PRAVEEN KUMAR C.P versus KERALA PUBLIC SERVICE COMMISSION & ORS.
[2021] 5 S.C.R. 939, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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PRAVEEN KUMAR C.P
v.
KERALA PUBLIC SERVICE COMMISSION & ORS.*
(Civil Appeal No. 4846 of 2021)
AUGUST 17, 2021
[L. NAGESWARA RAO AND ANIRUDDHA BOSE, JJ.]
Service Law –Appointment –Equivalency of degrees –
Principle of “change in the rules of the game midway” – When not
applicable – Kerala State and Subordinate Services Rules, 1958 –
Clause 10 (a)(ii), 13 –Appointment to the posts of High School
Assistants in the State of Kerala by Kerala Public Service Commission
(KPSC)– Employment notifications stipulated B.Ed in concerned
subject as eligibility criteria–Appellants had B.Ed degrees from
outside Kerala though not in the concerned subjects – Objection
raised –Subsequently, two Universities of the State of Kerala certified
the appellants’ B.Ed. degrees to have equivalent status which was
followed by Government Orders (GOs) conferring on the subjects
in which the appellants obtained B.Ed. degrees, equivalency to the
required subjects–On the basis of the GOs, Tribunal allowed the
petitions filed by the appellants and directed KPSC to include their
names in the ranked list – Orders set aside by High Court–On appeal,
held:GOs treated the equivalency to be operating on the dates of
obtaining B.Ed. degrees–Subject GOs only recognised an existing
state of affairs so far as the nature of the degrees were concerned
and did not create fresh value for the degrees which the appellants
possessed– The GOs were not general orders but were person
specific,relating to the two appellants and in substance will have to
be interpreted as clarificatory in nature –Treating the appellants’
degrees as equivalent to those required under the applicable
notifications by the GOs issued subsequently would not change the
rules of the game midway –Appellants possessed equivalent
qualifications when they applied for the posts –Impugned judgments
set aside – Orders of the Tribunal restored – Kerala Education Rules,
1959 – Chapter XXXI – Clause 2(2)(a).
Service Law –Objection to eligibility criteria–Kerala
Education Rules, 1959 – Chapter XXXI – Clause 2(2)(a)– Legality
Ed. Note : Name of the respondent(s) in the cause title as corrected vide subsequent order
dated 28th January, 2022.
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of introducing specific subjects in B.Ed. as qualifying criteria for
the posts of High School Assistants challenged by appellants –Held:
Said Clause postulates B.Ed. degree simplicitor as the eligibility
criteria–Further, no specific notification/order issued by KPSC has
been brought on record under which the eligibility criteria of holding
B.Ed. Degree had to be in the concerned subject for the posts in
question– However, appellants having participated in the said
selection process without raising any objection, cannot question
the eligibility criteria specified in the employment notification –
Kerala State and Subordinate Services Rules, 1958 – Clause 13.
Words & Phrases – ‘equivalence’ – Meaning of – Discussed.
Allowing the appeals, the Court
HELD : 1.1 On a plain reading of the Clause 2(2)(a)of
Chapter XXXI of the Kerala Education Rules, 1959, it is apparent
that no specific subject in B.Ed. has been made to be the
qualifying criteria. The graduation requirement in concerned
subject is there, but going by the said Clause, it postulates B.Ed.
degree simplicitor as the eligibility criteria. So far as the present
appellants are concerned, no dispute has been raised over their
graduation being in the concerned subject. Clause 13 of the Kerala
State and Subordinate Services Rules, 1958 permits the
Commission to prescribe special qualifications in cases where
appointments have to be made in consultation with it or by
the
State Government or by an appointing authority with approval of
State Government in other cases. No specific notification or order
issued by the KPSC has been brought to Court’s notice under
which the eligibility criteria of holding B.Ed. Degree had to be in
the concerned subject for the posts of High School Assistants.
But, the appellants cannot take aid of this argument as the
respective employment notifications had specified B.Ed. in
concerned subject. The appellants having participated in the said
selection process without raising any objection on that count, it
would not be open to them to question the eligibility criteria
specified in the employment notification. Thus, the case is
proceeded on the basis that the candidates for the posts in
question were required to have B.Ed. degree in the concerned
subject. [Paras 16, 18][952-G-H; 953-A-B; 954-A-C]
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1.2 The power of the State Government to make orders on
the question of equivalence is not in dispute. Such power, inter
alia, stems from Clause 10(a) (ii) of 1958 Rules. In the two GOs
it has been specified that the respective B.Ed. degrees of the
appellants through regular study were equivalent to B.Ed. degree
in Natural Science. In the case of PK, his B.Ed. Degree in
Biological Science was recognized as equivalent to B.Ed. Natural
Science Degree of Mahatma Gandhi University, Kerala. In the
case of AD, the GO stipulated that Double Main B.Ed. (Biological
Science Education and Physical Science Education) degree
obtained by her through regular mode was recognized as
equivalent to B.Ed. Natural Science Degree of University of
Calicut. A plain reading of the two GOs clearly reflect that their
degrees were equivalent to the requisite qualifications contained
in the eligibility criteria. The word “equivalence” in its plain
meaning implies something which is equal to another. In the field
of academics, application of the principle of equivalency in relation
to degrees in two subjects would mean that they had the same
standing or status all along, unless the official instrument
according equivalency specifies a date from which the respective
subjects would be treated as such, in express terms or by
implication. [Paras 22, 25 and 26][955-D-E; 957-D-F; 958-B-D]
Zonal Manager, Zonal Officer, Bank of India Kochi &
Ors. v. Aarya K Babu &Anr. (2019) 8 SCC 587 :
[2019]
11 SCR 627 – distinguished.
A. Suma v. The Kerala Public Service Commission &
Ors. (2011) 1 KLT1 (FB); Beena R. v. Kerala Public
Service Commission and Ors. (2017) 15 SCC 306 :
[2017] 6 SCR 510 – held inapplicable.
