IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 WA.No. 1730 of 2007() --------------------- (AGAINST JUDGMENT IN W.P.(C) NO.29445 OF 2006 DATED 14.6.2007) APPELLANT(S): PETITIONER ----------------- M.MOHAMMED RAPHY, WELFARE OFFICER, COCHIN PORT TRUST, COCHIN PORT TRUST, COCHIN-9. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT(S): RESPONDENTS ------------------- 1. THE CHAIRMAN, COCHIN PORT TRUST, W.ISLAND, COCHIN-9. 2. COCHIN PORT TRUST, W.ISLAND, COCHIN-9, REPRESENTED BY ITS SECRETARY. 3. SRI.P.S.MUHAMMED NAZEER, SHED WRITER, TRAFFIC DEPARTMENT, COCHIN PORT TRUST, COCHIN-9. 4. SMT.K.P.DHEERATMAJA, COCHIN PORT TRUST, SECRETARY'S DEPARTMENT, COCHIN-9 NOW PROMOTED AS WELFARE INSPECTOR ON AD-HOC BASIS. ADDL. 5. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT P & ARD DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. (ADDL. R5 IMPLEADED AS PER ORDER DATED 10.2.2009 IN W.A.NO.1730/07) BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE FOR R1 & R2 BY ADV. SRI.K.JAJU BABU (R3) BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI (R4) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/7/2009 ALONG WITH WA.NO. 849/2008, THE COURT ON 10/09/2009 DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- W.A.Nos.1730 of 2007 & 849 of 2008 ------------------------------- Dated this the September,2009 J U D G M E N T Raman, J. Both the above two writ appeals arise out a common judgment rendered in W.P.(C) Nos.29445 of 2006 and 6927 of 2007. Respective writ petitioners have preferred these two appeals. 2. W.A.No.1730 of 2007 is filed by the petitioner in W.P.(C) No.29445 of 2006 who is a Welfare Officer in the Cochin Port Trust. He challenges Ext.P5 order by which it was found that he is not qualified to hold the post of Welfare Inspector. He was promoted as a Welfare Officer, which is a promotion post to that of Welfare Inspector. He joined the Cochin Port Trust as L.D.Clerk in May, 1979, promoted as Stenographer in 1981; as a U.D.Clerk in 1985; and as Stenographer Grade-I in 1994. He possessed the B.A.Degree in Political Science, Master Degree in WA.No.1730/2007 & WA.849 OF 2008 2 Sociology and LL.B. with Labour Law. These academic qualifications as possessed by him is the requisite qualification for the post of Welfare Officer, to which there is no dispute. He was appointed first as a Welfare Inspector on 27.10.2003 and later on 15.6.2004, he was promoted as a Welfare Officer which is a Class I post. Exts.P2 and P1 respectively are the relevant rules for appointment to the post of Welfare Inspector and Welfare Officer. Party respondents 3 and 4 were claiming promotion to the post of Welfare Inspector, and thus had rival claims to that of the petitioner. According to them, the petitioner do not possess the requisite qualification for the post of Welfare Inspector. There were earlier round of litigations and by Ext.P3 common judgment, the matter was directed to be considered by the Cochin Port Trust on the rival claims of the candidates and to take a decision as to whether the petitioner is qualified to be appointed as a Welfare Inspector. 3. W.A.No.849 of 2008 arise out of the judgment in W.P.(C) No.6927 of 2007. The petitioner was a Stenographer WA.No.1730/2007 & WA.849 OF 2008 3 Grade II in the office of the Cochin Port Trust. She holds a Master Degree in Sociology. She also has Diploma in Business Administration and a Diploma in Mass Communication. She also procured a certificate of guidance issued by Indira Gandhi National Open University. The petitioner is an aspirant for the post of Welfare Inspector. When the Cochin Port Trust took the stand that Master Degree in Sociology is not an equivalent qualification to Social Science and rejected her claim, she also filed writ petition, W.P.(C) No.20420 of 2004, and that writ petition was disposed of by a common judgment dated 14.3.2008 directing that the Cochin Port Trust to reconsider the matter after hearing all the parties. Hence, appellant is also equally aggrieved like the appellant in W.A.No.1730/2007. 4. Incidentally, the appellant also challenged the promotion given to the fourth respondent by Ext.P14 since the fourth respondent is admittedly a junior, but possesses all requisite qualification as prescribed, and in the event the writ petition is allowed, the promotion of fourth respondent will have WA.No.1730/2007 & WA.849 OF 2008 4 to be set aside, and except for that purpose it is not of great significance. 