IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 WP(C).No. 22462 of 2010(G) -------------------------- PETITIONER(S): --------------- JYOTHY LAKSHMI.T, AGED 30 YEARS, D/O.K.VIJAYAN PILLAI, KADAKATH KIZHAKKETHIL, KUDASSANAD P.O., PANDALAM, ALAPPUZHA DISTRICT. BY ADV. SRI.PAULSON THOMAS RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1. 2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF THE PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-6. R1 BY G.P.SRI.SANDESH RAJA R2 BY S.C. SRI.ALEXANDER THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “C.R.” C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.22462 of 2010 ---------------------------------------- Dated 19th July, 2010 JUDGMENT The petitioner who possesses M.Sc. (Information Science and Management) from Bharatiyar University in the year 2003 applied for the post of HSST/HSST Junior in Computer Science/Computer Application in response to Ext.P9 notification issued by the Kerala Public Service Commission. The petitioner has submitted online application. Admittedly, the petitioner did not possess the prescribed qualification under the special rules and naturally, the qualifications prescribed in Ext.P9 notification as well, for selection to the aforesaid post. The petitioner did not have a case that qualifications have been prescribed in Ext.P9 notification by the second respondent against the special rules. Admittedly, the special rules prescribe qualifications for appointment to the said post and the aforementioned qualification possessed by the petitioner is not included therein even as an alternative or equivalent qualification. The contention of the petitioner is that, earlier, she has taken up the matter before the Government. The Government as per Ext.P8 order dated 25.4.2007, pursuant to a direction of this Court in judgment dated 6.7.2006 in W.P.(C)No.17123 of 2006, passed an order disposing of the application of the petitioner WP(C).No.22462/2010 2 in her favour. The relevant portion of Ext.P8 in the context of the contentions raised in this writ petition, reads as follows: “Government have examined the case in detail and have decided to amend the Special Rules of Higher Secondary Education incorporating the qualifications of the degree M.Sc. Information Science and Management with not less than 50% of marks awarded after a regular course of study as an alternate qualification for appointment as HSST in Computer Science. The Director, Higher Secondary Education will furnish the draft notification for the amendment.” Evidently, as per Ext.P8, Government have taken a decision, after examining the case of the petitioner, to amend the Special Rules of Higher Secondary Education incorporating the qualification of degree M.Sc. Information Science and Management with not less than 50% of marks awarded after a regular course of study as an alternate qualification for appointment as HSST in Computer Science. As per Ext.P8, the Director, Higher Secondary Education was called upon to furnish a draft notification for the amendment. Thus, it is obvious that an amendment is yet to be brought into the relevant provisions under the special rules for appointment to the post in question. 2. The contentions raised by the petitioner in this writ petition would reveal that the petitioner is seeking reliefs based on the aforesaid proposal to amend the special rules. The question is whether WP(C).No.22462/2010 3 such proposal to amend the special rules can be the basis for issuance of a writ of mandamus. There can be no doubt that rights of parties are to be decided based on the relevant rules governing the issue on the relevant date. Admittedly, in this case, even after considering the representation made by the petitioner favourably, the Government in specific terms made it clear that to incorporate the said qualification as an alternate qualification, an appropriate amendment has to be made in the special rules and it is for that purpose that the Government directed the Director, Higher Secondary Education to furnish a draft notification for the amendment. In short, the admitted position available in this case is that the qualification possessed by the petitioner is yet to be recognized as a qualification for the aforesaid post as per the special rules. Ext.P9 notification issued by the second respondent is strictly in accordance with the special rules. 3. The learned counsel for the petitioner submits that in the light of the decision of this Court in Baiju v. Suguna Prakash (2003 (2) KLT 182) the petitioner is entitled to the reliefs sought for in this writ petition, especially for a direction to the respondents to consider her application for selection to the post of HSST in Computer Science. In Baiju v. Suguna Prakash (supra) this Court held that executive orders can be issued to fill up gaps in rules provided they are not inconsistent with the rules. It is true that executive orders can WP(C).No.22462/2010 4 be issued by the Government in the light of Article 162 of the Constitution of India. However, orders passed invoking the said power cannot contravene a Legislation which is already governing a field. In this case, admittedly, special rules have been framed in the matter of appointment to the post including the post to which the petitioner seeks consideration. It is common case that the qualifications prescribed thereunder for selection to the said post did not include the qualification possessed by the petitioner. In such circumstances, I am of the view that the decision of this Court in Baiju v. Suguna Prakash (supra) cannot have any application in the facts and circumstances of this case. As already stated, the second respondent has issued Ext.P9 notification strictly in terms of the special rules and therefore persons possessing the qualifications prescribed under the said notification which was issued strictly in terms of the special rules, alone can apply in response to that notification. In the above circumstances, I am of the view that there is no merit in this writ petition and accordingly it is dismissed. C.T.RAVIKUMAR Judge TKS