Dr Dhananjaya Y Chandrachud, J
1 This batch of appeals arises from a judgment dated 10 December 2018 of a
Division Bench of the High Court of Kerala. Affirming the correctness of the
judgment of the Kerala Administrative Tribunal dated 20 December 2017, the High
Digitally signed by dismissed the writ petition filed by the appellants under Article 227 of theSANJAY KUMARCourt
Constitution.
2 On 16 August 1972, the Government of Kerala in exercise of its powers under
Section 11 of the Kerala Municipal Common Service Rules 1967, specified the
method of recruitment and qualifications for posts in the Municipal Common Service.
The posts were specified in an annexure to the order. The post of Health Inspector /
Food Inspector Grade-II was among those posts and the qualifications were:
"Minimum general educational of S.S.L.C. Standard. Sanitary
Inspectors' Certificate of Bombay or Madras; or Health
Inspectors' Certificate of Trivandrum Medical College; or
Sanitary Inspectors' Certificate of the All India Institute of
Local Self Government, Bombay or the certificate in Sanitary
Inspectors course awarded by the National Council for Rural
Higher Education.
Age - Not below 18 years and above 30 years".
3 On 26 December 2014, Kerala Public Service Commission1 advertised
vacancies in nine districts for the post of Junior Health Inspector Grade-II in the
Municipal Common Service. The notification specified the qualifications for the post
in the following terms:
" Qualifications:-
1. S.S.L.C.
2. Sanitary Inspectors' Certificate of Bombay or Madras.
OR
Health Inspectors' Certificate of Trivandrum Medical College.
OR
Sanitary Inspectors' Certificate of All India Institute of Local
Self Government, Bombay.
OR
1 ―KPSC‖
The certificate in Sanitary Inspectors' Course awarded by the
National Council for Rural Higher Education.
OR
Sanitary Inspector' Training Course conducted by the Rural
Institute, Thavannur.
Note:-KS&SSR Part-II, Rule-10(a)(ii) is applicable for
selection to this post".
The note above has some bearing on the outcome of the present case.
4 On 29 May 2015, a notification was published for posts in five additional
districts. The qualifications for the post remained the same. On 27 November 2015,
a common written test was conducted. On 16 November 2016, KPSC published a
list of selected candidates for the district of Kottayam. Lists containing the names of
candidates selected for other districts were also published. Candidates possessing
the qualification of a Diploma in Health Inspectors Course2, a two-year course
conducted by the Director of Health Service, were also included in the shortlists. The
DHIC was not one of the qualifications specifically prescribed in the rules or in the
advertisement. Candidates who claimed to be affected by the inclusion of
candidates possessing a DHIC qualification filed cases before the Tribunal,
challenging the State‘s decision to include persons possessing a DHIC qualification
in the shortlists.
5 During the pendency of the proceedings before the Tribunal, on 10 January
2017, a three-member Committee conducted a comparative study of the syllabi of
2 ―DHIC‖
the DHIC programme and the Sanitary Inspector Diploma Course3. The Committee
submitted a report holding that:
i) While the DHIC is a two-year course, the duration of the SIDC (the
certificate prescribed) is 52 weeks;
ii) While there are prescribed textbooks for the DHIC, no recommended texts
exist under the available syllabus for the SIDC;
iii) The topics in both sets of syllabi are almost the same except for 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 Tribunal stating that the
two year DHIC is a higher qualification in the same faculty and that it had
accordingly been decided to consider candidates possessing a DHIC for the post of
Junior Health Inspector Grade-II by adhering to the provisions of Rule 10(a)(ii) of the
Kerala State and Subordinate Services Rules 19584. On 24 May 2017, the office of
the Director of Health Service addressed a communication to the Principal
Secretary, Local Self Government Institutions Department, Thiruvananthapuram to
consider candidates with a DHIC qualification for the post of Junior Health Inspector
in the Municipal Common Service. On 7 July 2017, the Principal Secretary to the
Government in the Local Self Government (EU) Department addressed a
communication to the Secretary, KPSC stating that, in the view of the State
Government, the DHIC qualification can be reckoned to be a higher qualification in
comparison with the qualifications prescribed in the notification. The Tribunal was
subsequently informed of this decision.