5. Despite deliberations made, the Board of Trustees could not readily come to a conclusion regarding the requisite qualification to be possessed for the post, since the qualification required to be possessed for the post of Welfare Inspector is a Graduation with at least a Diploma in Social Service or equivalent qualification, as recognised by the State Government. Admittedly, the petitioner possesses B.A. Degree in Political Science. Therefore, he is a graduate. Then, in the place of Diploma in Social Service, what is possessed is a Master Degree in Sociology and LL.B. with Labour Law. 6. The question that arose for consideration was whether the qualification so possessed by the petitioner is equivalent to Diploma in Social Service or any other equivalent qualification as is approved by the State Government or can it be said that qualification as possessed by the petitioner is a higher WA.No.1730/2007 & WA.849 OF 2008 5 qualification than what is prescribed. The Board thought that the matter be referred to an expert body. Dr. M.V.Paily, to whom the matter was referred for his expert opinion, opined that qualification of M.A. Sociology and LL.B. with labour law is not an equivalent qualification to that of Diploma in Social Service. The Board accepted the expert opinion and issued Ext.P5 order. The petitioner attacked Ext.P5 on several grounds. According to him, he was not afforded an opportunity of being heard before the expert opinion was rendered in the matter and the Board also simply followed the expert's opinion. The decision taken by the Board by merely accepting the expert's opinion is contended to be vitiated, since the appointing authority has not taken any independent decision in the matter. Emphasizing the qualifications as prescribed, viz., that Diploma in Social Service is the minimum qualification that is prescribed in addition to a basic degree, it is contended that if a candidate possesses a higher qualification than Diploma in Social Service, he cannot be said to be disqualified to hold the post because WA.No.1730/2007 & WA.849 OF 2008 6 Rules prescribe only the minimum qualification. It is his contention that qualification he possessed, M.A.Sociology and LL.B. with labour law is a superior qualification to that of Diploma in Social Service. The learned Single Judge took a view that it was not merely a reference made by the Board of Trustees to the expert opinion, but in turn that the expert opinion was considered and decided to accept his views after debate by majority decision. Therefore, it is not an automatic acceptance of the expert opinion, but the appointing authority considered the expert opinion, deliberated and by majority decision, when it accepted the same, it cannot be said that there has been any abdication of the functions of the appointing authority. The expert's opinion was merely to aid the appointing authority to arrive at a correct conclusion. It was also contended by the Cochin Port Trust that non-hearing of the petitioner before accepting the expert opinion will in no way vitiate the decision, as the decision involved is not a subjective decision, but it has to be taken in an objective manner based on the materials placed WA.No.1730/2007 & WA.849 OF 2008 7 before it. The learned Single Judge overruled the primary objections with regard to the violation of the principles of Natural Justice in the matter of forming an opinion before hearing the petitioner or the contention that by merely referring the matter to the expert opinion, decision ultimately rendered by the Cochin Port Trust is in any way vitiated. 7. After repelling those contentions, the Court held that the main question that was deliberated upon was as to whether qualification as prescribed vis-a-vis the qualification possessed by the petitioner is sought to be equivalent or higher. It is true that the petitioner may be qualified to hold the post of Welfare Officer as prescribed, but the mere fact that he is eligible to hold a higher post, with reference to the qualification he possesses, however will not make him eligible for appointment to a lower post. The fact that a person is qualified to hold Lecturer post probably may not qualify him to hold the post of School Assistant. Likewise, the qualifications and situations were considered by the learned Single Judge to hold WA.No.1730/2007 & WA.849 OF 2008 8 that in this case, the subject in which the petitioner has taken M.A. Degree is in Sociology, but what is prescribed is the subject of Social Science. 8. In paragraph 8 of the judgment under appeal, consideration is made as to the various subjects for M.A. Sociology, which are Sociological analysis, Sociology of Indian Society, Personality and Social System, and Research Methods and Strategy. Whereas, for Diploma in Social Service, the concerned subjects are history, Philosophy and Fields of Social Work, Method of Social Work, Psychology for Social Work, Personal Management, Industrial Relations and Labour Welfare, Dynamics of Family and Child Welfare, Dynamics of Rural Development and the Principles and Techniques of Social Welfare Administration. Thus, it is noticed by the experts that Diploma in Social Service is a distinct discipline with subjects like social work, case work, labour welfare etc., along with field work in industries and case studies, with a view to prepare the students professionally competent to work in an industry in the field of WA.No.1730/2007 & WA.849 OF 2008 9 labour welfare. Therefore, having due regard to the subjects that are included for the study of M.A. Sociology compared to that of Diploma in Social Service, it was held that a Post Graduate Degree in Sociology cannot be treated as a Higher qualification in the field of social service. 