N. Shaji v. P S C — 1997 DIGILAW 398 (KER)

JUDGMENT C. S. Rajan, J. 1. In O.P. No. 14198 of 1997 the Public Service Commission as per Ext. P1 notification dated 3.11.1992 invited applications for appointment to the post of Tradesman (Machinist/Machineshop) in the Department of Technical Education. Pursuance to the above notification the petitioner applied for the above post. The following are the qualifications prescribed for the above post: (1) Pass in 7th Standard, and (2) Pass in a trade concerned, namely, JTSLC, ITI, KGTE, KGCE City and Guilds Examination. The petitioner is possessing a Diploma in Mechanical Engineering. A written test was conducted on 18.5.1995 by the PSC in which the petitioner also participated. After the written test the first respondent published a short list on 11.12.1996. The petitioner's name was also included in the above list. The petitioner later was called for interview on 19.2.1997. Thereafter by Ext. P2 the petitioner was requested to show cause why his name should not be removed from the short list. The reason stated in the show cause notice is that the petitioner possessed Diploma in Mechanical Engineering which is not a qualification prescribed in the notification. The petitioner filed Ext. P3 representation. Thereafter by Ext. P4 the provisional conclusion arrived at by the PSC in Ext. P2 was confirmed and the petitioner's name was removed from the short list. It is Ext. P4 that is under challenge in OP No. 14198 of 1997. 2. In OP No. 17954 of 1997 the petitioner applied for the post of Surveyor Grade - II. The qualifications prescribed for the above post are as follows: "(1) A pass in the SSLC Examination or any equivalent qualification. (2) Must possess: (i) ITI (Surveyor Trade) Certificate introduced with effect from the year 1966 OR (ii) ITI (Surveyor Trade) Certificate issued prior to the year 1966 and satisfactorily completed 6 months in plant training according to the rules approved by the Board of Revenue in this regard. OR (iii) A pass in Surveying and Leveling (Higher) MGTE or KGTE with Chain Survey Test. OR (iv) Experience in Military Service for a period of 6 years in Surveyor Trade. Note:1.In the absence of candidates with the technical qualifications mentioned above, a pass in Higher Survey Test shall be deemed sufficient. 2. OR (iii) A pass in Surveying and Leveling (Higher) MGTE or KGTE with Chain Survey Test. OR (iv) Experience in Military Service for a period of 6 years in Surveyor Trade. Note:1.In the absence of candidates with the technical qualifications mentioned above, a pass in Higher Survey Test shall be deemed sufficient. 2. In the absence of candidates with any of the technical qualifications mentioned above, a pass in Chain Survey Test shall be deemed sufficient." The petitioner is having the qualification of Diploma in Civil Engineering. The petitioner was also allowed to participate in the written test and was included in the short list. Thereafter Ext. P1 show cause notice was issued by the PSC requesting to show cause why the petitioner's name should not be deleted from the short list on the ground that he does not possess the prescribed qualifications. The petitioner filed Ext. P2 representation. At this juncture the petitioner has come up before this Court challenging Ext. P1 show cause notice and also for a declaration that the qualification which he possessed is equivalent to the prescribed qualification for the post of Surveyor Grade - II. 3. Shri. S. Gopakumaran Nair, learned counsel for the petitioner submitted that the qualifications which the petitioner possessed, even though higher than the prescribed qualifications must be treated as equivalent to the qualifications prescribed for the post. Therefore, according to him, a higher qualification like Diploma in Engineering will definitely fit into the prescribed qualification of a Certificate from ITI. The further argument submitted by the learned counsel is that he applied for the post as early as 1992, passed written test, called for interview and finally included in the short list. To be told after five long years of waiting that you are unqualified to be selected and appointed to the post is definitely arbitrary. The learned counsel also wants to invoke the doctrine of legitimate expectation in this case. Shri. O. V. Radhakrishnan, learned Standing Counsel for the PSC submits that the qualifications prescribed in the notification must be satisfied in the case of all the candidates and no other qualification even it be higher cannot be accepted as prescribed qualification. The learned counsel also wants to invoke the doctrine of legitimate expectation in this case. Shri. O. V. Radhakrishnan, learned Standing Counsel for the PSC submits that the qualifications prescribed in the notification must be satisfied in the case of all the candidates and no other qualification even it be higher cannot be accepted as prescribed qualification. The learned counsel relies on R.10(a) of the KS & SSR as amended by GO (P) No. 8/94 dated 3.2.1994 which reads as follows: "(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 recognised by executive, orders or standing orders or Government as equivalent to a qualification specified for a post in the Special Rules and such of those higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post." Therefore, according to the learned counsel, the higher qualifications possessed by the candidates must presuppose the acquisition of the lower qualification prescribed for the post. Thus, a candidate, who is possessing a diploma in Mechanical Engineering must have acquired the qualification of ITI. Trade in order to fulfil the prescribed qualification in the notification. 