IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 WA.No. 2250 of 2007(E) --------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.17496/2007 DTD. 07/06/2007 .................... APPELLANT/ 6TH PETITIONER: -------------------------------------------- SUNIL C.K., KALLANGAPOYIL HOUSE, THAMARASSERY P.O.,KOZHIKODE. BY ADV. SRI.R.K.MURALEEDHARAN. RESPONDENTS: ----------------------- 1. THE KERALA STATE PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE DIRECTOR, SURVEY AND LAND RECORDS, THIRUVANANTHAPURAM. 3. T.K. ADARSH, CHIEF EDITOR, TECHNICAL PUBLISHERS & DISTRIBUTORS, TRIVENI BUILDINGS, S.R.P.M. P.O.,KARUNAGAPPALLY, KOLLAM. BY SR. GOVERNMENT PLEADER SRI. BENNY GERVACIS, SRI.ALEXANDER THOMAS,SC,KPSC. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2008, ALONG WITH W.A. NO. 931/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. Koshy & P.N.Ravindran, JJ. ------------------------------------------ W.A. No.2250 of 2007 and 826, 931, 943, 1028, 1319, 1320, 1321, 1322, 1336, 1343 of 2008. ------------------------------------------- Dated this the 26th day of June, 2008 Judgment Koshy,J. Appellants in these cases applied for the post of Surveyor Grade II in pursuance to Ext.P1 notification. Qualifications prescribed in the Special Rules for the post are the following: "(1) A pass in S.S.L.C. examination or possession of any of the other equivalent qualification specified in the schedule to Part II of the General Rules. (2) Must possess:- (i) I.T.I. (Surveyor Trade) Certificate introduced with effect from the year 1966; or (ii) The I.T.I. (Surveyor Trade) Certificate issued prior to the year 1966 and satisfactorily completed six months inplant training according to the rules approved by the Board of Revenue in this regard; or (iii) A pass in Surveying and Levelling (Higher) M.G.T.E. or K.G.T.E. with Chain Survey Test; or W.A.No.2250/2007 and connected cases 2 (iv) Experience in Military service for a period of six years in Surveyor trade; Provided that in the absence of candidates with the technical qualifications mentioned above, a pass in Higher Survey Test shall be deemed sufficient: Provided further that in the absence of candidates with any of the technical qualifications mentioned above, a pass in Chain Survey Test shall be deemed sufficient." Appellants are candidates with diploma and degree holders in Civil Engineering. The learned Judge in the impugned judgment in Writ Appeal No.2250 of 2008 and other connected cases (Sajan v. State of Kerala - 2008 (2) KLT 133) held that they are not entitled to apply for the post in view of the Special Rules. A contrary view is taken by another learned single Judge in the judgment impugned in W.A.No.2250 of 2007. 2. Main contention of the appellants is that even though degree or diploma in Civil Engineering is not made mention of in the Special Rules, it is a higher qualification than I.T.I. Survey trade certificate. They also relied on the decision of the Supreme Court of India in Jyothi K.K. and others v. Kerala Public Service Commission and others (JT 2002 (Suppl.1) SC 85) in support of their contention. W.A.No.2250/2007 and connected cases 3 In that case, the question of selection of Sub Engineer in the Electricity Board was considered. There, the educational qualification prescribed for the post of Sub Engineer was Diploma in Electrical Engineering from a recognised institute or a certificate in Electrical Engineering from any one of the recognised technical institutes along with five years experience. Some of the applicants were holders of B.Tech. degree or Bachelors degree in Electrical Engineering. The Supreme Court held that degree in Electrical Engineering is a higher qualification than diploma in Electrical Engineering. It was further noticed that the promotion post of Sub Engineer is Assistant Executive Engineer where the prescribed qualification is degree in Electrical Engineering. In that circumstance, it was held that if the candidate has passed degree in Electrical Engineering, it can be treated as a higher qualification which presupposes the acquisition of diploma in Electrical Engineering. Here, the position is entirely different. Degree or Diploma in Civil Engineering is not treated as a qualification or even as an alternate qualification for promotion from the post of Surveyor Grade II to Surveyor Grade I, Head Surveyor or Superintendent. At paragraph 18, the learned single Judge held as follows: W.A.No.2250/2007 and connected cases 4 "18. This brings me to the second aspect as to whether the persons with Degree or a Diploma in Civil Engineering were entitled to participate in the test as such. I have already adverted to the contentions of either side. Learned Standing Counsel for the P.S.C. relies on the judgment in Jyothi to contend that a Degree or a Diploma in Civil Engineering should be treated as a higher qualification, which necessarily presupposes the acquisition of the lower qualification namely the prescribed qualification of a certificate in Survey Trade. One factor which was specifically considered by the Supreme Court in Jyothi, upholding the contention of a similar nature therein, was that the Degree in Electrical Engineering is identified as a qualification prescribed for the post of Assistant Executive Engineer,which is vertically above the post of Sub Engineer in the Electricity Board. The technical qualification prescribed for the post of Sub Engineer was a Diploma in Electrical Engineering from a recognised