7 The Tribunal by its judgment dated 20 December 2017 allowed the OAs
instituted before it and directed that the shortlist of candidates be recast by
excluding candidates in possession of the DHIC qualification. The Tribunal issued
this direction after holding that KPSC had erroneously entertained applications from
holders of the DHIC qualification. Aggrieved by the decision of the Tribunal, the writ
jurisdiction of the High Court was invoked by candidates affected. The High Court
dismissed the writ proceedings holding that the report of the three-member
committee merely concludes that the DHIC is a ‗higher qualification‘ than the
certificate course, which is not sufficient under Rule 10(a)(ii) of Part II of the KSSSR.
The High Court observed that the report does not indicate that the acquisition of the
diploma pre-supposes the completion of the certificate course prescribed for the
post. Moreover, the High Court held that the entire exercise by the committee was
carried out after the publication of the shortlists by KPSC, and during the pendency
of the proceedings before the Tribunal. In this backdrop, it was held that the 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 an exercise was carried out
under Rule 10(a)(ii) for the purpose of determining the equivalence of the DHIC
qualification with the Sanitary Inspector Certificate course originally prescribed for
the post in question. The notification inviting applications contained a specific
reference to Rule 10(a)(ii). Hence, it was urged that once the State Government
concluded that the DHIC was a higher qualification, the Tribunal should not have
directed the exclusion of persons possessing the said qualification. That apart, it
was urged, relying on the decision of this Court in Jyoti K K v Kerala Public
Service Commission5 (―Jyoti K K‖), 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
Counsel submitted that the judgment of the High Court is contrary to public interest
since holders of the DHIC qualification undergo a better course than the SIDC which
was prescribed as a qualification in 1972. Hence, it was submitted that once a
committee had, upon a detailed evaluation, concluded that the DHIC course is a
higher qualification, there was no justification for the Tribunal to direct the exclusion
of candidates possessing the DHIC qualification.
9 Both the State Government and KPSC have supported the line of argument
put forth by the appellants. It has been urged on their behalf that while affirming the
judgment of the Tribunal, the High Court has only considered one aspect of Rule
10(a)(ii) – whether the higher qualification pre-supposes the acquisition of the lower
qualification prescribed for the post – ignoring the other part which allows a
determination by KPSC under Rule 13(b)(i) of the Special Rules.
10 Mr V Giri, learned Senior Counsel supported the judgment of the Tribunal and
the High Court. He submitted that in the present case, there was no determination of
the equivalence of the qualifications in advance, and it was only during the
pendency of the proceedings before the Tribunal that such an exercise was carried
out. Learned Senior Counsel submitted that the rules could not be changed mid-
way. It has been urged that the post of Junior Health Inspector Grade-II is available
both in the Municipal Common Service as well as in the Health Services
Department. In the Health Services Department, the qualification for the post is a
DHIC, whereas in the Municipal Common Service, the qualification for the post is
generally, the Sanitary Inspector‘s Certificate. Hence, it was urged that there is a
clear distinction between the posts in the two departments. The SIDC, conducted by
the Local Self Government Institutions, Rural Educational Department, and the
DHIC, conducted by the Directorate of Health Services, are designed keeping in
view the different duties and functions attached to those two posts in their respective
departments. Moreover, it was submitted that, responses to queries under the Right
to Information Act 2005 revealed that the DHIC course conducted by the Directorate
of Health Service is not of a superior qualification to the SIDC. In a communication
dated 14 March 2017, the Director of Urban Affairs specified that the DHIC
programme conducted by the Directorate of Health Services is neither an equivalent
nor higher qualification to the SIDC certificate course prescribed as a qualification
for the post of Junior Health Inspector Grade-II in the Municipal Common Service.
This was reiterated by the Personal and Administrative Reforms Department on 16
May 2017.
11 The starting point of our enquiry in the present case is the order of the State
Government dated 16 August 1972, published in the Kerala Gazette on 29 August
1972. It specifies the minimum qualifications required for the post of Health
Inspector/ Food Inspector Grade-II. The qualification prescribed is a Sanitary
Inspector‘s Certificate originating in specified institutions. The DHIC is admittedly not
one of the specified qualifications for the post. Reliance was however placed on the
provisions of Rule 10(a)(ii) of Part II of the KSSSR. Rule 10(a)(ii) reads as follows:
"10. Qualifications (a)
(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."
Rule 10(a)(ii) commences with a non-obstante provision. It contemplates three
situations:
(i) Qualifications recognized by executive orders or standing orders of the
government as being equivalent to a qualification specified for a post in the
Special Rules; or
(ii) Qualifications found acceptable by the Commission in accordance with
Rule 13(b)(i) in cases where acceptance of equivalent qualifications is
provided for in the Special Rules; and
(iii) Qualifications which pre-suppose the acquisition of a lower qualification
prescribed for the post.