T. Jayakumar v. A. Gopu (2008) 9 SCC 403 : [2008]
13 SCR 791 – referred to.
1.3 Whether a GO would have prospective effect or relate
back to an earlier date is a question which would have to be
decided on the basis of text and tenor of the respective orders.
The GOs which declared appellants’ degrees to be equivalent to
those required as per the applicable notifications were not general
PRAVEEN KUMAR C.P v. KERALA PUBLIC SERVICE COMMISSION
& ORS.
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orders but these two orders were person specific, relating to the
two appellants. Once the GOs specifically declared that their B.Ed.
degrees were equivalent to the designated subject which formed
part of the employment notification, the GOs in substance have
to be interpreted as clarificatory in nature and these cannot be
construed to have had elevated the status or position of the
degree they already had after the declaration was made in the
GOs. The subject GOs only recognised an existing state of affairs
so far as the nature of the degrees were concerned and did not
create fresh value for the degrees which the appellants possessed.
Though these equivalent orders were not in existence on the
dates of issue of employment notifications, the GOs in substance
recognize such status from the dates of obtaining such degrees.
The GOs do not reveal any intervening circumstances which could
be construed to imply that the respective degrees acquired the
equivalent status because of such circumstances occurring
subsequent to grant of their B.Ed. degrees. The Notes to Clause
7 of the employment notifications postulated disclosure of the
number and date of the orders on equivalence. But the GOs
treated the equivalency to be operating on the dates of obtaining
such degrees. Thus, the defect, if any, on disclosure requirement,
shall stand cured on issue of the University orders followed by
the GOs. Treating the appellants’ degrees
as equivalent to those
required under the applicable notifications by the GOs issued in
the year 2019 would not result in change in the rules of the game
midway. The appellants’ degrees in B.Ed. were equivalent to those
required by the employment notifications and the equivalency
orders were merely clarificatory in nature. Thus, there was no
fundamental breach of Notes (v) and (vi) of Clause 7 of the
respective employment notifications in the cases of the appellants.
The appellants possessed equivalent qualifications when they
applied for the posts. The judgments under appeal are set aside
and the orders of the Tribunal are restored. [Paras 27-29][958-
E-H; 959-A-B, F; 960-A]
P. Mahendran v. State of Karnataka (1990) 1 SCC 411
: [1989] 2 Suppl. SCR 385; Prafulla Kumar Swain v.
Prakash Chandra Mishra &Ors. 1993 Supp (3) SCC
181 : [1993] 1 SCR  241; Secretary, A.P. Public Service
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Commission v. B. Swapna & Ors. (2005) 4 SCC 154 :
[2005] 2 SCR 991; Prakash Chand Meena & Ors. v.
State of Rajasthan & Ors. (2015) 8 SCC 484 : [2015] 3
SCR 729 – referred to.
Case Law Reference
[1989] 2 Suppl. SCR 385
referred to
Para 15
[1993] 1 SCR  241
referred to
Para 15
[2005] 2 SCR 991 
referred to
Para 15
[2015] 3 SCR 729  
referred to
Para 15
[2019] 11 SCR 627
distinguished
Para 15
[2008] 13 SCR 791  
referred to
Para 21
[2017] 6 SCR 510  
held inapplicable
Para 25
CIVIL APPELLATE JURISDICTION : Civil Appeal No.4846
of 2021.
From the Judgment and Order dated 18.12.2019 of the High Court
of Kerala at Ernakulam in OP(KAT) No.518 of 2019.
With
Civil Appeal No.4847 of 2021
Sarath S Janardanan, Ms. Vishnupriya P Govind, Abid Ali Beeran
P, Advs. for the appellant.
Vipin Nair, P. B. Suresh, Karthik Jayashankar, Arindam Ghosh,
Anshuman Bahadur, Sanal C. Nambiar, C. K. Sasi, Advs. for the
respondents.
The Judgment of the Court was delivered by
ANIRUDDHA BOSE, J.
1. Leave granted in both the petitions.
2. The controversy involved in these proceedings relates to the
issue as to whether the appellants possessed the eligibility criteria for
appointment to the post of High School Assistants in the State of Kerala.
The main dispute is over the question as to whether the appellants’ B.Ed.
degrees were in the subjects fulfilling the eligibility criteria. This is the
common question involved in both the appeals and we shall deal with
PRAVEEN KUMAR C.P v. KERALA
PUBLIC SERVICE COMMISSION
& ORS.
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this controversy in a composite manner in this judgment. There are some
variations in the factual basis of the claims of both the appellants and we
shall refer first to that aspect separately for each of the appellants.
3. In the appeal originating in the Special Leave Petition (Civil)
No. 4604 of 2020, the appellant is one Praveen Kumar C.P. We shall
refer to him henceforth as PK. The selection process for the post was
initiated by an employment notification dated 31st December, 2012, issued
by the Kerala Public Service Commission (KPSC). PK had applied for
the said post in Natural Science. The notification was for appointment in
Malayalam medium institutions in all the fourteen districts of the State of
Kerala. The requisite academic qualification for the post for which PK
had applied was stipulated Clause 7 of the said employment notification.
