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2006 DIGILAW 617 (KER)

Mukesh v. State of Kerala

2006-09-26

K.A.ABDUL GAFOOR, K.P.BALACHANDRAN

body2006
Judgment :- K.A. Abdul Gafoor, J. All these four Writ Appeals arise from the judgment in W.P.(C) No.36370/05 filed by the appellant in W.A.No.1261/06, who will be, hereinafter, described as the petitioner. The learned single Judge, allowing the Writ Petition in part, granted the prayer of the petitioner to exclude candidates, with degree in Sociology, from Annexure I ranked list, produced in W.A.No.1236/06, drawn up by the Public Service Commission, (PSC), for appointment to the post of Welfare Officer Grade II (Jails) in the Prisons Department. The controversy raised in the Writ Petition was whether, in the light of the stipulation of the qualifications as contained in Ext.P1 notification, candidates with degree in Sociology ought to have been included in the ranked list or not. The learned single Judge found that such candidates could not have been included in the ranked list. But, in the wake of the decision of the PSC, considering degree in Sociology as an equivalent qualification to a degree in Social Work or in Social Service, the learned single Judge enabled them to issue an erratum notification to render equality of opportunity to all those who would have, in such case, responded to the notification, but for the unawareness of such decision of the PSC, and to conduct a fresh selection. The petitioner has filed the Writ Appeal aggrieved by that part of the direction. 2. Rank No.1 in Annexure I ranked list, who was an MSW degree holder, was not a party to the Writ Petition. In case the PSC accepts the said part of the direction, her appointment might be at stake. Therefore, aggrieved by that direction she, along with another similarly placed candidate, has filed W.A.No.1270/06. These candidates have already been appointed based on the merit and communal rotation. 3. The candidate with M.A. Sociology, who is directed to be excluded from Annexure I ranked list, is aggrieved by such direction in the judgment. Therefore, he filed W.A.No.1236/06. 4. The PSC is aggrieved by both the directions. Therefore, they filed W.A.No.1380/06. 5. It is, in these circumstances, these four Writ Appeals arise from the very same common judgment. The brief facts for the disposal of these appeals can be narrated as follows: 6. The post in question is that of Welfare Officer Grade II (Jails) in Prisons Department of the Kerala State. Therefore, they filed W.A.No.1380/06. 5. It is, in these circumstances, these four Writ Appeals arise from the very same common judgment. The brief facts for the disposal of these appeals can be narrated as follows: 6. The post in question is that of Welfare Officer Grade II (Jails) in Prisons Department of the Kerala State. Method of appointment and qualifications for the post in question is governed by G.O.(MS)No.8/80/Horne dated 2.1.1980, Annexure R3 (1) in W.A.No.1261/06. The Qualifications stipulated in that Government Order for direct recruitment to the said post are as follows: "B. QUALIFICATIONS: a) For direct recruitment i) A Degree of a recognized University ii) A degree or diploma in Social Services/Social Work from a recognized University/Institution iii) Ability to read and write Malayalam xxx xxx xxx” The question agitated is with reference to the second among the said two qualifications. When the PSC conducted the selection and prepared the ranked list, Annexure I in W.A.No.1236/06, they included the candidates possessing the degree of MSW as well as those possessing the degree in Sociology. In the light of the stipulations regarding the qualifications as mentioned, whether candidates with degree in Sociology are entitled to be included in the ranked list is the moot question debated. 7. The relevant qualification is a Degree or Diploma in Social Services/Social Work of a recognized University/Institution. It is contended by the candidates possessing Degree in Sociology that going by the course contents, the degree that they possess can be treated as a degree in Social Services/Social Work. Because almost all papers are similar to those for MSW degree. So, the said qualification stipulated in Annexure R3(1) as well as in Exhibit P1 notification takes iii degree in Sociology as well, along with the Degree/Diploma in Social Services or Social Work. Therefore, the candidates with degree in Sociology can very well be included in the ranked list, like those with the Degree/Diploma in Social Work or Social Services. Such inclusion is justified. This contention is supported by the PSC as well. The learned single Judge did not properly advert to this contention, the candidates with degree in Sociology, submits. The PSC considered degree/diploma in Sociology as an equivalent qualification to that in Social Services/Social Work and considered those candidates also for inclusion in the ranked list. The stipulation regarding the Degree or Diploma in Social Services/Social Work is not in definite terms. The PSC considered degree/diploma in Sociology as an equivalent qualification to that in Social Services/Social Work and considered those candidates also for inclusion in the ranked list. The stipulation regarding the Degree or Diploma in Social Services/Social Work is not in definite terms. Therefore, the PSC thought of considering the candidates with Degree not only in Social Services and Social Work, but in Sociology as well. There is no illegality in that. So, the learned single Judge ought not have directed to exclude such candidates, PSC also contends. 