IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 15304 of 2005(V) ---------------------------------- PETITIONER(S): ------------------- 1. ABDUL MAJEED, CHEMBIRIKA,P.O. CHANDRAGIRI, KASARAGODE, NON VACATIONAL TEACHER, M.R. V.H.S.S PADENI. 2. JAFFER K.C., KAELOTH CHALAHYIL,P.O. CHERUVANNOOR, MEPPAYUR, VIA. KOZHIKODE, NON VACATIONAL TEACHER, KOOTHALI V.H.S.S. KOZHIKODE. 3. JAYASREE M.V., KALLADATHIL HOUSE,PUTHOOR P.O., CHERALKUNNU, THRISSUR, GUSET LECTURER, ABOVE V.H.S.S. KOOTHALI. BY ADVS. SRI.T.A.UNNIKRISHNAN SRI.P.P.THAJUDEEN RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA STATE PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS CHAIRMAN, K.P.S.C., PATTOM, THIRUVANANTHAPURAM. R1 BY GOVT. PLEADER SRI.SANIL KUMAR R2 BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2010, ALONG WITH WPC NO. 17048 OF 2005 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs WP(C).No. 15304/2005(V) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF DRAFT SPECIAL RULES OF THE KERALA VOCATIONAL HIGHER SECONDARY EDUCATIONAL STATE SERVICE PERTAINING TO NON VOCATIONAL TEACHERS CIRCULATED VIDE GOVERNMENT LETTER DATED 05/08/1999. P2: COPY OF RELEVANT EXTRACT OF THE SPECIAL RULES FOR THE KERALA VOCATIONAL HIGHER SECONDARY EDUCATION, STATE SERVICE. P3: COPY OF REPRESENTATION DATED 24/03/2004 FROM the ASSOCIATE DEAN, KERALA ARGRICULTURAL UNIVERSITY TO THE 1ST RESPONDENT. P4: COPY OF MINUTES OF THE SUBJECT COMMITTEE WHICH MET ON 08/02/2005 AND 09/02/2005. P5: COPY OF NOTIFICATION DATED 26/04/2005 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION. RESPONDENT'S EXHIBITS: R1(a):COPY OF G.O.(MS) NO.123/07/G.EDN. DATED 23/06/2007. /TRUE COPY/ P.A. TO JUDGE svs “C.R” C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)Nos.15304, 17048, 17114 of 2005, 12408 & 22868 of 2007 ---------------------------- Dated 14th July, 2010 JUDGMENT Since common issues based on common facts arise for consideration in these writ petitions, they were jointly heard and are being disposed of by this common judgment. For the sake of convenience W.P.(C)No.15304 of 2005 is treated as the leading case and facts and documents are referred to hereafter in this judgment in the manner they are set out therein unless otherwise specified. 2. The petitioners in these writ petitions are graduates possessing B.Sc. (Co-operation & Banking) Degree awarded by the Kerala Agricultural University. As per Ext.P1 draft rules, the said qualification was prescribed as one of the qualifications for appointment to the post of Non-vocational Teacher in General Foundation Course in the Kerala Vocational Higher Secondary Education Department. Subsequently, Ext.P2 special rules have been brought into force. The grievance of the petitioners is that the qualification of B.Sc. (Co-operation & Banking) Degree awarded by the Kerala Agricultural University which was prescribed as one of the qualifications under Ext.P1 was not included as one of the WP(C).No.15304/2005 & connected cases 2 qualifications for the post of Non-vocational Teacher in General Foundation Course in Ext.P2 special rules. Ext.P3 is a representation dated 24.3.2004 from the Associate Dean of the Kerala Agricultural University to the Secretary to Higher Education Department virtually highlighting the necessity to include the aforesaid qualification as one of the qualifications for the aforesaid post. In fact, as per Ext.P3, it was requested to include the aforesaid qualification as a qualification for the post of Non-vocational Teacher in General Foundation Course. Ext.P4 is a recommendation by the subject committee of the Legislative Assembly. 3. While so, the Kerala Public Service Commission issued Ext.P5 notification dated 26.4.2005 inviting applications for appointment to the post of Non-vocational Teacher in General Foundation Course in the Kerala Vocational Higher Secondary Education Department. Admittedly, in Ext.P5 notification qualifications were prescribed in tune with Ext.P2 special rules. Obviously, B.Sc. (Co-operation & Banking) Degree possessed by the petitioners was not included as a qualification in Ext.P5. Though the petitioners are ineligible to submit applications in response to Ext.P5 notification, they submitted applications for selection to the post of WP(C).No.15304/2005 & connected cases 3 Non-vocational Teacher in General Foundation Course in response to Ext.P5. Apprehending that they would not be permitted to appear for the written examination held as part of the selection process, they approached this Court by filing these writ petitions. On 7.6.2005 this Court passed an interim order in W.P.