This Clause read:-
“7. Qualification:-
A degree in the concerned subject and B.Ed/BT in the concerned
subject conferred or recognized by the University in Kerala
(Concerned subjects are specified in Note (ii) below)
Note:- (i) Diploma in Rural Service awarded by the national Council
for Rural High Education will be treated as equivalent to degree
for the above purpose.
(ii) The applicants should have taken Botany or Zoology or Home
Science or Micro Biology as Main subjects for graduation or post
graduation.
(iii) Question papers for written test if any will be in Malayalam,
The candidates should answer the questions in Malyalam.
(iv) The disciplines in Degree and B.Ed Degree were obtained
should be mentioned in brackets in the application form.
(v) Those candidates who secured B.Ed/B.T Degree from the
Universities outside Kerala should note in the application form,
the number and date of relevant orders declaring the said degree
as equivalent to those prescribed for this selection. The copies of
such order shall be produced before the commission when it is
called for.”
4. PK had obtained B.Ed. Degree in Biological Science from the
University of Mysore, the course which he pursued in Ramakrishna
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Institute of Moral and Spiritual Education, Yadavgiri, Mysuru. The
University from which PK obtained B.Ed. Degree stood recognized by
University of Calicut, as would be apparent from Annexure P-10 to the
petition for special leave to appeal. This certificate stipulates:-
“UNIVERSITY OF CALICUT
Sl.No.24619
Calicut University P.O 673635
No.EQ/30123/2018
Dated 05 Jul 2018
CERTIFICATE
Certified that the B.Ed (Biological Science) Degree of the
University of Mysore after regular study has been recognized as
equivalent to the B.Ed Natural Science Degree of this University.
Sd/-
For Registrar
Issued to :
Sri :- Praveen Kumar C.P.
Note : This is a general certificate and the original certificate of
the individual concerned has not been verified in this office while
issuing this. The eligibility and the mode of study will be verified
by the Admitting Authority.”
5. PK’s certificate for B.Ed. degree did not specify the individual
subjects which formed part of his curriculum but in a document captioned
“Study Certificate” dated 12th December, 2019 issued by the institute
from which he pursued the B.Ed. course, it has been specified he had
passed B.Ed. Degree examination conducted by the University of
Mysore, Mysuru and his subjects in the B.Ed. were Content-cum-
Methodology 1-Biology and Content-cum-Methodology 2-Chemistry-
(Biological Science). This certificate was issued during pendency of the
dispute in the High Court of Kerala.
6. In the Appeal arising out of the
Special Leave Petition (Civil)
No. 3927 of 2021, the petitioner is one P. Anitha Devi. We shall refer to
her later in this judgment as AD.The selection process in her case was
initiated by a similar employment notification dated 15th March, 2014 by
the KPSC. The subject-post was the same, i.e. High School Assistant
(Natural Science) but the category of schools for which this notification
PRAVEEN KUMAR C.P v. KERALA PUBLIC SERVICE COMMISSION
& ORS. [ANIRUDDHA BOSE, J.]
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was issued was Tamil medium institutions in the district of Palakkad and
Idukki. The relevant Clause pertaining to the qualification criteria of the
candidates in this notification was also Clause 7 and the stipulations
therein were broadly similar to that contained in the employment
notification dated 31st December, 2012. The said Clause in the notification
dated 15th March, 2014 specified: -
“7. Qualifications: -
A degree of Postgraduate degree in the concerned subject and
B.Ed/BT in the concerned subject conferred or recognised by the
Universities in Kerala (Concerned subjects are specified in Note
(ii) below) Note:-
(i) Diploma in Rural Service awarded by the National Council
for Rural Higher Education will be treated as equivalent to
Degree for the above purpose.
(ii) The applicants should have taken Botany or Zoology or
Home Science or Micro Biology as Main subject for graduation
or post graduation.
(iii) Post title degree holders are not eligible to apply for the
post of HSA.
(iv) Candidates applying for this post should have sufficient
knowledge in Tamil. Question papers for written test/OMR
test if any will be in Tamil. The candidates should answer the
questions in Tamil.
(v) The disciplines in which Degree and B.Ed degree were
obtained should be mentioned in brackets in the application
form.
(vi) Those candidates who secured B.Ed/B.T. Degree from
the Universities outside Kerala should note in the application
form, the number and date of relevant orders declaring the
said degree as equivalent to those prescribed for this selection.
The copies of such order shall be produced before the
commission when it is called for.”
7. AD had obtained B.Ed. Degree in Biological Science and
Physical Science from Bharathiar University, Coimbatore, Tamil Nadu.
The said degree was also recognized by the University of Calicut in the
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State of Kerala and certificate to that effect was issued on 31st October,
2017. This would be evident from Annexure P-4 to her petition. This
certificate read:-
“UNIVERSITY OF CALICUT
Sl.No.20414
Calicut University P.O.-673635
No.EQ/26497/2017
Dated 31st October 2017
CERTIFICATE
Certified that the B.Ed Degree of the Bharathiar University
Coimbatore after regular study has been recognized as equivalent
to the B.Ed Degree of this University.
(Office Seal)
Sd/-
For Registrar
Smt. Anitha Devi P.