8. It is contended by the Writ Petitioner as well as the appellants in W.A.No.1270/06 that specification of qualifications is definite not only in Government Order, but in Ext.P1 notification also, that the aspirants for the post shall apart from possessing a degree from a recognized University shall also possess a degree or diploma in Social Services/Social Work. Of course, R.13 Part II K.S. & S.S.R. enables the PSC, in appropriate situation, to declare equivalence of the qualification. That is for the purpose of enabling such candidates with equivalent qualification also to respond to the notification. Such declaration of equivalence, made by the PSC on the basis of the enabling provisions contained in R.13 of the General Rules, shall find a place in the notification, so that those who are having equivalent qualifications can also respond to the notification. It was not done. 9. They also invited our attention to the specific averments contained in the counter affidavit filed by the PSC, which reads: "Regarding the averments it is submitted that the Commission after due deliberations and in exercise of the powers entrusted on them, decided treat the M.A. in Sociology as equivalent to the notified qualification." (emphasis supplied) It is submitted further in the counter affidavit that: "Regarding the averments that the Commission have included unqualified candidates in the Ranked List having M.A. Decree in Sociology, it is submitted that Rr.10 and 13 of the General Rules gives (sic) power to the Commission to treat a qualification possessed by a candidate as sufficient or equivalent to the notified qualification………….. In view of the position in Rr.10 and 13 of the General Rules, the Commission decided to entertain the applications of candidates having M.A. in Sociology along with others with the notified Qualifications." (emphasis supplied) Therefore, it is pointed out that M.A. Sociology candidates were included in the ranked list treating the qualification possessed by them as equivalent to the notified one. That itself makes it clear that the PSC was aware that M.A. Sociology was not the notified qualification, they submit. Ext.P1 notification does not enable those with such equivalent qualification to apply for. Therefore, the decision to treat M.A. Sociology as an equivalent qualification was not made known to the aspirants for employment, so as to enable them to avail of the right of equality of opportunity enshrined under Art. 16 of the Constitution of India. Such a decision cannot be taken by the PSC subsequent to the notification. It also will defeat the right under Art.16 of the Constitution of India of the eligible candidates. Therefore, even going by the counter affidavit of the PSC, it is submitted by them that, M.A. Sociology is not a notified qualification. When it is not a notified qualification, inclusion of candidates with M.A. Sociology in the ranked list is illegal, So, it was rightly interfered with by the learned single Judge it is submitted. 10. It is further committed by the writ petitioner that when the notification is explicit on the required qualification of Degree or Diploma in Social Services/Social Work, there does not arise any situation of selecting candidates with other qualifications, when sufficient candidates were available with the notified qualification and are so included in the list. Therefore, latter part of the direction to conduct a fresh selection, in case the PSC chooses to do so, is not justified. Accordingly, upholding the first part of the direction, the latter part shall be set aside, the writ petitioner contends. 11. It is contended by the appellants in W.A.No.1270/06 that they hold Rank Nos.1 and 8 in Annexure I ranked list produced in W.A.No.1236/06. In Ext.P1 notification PSC notified two vacancies for direct recruitment. One shall go to the open merit candidate and the other shall go to a candidate based on communal rotation. Going by the communal rotation, the latter vacancy shall go to one SC/ST candidate. In Ext.P1 notification PSC notified two vacancies for direct recruitment. One shall go to the open merit candidate and the other shall go to a candidate based on communal rotation. Going by the communal rotation, the latter vacancy shall go to one SC/ST candidate. Therefore, the open merit vacancy ought to have gone to Rank No.1, the first appellant and that due to the SC/ST candidate ought to have gone to Rank No.8, the first among the candidates belonging that group, viz., the second appellant. Accordingly, the appellants were advised to the notified vacancies. They were consequently appointed. They are Degree holders in Social Work. They are now holding the posts. They were not parties to the Writ Petition. If the latter part of the direction is complied with by the PSC, their advice and appointment will be at stake. It is contended that such a direction, without they in the party array, is unjustified and it violate their rights. Further, it is submitted that the prayer is only to exclude the degree holders in Sociology alone, as they being not covered by the notified qualification. There was no prayer for conduct of a fresh selection. In such circumstances, the prayer which had never been asked for ought not to have been granted, it is submitted. In support of this contention the decision reported in National Board of Examinations v. G. Anand Ramamurthy (2006 (3) KLT (SC) (SN) 22 = (2006) 5 SCC 515) is much relied on. 12. Respondents 3, 7 and 8 in W.A.No.1261/06, who are M.A. Sociology candidates and similarly placed incumbents in W.A.No.1236/06, attempted to sustain their inclusion in the ranked list, relying on certain other documents, which are produced as Annexures I to III. It is contended that in an earlier notification concerning another post, viz., District Executive Officer, the PSC in Annexure R3(2) invited applications from candidates with MSW/MA Sociology/ LL.B. with specialization in Labour Laws, meaning thereby, degree in Sociology was being treated as equivalent to MSW. It is submitted, based on a Note of a Head of the Department in the University of Kerala that the degree holders in Sociology and MSW degree holders are trained in similar subjects. 