4. The learned counsel also cited a ruling of this Court in Sobha Menon v. Public Service Commission ( 1994 (1) KLT 986 ) wherein it was held that the PSC must decide the qualification which is equivalent to the qualification already notified before the post was advertised. Otherwise such declaration of equivalent qualification will adversely affect those who are really qualified and could not have applied to the post. In this context this Court observed as follows: "8. Qualification is the fundamental requirement of selection. That fundamental requirement should be determined and finalised before setting in motion the process of selection. If not done initially it cannot be done at all. The power conferred by R.13(b)(i) has to be exercised consistent with this principle. That would mean, the commission has indicate at the stage of inviting applications that equivalent qualifications would also be considered. That fundamental requirement should be determined and finalised before setting in motion the process of selection. If not done initially it cannot be done at all. The power conferred by R.13(b)(i) has to be exercised consistent with this principle. That would mean, the commission has indicate at the stage of inviting applications that equivalent qualifications would also be considered. The expression 'appointment' in relation to R.13(b)(i) would cover the entire process of appointment. The process of appointment has to necessarily commence from the issue of the Notification inviting applications. The power under R.13(b)(i) has to be exercised at the time of inviting applications. If the Notification itself does not indicate that equivalent qualifications would also be considered, there is no question of exercising the power under R.13(b)(i) midstream. Of course, the power to decide what is an equivalent qualification would rest with the Public Service Commission." The learned counsel also cited a ruling of the Supreme Court reported in Distt. Collector & Chairman, Vizhianagaram S. W. R. S. Society v. M. Tripura Sundari Devi ( 1990 (3) SCC 655 ) which reads as follows: "6. It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact." 5. A more appropriate ruling is a Full Bench ruling of a Karnataka High Court reported in Karnataka Public Service Commission v. N. C. Hugar (1981 (1) SLR 469). In the above case the question was whether a candidate possessing a higher educational qualification than the minimum educational qualification prescribed for the post is eligible for being appointed to that post. A more appropriate ruling is a Full Bench ruling of a Karnataka High Court reported in Karnataka Public Service Commission v. N. C. Hugar (1981 (1) SLR 469). In the above case the question was whether a candidate possessing a higher educational qualification than the minimum educational qualification prescribed for the post is eligible for being appointed to that post. The qualification prescribed for the post of Technical Assistant in the Department of Public Libraries were Bachelor's degree and a Certificate in Library Science or Diploma in Library Science. The petitioners therein were holders of a degree in Library Science. While dealing with the above question the Full Bench discussed the matter as follows: "10. The Public Service Commission has to ascertain whether the candidate for recruitment to a particular post possesses the qualification prescribed for that post. If the candidate does not posses the qualifications that are prescribed by the rules, the question as to whether some other qualification possessed by the candidate is higher or not does not arise for consideration. In this context, it is better to clarify what the expression higher qualification than the one prescribed by the Rules means. This can better be explained by illustrations. If 'A' is the qualification prescribed by the rule, then if a person who after acquiring the qualification 'A', has acquired a further or superior qualification 'B' in the same field, such a person can be regarded as a person possessing a qualification higher than the prescribed qualification. Such person is undoubtedly qualified in as much as he possesses the prescribed qualification 'A'. The fact that he possessed a further qualification 'B', which may be regarded as higher qualification cannot render him unqualified. In such a case the question of deciding whether 'B' is a higher qualification does not at all arise. If a second class degree is prescribed as the minimum qualification for a post, a person possessing a first class degree cannot be regarded as ineligible because such a candidate in addition to securing the marks required for obtaining a second class degree has obtained larger number of marks. Similarly, a candidate who has passed IX standard. After passing the VIII Standard cannot be regarded as ineligible if the minimum qualification prescribed for the post is VIII Standard. In such cases the principle, that larger includes the smaller applies. Similarly, a candidate who has passed IX standard. After passing the VIII Standard cannot be regarded as ineligible if the minimum qualification prescribed for the post is VIII Standard. In such cases the principle, that larger includes the smaller applies. But this principle will not apply to cases where a Diploma or Certificate in a particular subject granted by a particular institution is prescribed as the minimum qualification for the post and the candidate has not acquired any such qualification but has obtained a degree in the same subject from another institution. But, if 'A' is the prescribed qualification and the candidate does not possess the said qualification 'A', but possess 'B' qualification the