Note: This is a general certificate and the original certificate of
the individual concerned has not been verified in this office while
issuing this. The eligibility and the mode of study will be verified
by the Admitting Authority.”
8. Both of them had participated in the selection process and were
included in the “main list”, which in substance signified their success in
the written test. But question arose as to whether their B.Ed. degrees
were in subjects equivalent to the “concerned subject” which was
stipulated in the employment notification. What would constitute
concerned subject has been stipulated in Note (ii) of Clause 7 of both
the employment notifications and neither of them possessed B.Ed. degree
in the subjects stipulated to be concerned in the said Clause.
9. As none of the appellants had B.Ed. degree in Natural Science,
at the time of verification of the documents of PK after publication of
the written test results, objection was raised in his case
for not having
B.Ed. in the “concerned subject”. He was given time to produce the
Government Order regarding acceptance of his qualification. In the case
of AD also, similar objection was raised. PK had asked for extension of
time, which was denied, as submitted by his learned counsel. In case of
AD, she along with certain other candidates had approached the Kerala
PRAVEEN KUMAR C.P v. KERALA PUBLIC SERVICE COMMISSION
& ORS. [ANIRUDDHA BOSE, J.]
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Administrative Tribunal by filing an application (O.A. (EKM) No. 346
of 2018), inter-alia, claiming that she had the requisite qualification. An
interim order was passed on 20th February, 2018 by the Tribunal permitting
her to participate in the interview, subject to final outcome of her petition.
PK also had approached the Tribunal with an application [O.A. (EKM)
No. 257 of 2018] and an order was passed by the Tribunal on 30th January,
2018 permitting him to take part in the interview subject to further order
in his case. On the basis of these orders, they participated in the interview.
Thereafter, the ranked lists were published but the results of both the
appellants were shown to have had been withheld. PK again approached
the Tribunal with an Original Application registered as O.A. No. 1525 of
2019 challenging the decision of the authorities in not accepting his B.Ed.
Degree, the subject of which he has termed as “Double Option”. During
pendency of their cases before the Tribunal, the Department of Higher
Education, Government of Kerala had issued two Government Orders
(GOs) which broadly sustained the claim of the appellants of having
degrees equivalent to that of the concerned subject. In the case of PK,
the Government Order dated 7th March, 2019 stipulated:-
“HIGHER EDUCATION (B) DEPARTMENT
G.O. (...) No. 54/2019/H Edn.
THIRUVANANTHAPURAM
07/03/2019
Reference:- 1. Request submitted by Sri. Praveenkumar CP on
06.08.2018.
2. Letter No. ACD/03/Reg-1143/REC/18 dated 24.09.2018 of
Registrar, Mahatma Gandhi University.
ORDER
Praveenkumar CP who was included in the list of the Kerala
Public Service Commission had requested that a Government
Order be given stating that B Ed. degree in Biological Science
obtained from University of Mysore is equivalent to B Ed. Degree
in Natural Science, as per reference No. 1.
Government has considered the issue in detail on the basis of the
report of the Registrar of Mahatma Gandhi University as per
reference No. 2 which accepted that B. Ed. degree through regular
study obtained from University of Mysore is equivalent to B.Ed.
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degree in Natural Science from Mahatma Gandhi University. It is
hereby ordered that B.Ed. degree in Biological Science obtained
through regular study from University of Mysore is equivalent to
B.Ed. Degree in Natural Science obtained from Mahatma Gandhi
University.
(As per Order of Governor)
SWAPNA. P
Under Secretary
Secretary, Kerala Public Service Commission,
Thiruvananthapuram
Registrar- Kerala/M.G./Kannur/Calicut Universities Sri.
Praveen Kumar CP, Cheriyaputhukulangara House, Iringath
PO, Kozhikode-673523, Office Copy
www.highereducation.kerala.gov.in
As per Order
Sd/-
Section Officer”
10. In the case of AD, a similar order dated 23rd July, 2019 was
issued. This GO also covered the case of another candidate Smt.
Mafferith. The said order provided:-
“Higher Education (B) Department
G.O.(….) No.254/2019/H.Edn. Dated, Thiruvanathapuram, 23/
07/2019
Reference: 1. Application submitted by Smt. Mafferith, Anithadevi
2. Letter No. 103542/EQ&MG SO/2019/Admn. dated 28.06.19
of the Registrar, University of Calicut.
ORDER
Smt. Mafferith, Smt. Anithadevi, who passed the exam conducted
by Kerala Public Service Commission had submitted application
as per Reference (1) to pass an Order recognizing equivalence of
Double Main B.Ed (Biological Science Education & Physical
Science Education), Double Main B.Ed (Biological Science
PRAVEEN KUMAR C.P v. KERALA PUBLIC SERVICE COMMISSION
& ORS. [ANIRUDDHA BOSE, J.]
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Education & English Education) degrees obtained from Bharathiar
University through regular mode to B.Ed Natural Science degree
of University of Calicut. The University of Calicut vide Reference
(2) informed that Double Main B.Ed (Biological Science Education
& Physical Science Education), Double Main B.Ed (Biological
Science Education & English Education) degrees obtained from
Bharathiar University through regular mode has been recognised
equivalent as B.Ed Natural Science degree of University of Calicut.
