Judgment :- B.N. Patnaik, J. The above Writ Appeals are filed against the judgment of the learned single judge in O.P. No. 4689 of 1996 dated 1.11.1996. The petitioners in the O.P. are similarly placed like the appellants herein. The third respondent in the O.P, was impleaded in a representative capacity. Paper publication was also taken out in the Calicut edition of Mathrubhumi Daily. But the appellants were not able to appear before this Court. Therefore, the appellants filed separate petitions seeking leave of this Court to file writ appeals against the judgment of the learned single Judge. Leave was granted, 2. The petitioners in O.P. No. 4689 of 1996 have challenged the legality of selection made by the District Medical Officer, Kozhikode (the 2nd respondent in the O.P.) to the post of part-time Sweepers in Kozhikode District, The Employment Exchange sponsored 1001 candidates for selection of 113 candidates to fill up the posts of part- time sweepers in the Health Department. The method of appointment and qualifications are prescribed in the Special Rules for a Kerala Part-time Contingent Servants. Category 2 of the Special Rules relate to the appointment of part-time sweepers. The only qualification prescribed for them is "good physique". The 2nd respondent however followed Exts. P1 and P2 Government Orders and gave preference to those who have got SSLC qualification. The petitioners contend that although they satisfied the requirement of qualification of having good physique, yet they were not selected on the ground that they have not got SSLC qualification. 3. In the counter affidavit, the respondents 1 and 2 of the O.P. have stated that as per R.5(a) Category 2 of the Kerala Special Rules for the part-time contingent service the qualification prescribed for the posts which included the sweeper is only good physique. But as per G.O. (P) No. 438/71/PD dated 15.12.1971, the posts of Hospital Attendant Gr-II in Health Services Department are to be filled up by promoting part-time sweepers. Since the selection has been made strictly in accordance with the rules and Exts. P1 and P2 Government Orders, there is no illegality in the selection process. 4. Learned Single Judge held that the procedure adopted by the respondent No. 2 therein was not warranted in the Special Rules. Exts. P1 and P2 orders, should not have been followed in derogation of Special Rules.
P1 and P2 Government Orders, there is no illegality in the selection process. 4. Learned Single Judge held that the procedure adopted by the respondent No. 2 therein was not warranted in the Special Rules. Exts. P1 and P2 orders, should not have been followed in derogation of Special Rules. Hence, the selection made by him on the basis of Exts. P1 and P2 is liable to be set aside. Accordingly he allowed the original petitions with a declaration that the selection made to the post of part-time sweepers by the second respondent District Medical Officer, Kozhikode District is illegal and the second respondent is free to make selection to the post of part-time sweepers from among the candidates sponsored by the Employment Exchange. 5. Learned counsel for the appellant contended inter alia that the second respondent District Medical Officer in fact did not violate the provisions in the special Rules, though he gave some weightage to those who had passed SSLC in accordance with the instructions contained in Exts. P1 and P2. Learned counsel for the petitioners in the O.P. contended that contrary to the rules, the second respondent therein selected the candidates on the basis of SSLC qualification. 6. The set of question that arises for consideration is whether the selection of candidates to the post of part-time sweepers has been made in derogation of the Special Rules. 7. The Special Rules for the Kerala part-time contingent servants lays down that no person shall be eligible for appointment to the post of part-time sweepers unless he possesses the qualification of having good physique. No other qualification has been prescribed in the rules. 8. Ext. P1 is the Government Order dated 7.6.1995 issued by the Government of Kerala in the Health and Family Welfare Department. It is stated that it has come to the notice of Government that the appointing authorities are not selecting candidates for appointment with due regard to their educational qualifications, upper age limit etc. There is wide variation in the norms of selection among different appointing authorities in various districts for the same post. Government therefore consider it necessary to specify norms for selection to various posts so as to bring about uniformity reduce the discretionary power and also ensure a higher standard of candidates selected.
There is wide variation in the norms of selection among different appointing authorities in various districts for the same post. Government therefore consider it necessary to specify norms for selection to various posts so as to bring about uniformity reduce the discretionary power and also ensure a higher standard of candidates selected. The Government therefore prescribed the norms for selection of part-time sweeper as follows: (Marks being equal, preference will be given to candidates who are older (by date of birth In Ext. P2 which is a Government order dated 24.8.1995, it is stated that in continuation of the Government Order dated 7.6.1995 (Ext. P1) Government are pleased to issue the following orders regarding the appointment of Part-time Menials; (i) preference will be given to higher qualification and marks obtained in the qualifying examination (ii) qualification/ marks being equal, preference will be given to the senior in age (iii) 30 marks will be given for candidates with qualification upto SSLC. It has to be now considered whether the aforesaid instructions in Ext. P1 and P2 have the effect of supplanting the qualification prescribed in the Special Rules or have the effect of only supplementing the rules by way of filling up the gap. 9. In State of Maharashtra v. Jagannath Achyut Karandikar (AIR 1989 SC 1133) the Supreme Court held that the executive instruction may supplement but not supplant the statutory rules. In this case, the only qualification prescribed is good physique. The selecting authority found that all the candidates sponsored by the Employment Exchange have got good physique, that is to say, all of them were having the eligibility for selection to the post of part time sweepers.' But he was confronted with the problem of selecting only 133 candidates from among 1001 candidates. Since all the 1001 candidates possess the qualification of good physique, the District Medical Officer had to apply a reasonable criterion to select the suitable candidates. In view of the instructions of the Government in Exts. P1 and P2, in our opinion, he could not have resorted to any other method of eliminating nearly 887 candidates. The instructions given in Exts. P1 and P2 are neither unreasonable nor arbitrary. 10. It is true that the rules do not prescribe any academic qualification for the post.