question that may arise for consideration is as to whether the qualification 'B' possessed by the candidate is higher than the qualification 'A', In such a situation, it is not open, in our opinion, for the Public Service Commission to embark upon an investigation of the question as to whether the qualification 'B' possessed by the candidate is higher than the prescribed qualification 'A' inasmuch as such power is not conferred on the Public Service Commission. The power of prescribing the qualification being with the rule making authority, it not having prescribed 'B' as one of the qualifications for the Post, the said qualification cannot be taken into consideration. To hold otherwise would lead to innumerable problems and difficulties. In respect of a particular subject, education may be imparted and qualifications conferred by several institutions in the State, in India and in several parts of the world. If persons possessing different qualifications conferred by different institutions in the world come and assert before the Public Service Commission that the qualifications possessed by them though they are not the expressly prescribed qualifications, are qualifications higher than those prescribed can it be said that the Public Service Commission is required to make an investigation about the course of study and the nature of qualifications conferred by various institutions. This is a difficult and complicated process which is bound to take enormous amount of time. This task in the very nature of things, cannot be satisfactorily discharged by the Public Service Commission whose duty is to scrutinise the applications and proceed to the next stage of notifying the candidates for interview or for written examination without undue waste of time. This task in the very nature of things, cannot be satisfactorily discharged by the Public Service Commission whose duty is to scrutinise the applications and proceed to the next stage of notifying the candidates for interview or for written examination without undue waste of time. The task of determining as to whether a particular qualification is higher than the prescribed qualification is not an easy one. One cannot go by the mere name or description of the qualification. It is not correct to assume that degrees are higher than diplomas or certificates for it is well known that Diplomas or Certificates conferred by some institutions enjoy higher status in the academic world than the degrees conferred by other institutions. Even among degree conferred by different institutions there may not be uniformity. As the qualifications are prescribed having regard to the needs and requirements of the particular post, it cannot be said that a higher academic qualification is necessarily a higher qualification from the point of view of the requirements of the concerned post. If the rule making authority intended that the Public Service Commission or the Selecting authority should take into consideration higher qualifications, it would have so provided. Having regard to all relevant aspects, we are clearly of the opinion that the Public Service Commission or the Selecting authority, whose duty is to ascertain as to whether particular candidate possesses the qualification prescribed by the rules, cannot embark on the question as to whether a particular qualification is or is not higher than the prescribed qualification. Therefore, the Full Bench held that if a candidate possesses an additional qualification outside the minimum qualification prescribed for the post, he will not be ineligible to be appointed for the post. 6. Learned counsel for the petitioners brought to my notice a ruling of this Court reported in Mathew v. State of Kerala ( 1992 (2) KLT 116 ). In the above ruling the question was whether a person who got B.Ed. degree is eligible to be appointed as Lower Primary School Assistant and Upper Primary School Assistant for which TTC has been prescribed as a basic qualification. This Court held that the higher qualification of B.Ed. can be considered as a prescribed qualification for the above post. In the above ruling the question was whether a person who got B.Ed. degree is eligible to be appointed as Lower Primary School Assistant and Upper Primary School Assistant for which TTC has been prescribed as a basic qualification. This Court held that the higher qualification of B.Ed. can be considered as a prescribed qualification for the above post. While considering the impact of the above ruling it is necessary to look into the relevant rules of KER R.4(1) of Chap.31 of KER prescribes the minimum qualification for the post of Lower Primary School Assistant as a pass in SSLC examination conducted by the Commissioner for Government Examinations and a pass in TTC examination. R.4A states that notwithstanding anything contained in Sub-r.(1) educational officer shall be competent to approve appointments of candidates possessing higher qualifications provided they have any of the training qualifications approved by the Government of Kerala. Therefore, the rules provided for approval of the appointment of candidates possessing any higher qualification. Therefore, I do not think the above ruling will come in aid of the petitioners' case. 7. The other argument which learned counsel for the petitioners pressed in that at this distance of time it was unfair and arbitrary on the part of a public institution like the PSC to tell the candidate that he is unqualified or ineligible to be considered for selection. The complaint of the petitioners is that either at the time of the written test or at the time of the interview, the petitioner was not told about his ineligibility to apply to the post. Having crossed the hurdles of a selection the PSC should not have taken this stand. That is why the learned counsel invokes the doctrine of legitimate expectation. 