institute or a certificate in Electrical Engineering from any one of the recognised technical institutes, along with five years experience. Apparently, some of the applicants for the said post were holders of B.Tech. Degree in Electrical Engineering or Bachelors Degree in Electrical Engineering. Supreme Court considered it significant that a Degree in Electrical Engineering was treated as the prescribed qualification for the post of Assistant Executive Engineer as per the Special Rules in question. The post of Assistant Executive Engineer is the promotion post to that of Sub Engineer and in these circumstances, Supreme Court held that the qualification that has to be possessed by a direct recruit to a higher post could be treated as the higher qualification to what is prescribed for the lower post. It was held that 'in that view of the matter, the qualification of Degree in W.A.No.2250/2007 and connected cases 5 Electrical Engineering presupposes the acquisition of the lower qualification of Diploma in that subject prescribed for the post'. What was considered by the Supreme Court was the Special Rules, which provided for a vertical hierarchy amongst the post of Sub Engineer and Assistant Executive Engineer (and others) and the degree as a prescribed qualification for the promotion post, 'in the same line of promotion'. The situation would probably be different in the present case. A perusal of the Special Rules would show that a Degree or Diploma in Civil Engineering is not treated as a qualification even as an alternate qualification for any one of the posts in the hierarchy of the posts comprehended by the same set of Rules. It is not the qualification for the post of Surveyor Grade-I or a Head Surveyor and it is not even a qualification for the post of Superintendent which is a promotion post, but covered by Special Rules for the State Service. In such circumstances, I am of the view that the principle in Jyothi as such would not apply to the facts of the present case." We fully agree with the above reasonings. 3. The learned counsel for the appellant relied on rule 10(a) (ii) of Part II of the Kerala State and Subordinate Services Rules, 1958 (for short KSSSR) which reads as follows: "(ii) Notwithstanding anything contained in these rules or in the Special Rules, the qualifications recognised by executive orders or standing orders of Government as equivalent to a qualification specified for a post in the Special Rules and such of those higher qualifications which presuppose the acquisition of the lower W.A.No.2250/2007 and connected cases 6 qualification prescribed for the post shall also be sufficient for the post." They also referred to rule 13 (b) (i) of KSSSR which reads as follows: "13. Special qualifications:- No person shall be eligible for appointment to any service, class, category or grade or any post borne on the cadre thereof unless he -- xx xx xx (b) possesses such other qualifications as may be considered to be equivalent to the said special qualifications or special tests - (i) by the Commission in cases where the appointment has to be made in consultation with it; or xx xx xx " The question of application of section 13(b) (i) will arise only if Special Rules authorise the consideration of an equivalent qualification. That is made clear under rule 10 (a) (ii). Apart from the above, it can be seen that under the Special Rules, if one has passed I.T.I. Surveyor Trade prior to 1966, they must satisfactorily complete six months' inplant training according to the rules approved by the Board of Revenue. Such inplant training was not made compulsory for I.T.I. certificate holders after 1966 as part of curriculum. Therefore, training is also made a necessary qualification to those who possess I.T.I. certificate in Surveyor Trade W.A.No.2250/2007 and connected cases 7 before 1966. The surveyor has to work in the field. In Civil Engineering surveying is one of the subjects and no inplant training is necessary. Unlike the other Universities, Universities in Kerala are not granting diploma in survey trade alone. We also note that holders of diploma/degree in Civil Engineering have got several employment opportunities while those who pass I.T.I. certificate in Surveyor Trade have got limited opportunities only. Their job is intended for field work with surveying and that is intended for I.T.I. certificate holders in Surveyor Trade and not intended for degree/diploma holders in Civil Engineering and their opportunity of getting appointment will be completely curtailed if another view is taken. We further notice that the Hon'ble Apex Court in Latha v. State of Kerala (2003 (1) KLT 949 SC) considered the question whether B.Ed. degree can be taken as a higher qualification for T.T.C. prescribed for appointment as teacher in lower primary schools. There, the Hon'ble Supreme Court held as follows: "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. We find sufficient logic and justification in the State prescribing qualification for the post of primary teachers as only T.T.C. and not B.Ed. Whether B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the W.A.No.2250/2007 and connected cases 8 authorities concerned, but, we cannot consider B.Ed. candidates for the present vacancies advertised, as eligible." Here also, Government has considered qualification of I.T.I. certificate in Surveyor Trade as a prescribed qualification and not a diploma or degree in Civil Engineering. Government have also