AJITH K & ORS. versus ANEESH K.S. & ORS. on 21 August 2019

1. This batch of appeals arises from a judgment dated 10 December2018 of a Division Bench of the High Court of Kerala. Affirming thecorrectness of the judgment of the Kerala Administrative Tribunal dated20 December 2017, the High Court dismissed the writ petition filed bythe appellants under Article 227 of the Constitution.

2. On 16 August 1972, the Government of Kerala in exercise ofits powers under Section 11 of the Kerala Municipal Common ServiceRules 1967, specified the method of recruitment and qualifications forposts in the Municipal Common Service. The posts were specified in anannexure to the order. The post of Health Inspector / Food InspectorGrade-II was among those posts and the qualifications were:

“Minimum general educational of S.S.L.C. Standard. SanitaryInspectors’ Certificate of Bombay or Madras; or HealthInspectors’ Certificate of Trivandrum Medical College; or A

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ASanitary Inspectors’ Certificate of the All India Institute of LocalSelf Government, Bombay or the certificate in Sanitary Inspectorscourse awarded by the National Council for Rural HigherEducation.

Age - Not below 18 years and above 30 years”.B

3. On 26 December 2014, Kerala Public Service Commission[1]advertised vacancies in nine districts for the post of Junior Health InspectorGrade-II in the Municipal Common Service. The notification specifiedthe qualifications for the post in the following terms:

“ Qualifications:-C

1. S.S.L.C.

2. Sanitary Inspectors’ Certificate of Bombay or Madras.

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Health Inspectors’ Certificate of Trivandrum Medical College.D

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Sanitary Inspectors’ Certificate of All India Institute of Local SelfGovernment, Bombay.

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The certificate in Sanitary Inspectors’ Course awarded by theNational Council for Rural Higher Education.

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Sanitary Inspector’ Training Course conducted by the RuralFInstitute, Thavannur.

Note:-KS&SSR Part-II, Rule-10(a)(ii) is applicable for selectionto this post”.

The note above has some bearing on the outcome of the presentcase.G

4. On 29 May 2015, a notification was published for posts in fiveadditional districts. The qualifications for the post remained the same.On 27 November 2015, a common written test was conducted. On 16November 2016, KPSC published a list of selected candidates for the

district of Kottayam. Lists containing the names of candidates selectedfor other districts were also published. Candidates possessing thequalification of a Diploma in Health Inspectors Course[2], a two-year courseconducted by the Director of Health Service, were also included in theshortlists. The DHIC was not one of the qualifications specificallyprescribed in the rules or in the advertisement. Candidates who claimedto be affected by the inclusion of candidates possessing a DHICqualification filed cases before the Tribunal, challenging the State’sdecision to include persons possessing a DHIC qualification in theshortlists.

5. During the pendency of the proceedings before the Tribunal,on 10 January 2017, a three-member Committee conducted a comparativestudy of the syllabi of the DHIC programme and the Sanitary InspectorDiploma Course[3]. The Committee submitted a report holding that:

i)While the DHIC is a two-year course, the duration of theSIDC (the certificate prescribed) is 52 weeks;

ii)While there are prescribed textbooks for the DHIC, norecommended texts exist under the available syllabus for theSIDC;

iii)The topics in both sets of syllabi are almost the same exceptfor some ‘minute differences’; and

iv)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 Tribunalstating that the two year DHIC is a higher qualification in the samefaculty and that it had accordingly been decided to consider candidatespossessing a DHIC for the post of Junior Health Inspector Grade-II byadhering to the provisions of Rule 10(a)(ii) of the Kerala State andSubordinate Services Rules 1958[4]. On 24 May 2017, the office of theDirector of Health Service addressed a communication to the PrincipalSecretary, Local Self Government Institutions Department,Thiruvananthapuram to consider candidates with a DHIC qualificationfor the post of Junior Health Inspector in the Municipal Common Service.