13. Can degree in Sociology (or M.A. in Sociology) be equated with degree in Social Work or Social Science? This is the moot question. It is submitted, based on a Note of a Head of the Department in the University of Kerala that the degree holders in Sociology and MSW degree holders are trained in similar subjects. 13. Can degree in Sociology (or M.A. in Sociology) be equated with degree in Social Work or Social Science? This is the moot question. For this, the relevant academic law has to be considered. Going by the clause 2(2) Chapter V of the First Ordinance of the Kerala University, in the Faculty of Social Sciences, there are several Departments like (1) History, (2) Political Science, (3) Economics, (4) Psychology, (5) Islamic Studies, (6) Sociology, (7) Social Work and (8) Archeology. This Ordinance is accepted by the Mahatma Gandhi University as per S.99(2) of the M.G. University Act, 1985. No separate Ordinance is framed by that University. Thus, within the faculty of Social Sciences, there are separate Departments, including the Departments of Sociology and of Social Work. Therefore, these are two different Departments of Studies. In the Government Order, referred to above, providing for the qualification for the post in question, the relevant stipulation is a Degree or Diploma in Social Services/Social Work. It does not stipulate a Degree or Diploma in Sociology, which is a different department of study as compared to Social Work. In such circumstances, observations of the learned single Judge that "Social Service or Social Work, as understood in common parlance, cannot be equated with Sociology" is justified, because University of Kerala and M.G. University have constituted different departments of Sociology and Social Work in the Faculty of Social Sciences. Therefore, a person of reasonable intelligence, as observed by the learned single Judge, will not perceive that a Degree in Sociology will be treated as a Degree in Social Service or Social Work. 14. The candidates are awarded degree either in Sociology or in Social Work or in Social Services by the University concerned. Necessarily, a candidate with M.A. Sociology can very well conceive that he is not a degree holder in Social Work or Social Services. Ordinarily, such candidates of reasonable thinking, going by the method of study and regulations of the University, as applicable to them, will not conceive that Exhibit PI notification will cover them as well and will not, therefore, respondent to the notification. Ordinarily, such candidates of reasonable thinking, going by the method of study and regulations of the University, as applicable to them, will not conceive that Exhibit PI notification will cover them as well and will not, therefore, respondent to the notification. If, ingenuously, any one, disregarding this, applies for the post, a situation will arise, if the reasoning of the PSC is accepted, as if he is qualified. It will be defeating the rights of other persons similarly situated. Therefore, the learned single Judge was well justified to hold that Exhibit P1 notification did not take in degree holders in Sociology, but only covered the degree holders in Social Work or Social Services, as the case may be, as specifically stipulated in Ext.P1 notification and the Government Order, referred to above. 15. True, counter affidavit of the PSC, as pointed out by the writ petitioner, reveals that the PSC had “decided to treat M.A. in Sociology as equivalent to the notified qualification.” As is revealed from the counter affidavit, it is based on the enabling provisions contained in Rules 10 and 13 of the General Rules. The counter affidavit further reveals that such a decision was taken “to entertain the applications of candidates having M.A. in Sociology along with others with the notified qualifications.” Thus, the PSC was also aware that M.A. Sociology was not a notified qualification. But, they only treated it as an equivalent qualification. A qualification shall be treated as an equivalent qualification for the purpose of inviting applications from the concerned persons, possessing equivalent qualifications. Therefore, such treatment or order or decision shall reflect in the notification, so as to make the prospective aspirants aware of that fact and to respond to the notification. 16. Ext.P1 notification does not reveal such a decision or it does not invite applications from the persons possessing equivalent qualifications. Therefore, the decision to treat M.A. Sociology also as an equivalent qualification to consider the candidates with that qualification was a decision taken in hide by the PSC and without making it in public, so that several others possessing similar qualification could apply. In such circumstances, the learned single Judge was perfectly justified to hold that such decision of the PSC, which was not mentioned in its notification and taken after the invitation of the applications, will offend the right of equality of opportunity to similar candidates. In such circumstances, the learned single Judge was perfectly justified to hold that such decision of the PSC, which was not mentioned in its notification and taken after the invitation of the applications, will offend the right of equality of opportunity to similar candidates. The decision of the learned single Judge in that regard cannot be said to be faulty, to invite interference in an appeal. 