Case: AJITH K Vs. ANEESH K.S

2. On 16 August 1972, the Government of Kerala in exercise of its powers under Section 11 of the Kerala Municipal Common Service Rules 1967, specified the method of recruitment and qualifications for posts in the Municipal Common Service. The posts were specified in an annexure to the order. The post of Health Inspector / Food Inspector Grade-II was among those posts and the qualifications were:Minimum general educational of S.S.L.C. Standard. Sanitary Inspectors Certificate of Bombay or Madras; or Health Inspectors Certificate of Trivandrum Medical College; orSanitary Inspectors Certificate of the All India Institute of Local Self Government, Bombay or the certificate in Sanitary Inspectors course awarded by the National Council for Rural Higher EducationAge - Not below 18 years and above 30 years3. On 26 December 2014, Kerala Public Service Commission advertised vacancies in nine districts for the post of Junior Health Inspector Grade-II in the Municipal Common Service. The notification specified the qualifications for the post in the following terms:2. Sanitary Inspectors Certificate of Bombay or Madras. ORHealth Inspectors Certificate of Trivandrum Medical College. ORSanitary Inspectors Certificate of All India Institute of Local Self Government, Bombay. ORThe certificate in Sanitary Inspectors Course awarded by the National Council for Rural Higher Education. ORSanitary Inspector Training Course conducted by the Rural Institute, ThavannurNote:-KS&SSR Part-II, Rule-10(a)(ii) is applicable for selection to this postThe note above has some bearing on the outcome of the present case.4. On 29 May 2015, a notification was published for posts in five additional districts. The qualifications for the post remained the same. On 27 November 2015, a common written test was conducted. On 16 November 2016, KPSC published a list of selected candidates for the district of Kottayam. Lists containing the names of candidates selected for other districts were also published. Candidates possessing the qualification of a Diploma in Health Inspectors Course , a two-year course conducted by the Director of Health Service, were also included in the shortlists. The DHIC was not one of the qualifications specifically prescribed in the rules or in the advertisement. Candidates who claimed to be affected by the inclusion of candidates possessing a DHIC qualification filed cases before the Tribunal, challenging the States decision to include persons possessing a DHIC qualification in the shortlists5. During the pendency of the proceedings before the Tribunal, on 10 January 2017, a three-member Committee conducted a comparative study of the syllabi of the DHIC programme and the Sanitary Inspector Diploma Course . The Committee submitted a report holdingi) While the DHIC is a two-year course, the duration of the SIDC (the certificate prescribed) is 52 weeks;ii) While there are prescribed textbooks for the DHIC, no recommended texts exist under the available syllabus for the SIDC;iii) The topics in both sets of syllabi are almost the same except for some =minute differences; andiv) While the number of theory sessions is greater in the DHIC, the SIDC has more practical sessions.6. On 20 February 2017, KPSC filed a reply before the Tribunal stating that the two year DHIC is a higher qualification in the same faculty and that it had accordingly been decided to consider candidates possessing a DHIC for the post of Junior Health Inspector Grade-II by adhering to the provisions of Rule 10(a)(ii) of the Kerala State and Subordinate Services Rules 1958 . On 24 May 2017, the office of the Director of Health Service addressed a communication to the Principal Secretary, Local Self Government Institutions Department, Thiruvananthapuram to consider candidates with a DHIC qualification for the post of Junior Health Inspector in the Municipal Common Service. On 7 July 2017, the Principal Secretary to the Government in the Local Self Government (EU) Department addressed acommunication to the Secretary, KPSC stating that, in the view of the State Government, the DHIC qualification can be reckoned to be a higher qualification in comparison with the qualifications prescribed in the notification. The Tribunal was subsequently informed of this decision7. The Tribunal by its judgment dated 20 December 2017 allowed the OAs instituted before it and directed that the shortlist of candidates be recast by excluding candidates in possession of the DHIC qualification. The Tribunal issued this direction after holding that KPSC had erroneously entertained applications from holders of the DHIC qualification. Aggrieved by the decision of the Tribunal, the writ jurisdiction of the High Court was invoked by candidates affected. The High Court dismissed the writ proceedings holding that the report of the three-member committee merely concludes that the DHIC is a =higher qualification than the certificate course, which is not sufficient under Rule 10(a)(ii) of Part II of the KSSSR. The High Court observed that the report does not indicate that the acquisition of the diploma pre-supposes the completion of the certificate course prescribed for the post. Moreover, the High Court held that the entire exercise by the committee was carried out after the publication of the shortlists by KPSC, and during the pendency of the proceedings before the Tribunal. In this backdrop, it was held that the rules governing the process of selection could not be altered mid-way. On this ground the writ petition was dismissed.

Reasoning:
11. The starting point of our enquiry in the present case is the order of the State Government dated 16 August 1972, published in the Kerala Gazette on 29 August 1972. It specifies the minimum qualifications required for the post of Health Inspector/ Food Inspector Grade-II. The qualification prescribed is a Sanitary Inspectors Certificate originating in specified institutions. The DHIC is admittedly not one of the specified qualifications for the post12. On a careful analysis, it emerges that none of the conditions stipulated in Rule 10(a)(ii) have been fulfilled. The first situation contemplated by Rule 10(a)(ii) is where qualifications are recognized by executive orders or standing orders of the government as equivalent to a qualification specified for a post. This is not satisfied. With reference to the second situation contemplated in Rule 10(a)(ii) there was no determination by KPSC in accordance with Rule 13(b)(i) of the equivalence of the qualifications. Finally, the last condition contemplated in Rule 10(a)(ii) adverts to those qualifications which pre-suppose the acquisition of a lower qualification prescribed for a post. The expression pre-suppose means subsumed in. All that wefind from the report of the three-member Committee are general observations about the duration of the DHIC being longer, of a similarity of the topics in the syllabi and a comparison between the number of theory and practical sessions. There has been no finding that the acquisition of the DHIC pre-supposes the completion of the certificate course.14. The above extract indicates that the qualification for the promotional post of assistant engineer was a degree in engineering. Consequently, the acquisition of the degree was held to pre-suppose the acquisition of the =lower qualification of the diploma prescribed for the post of sub-engineer. This constitutes a distinguishing factor and hence the decision in Jyoti K K does not apply to the present facts16. The reference to the diploma being an additional qualification is extraneous to Rule 10(a)(ii). The reference to a diploma being acceptable in the Health Department is again an extraneous consideration. Ex facie, it is evident that in coming to the conclusion extracted above, there was no application of mind to the requirements contained in Rule 10(a)(ii). There was no determination of equivalence by any executive order or standing order of the State Government. Nor was there any finding that a DHIC pre-supposes the acquisition of the lower qualification. KPSC has not carried out any exercise as required by the provisions of the rule.