2 “DHIC”

3 “SIDC”

4 “KSSSR”

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AOn 7 July 2017, the Principal Secretary to the Government in the LocalSelf Government (EU) Department addressed a communication to theSecretary, KPSC stating that, in the view of the State Government, theDHIC qualification can be reckoned to be a higher qualification incomparison with the qualifications prescribed in the notification. TheTribunal was subsequently informed of this decision.B

7. The Tribunal by its judgment dated 20 December 2017 allowedthe OAs instituted before it and directed that the shortlist of candidatesbe recast by excluding candidates in possession of the DHIC qualification.The Tribunal issued this direction after holding that KPSC had erroneouslyentertained applications from holders of the DHIC qualification.CAggrieved by the decision of the Tribunal, the writ jurisdiction of theHigh Court was invoked by candidates affected. The High Courtdismissed the writ proceedings holding that the report of the three-membercommittee merely concludes that the DHIC is a ‘higher qualification’than the certificate course, which is not sufficient under Rule 10(a)(ii) ofDPart II of the KSSSR. The High Court observed that the report does notindicate that the acquisition of the diploma pre-supposes the completionof the certificate course prescribed for the post. Moreover, the HighCourt held that the entire exercise by the committee was carried outafter the publication of the shortlists by KPSC, and during the pendencyof the proceedings before the Tribunal. In this backdrop, it was held thatEthe rules governing the process of selection could not be altered mid-way. On this ground the writ petition was dismissed.

8. Assailing the judgment of the High Court, Mr S Nagamuthu,learned Senior Counsel appearing for the appellants submitted that anexercise was carried out under Rule 10(a)(ii) for the purpose ofFdetermining the equivalence of the DHIC qualification with the SanitaryInspector Certificate course originally prescribed for the post in question.The notification inviting applications contained a specific reference toRule 10(a)(ii). Hence, it was urged that once the State Governmentconcluded that the DHIC was a higher qualification, the Tribunal shouldGnot have directed the exclusion of persons possessing the saidqualification. That apart, it was urged, relying on the decision of thisCourt in Jyoti K K v Kerala Public Service Commission[5](“Jyoti KK”), that if a person possesses a higher qualification in the same faculty,such a qualification can be stated to pre-suppose the acquisition of the lower qualifications prescribed for the post. Learned Senior Counselsubmitted that the judgment of the High Court is contrary to public interestsince holders of the DHIC qualification undergo a better course than theSIDC which was prescribed as a qualification in 1972. Hence, it wassubmitted that once a committee had, upon a detailed evaluation,concluded that the DHIC course is a higher qualification, there was nojustification for the Tribunal to direct the exclusion of candidatespossessing the DHIC qualification.

9. Both the State Government and KPSC have supported the lineof argument put forth by the appellants. It has been urged on their behalfthat while affirming the judgment of the Tribunal, the High Court hasonly considered one aspect of Rule 10(a)(ii) – whether the higherqualification pre-supposes the acquisition of the lower qualificationprescribed for the post – ignoring the other part which allows adetermination by KPSC under Rule 13(b)(i) of the Special Rules.

10. Mr V Giri, learned Senior Counsel supported the judgment ofthe Tribunal and the High Court. He submitted that in the present case,there was no determination of the equivalence of the qualifications inadvance, and it was only during the pendency of the proceedings beforethe Tribunal that such an exercise was carried out. Learned SeniorCounsel submitted that the rules could not be changed mid-way. It hasbeen urged that the post of Junior Health Inspector Grade-II is availableboth in the Municipal Common Service as well as in the Health ServicesDepartment. In the Health Services Department, the qualification forthe post is a DHIC, whereas in the Municipal Common Service, thequalification for the post is generally, the Sanitary Inspector’s Certificate.Hence, it was urged that there is a clear distinction between the posts inthe two departments. The SIDC, conducted by the Local Self GovernmentInstitutions, Rural Educational Department, and the DHIC, conductedby the Directorate of Health Services, are designed keeping in view thedifferent duties and functions attached to those two posts in theirrespective departments. Moreover, it was submitted that, responses toqueries under the Right to Information Act 2005 revealed that the DHICcourse conducted by the Directorate of Health Service is notof a superiorqualification to the SIDC. In a communication dated 14 March 2017, theDirector of Urban Affairs specified that the DHIC programme conductedby the Directorate of Health Services is neither an equivalent nor higherqualification to the SIDC certificate course prescribed as a qualificationfor the post of Junior Health Inspector Grade-II in the Municipal Common AB