(C)No.17048 of 2005. Based on the same and similar orders, the respondents permitted the petitioners therein to participate in the selection process to the post of Non-vocational Teacher (General Foundation) in pursuance of Ext.P5 notification provisionally and subject to the result of the writ petitions. Thereupon the petitioners appeared in the written test. However, the petitioners were not included in Ext.P6 (Ext.P6 in W.P. (C)No.17048/2005) short list of candidates selected to be invited for interview. Consequently, the petitioners were not called for the interview. Later, Ext.P7 (Ext.P7 in W.P.(C)No.17048/2005) rank list was brought into force on 18.12.2007. Naturally, the petitioners were not included therein. On 23.6.2007, an amendment was brought into the special rules and the qualification of B.Sc. (Co- operation & Banking), the degree possessed by the petitioners has been included as one of the qualifications for appointment to the post of Non-vocational Teacher in General Foundation Course. WP(C).No.15304/2005 & connected cases 4 Taking into account the amendment brought into as per Ext.P8 the petitioners in W.P.(C)Nos.17048 and 17114 of 2005 filed petitions for amending the writ petition. The said amendment was filed for the purpose of incorporating the prayers to issue a writ of mandamus to the first respondent to issue an order giving effect to the amendment in Ext.P8 from 12.3.2004, that is the date of Ext.P2 special rules. In the aforesaid circumstances, the petitioners contend that the respondents should have permitted the petitioners to participate in the interview and based on the outcome successful candidates among them should have been included in the rank list. 4. The first respondent has filed a counter affidavit. It is stated therein that the petitioners are not at all entitled to be considered for selection to the post of Non-vocational Teacher in General Foundation Course. Essentially, the contention is founded on the fact that such a qualification possessed by the petitioners was not included as a qualification in Ext.P2 special rules and therefore, its possession could not have and would not have conferred any right to the petitioners for being considered in the selection process initiated as per Ext.P5 since Ext.P5 was issued in terms of Ext.P2 special rules. In Ext.P2 special rules, admittedly, B.Sc. (Co-operation & Banking) WP(C).No.15304/2005 & connected cases 5 Degree was not included as a qualification for the post of Non- vocational Teacher in General Foundation Course. It is further stated thereunder that Ext.P8 amendment brought into Ext.P2 special rules was not given retrospective effect and therefore the petitioners cannot as a matter of right claim for consideration for appointment pursuant to the selection process initiated as per Ext.P5. At any rate, Ext.P7 rank list is not liable to be interfered with. 5. The second respondent has also filed a counter affidavit in this writ petition. Virtually, the contentions raised by the first respondent also find place in it. After incorporating the qualifications prescribed as per Ext.P2 special rules, it has been stated thereunder that Ext.P5 notification has been issued strictly in terms of Ext.P2 special rules. The Kerala Public Service Commission can prescribe qualifications in a notification only in tune with the qualifications prescribed in the special rules. In Ext.P5, the qualification possessed by the petitioners has not been included as a qualification for selection to the post of Non-vocational Teacher (General Foundation Course) and therefore in terms of Rule 10 of General rules, the petitioners have no right to get appointment against the said post. Apart from the above contentions it is stated WP(C).No.15304/2005 & connected cases 6 thereunder that the petitioners were permitted to partake in the written test only to comply with the interim order passed by this Court and even going by the interim order such participation would confer any right on the petitioners. 6. It is common case that the qualification of B.Sc. (Co- operation & Banking) Degree awarded by the Kerala Agricultural University that was prescribed as one of the qualifications in Ext.P1 draft rules was not included as a qualification in Ext.P2 special rules. The contention of the petitioners is that subsequent to the issuance of Ext.P5 notification amendment was brought into Ext.P2 rules as hereunder:- “4. In Serial Number 6, against item (10)- (i) after the words “Commerce or Business Economics” occurring in the first paragraph the words “OR Economics” shall be inserted, and (ii) after the existing entries the following entries shall be added, namely:- “OR B.Sc. Cooperation & Banking (four year course) with not less than 60% marks awarded by the Kerala Agriculture University or equivalent qualification.” The said amendment has been brought in admittedly, as per G.O. (MS)No.123/07/G.Edn. dated 20.6.2007 which is produced as Ext.P8 in W.P.