17. When, thus, degree in Sociology is not contemplated in the Government Order prescribing qualifications for the post in question or in Exhibit P1 notification, necessarily, the direction in the impugned judgment to exclude such candidates from Annexure I ranked list is well justified and does not call for interference. 18. The documents produced by M.A. Sociology candidates, as referred to in paragraph 12 supra, do not have any relevance. There the degrees is in Sociology and Social Work are bracketed each other for the purpose of recruitment to a different post, viz., District Executive Officer. The other certificate from a teacher regarding course content is immaterial and irrelevant. As already discussed above, Sociology and Social Work are two different Departments of study. 19. Now, we will come to the latter part of the direction as to whether fresh selection is to be conducted. Had the Writ Petition was riled by a candidate possessing M.A. Sociology, who could not respond to the notification, necessarily, such a direction was justified because that candidate was excluded from the zone of consideration because of the decision taken by the PSC, later than the date for submission of applications. But, here is a Writ Petition, where it is agitated that M.A. Sociology is not a prescribed or notified qualification. When that is found in favour of the writ petitioner, necessarily, exclusion of M.A. Sociology candidates is justified. There arises no question of fresh selection after including M.A. Sociology also as a required qualification. 20. Further, as discussed above, there is no ambiguity also in the prescribed or notified qualification. The notification invites applications only from those possessing degree/diploma in Social Services/Social Work. In such circumstances also, there no reason for a fresh selection. 21. Again, there were sufficient candidates with the notified qualification, included in Annexure I ranked list, as compared to the two notified vacancies. 22. The notification invites applications only from those possessing degree/diploma in Social Services/Social Work. In such circumstances also, there no reason for a fresh selection. 21. Again, there were sufficient candidates with the notified qualification, included in Annexure I ranked list, as compared to the two notified vacancies. 22. Further, the petitioner only claimed the relief to exclude the candidates with M.A. Sociology finding a place in Annexure ranked list, produced in W.A.No.1236/06. He did not ask for a fresh selection. The Supreme Court, in the decision National Board of Examinations’ case, referred to above, has made it clear that: "The High Court was also not justified in granting a relief not sought for by the respondents in the Writ Petition. The prayer in the Writ Petition was to seek a direction to the petitioner herein to hold the examinations as per the schedule mentioned in the Bulletin of 2003. However, the High Court passed an order directing the petitioner herein to hold the examinations for the respondents according to the schedule mentioned in the Bulleting of 2003. The effect of this order is that the petitioner would have to permit the respondents to take the exam even if they do not meet the eligibility criteria fixed by the petitioner in its policy of 2003." Therefore, the relief, which was not prayed for in. the Writ Petition, ought not have been granted. 23. The said relief heavily affects the appellants in W.A.No.1270/06. The first appellant, being Rank No.1, had already been advised and appointed against one among the notified vacancies. The other appellant, holding Rank No.8, being eligible for reservation for SC/ST, was also advised and appointed. They were not parties to the Writ Petition. In the Writ Petition, the relief sought for was only to exclude M.A. Sociology candidates from the ranked list. There was no reason to implead these appellants with Diploma in Social Work as necessary parties in the Writ Petition. But, the direction to hold a fresh selection, without they being heard, will necessarily affect them. They are the appointees against the notified vacancies. Their appointments are at stake. That direction was issued without hearing them. Necessarily, it has to be set aside. Thus, W.A.Nos.1236/06 and 1380/06 are dismissed. W.A.Nos.1261/06 and 1270/06 are allowed, deleting the latter part of the direction in the impugned judgment, which enabled the PSC to conduct a fresh selection. They are the appointees against the notified vacancies. Their appointments are at stake. That direction was issued without hearing them. Necessarily, it has to be set aside. Thus, W.A.Nos.1236/06 and 1380/06 are dismissed. W.A.Nos.1261/06 and 1270/06 are allowed, deleting the latter part of the direction in the impugned judgment, which enabled the PSC to conduct a fresh selection. The direction of the learned single Judge for exclusion of degree holders in Sociology is upheld. We make it clear that it is for the PSC to, decide whether they should limit the currency of the ranked list by one year or till such period, by bringing up another list, after fresh notification.