9. The question posed before us for consideration is as to whether M.A. Sociology having due regard to the subjects taught and LL.B. with labour law as elective subject, can be said to be higher qualification to that of Diploma in Social Service. Normally, the Court need not venture to make any such exercise of a comparative study of the subjects that were taught for both these courses and to draw inferences of our own, and rather leaving it to be decided by an expert body. But according to the appellants, M.A. Sociology has been recognised as a degree equivalent to Diploma in Social Service, in which case no such exercise need be made by this Court. But according to the learned Single Judge there was no notification or Rule by the Kerala Government to that effect. WA.No.1730/2007 & WA.849 OF 2008 10 9. It is settled law that on academic matters, opinion rendered by an expert body cannot lightly to be interfered with. Further, the appellants have not produced any materials even to venture any such exercise. Fully conscious of the limitations, this Court, thought fit to direct the Government, by its order dated 10.2.2009, to file an affidavit on the question as to whether the qualification of the appellants, M.A. in Sociology is equivalent to Diploma in Social Service or whether the qualification LLB with Labour Law as elective subject is equivalent to Diploma in Social Service? Hence, for that purpose the Government was impleaded as Additional 5th respondent in the appeals. Since, the prescribed qualification is Graduate with atleast Diploma in Social Service or equivalent as recognised by the State Government, the recognition of any such qualification as equivalent by the State Government may be binding on the appointing authority. Therefore, with a view to gather the information as to whether the Government have WA.No.1730/2007 & WA.849 OF 2008 11 treated this qualification as equivalent that the above order was passed. WA.No.1730/2007 & WA.849 OF 2008 12 11. Subsequently, 5th respondent Government filed an affidavit before this Court sworn to by the Under Secretary, Personnel and Administrative Reforms Department, Government Secretariat, Thiruvananthapuram. In paragraph 4 of the affidavit, it is averred that equivalency of two qualifications can be determined only after verifying the syllabus and curriculam of the courses and that the process involved in determining the equivalency is a time consuming one. For that purpose, consultation has to be made with Kerala Public Service Commission, the Universities, other administrative Departments (Higher Education Department, Labour Department, Social Welfare Department) and only thereafter a decision can be taken as to whether a qualification can be treated as equivalent to another one. It is submitted that proceedings in this regard were initiated by the present Higher Education Department and to offer their opinion in the matter, three months' time more was sought for. WA.No.1730/2007 & WA.849 OF 2008 13 12. Later, after the said exercise, 5th respondent filed an additional affidavit on 30.5.2009, producing the true copies of the opinions offered by the University of Kerala, University of Calicut and Mahatma Gandhi University, as evidenced by Exts.R5(a) to (c) respectively. It is also averred that the Higher Education Department, after consultation with the Universities in the State has informed by their communication dated 7.4.2009 that the post graduate degree in Sociology -MA (Sociology) and LL.B. degree with Labour Law as elective subject cannot be recognised as equivalent to Diploma in Social Service. Based on the opinion of the Higher Education Department as also that of the Universities as evidenced by Exts.R5(a) to (c), it has arrived at the conclusion that M.A. (Sociology) cannot be treated as equivalent to Diploma in Social Service and LL.B. with Labour Law as elective subject cannot be treated as equivalent to Diploma in Social Service. 12. We have perused Ext.R5(a), the opinion offered by the University of Kerala, dated 12.3.2009. It was WA.No.1730/2007 & WA.849 OF 2008 14 addressed to the Principal Secretary to Government, in which it was stated that Post Graduate Degree in Sociology has not been recognised as equivalent to the Diploma in Social Service and LL.B. Degree with Labour Law (elective) is also not recognised as equivalent to the Diploma in Social Service. Like wise, in Ext.R5(b), the University of Calicut has also informed that M.A. Sociology and LL.B. with Labour Law as elective subject are not treated as equivalent to Diploma in Social Service. The same is the view expressed by the M.G.University as evidenced by Ext.R5 (c) letter. 