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AService. This was reiterated by the Personal and Administrative ReformsDepartment on 16 May 2017.

11. The starting point of our enquiry in the present case is theorder of the State Government dated 16 August 1972, published in theKerala Gazette on 29 August 1972. It specifies the minimum qualificationsBrequired for the post of Health Inspector/ Food Inspector Grade-II. Thequalification prescribed is a Sanitary Inspector’s Certificate originatingin specified institutions. The DHIC is admittedly not one of the specifiedqualifications for the post. Reliance was however placed on the provisionsof Rule 10(a)(ii) of Part II of the KSSSR. Rule 10(a)(ii) reads as follows:

C“10. Qualifications (a)

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(ii) Notwithstanding anything contained in these rules or in theSpecial Rules, the qualifications recognized by executive ordersor standing orders of Government as equivalent to a qualificationDspecified for a post, in the Special Rules or found acceptable bythe Commission as per rule 13 (b) (i) of the said rules in caseswhere acceptance of equivalent qualifications is provided for inthe rules and such of those qualifications which pre-suppose theacquisition of the lower qualification prescribed for the post, shallEalso be sufficient for the post.”

Rule 10(a)(ii) commences with a non-obstante provision. Itcontemplates three situations:

(i) Qualifications recognized by executive orders or standingorders of the government as being equivalent to a qualificationFspecified for a post in the Special Rules; or

(ii) Qualifications found acceptable by the Commission inaccordance with Rule 13(b)(i) in cases where acceptanceof equivalent qualifications is provided for in the SpecialRules; and G

(iii) Qualifications which pre-suppose the acquisition of a lowerqualification prescribed for the post.

Any of these would be treated as sufficient for the post.

The Tribunal observed that although a diploma course could beHtreated as superior to a certificate course, to qualify under Rule 10(a)(ii), the diploma course should be one which pre-supposes the completion ofthe certificate course. In that context, the Tribunal held:

“The post of Junior Health Inspector Grade II is available inMunicipal Common Service as well as in the Health ServicesDepartment. The qualification prescribed for the above post inthese two departments differ. In the Department of HealthServices, the qualification for the post of Junior Health InspectorGrade II is a Diploma in Health Inspectors’ course whereas inMunicipal Common Service it is generally Sanitary Inspectors’Certificate. There is, therefore a clear distinction between theabove post in these two Departments.”

The Tribunal noted that the duties and functions attached to theJunior Health Inspector’s post in the Municipal Common Service aredistinct from those in the Health Services Department. Moreover, theTribunal noted that neither KPSC nor any duly constituted authority hadendeavoured to determine whether the DHIC is to be treated as a superiorqualification, the Tribunal held:

“The question, therefore, to be considered is whether any authorityor the Public Service Commission itself has endeavoured to findwhether the qualification of DHIC could be treated as a superiorqualification which pre-supposed the possession of SanitaryInspectors Training Course. On winnowing through the pleadingsand the materials on record, the answer is in the negative. Neitherthe Public Service Commission nor the authorities concerned haveendeavoured to do so. The post that is notified is that of JuniorHealth Inspector Grade II in Municipal Common Service and,therefore, the question whether any other course could be treatedas equivalent to the above course or whether any course could betreated as a superior qualification which pre-supposes thequalification of Sanitary Inspectors’ Course had to be ascertainedand declared by the administrative department or the appointingauthority. In the present case, the authorities concerned are theLocal Self Government Department and the Director of UrbanAffairs. What is brought on record is a communication, AnnexureR5(a) dated 7.7.2017 issued by the Secretary, Local SelfGovernment Department to the Public Service Commission. TheSecretary, Local Self Government Department informs that theDirector of Health Services has intimated that the course AB