In view of the instructions of the Government in Exts. P1 and P2, in our opinion, he could not have resorted to any other method of eliminating nearly 887 candidates. The instructions given in Exts. P1 and P2 are neither unreasonable nor arbitrary. 10. It is true that the rules do not prescribe any academic qualification for the post. The contention of the learned counsel for the petitioners in the O.P. is that by adopting the method prescribed in Exts. P1 and P2, persons having no academic qualification like SSLC were discriminated against in the absence of any statutory rule to that effect. This contention has no force. The basic principles of classification as laid down in several decisions of the Supreme Court are that (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. It is admitted that a few non SSLC candidates have also been selected. This shows that instructions in Ext. P1 and P2 were not made the sole basis of selection. It cannot be disputed that there can be a valid classification on the basis of educational or academic qualification. In para. 7 of the counter filed by the second respondent, it is stated as follows: "As far as the part-time sweepers in the Health Services Department are concerned, they are the feeder category for the post of Hospital Attendant Gr.- II according to seniority. The Hospital Attendants Gr. I/Gr. II having 7th standard pass has to be promoted as Nursing Assistant. So also the vacancies of Hospital Attenders, Junior Lab Assistant, X-ray Attender are to be filled up by promoting Nursing Assistants, Hospital Attender and Junior Laboratory Assistants respectively. Candidates selected and appointed as part-time sweepers subsequently are also going to be promoted as Hospital Attendant Gr. II and this respondent has reported the entire vacancy of part-time sweeper to the concerned Employment Exchanges for sponsoring sufficient candidates". The intelligible differentia namely SSLC qualification has a rational relation to the object sought to be achieved, namely to enable the candidates to hold higher posts on promotion in the hospital administration. Hence no exception can be taken to the principle of classification adopted by the District Medical Officer. 11.
The intelligible differentia namely SSLC qualification has a rational relation to the object sought to be achieved, namely to enable the candidates to hold higher posts on promotion in the hospital administration. Hence no exception can be taken to the principle of classification adopted by the District Medical Officer. 11. Learned counsel for the petitioners contended that Exts. P1 and P2 instructions superseded the statutory rules and had the effect of amending it. This is not permissible as laid down in P.D. Aggarwal and Ors. v. State of Uttar Pradesh & Ors. (AIR 1987 SC 1676). This contention has also no force inasmuch as Exts. P1 and P2 instructions are only supplemental to statutory rules and it did not have the effect of supplanting it. When the rules do not give a proper guideline for its application, it cannot be left to the discretion of any authority to apply the same according to its own interpretation. In the rules under consideration, it is found that the qualification prescribed is so wide that it is not possible to select or eliminate candidates only on the basis of that qualification. It had to be supplemented by some other reasonable principle in order to give effect to the rules for the purpose of selection of the candidates. In our view the criteria prescribed in Exts. P1 and P2 for adoption in such a situation are not unreasonable. 12. In Paluru Ramakrishnaiah & Ors. v. Union of India & Ann (1989) 2 SCC 541) it is laid down that the administrative instructions cannot override the rules framed under Art.309 of the Constitution. Where the instructions are incomplete and are supplemental to the rules, the same may be given effect to in consonance with the rules. The instructions in Exts. P1 and P2 being only supplemental in nature, it cannot be said that those instructions override the statutory rule. In Ex. Capt. K. Balasubramanian & Ors. v. State of Tamil Nadu and Ann ((1991) 2 SCC 708) it is laid down that administrative instructions that are inconsistent with and contrary to the statutory rules are invalid. But in the present case the instructions being not found to be inconsistent with and contrary to the statutory rules are not invalid. 13.
Capt. K. Balasubramanian & Ors. v. State of Tamil Nadu and Ann ((1991) 2 SCC 708) it is laid down that administrative instructions that are inconsistent with and contrary to the statutory rules are invalid. But in the present case the instructions being not found to be inconsistent with and contrary to the statutory rules are not invalid. 13. This Court in Jesilet v. State of Kerala (1987 (2) KLT 984) while considering the Kerala Education Rules, 1959 regarding the qualification prescribed for appointment to the post of Sewing Teachers found that the Government by Ext. P1 order prescribed SSLC as an essential qualification though the statutory rules prescribed only a pass in 7th standard. In that context, it was held that - "The order of the State Government prescribing SSLC qualification as an essential qualification for promotion in addition to the qualifications prescribed by the Rules is without competence and cannot therefore, be enforced. As the rule has fully and adequately prescribed the qualifications for the post of Sewing teachers, the State Government in exercise of its executive powers cannot add other qualifications for eligibility". The facts of the present case are distinguishable from the reported case. There is nothing to show in Exts. P1 and P2 that the Government prescribed SSLC qualification as an essential qualification for appointment to the part-time post of sweeper. In fact, some non-SSLC candidates have also been selected. In the absence of any clear guideline for selection of limited number of candidates among all the eligible persons, in our opinion, the second respondent- the District Medical Officer- was justified in following the instructions in Exts. P1 and P2. In this view of the matter, we are unable to agree with the findings of the learned single Judge. There is no legal infirmity in the process of selection of part-time sweepers. No selection was made in violation of the statutory rules. Instructions contained in Exts. P1 and P2 are only supplemental to the statutory rule and they do not have the effect of amending or overriding the statutory rule. For the reasons stated above, the appeals are allowed. The impugned judgment of the learned single judge is set aside. No costs.