to include the name of the petitioner in the rank list for appointment to the post of Non-Vocational Teacher (English) in Vocational Higher Secondary Education Department from the by-transfer category. Exts.P8, P9 and P18 will be modified accordingly. It is made clear that this will not prejudice the rights of candidates already advised. No costs. (T.R. Ramachandran Nair, Judge.) ms