In the said circumstances, it is hereby ordered that Double
Main B.Ed (Biological Science Education & Physical Science
Education), Double Main B.Ed (Biological Science Education &
English Education) degrees obtained from Bharathiar University
through regular mode is recognized equivalent to B.Ed. Natural
Science degree of University of Calicut.
(As per the Order of Governor)
SWAPNA P
Under Secretary”
11. On the basis of these GOs, the Tribunal allowed both the
petitions and directed KPSC to include the appellants’ names in the ranked
list. In PK’s case, the order was passed by the Tribunal on 20th September,
2019 whereas the decision in AD’s petition was delivered on 2nd
September, 2019.
12. The KPSC assailed the Tribunal’s orders before the High
Court of Kerala. Their stand before the High Court was that equivalency
ought to operate from the dates of issue of the respective GOs and the
said GOs could not be given
retrospective effect. This argument was
sustained by the High Court. In the case of PK, it was inter-alia held by
the High Court in OP (KAT) No. 518 of 2019:-
“The learned Standing Counsel appearing for the PSC also
contends that the equivalency issued is after the notification and it
could apply only for future selections. Reliance is also placed on
two decisions of this Court in Lalitha Bai v. Public Service
Commission [1999 (2) KLT 894 and Rajasree v. State of Kerala
[2009 (1) KLT 259]. We accept the contention, especially noticing
the decision of the Hon’ble Supreme Court in Zonal Manager,
Bank of India & Others v. Aarya K. Babu and Another [(2019) 8
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SCC 587]. Therein the candidate did not have the qualification
specified in the notification, but on the basis of equivalency, this
Court allowed the candidate to be continued in the post to the
which she was appointed. The Hon’ble Supreme Court deprecated
the practice of the High Court granting equivalency and
categorically held that the equivalency had to be specified in the
notification. The reasoning was also that there would have been
many other candidates with the very same qualification, who would
not have applied in the belief that the said qualification is not one
prescribed in the notification.
For all the above reasons, we do not agree with the Tribunal and
we allow the original petition setting aside the order of the Tribunal.
Parties shall suffer their respective costs.”
(quoted verbatim)
13. KPSC’s petition before the High Court, registered as OP (KAT)
No. 465 of 2019 against the Tribunal order in respect of AD was also
sustained on similar grounds and the orders of the Tribunal were set
aside in both their cases. In PK’s case, the judgment was delivered on
18th December, 2019 whereas KPSC’s petition against the Tribunal
judgment in AD’s case was rendered on 12th March, 2020.
14. The broad reasoning of the High Court in both the aforesaid
judgments was that the GOs could not be relied upon by the appellants
as these were issued subsequent to the employment notifications and on
conclusion of the selection processes. Opinion of the High Court
was
that the acceptance of the Government Orders with retrospective effect
would amount to change in the rule of the game mid-way, which is
impermissible. The appellants have assailed legality of these judgments
before us. Their main argument is that the GOs only recognised a
subsisting position as regards status of their respective educational
qualifications and confirmation of the equivalency of their B.Ed. subjects
by the respective GOs met the eligibility requirement. It has also been
submitted on behalf of the appellants that the rejection of the GOs issued
recognizing their subsisting degrees as equivalent to that specified on
the ground that they could not be treated to have retrospective operation
would not apply in the facts of their cases.
15. The authorities which have been cited before us on behalf of
respondents, in support of the two judgments of the High Court are (i) P.
PRAVEEN KUMAR C.P v. KERALA PUBLIC SERVICE COMMISSION
& ORS. [ANIRUDDHA BOSE, J.]
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Mahendran v. State of Karnataka [(1990) 1 SCC 411], (ii) Prafulla
Kumar Swain v. Prakash Chandra Mishra & Ors. [1993 Supp (3)
SCC 181], (iii) Secretary, A.P. Public Service Commission v. B.
Swapna & Ors. [(2005) 4 SCC 154], (iv) Prakash Chand Meena
& Ors. v. State of Rajasthan & Ors. [(2015) 8 SCC 484] and (v)
Zonal Manager, Zonal Officer, Bank of India Kochi & Ors. v.
Aarya K Babu & Anr. [(2019) 8 SCC 587]. These decisions are
mainly authorities on the point that the Rules prevailing on the date of
issue of employment notifications ought to prevail under normal
circumstances and new Rules or amendments coming midway through
a selection process cannot be applied to that process. Such new Rules
would operate prospectively. Certain judgments of the Kerala High Court
have also been relied upon by the KPSC on the same proposition of law.
But we do not consider it necessary to multiply the authorities in this
judgment on the same point.
16. Before us, argument has also been advanced by the learned
counsel for the appellants on legality of introducing specific subjects in
B.Ed. as qualifying criteria for the posts in question. Our attention in this
regard has been drawn to Clause 2(2)(a) of Chapter XXXI of the Kerala
Education Rules, 1959. The said Clause lays down that “A Degree in
concerned subject and B.Ed./ B.T./L.T conferred or recognized by the
Universities of Kerala” as qualification of a High School Assistant in a
particular subject. According to the appellants, there is no provision for
requiring a candidate having B.Ed. in concerned subject under the said
Rules. The heading of that chapter specifies that these are “Qualifications
of Private School Teachers”. But in their written submissions, the State
government has referred to the same Rules to be applicable in the
appellants’ cases as well. The appellants were seeking employment in
the State educational sector. The State wants us to give a strained
interpretation to the said Rules treating the same to be applicable for the
subject-posts, which are in State institutions and simultaneously read the
words “concerned subject” in relation to B.Ed. Degree also. This
argument of the State is advanced on the ground that it would be in the
interest of maintaining quality of education. But on a plain reading of the
said clause, it is apparent that there is no specific subject in B.Ed. has
been made to be the qualifying criteria in Clause 2(2)(a) of Chapter
XXXI of the 1959 Rules. The graduation requirement in concerned subject
is there, but going by the said Clause, it postulates B.Ed. degree simplicitor
as the eligibility criteria. No other Rule has been shown to us by the
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learned counsel for the State of Kerala or the Commission from which it
can be inferred that there was requirement of a candidate for the subject
posts to hold B.Ed. degree in the concerned subject. So far as the present
appellants are concerned, no dispute has been raised over their graduation
being in the concerned subject.