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SUPREME COURT REPORTS

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SUPREME COURT REPORTS

Aconducted by them i.e. the DHIC course could be treated as ahigher qualification to Sanitary Inspectors’ Certificate. Accordingto the Secretary, in the light of the above information consideringthat DHIC qualification was prescribed for the post of JuniorHealth Inspector Grade II in the health Service Department, itcould be viewed as a higher qualification to the qualificationBprescribed for the post of Junior Health Inspector Grade II inMunicipal Common Service. It is noted that Annexure R5(a)communication only offers an opinion, it does not declare the abovecourse of DHIC to be a superior qualification. It also does notconsider the fact whether the possession of DHIC would pre-Csuppose the possession of Sanitary Inspectors’ course and whetherthe Junior Health Inspectors post in the Directorate of HealthServices was a superior post to that of the Junior Health Inspectorspost in Municipal Common Service. Moreover,. Annexure R5(a)communication, it is noted, is not an executive order coming withinthe purview of Articles 162 and 166 of the Constitution of India.DAnnexure 5(a) is in the nature of a communication expressing anopinion to a query by the Public Service Commission. The samedoes not declare DHIC course to be a superior qualification tothat of Sanitary Inspectors’ Course in accordance with Rule10(a)(ii) and 13(b)(i) Part II KS&SSR.”EThis view of the Tribunal has been accepted by the High Court.

12. On a careful analysis, it emerges that none of the conditionsstipulated in Rule 10(a)(ii) have been fulfilled. The first situationcontemplated by Rule 10(a)(ii) is where qualifications are recognized byexecutive orders or standing orders of the government as equivalent to aFqualification specified for a post. This is not satisfied. With reference tothe second situation contemplated in Rule 10(a)(ii) there was nodetermination by KPSC in accordance with Rule 13(b)(i) of theequivalence of the qualifications[6]. Finally, the last condition contemplated 6 Rule 13(b)(i) provides thus:G“13. Special Qualifications- No person shall be eligible for appointment to anyservice, class, category or grade or any post borne on the cadre thereof unless he, -…

(b) possesses such other qualifications as may be considered to be equivalenceto the said special qualifications or special tests-

(i) by the Commission in cases where the appointment has to be made inHconsultation with it; or…”

in Rule 10(a)(ii) adverts to those qualifications which pre-suppose theacquisition of a lower qualification prescribed for a post. The expressionpre-suppose means subsumed in. All that we find from the report of thethree-member Committee are general observations about the durationof the DHIC being longer, of a similarity of the topics in the syllabi and acomparison between the number of theory and practical sessions. Therehas been no finding that the acquisition of the DHIC pre-supposes thecompletion of the certificate course.

13. The decision in Jyoti K K concerned a situation where KPSCinvited applications for selection for the post of Sub-Engineers (Electrical)in the Kerala State Electricity Board[7]. The technical qualificationsprescribed were as follows:

“2. Technical qualifications—

(a) Diploma in Electrical Engineering of a recognised institutionafter 3 years’ course of study, OR

(b) a certificate in Electrical Engineering from any one of therecognised technical schools shown below with five years’ serviceunder the Kerala State Electricity Board, [Not fully extracted as not relevant]

OR

(c) MGTE/KGTE in electrical light and power (higher) with fiveyears’ experience as IInd Grade Overseer (Electrical) under theBoard.”