13. Even though the petitioner in his reply affidavit thereto has taken up a stand that according to him, what he pleaded is that the qualification which he possesses no doubt satisfies the post of Welfare Officer and the post of Welfare Inspector being feeder category for promotion to the post of Welfare Officer, it is contended that a person who has possessed of all requisite qualification to hold higher post cannot be held as not possessed of the qualification for the inferior post. WA.No.1730/2007 & WA.849 OF 2008 15 It is pointed out that the Government of Kerala has framed Recruitment Rules for the post of Welfare Officers, as per which the qualification is degree or diploma in Social Science or LL.B. with Labour Laws. There is no post of Welfare Inspector in the Factories Act or any other Department in the State Government and that is the reason why qualification for the post of Welfare Inspector is not fixed by the Government. 14. But unless this Court holds that the qualification possessed by the appellant are superior to the one prescribed for the post of Welfare Inspector, no relief can be granted. The opinion rendered by various Universities as also the Government and the experts appointed by the Management have unanimously taken the stand that the qualification M.A. in Sociology and LL.B. with Labour Law as elective subject is not equivalent to Diploma in Social Service. 15. In Sunil v. Public Service Commission (2008 (3) KLT 384), a Division Bench of this Court held that WA.No.1730/2007 & WA.849 OF 2008 16 holding of diploma or degree in Civil Engineering will not presuppose acquisition of ITI certificate in Surveyor Trade. Degree/Diploma in Civil Engineering is not a prescribed or equivalent or alternate qualification for the post. That was a case where the appellants are candidates with diploma and degree holders in civil engineering. The qualification prescribed for the post of Surveyor Grade-II to which the appellants applied and the qualification prescribed as per Special Rules, among other things, is to possess ITI (Survey Trade) Certificate. It was contended that appellants being Diploma/Degree holders in Civil Engineering, and though the Diploma/Degree in Civil Engineering is not made mention of in the Special Rules, it is a higher qualification than ITI (Survey Trade) Certificate. Repelling the contention, the Court said, as per Rule 13(b)(i) of K.S. & S.S.R., which prescribes special qualification, no person shall be eligible for appointment to any service, class, category or grade or any post, unless he possesses such other qualifications as may be considered to be equivalent to the said special WA.No.1730/2007 & WA.849 OF 2008 17 qualifications or special tests. Therefore, Special Rules only authorises consideration of an equivalent qualification. It was also noticed by the Division Bench that the Government had considered the qualification of ITI certificate in Surveyor Trade as a prescribed qualification and not a diploma or degree in Civil Engineering. Therefore, in the absence of any amendment to the Rules, there was no question of considering Diploma or Degree holders for the said post. WA.No.1730/2007 & WA.849 OF 2008 18 16. In Latha v. State of Kerala (2003 (1) KLT 949 (SC), the Apex Court has considered the question whether B.Ed. Degree can be taken as a higher qualification for T.T.C. which is prescribed for appointment as teacher in lower primary schools. It was held that whether for a particular post, the source of recruitment should be from the candidates with T.T.C. qualification or B.Ed. qualification, is a matter of recruitment policy and whether B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned, but, the Court cannot consider B.Ed. candidates for the present vacancies advertised, as eligible. 17. It is true, as held by the Apex Court, in Jyothi K.K. and Others v. Kerala Public Service Commission & others (JT 2002 (Suppl. 1) SC 85), that if the higher qualification is obtained in the same faculty, that can be considered. Here, there is nothing on record to show that the qualification possessed are in the same faculty. The qualification as prescribed for the post in question, viz., Diploma in Social WA.No.1730/2007 & WA.849 OF 2008 19 Service, is not shown to be the basic qualification for getting admission to course of M.A. Sociology and nobody has any such case. 18. Further, a judicial review comes into play only if the said action is contrary to the Constitution or Statutory provision or patently arbitrary or vitiated by mala fides. Whether or not the qualification possessed by the appellants are equivalent to the qualification as prescribed has since been considered by an expert body and in the absence of any materials to hold that the said conclusion reached is in any way arbitrary or mala fide, we are unable to hold that the the view taken by the learned Single Judge is in any way perverse. We find that on the factual situation, the view taken by the learned Single Judge is a plausible one and hence interference by this Court in an intra- court appeal with such a finding of the learned Single Judge is WA.No.1730/2007 & WA.849 of 2008 20 impermissible, and no reasons are also made out for the same. In such circumstances, we find no merit in these appeals. Accordingly, the appeals are dismissed. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.