17. On behalf of KPSC, it has been contended that it was within
their power to stipulate qualification beyond that what is specified in
aforesaid Clause 2(2)(a) and they have relied on Kerala State and
Subordinate Services Rules, 1958 to establish that they had power to do
so. The said Rules lay down various aspects of recruitment and conditions
of service in the State of Kerala and Rule 10 thereof deals with
qualification requirements for a post in State and Subordinate Services.
The Kerala State and Subordinate Services Rules, 1958 have been framed
under Article 309 of the Constitution of India. The relevant provisions of
Clause 10 thereof provide:-
“10. Qualifications. (a) (i) The educational or other qualifications,
if any, required for a post shall be as specified in the Special Rules
applicable to the service in which that post is included or as
specified in the executive orders of Government in cases where
Special Rules have not been issued for the post/service.
(ii) Notwithstanding anything contained in these rules or in the
Special Rules, the qualifications recognized by executive orders
or standing orders of Government as
equivalent to a qualification
specified for a post, in the Special Rules or found acceptable by
the Commission as per rule 13 (b) (i) of the said rules in cases
where acceptance of equivalent qualifications is provided for in
the rules and such of those qualifications which pre- suppose the
acquisition of the lower qualification prescribed for the post, shall
also be sufficient for the post.”
18. Clause 13 of the 1958 Rules permits the Commission to
prescribe special qualifications in cases where appointments have to be
made in consultation with it or by the State Government or by an appointing
authority with approval of State Government in other cases. No specific
notification or order issued by the KPSC has been brought to our notice
under which the eligibility criteria of holding B.Ed. Degree had to be in
the concerned subject for the posts of High School Assistants. KPSC’s
submission on this point is that the same was not raised at any earlier
PRAVEEN KUMAR C.P v. KERALA PUBLIC SERVICE COMMISSION
& ORS. [ANIRUDDHA BOSE, J.]
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stage of the proceeding. But in our opinion, the appellants cannot take
aid of this argument as the respective employment notifications had
specified B.Ed. in concerned subject. The appellants having participated
in the said selection process without raising any objection on that count,
it would not be open to them to question the eligibility criteria specified in
the employment notification. We shall, thus, proceed on the basis that
the candidates for the posts in question were required to have B.Ed.
degree in the concerned subject and it is not in dispute that B.Ed. degrees
of the appellants were not in the concerned subjects. The two GOs,
however, confer on the subjects in which the appellants obtained B.Ed.
degrees, equivalency to the required subjects.
19. There is support for adoption of principle of equivalency in
Clause 10 (a)(ii) of the 1958 Rules. The appellants’ case is also that
their B.Ed. degrees should have been accepted as their subjects in the
respective degree courses were equivalent to the designated subjects,
as was stipulated in the employment notifications.
20. We shall now turn to the question as to whether the two GOs
dated 07th March, 2019 and 23rd July, 2019 could apply in the cases of
the appellants for consideration of the equivalent status of their degrees
in B.Ed., the employment notifications having been published in the years
2012 and 2014. In that perspective, will consideration of
their degrees in
B.Ed. in the light of the aforesaid two GOs result in changing the rules
of the game mid-way?
21. Before we address that question, we shall refer to Note (v)
and Note (vi) of Clause 7 of the respective employment notifications
concerning PK and AD respectively. We have reproduced the said
Clauses earlier in this judgment. There was requirement in Clause 7 that
the candidates ought to disclose the dates of GOs declaring equivalency
to the concerned subjects. But neither the KPSC nor the State has argued
before us that there was any defect in the appellants’ applications. They
were permitted to participate in the written test. On this count, the
respondents have relied on a judgment of this Court in the case of T.
Jayakumar v. A. Gopu [(2008) 9 SCC 403] to contend that oversight
on the part of the authorities at the stage of processing applications
would not be treated to be condonation of some fatal defect in such
applications. Next requirement, as per said Clause 7 was production of
such Orders before the Commission when the same was called for. The
respective clauses did not, however, identify the authorities who should
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issue such orders. The two universities of the State of Kerala have
certified the appellants’ B.Ed. degrees to have equivalent status to the
ones required and this was followed by the two GOs. These documents,
however, were generated during the selection process.
22. A large body of authorities was cited to contend that such
recognition subsequent to publication of the employment notification was
impermissible. The High Court particularly relied on a Full Bench decision
of the Kerala High Court in the case of A. Suma v. The Kerala Public
Service Commission & Ors. reported in [(2011) 1 KLT1 (FB)]. In
that judgment, referring to the 1958 Rules, it was held that the Commission
was incompetent to deal with the question of equivalence of educational
and other qualifications prescribed unless the subject rules provided for
recognition of qualifications other than that prescribed as equivalent.