(C)No.17114 of 2005. The relevant portion of Ext.P8 reads WP(C).No.15304/2005 & connected cases 7 thus:- “Since the amendment to Special Rules as well as formulating rules are statutory functions, so many statutory procedures as laid down by Government are to be followed which are time consuming processes. However, Government in the meanwhile have followed procedures like discussions with the representatives of the service and teachers organizations, meeting of secretaries committee etc. Since the further procedures like the consultation with the KPSC, scrutiny by Subject Committee etc. has to be completed. Government may not be in a position to stick to the time limit specified by the Honourable High Court in the Ops, WPs and Contempt of Court Cases filed in this regard. As such Government decided to give effect to the amendments through an executive order and to follow the statutory procedures simultaneously. Accordingly, Government are pleased to amend the Kerala Vocational Higher Secondary Education State Service Rules 2004 and Kerala Vocational Higher Secondary Education Subordinate Service Rules 2004 with immediate effect as follows:-” A bare perusal of Ext.P8 would reveal that the said amendments including the amendment prescribing the qualification of B.Sc. Cooperation & Banking (four year course) with not less than 60% marks awarded by the Kerala Agricultural University, was given effect only from 23.6.2007. Thus, Ext.P8 amendment brought into Ext.P2 special rules was given effect only from 23.6.2007. In that context, the following recital in Ext.P2 assumes relevance: WP(C).No.15304/2005 & connected cases 8 “S.R.O.No.246/2004.- In exercise of the powers conferred by sub-section (1) of Section 2 of the Kerala Public Service Act, 1968 (19 of 1968) and in supersession of all rules and orders on the subject, the Government of Kerala hereby make the following rules for the Kerala Vocational Higher Secondary Education State Service, namely:- Rules 1. Short title and commencement:- (1) These rules may be called the Kerala Vocational Higher Secondary Education State Service Rules, 2004. (2) They shall come into force at once.” Therefore, there cannot be any doubt with respect to the position that Ext.P2 special rules came into effect with effect from 12.3.2004. When Ext.P2 special rules came into force, all the other orders or rules including Ext.P1 draft rules should stand automatically superseded. In fact, it is specifically stated in Ext.P2 itself. Therefore, after the introduction of Ext.P2 no one can place reliance on Ext.P1 draft rules. The petitioners do not have a case that in Ext.P2 special rules the qualification possessed by them, that is B.Sc. (Co-operation & Banking) Degree awarded by the Kerala Agricultural University was included as a qualification for appointment to the post of Non-vocational Teacher in General Foundation Course. Ext.P5 is the relevant notification issued by the Kerala Public Service WP(C).No.15304/2005 & connected cases 9 Commission for selection to the post of Non-vocational Teacher in General Foundation Course. Again, no one has a case that the said notification was issued disregarding the special rules. In fact, it was issued strictly in terms of Ext.P2 special rules. Naturally, in Ext.P5 also the qualification B.Sc. (Co-operation & Banking) was not included as a qualification for the said post. If that be so, merely because the petitioners submitted applications on seeing Ext.P5 notification that cannot confer any right on them to get appointment to the post of Non-vocational Teacher in General Foundation Course. In fact, they were not at all qualified to apply for the said post in terms of Ext.P5 notification. Ext.P3 is only a letter from the associate dean whereby he had requested the Secretary to Higher Education Department to include B.Sc. (Co-operation & Banking) Degree as a qualification for the aforesaid post. True that the subject committee has also recommended the same as can be seen from Ext.P4. But, there cannot be any dispute with respect to the position that Ext.P3 or Ext.P4 cannot have any impact on Ext.P2 and it cannot be said that in the light of Exts.P2, P3 and P4 the qualification prescribed under Ext.P2 for selection to the post in question would stand automatically amended. There is a prescribed procedure for WP(C).No.15304/2005 & connected cases 10 amending the special rules and in fact, such an amendment was brought into Ext.P2 special rules only as per Ext.P8. Evidently, the amendment brought into force as