8. The recent development in the field of the doctrine of legitimate expectation has been the subject matter of a number of decisions of the Supreme Court. Suffice to record two decisions of the Supreme Court. In the ruling reported in Navjyoti Coo - Group Housing Society v. Union of India ( AIR 1993 SC 155 ) the Supreme Court analysed the concept of the doctrine of legitimate expectation in the following words: "........The existence of 'legitimate expectation' of following consistent past practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment. The existence of 'legitimate expectation' may have a number of different consequence - and one of such consequences is that the authority sought not to act to defeat the " legitimate expectation' without some overriding reason of public policy to justify its doing so. In a case of "legitimate expectation' if the authority proposes to defeat a person's 'legitimate expectation' it should afford him an opportunity to make representations in the matter. In this connection reference may be made to the discussions on 'legitimate expectation' at page 151 of Volume 1(1) of Halsbury's Laws of England Fourth Edition (Reissue) . We may also refer to a decision of the House of Lords in Council of Civil Service Unions v. Minister for Civil Service reported in (1984) 3 All ER 935. It has been held in the said decision that an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment on such reasons." Again in the ruling reported in Union of India v. Hindustan Development Corpn. ( AIR 1994 SC 988 ) the Supreme Court reiterated the above principle as follows: "28. Time is a three fold present: the present as we experience it, the past as a present memory and future as a present expectation. For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense." xx xx xx xx xx "33 - 34. On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfilled by taking a particular decision then decision maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the court is satisfied that a case of legitimate expectation is made out then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors." Thus, it is clear that the Court has to consider in a case where the case of legitimate expectation is made out by the petitioner whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should not be quashed. The Supreme Court has also cautioned that Court's jurisdiction to interfere is very much limited and much less in granting any relief in a claim based purely on a ground of legitimate expectation. 9. As set out from the facts earlier it is evident that the petitioners have been given an opportunity of being heard before a decision is taken affecting the legitimate expectation of the petitioners. Therefore, it cannot be said that the PSC has acted arbitrarily or unfairly. The petitioners can only aspire to be heard before an adverse decision is taken by the public body, thus, frustrating the legitimate expectation of the petitioners. I do not think in this case the PSC has acted in such a manner. 10. Learned counsel for the petitioners as well as the learned Standing Counsel for the PSC brought to my notice a decision of the Supreme Court in Civil Appeal Nos. 1730 to 1732 of 1988 wherein the power of the PSC under R.13 of the KS & SSR was considered. 10. Learned counsel for the petitioners as well as the learned Standing Counsel for the PSC brought to my notice a decision of the Supreme Court in Civil Appeal Nos. 1730 to 1732 of 1988 wherein the power of the PSC under R.13 of the KS & SSR was considered. In the above case the candidates possessed a Diploma in Ayurveda Medicine. The above qualification prescribed by the Special Rules. But the prescribed qualification for the post was a Certificate in Ayurveda Pharmacist Course. This Court took the view that the higher qualification possessed by the candidates and recognised by the PSC is not equivalent to the prescribed qualification. But the Supreme Court while dealing with the power of the PSC under R.13 of the KS & SSR held that the PSC is competent to recognise a qualification as an equivalent qualification and upheld the action of the PSC in recognising the higher qualification as equivalent to the prescribed qualification. But I do not think the above judgment will help the petitioners in these cases wherein the PSC has refused to recognise a higher qualification as the prescribed qualification. 11. The learned Standing Counsel for the PSC also invited my attention to General Condition No. 27(a) of the notification wherein it has been held as follows: "27(a) The claim of the candidates with regard to the date of birth, educational/technical qualifications, experience and community are accepted only provisionally on the information furnished by them in their application forms subject to the Commission, satisfying themselves about their age, educational, technical qualifications, experience and community. Mere admission to any test or interview or inclusion of the name of a candidate in a Ranked List will not confer on the candidate any right for appointment. The candidature is therefore, provisionally at all stages and the Commission reserves the right to reject any candidature at any stage of the selection even after the advice has been made." The above condition also stands in the way of the petitioners contending that the PSC acted either illegally or arbitrarily. Therefore, I do not find any justification to interfere with the action of the PSC in these cases. The Original Petitions are, therefore, dismissed.