filed an affidavit stating that Government is not treating a degree or diploma in Civil Engineering as equivalent or higher qualification for I.T.I. Surveyor Trade. Affidavit filed by the Government reads as follows: "Since the application for selection was invited by the KPSC based on the Special Rules, the KPSC should have allowed only by the candidates who fulfilled the prescribed qualification to appear for the post. So far all the appointments of Surveyor Grade II made by the Department were strictly under the provisions of Special Rules. Allowing candidates who do not possess the prescribed qualification as per the KPSC notification to appear for the test is violation of the Special Rules. It is submitted that if the selection of Surveyors to the department is not according to the qualifications prescribed in the Special Rules, it will cause several difficulties in the administration of the Survey and Land Records Department. Moreover, rules governing the recruitment and other related procedures are framed after due process and these rules are to be followed by all concerned." W.A.No.2250/2007 and connected cases 9 Therefore, in the absence of amendment of the Special Rules, it is not proper for the PSC to consider diploma or degree holders for the post. 4. We further note that under Ext.P1 notification and in the advertisement, only qualification mentioned is as in the Special Rules. If degree and diploma holders are allowed to participate in the interview, it will be a fraud on the public as many degree or diploma holders might not have applied for the post knowing that they are not entitled to apply. In this connection, we refer to the decision of this Court in Geetha v. State of Kerala (1999 (1) KLT 504). At paragraph 7, it was held as follows: "7. A Division Bench of this Court in O.P. No.213 of 1996 took the view that when a particular qualification is prescribed, there is no justification in saying that an overqualified candidates is desirable or required. Bench also held that when advertisement mentions particular qualification, and if appointments are made in disregard to the same, it amounts to a fraud on public. The same question has been dealt with in Shoba Menon v. Public Service Commission,1994 (1) KLT 986, Jayanthi v. Public Service Commission, 1996 (2) KLT SN 72, Latha v. Public Service Commission, 1997 (2) KLT 624 and Sadananda v. State of Travancore, ILR 1996 (3) Ker. 780, and the Supreme Court in Karnataka Public Service Commission v. N.C. Hugar, (1981) 1 SLR 469. All the above mentioned decisions were considered by this Court in Sujatha v. State of Kerala, 1998 (2) KLT W.A.No.2250/2007 and connected cases 10 809. In that case, this Court took the view that after issuing notification inviting applications, and if applicants having post-graduation are selected, that would be a fraud committed on the public, since many of the post-graduates would not have applied for the post. I am of the view that the above mentioned principle squarely applies to the facts of the present case. In this case, as already stated, B.Ed. is not a qualification prescribed, and therefore, B.Ed. holders are ineligible to apply and many of the B.Ed. holders might not have applied for the post. In the said circumstances, these applications should not have been entertained by the Public Service Commission. Petitioner is therefore, right in her contention that Public Service Commission committed a grave error in entertaining applications from B.Ed. holders and including them in the rank list. As already mentioned, since the inclusion of B.Ed. holders in the rank list is illegal, the question whether B.Ed. qualification is desirable for the post of UPS/LPS assistant does not arise for consideration. In any view of the matter, after having invited applications, Public Service Commission is not justified in searching for equivalent and better qualification. Such a procedure is illegal and against public policy. As already mentioned, it is a fraud on the public." It was finally approved by the Supreme Court. 5. The Hon'ble Supreme Court in Jyothi's case (supra) held that if the higher qualification is obtained in the same faculty, that can be considered. Here, it is not in same faculty. Acceptance of the higher qualification when the qualification prescribed is the basic qualification for getting the higher qualification is legally W.A.No.2250/2007 and connected cases 11 permissible. But, I.T.I. certificate in Surveyor Trade is not the basic qualification for getting admission to diploma or degree course in Civil Engineering. Therefore, holding of diploma or degree in Civil Engineering will not presuppose the acquisition of I.T.I. certificate in Surveyor Trade. We are, therefore, unable to accept the reasoning of the learned single Judge in W.P. (C) No.17496 of 2007. The learned Judge in that case also noticed that necessary pleadings were not made in that writ petition. We set aside the same and W.A. No. 2250 of 2007 is allowed. We fully agree with the reasoning of the learned single Judge in Sajan's case (supra). All the appeals excluding W.A. No.2250 of 2007 are dismissed. W.A.No.2250 of 2007 is allowed. J.B.Koshy Judge P.N.Ravindran Judge vaa W.A.No.2250/2007 and connected cases 12 J.B. KOSHY AND P.N.RAVINDRAN,JJ. ------------------------------------- W.A. Nos. 2250 of 2007 and 826, 931, 943, 1028, 1319, 1320, 1321, 1322,1336, 1343 of 2008 ------------------------------------- Judgment Dated:26th June, 2008