per Ext.P8 was given its effect only from 26.3.2007. Therefore, Ext.P8 amendment cannot have any impact on the selection process initiated as per Ext.P5. A subsequent amendment brought into a particular rule cannot have any impact at all on a ranked list drawn by the Kerala Public Service Commission based on a notification issued strictly in terms of the unamended rule. The only impact it can have on such a ranked list is that vacancies occurred subsequent to the amendment could not be filled up from such a list. After completion of the selection process initiated as per Ext.P5, the second respondent has brought into force Ext.P7 rank list dated 18.12.2007. It was in the meanwhile that Ext.P8 amendment was brought into force with effect from 26.3.2007. Therefore, there cannot be any legal impediment in operating Ext.P7 rank list prepared pursuant to the selection process initiated as per Ext.P5. Consequently, the petitioners who were, in fact, ineligible to apply for appointment to the post of Non-vocational Teacher in General Foundation Course in response to Ext.P5 cannot legally claim that they should be included in the select list and should WP(C).No.15304/2005 & connected cases 11 be given appointment after unsettling a ranked list brought into force strictly in accordance with law. It is a fact that but for the interim order passed by this Court the petitioners would not have been permitted to participate in the selection process in the aforesaid circumstances. Therefore, the petitioners cannot raise claim for any undue advantage or appointment solely relying on the interim order passed by this Court on 7.6.2005 in W.P.(C)No.17048 of 2005. In this context it is also to be noted that several others who possessed the same qualification might not have applied in response to Ext.P5 realizing their ineligibility. 7. Going by the decision of the Apex Court in Union of India v. Pushpa Rani ((2008) 9 SCC 242), matters pertaining to prescription of qualifications is an issue that falls within the employer's domain. On such matters, judicial review comes into play only if the State action is contrary to constitutional or statutory provisions or is patently arbitrary or vitiated by mala fides. A scanning of the contentions in these writ petitions would reveal that absolutely there is no challenge against Ext.P2 special rules. The only grievance of the petitioners is that the qualification of B.Sc. (Co- operation & Banking) Degree which was a prescribed qualification as WP(C).No.15304/2005 & connected cases 12 per Ext.P1 draft rules was not included in Ext.P2 special rules. Such a matter cannot be interfered with by this Court in the light of the decision of the Apex Court in Union of India v. Pushpa Rani ( (supra) because it is up to the employer to decide or to prescribe the qualifications. True that, in this case, subsequently Ext.P2 was amended as per Ext.P8. But, in Ext.P8 itself it has been specifically stated that Ext.P2 rules were amended only with immediate effect. Therefore, all such amendments brought into Ext.P2 would have their effect only with effect from the date of Ext.P8 i.e, only from 23.6.2007. Admittedly, Ext.P2 was brought into force on 12.3.2004. In view of the said admitted position and also the fact that Ext.P5 dated 26.4.2005 was issued strictly in terms of Ext.P2 special rules, I am of the considered view that the petitioners are not entitled to the reliefs sought for in these writ petitions. The contention that it was the efforts of the petitioners that led to Ext.P8 also cannot be a reason for this Court to issue a writ of mandamus to the first respondent to give effect to Ext.P8 amendment from the date of Ext.P2 or to give appointment to the petitioners. The petitioners have no legal right to insist that the rule should be framed or amended in a particular manner and therefore there cannot be a WP(C).No.15304/2005 & connected cases 13 corresponding duty on the concerned rule making authority to frame or amend rules in a specific manner. In the absence of any such right and duty, this Court would not be justified in issuing a writ of mandamus to the rule making authority either to frame or to amend the rules and to give effect to the rules with effect from a particular date. The said issue has been covered squarely against the petitioners in the decision of this Court in George.M.I. v. High Court of Kerala and others (ILR 2010 (2) Ker. 213). Going by the settled position that rights of parties have to be decided in terms of the prevailing rule position on the relevant date I am of the view that there is no merit at all in these writ petitions. Accordingly, the writ petitions are dismissed. C.T.RAVIKUMAR Judge TKS