But so far as these two appeals are concerned, we are not dealing with
a question as regards the authority of Commission to deal with the question
of equivalency. In this case, equivalency has been declared by the State
Government, and prior to that, by two universities of the State of Kerala.
The power of the State Government to make orders on the question of
equivalence is not in dispute. Such power, inter alia, stems from Clause
10(a) (ii) of 1958 Rules. Thus, the case of A. Suma (supra) has no
application as regards the appellants’ rights to be considered for the
posts in question having regard to their B.Ed. degrees.
23. Learned counsel for the respondents have emphasised on the
decision of this court in the case of Aarya K. Babu (supra). This case
involved the question of appointment of certain individuals by the appellant
bank in the post of Agricultural Field Officer. One of the degrees
prescribed in the eligibility criteria was Agro-Forestry. The clause relating
to qualification requirement in the notification dated involved in the said
case read:-
“4-year degree (graduation) in Agricultre/Horticulture/Animal
Husbandry/Veterinary Science/Diary Science/Agri Engineering/
Fishery Science/Pisciculture/Agri Marketing & Co-operation/Co-
operation & Banking/Agro-Forestry.”
24. The candidates who brought that action initially did not possess
degree in any of the subjects specified therein, but their degrees were in
Forestry. They were successful in the selection process but their selection
was cancelled on the ground that they did not possess the prescribed
PRAVEEN KUMAR C.P v. KERALA PUBLIC SERVICE COMMISSION
& ORS. [ANIRUDDHA BOSE, J.]
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qualification in terms of the notification. It transpired that there was no
4-year degree programme being offered in this country for Agro-Forestry.
Indian Council of Agricultural Research (ICAR) had taken a view that
definition of agriculture included forestry. It appears that on that basis
the degrees of the respective candidates in that proceeding were accepted
at the initial stage. In the month of November, 2015, an Office
Memorandum was issued by the Ministry in which the fact of there
being no 4-year bachelor programme in Agro-Forestry available in the
country was taken note of. On the ground that Agro- Forestry was
covered comprehensively as a subject in the ICAR approved syllabus
for B.Sc. Forestry, it was suggested that it would be appropriate that
degree in B.Sc. Forestry ought to be considered for the posts of
Agricultural Field Officer in banks. A corrigendum was subsequently
issued by the Indian Bank Personnel Selection (IBPS) on 16th January,
2016 in that regard. The cancellation order was successfully challenged
by the terminated candidates in the High Court of Kerala, against which
the Bank instituted the petition for special leave to appeal. Leave was
granted in the Bank’s petition. It was held by a coordinate Bench of this
Court in the case of Aarya K. Babu (supra):-
“17. In that backdrop, though in the instant facts presently the
qualification possessed by the private respondents is decided to
be
included for the purpose of recruitment to the post of
Agricultural Field Officer, as on the date of the recruitment
notification the same was not included therein, which cannot be
substituted by the Court with retrospective effect for the reasons
stated above. Therefore, in the said circumstance, in the present
facts, the High Court was not justified in its conclusion. We,
however, make it clear that though we have referred to the legal
position and applied the same to the case of the parties who are
before us, if in the case of similar recruitment, the employers
themselves have permitted the equivalence and have continued
such of those officers recruited, this decision shall not be applied
to initiate action against such officers at this distant point of time.
Subject to the above, the orders passed by the High Court of
Kerala which are impugned herein are set aside.
18. Having arrived at the above conclusion we also take note of
the submission of the learned counsel for the private respondent
in the appeal arising out of SLP (C) No. 16567 of 2016, namely,
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Smt. Aarya K. Babu that she is placed in very difficult
circumstances subsequent to the discharge from service which is
also due to certain setback in her personal life. Though we do not
wish to articulate the actual fact situation narrated we have no
reason to disbelieve the same, hence, we find it appropriate that
in her case it is necessary to exercise our discretion under Article
142 of the Constitution to serve the ends of justice and do complete
justice without prejudicing either of the parties. In that view, we
direct the appellant Bank of India to provide appointment to Smt.
Aarya K. Babu as Agricultural Field Officer or such other
equivalent post if the vacancy exists as on today or in the vacancy
that would arise in future. In that regard it is made clear that the
same will be considered as a fresh appointment from the date of
appointment and no previous benefit can be claimed by her. Further,
it is made clear that this direction is issued in the peculiar facts
and circumstances of this case and the same shall not be treated
as a precedent for any other case.”
25. So far as the present appeals are concerned, the facts are not
identical or near similar also considering the factual background of the
case of Aarya K. Babu (supra). In the two GOs which have been
reproduced earlier, it has been specified that the respective B.Ed. degrees
of the appellants through regular study were equivalent to B.Ed. degree
in Natural Science. In the case of PK, his
B.Ed. Degree in Biological
Science was recognized as equivalent to B.Ed. Natural Science Degree
of Mahatma Gandhi University, Kerala. In the case of AD, the GO
stipulated that Double Main B.Ed. (Biological Science Education and
Physical Science Education) degree obtained by her through regular
mode was recognized as equivalent to B.Ed. Natural Science Degree of
University of Calicut. It is a fact that these orders came much after the
employment notifications were issued. But what we have to address in
these appeals is as to whether the respective B.Ed. degrees of the
appellants declared as equivalent to those of the concerned subjects as
notified would operate from the dates of issue of the respective GOs or
the same would relate back to the time when they obtained the degrees
or at least to the date of the employment notification. The appellants
have relied on a decision of a coordinate Bench in the case of Beena R.
v. Kerala Public Service Commission and Ors. [(2017) 15 SCC
306]. In that case, however, there was no dispute in the case of appellant
that she possessed equivalent qualification of KGTE (English typewriting)
PRAVEEN KUMAR C.P v. KERALA PUBLIC SERVICE COMMISSION
& ORS. [ANIRUDDHA BOSE, J.]