Any of these would be treated as sufficient for the post.
The Tribunal observed that although a diploma course could be treated as superior
to a certificate course, to qualify under Rule 10(a)(ii), the diploma course should be
one which pre-supposes the completion of the certificate course. In that context, the
Tribunal held:
"The post of Junior Health Inspector Grade II is available in
Municipal Common Service as well as in the Health Services
Department. The qualification prescribed for the above post in
these two departments differ. In the Department of Health
Services, the qualification for the post of Junior Health
Inspector Grade II is a Diploma in Health Inspectors' course
whereas in Municipal Common Service it is generally Sanitary
Inspectors' Certificate. There is, therefore a clear distinction
between the above post in these two Departments."
The Tribunal noted that the duties and functions attached to the Junior Health
Inspector‘s post in the Municipal Common Service are distinct from those in the
Health Services Department. Moreover, the Tribunal noted that neither KPSC nor
any duly constituted authority had endeavoured to determine whether the DHIC is to
be treated as a superior qualification, the Tribunal held:
"The question, therefore, to be considered is whether any
authority or the Public Service Commission itself has
endeavoured to find whether the qualification of DHIC could
be treated as a superior qualification which pre-supposed the
possession of Sanitary Inspectors Training Course. On
winnowing through the pleadings and the materials on record,
the answer is in the negative. Neither the Public Service
Commission nor the authorities concerned have endeavoured
to do so. The post that is notified is that of Junior Health
Inspector Grade II in Municipal Common Service and,
therefore, the question whether any other course could be
treated as equivalent to the above course or whether any
course could be treated as a superior qualification which pre-
supposes the qualification of Sanitary Inspectors' Course had
to be ascertained and declared by the administrative
department or the appointing authority. In the present case,
the authorities concerned are the Local Self Government
Department and the Director of Urban Affairs. What is brought
on record is a communication, Annexure R5(a) dated
7.7.2017 issued by the Secretary, Local Self Government
Department to the Public Service Commission. The
Secretary, Local Self Government Department informs that
the Director of Health Services has intimated that the course
conducted by them i.e. the DHIC course could be treated as a
higher qualification to Sanitary Inspectors' Certificate.
According to the Secretary, in the light of the above
information considering that DHIC qualification was
prescribed for the post of Junior Health Inspector Grade II in
the health Service Department, it could be viewed as a higher
qualification to the qualification prescribed for the post of
Junior Health Inspector Grade II in Municipal Common
Service. It is noted that Annexure R5(a) communication only
offers an opinion, it does not declare the above course of
DHIC to be a superior qualification. It also does not consider
the fact whether the possession of DHIC would pre-suppose
the possession of Sanitary Inspectors' course and whether
the Junior Health Inspectors post in the Directorate of Health
Services was a superior post to that of the Junior Health
Inspectors post in Municipal Common Service. Moreover,.
Annexure R5(a) communication, it is noted, is not an
executive order coming within the purview of Articles 162 and
166 of the Constitution of India. Annexure 5(a) is in the nature
of a communication expressing an opinion to a query by the
Public Service Commission. The same does not declare
DHIC course to be a superior qualification to that of Sanitary
Inspectors' Course in accordance with Rule 10(a)(ii) and
13(b)(i) Part II KS&SSR."
This view of the Tribunal has been accepted by the High Court.
12 On a careful analysis, it emerges that none of the conditions stipulated in Rule
10(a)(ii) have been fulfilled. The first situation contemplated by Rule 10(a)(ii) is
where qualifications are recognized by executive orders or standing orders of the
government as equivalent to a qualification specified for a post. This is not satisfied.
With reference to the second situation contemplated in Rule 10(a)(ii) there was no
determination by KPSC in accordance with Rule 13(b)(i) of the equivalence of the
qualifications.6 Finally, the last condition contemplated in Rule 10(a)(ii) adverts to
those qualifications which pre-suppose the acquisition of a lower qualification
prescribed for a post. The expression pre-suppose means subsumed in. All that we
6 Rule 13(b)(i) provides thus:
―13. Special Qualifications- No person shall be eligible for appointment to any service, 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 equivalence to the said special
qualifications or special tests-
(i) by the Commission in cases where the appointment has to be made in consultation with it; or…‖
find from the report of the three-member Committee are general observations about
the duration of the DHIC being longer, of a similarity of the topics in the syllabi and a
comparison between the number of theory and practical sessions. There has been
no finding that the acquisition of the DHIC pre-supposes the completion of the
certificate course.