The appellants were B.Tech degree holders or Bachelor’s degreeholders in electrical engineering. KPSC held that they were not eligiblefor selection. The candidates contended that they were persons possessinghigher qualifications and hence could not be excluded. This Courtinterpreted the provisions in Rule 10(a)(i) and held:

“7. It is no doubt true, as stated by the High Court that when aqualification has been set out under the relevant Rules, the samecannot be in any manner whittled down and a different qualificationcannot be adopted. The High Court is also justified in stating that A

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Athe higher qualification must clearly indicate or presuppose theacquisition of the lower qualification prescribed for that post inorder to attract that part of the Rule to the effect that such ofthose higher qualifications which presuppose the acquisition ofthe lower qualifications prescribed for the post shall also besufficient for the post. If a person has acquired higher qualificationsBin the same Faculty, such qualifications can certainly be stated topresuppose the acquisition of the lower qualifications prescribedfor the post. In this case it may not be necessary to seek far.

8. Under the relevant Rules, for the post of Assistant Engineer,degree in Electrical Engineering of Kerala University or otherCequivalent qualification recognised or equivalent thereto has beenprescribed. For a higher post when a direct recruitment has to beheld, the qualification that has to be obtained, obviously gives anindication that such qualification is definitely higher qualificationthan what is prescribed for the lower post, namely, the post ofDSub-Engineer. In that view of the matter the qualification of degreein Electrical Engineering presupposes the acquisition of the lowerqualification of diploma in that subject prescribed for the post,shall be considered to be sufficient for that post.”

14. The above extract indicates that the qualification for theEpromotional post of assistant engineer was a degree in engineering.Consequently, the acquisition of the degree was held to pre-suppose theacquisition of the ‘lower qualification’ of the diploma prescribed for thepost of sub-engineer. This constitutes a distinguishing factor and hencethe decision in Jyoti K K does not apply to the present facts. Thedecision in Jyoti K K was subsequently distinguished in State of PunjabFv Anita[8], as noted by this Court in a more recent decision in ZahoorAhmad Rather v Sheikh Imtiyaz Ahmad[9]. (See also in this context,the decision of the two judge Bench in P M Latha v State of Kerala[10].)

15. The Principal Secretary to the State Government (EU) in acommunication dated 7 July 2017 to KPSC stated:G

“Though, diploma in Health Inspector course having aduration of 2 years is not included in the qualifications 8 (2015) 2 SCC 170

9 (2019) 2 SCC 404H10 (2003) 3 SCC 541

required as per the notification for Junior Health Inspector, GradeII in Municipal Common Service, the PSC has included thosecandidates having qualifications in diploma in HealthInspectors Course shortlist of the said post by taking thesame as an additional qualification to the rest of qualifications...

Since in the circumstances that the report submitted by the Directorof Health Department after conducting comparison study ofsyllabus of both the course, the diploma in Health Inspectorscourse is a higher qualification above the qualificationprescribed under the concerned special rule and that diploma inHealth Inspector course is accepted as a qualification to thepost of Junior Health Inspector in the Health Department,the diploma in Health Inspectors Course can be accepted andreckoned as a higher qualification compared to the qualificationprescribed to the post of Junior Health Inspector Grade II inMunicipal Common Service.”

(Emphasis supplied)

(Emphasis supplied)

16. The reference to the diploma being an additional qualificationis extraneous to Rule 10(a)(ii). The reference to a diploma beingacceptable 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 Rule10(a)(ii). There was no determination of equivalence by any executiveorder or standing order of the State Government. Nor was there anyfinding that a DHIC pre-supposes the acquisition of the lowerqualification. KPSC has not carried out any exercise as required by theprovisions of the rule.

17. In the above view of the matter, we are of the view that thejudgment of the High Court does not suffer from error. The appealsshall stand dismissed. There shall be no order as to costs. Pendingapplication(s), if any, stand disposed of.

Nidhi Jain

Appeals dismissed.

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