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but she did not have separate certificate as far as the computer
wordprocessing was concerned. In this judgment, a coordinate Bench
examined the implication of the expression “produced”. This authority
does not aid the appellants.
26. Note (v) of Clause 7 of the employment notification in the
case PK and Note (vi) of Clause 7 of the employment notification in the
case of AD required disclosure of the equivalency orders. A plain reading
of the two GOs clearly reflect that their degrees were equivalent to the
requisite qualifications contained in the eligibility criteria. In the case of
Aarya K. Babu (supra), the disputed subject was recognized
subsequently and introduced as part of the eligibility criteria. The principle
of equivalency was not the main reasoning on the basis of which the
said case was decided. The word “equivalence” in its plain meaning
implies something which is equal to another. In the field of academics,
application of the principle of equivalency in relation to degrees in two
subjects would mean that they had the same standing or status all along,
unless the official instrument according equivalency specifies a date from
which the respective subjects would be treated as such, in express terms
or by implication.
27. Whether a GO would have prospective effect or relate back
to an earlier date is a question which would have to be decided on the
basis of text and tenor of the respective orders. The GOs
which declared
appellants’ degrees to be equivalent to those required as per the applicable
notifications were not general orders but these two orders were person
specific, relating to the two appellants. Once the GOs specifically declared
that their B.Ed. degrees were equivalent to the designated subject which
formed part of the employment notification, the GOs in substance have
to be interpreted as clarificatory in nature and these cannot be construed
to have had elevated the status or position of the degree they already
had after the declaration was made in the GOs. The subject GOs only
recognised an existing state of affairs so far as the nature of the degrees
were concerned and did not create fresh value for the degrees which
the appellants possessed. Though these equivalent orders were not in
existence on the dates of issue of employment notifications, the GOs in
substance recognize such status from the dates of obtaining such degrees.
The GOs do not reveal any intervening circumstances which could be
construed to imply that the respective degrees acquired the equivalent
status because of such circumstances occurring subsequent to grant of
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their B.Ed. degrees. The aforesaid Notes to Clause 7 of the employment
notifications postulated disclosure of the number and date of the orders
on equivalence. But the GOs to which we have referred treat the
equivalency to be operating on the dates of obtaining such degrees. Thus,
the defect, if any, on disclosure requirement, shall stand cured on issue
of the University orders followed by the GOs. The GOs also specify the
context in which these were issued and refer to the appellants being
included in the list of KPSC. This being the case, we do not think treating
the appellants’ degrees as equivalent to those required under the applicable
notifications by the GOs issued in the year 2019 would result in change
in the rules of the game midway. At best, it can be termed as interpreting
the rules when the game was on, figuratively speaking. Such a course
would, in our opinion, be permissible. For this reason, we do not consider
it necessary to deal with the different authorities cited on the principle of
“change in the rule of the game midway”. We have opined that the
appellants’ degrees in B.Ed. were equivalent to those required by the
employment notifications and the equivalency orders were merely
clarificatory in nature. For this reason, we do not think there was any
fundamental breach of Notes (v) and (vi) of Clause 7 of the respective
employment notifications in the cases of the appellants.
28. Once we hold so, we do not think relief can be denied to
these
two appellants on the ground that other similarly situated persons may
not have had applied for the same posts and were being put to
disadvantage. In the case of Aarya K. Babu (supra), that course was
adopted by a coordinate Bench as it was a new subject which was
added to a subsisting range of subjects in the qualification criteria. The
principle of service jurisprudence that a candidate must possess the
requisite qualification for a post on the date of issue of employment
notification cannot be applied in the appellants’ cases, as in our view,
they possessed equivalent qualifications when they applied for the posts.
The GOs only confirmed the equivalency of their B.Ed. degrees. In our
opinion, they shall be deemed to have had the equivalent qualification on
the relevant date. As we have held that the respective GOs only clarified
or confirmed an existing status of certain educational qualifications, in
absence of specific instance of similarly situated but unspecified number
of persons having not applied for the posts would be unfair to the ones
who apply for the same and undergo three levels of litigations to establish
that they had equivalent degrees.
PRAVEEN KUMAR C.P v. KERALA PUBLIC SERVICE COMMISSION
& ORS. [ANIRUDDHA BOSE, J.]
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29. The judgments under appeal are accordingly set aside and the
orders of the Tribunal dated 20th September, 2019 and 2nd September
2019 shall stand restored. Let result of the appellants be disclosed and in
the event, on the basis of their performance, they come within the list of
selected candidates as per the ranked lists, the benefit thereof shall not
be denied to the appellants on the ground of lapse of the list by efflux of
time. In the event they qualify for appointment, they shall be given
appointment and they shall be treated to have been in service from the
date of their appointment in their respective posts. The appeals stand
allowed in the above terms. All pending applications stand disposed of.
30. There shall be no orders as to costs.
Divya Pandey
Appeals allowed.