13 The decision in Jyoti K K concerned a situation where KPSC invited
applications for selection for the post of Sub-Engineers (Electrical) in the Kerala
State Electricity Board7. The technical qualifications prescribed were as follows:
―2. Technical qualifications—
(a) Diploma in Electrical Engineering of a recognised
institution after 3 years' course of study,
OR
(b) a certificate in Electrical Engineering from any one of
the recognised technical schools shown below with five
years' service under the Kerala State Electricity Board,
[Not fully extracted as not relevant]
OR
(c) MGTE/KGTE in electrical light and power (higher) with
five years' experience as IInd Grade Overseer (Electrical)
under the Board.‖
The appellants were B.Tech degree holders or Bachelor‘s degree holders in
electrical engineering. KPSC held that they were not eligible for selection. The
candidates contended that they were persons possessing higher qualifications and
7 ―KSEB‖
hence could not be excluded. This Court interpreted the provisions in Rule 10(a)(i)
and held:
―7. It is no doubt true, as stated by the High Court that when a
qualification has been set out under the relevant Rules, the
same cannot be in any manner whittled down and a different
qualification cannot be adopted. The High Court is also
justified in stating that the higher qualification must clearly
indicate or presuppose the acquisition of the lower
qualification prescribed for that post in order to attract that
part of the Rule to the effect that such of those higher
qualifications which presuppose the acquisition of the lower
qualifications prescribed for the post shall also be sufficient
for the post. If a person has acquired higher qualifications in
the same Faculty, such qualifications can certainly be stated
to presuppose the acquisition of the lower qualifications
prescribed for 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 other equivalent qualification recognised or
equivalent thereto has been prescribed. For a higher post
when a direct recruitment has to be held, the qualification that
has to be obtained, obviously gives an indication that such
qualification is definitely higher qualification than what is
prescribed for the lower post, namely, the post of Sub-
Engineer. In that view of the matter the qualification of degree
in Electrical Engineering presupposes the acquisition of the
lower qualification 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 the promotional post of
assistant engineer was a degree in engineering. Consequently, the acquisition of the
degree was held to pre-suppose the acquisition of the ‗lower qualification‘ of the
diploma prescribed for the post of sub-engineer. This constitutes a distinguishing
factor and hence the decision in Jyoti K K does not apply to the present facts. The
decision in Jyoti K K was subsequently distinguished in State of Punjab v Anita8,
as noted by this Court in a more recent decision in Zahoor Ahmad Rather v Sheikh
Imtiyaz Ahmad9. (See also in this context, the decision of the two judge Bench in P
M Latha v State of Kerala10.)
15 The Principal Secretary to the State Government (EU) in a communication
dated 7 July 2017 to KPSC stated:
―Though, diploma in Health Inspector course having a
duration of 2 years is not included in the qualifications
required as per the notification for Junior Health Inspector,
Grade II in Municipal Common Service, the PSC has
included those candidates having qualifications in
diploma in Health Inspectors Course shortlist of the said
post by taking the same as an additional qualification to the
rest of qualifications...
Since in the circumstances that the report submitted by the
Director of Health Department after conducting comparison
study of syllabus of both the course, the diploma in Health
Inspectors course is a higher qualification above the
qualification prescribed under the concerned special rule and
that diploma in Health Inspector course is accepted as a
qualification to the post of Junior Health Inspector in the
Health Department, the diploma in Health Inspectors Course
can be accepted and reckoned as a higher qualification
compared to the qualification prescribed to the post of Junior
Health Inspector Grade II in Municipal Common Service.‖
(Emphasis supplied)
16 The reference to the diploma being an additional qualification is extraneous to
Rule 10(a)(ii). The reference to a diploma being acceptable 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 Rule 10(a)(ii). There was no determination of equivalence
by any executive order or standing order of the State Government. Nor was there
any finding that a DHIC pre-supposes the acquisition of the lower qualification.
KPSC has not carried out any exercise as required by the provisions of the rule.
17 In the above view of the matter, we are of the view that the judgment of the
High Court does not suffer from error. The appeals shall stand dismissed. There
shall be no order as to costs. Pending application(s), if any, stand disposed of.
[Dr Dhananjaya Y Chandrachud]
[Indira Banerjee] New Delhi; August 21, 2019.