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Supreme Court of India
Praveen Kumar C.P. vs Kerala Public Service Commission on 17 August, 2021Author: Aniruddha Bose
Bench: L. Nageswara Rao, Aniruddha Bose
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4846 OF 2021
(Arising out of Petition for Special Leave to Appeal (Civil) No.4604
of 2020)
PRAVEEN KUMAR C.P. …APPELLANT(S)
VERSUS
KERALA PUBLIC SERVICE COMMISSION
COMMISSION & ORS. …RESPONDENT(S)
WITH
CIVIL APPEAL NO.4847 OF 2021
(Arising out of Petition for Special Leave to Appeal (Civil) No.3927
of 2021)
JUDGMENT
ANIRUDDHA BOSE, J.
Leave granted in both the petitions.
2. The controversy involved in these proceedings relates to the issue
as to whether the appellants possessed the eligibility criteria for
Signature Not Verified
Digitally signed by
appointment to the posts of High School Assistants in the State of
SATISH KUMAR YADAV
Date: 2021.08.18
16:16:51 IST
Reason:
Kerala. The main dispute is over the question as to whether the
1
appellants’ B.Ed. degrees were in the subjects fulfilling the eligibility
criteria. This is the common question involved in both the appeals and
we shall deal with this controversy in a composite manner in this
judgment. There are some variations in the factual basis of the claims of
both the appellants and we shall refer first to that aspect separately for
each of the appellants.
3. In the appeal originating in the Special Leave Petition (Civil) No.
4604 of 2020, the appellant is one Praveen Kumar C.P. We shall refer to
him henceforth as PK. The selection process for the post was initiated
by an employment notification dated 31st December, 2012, issued by the
Kerala Public Service Commission (KPSC). PK had applied for the said
post in Natural Science. The notification was for appointment in
Malayalam medium institutions in all the fourteen districts of the State
of Kerala. The requisite academic qualification for the post for which PK
had applied was stipulated Clause 7 of the said employment notification.
This Clause read:-
“7. Qualification:-
A degree in the concerned subject and B.Ed/BT in the
concerned subject conferred or recognized by the
University in Kerala (Concerned subjects are specified in
Note (ii) below)
2
Note:- (i) Diploma in Rural Service awarded by the national
Council for Rural High Education will be treated as
equivalent to degree for the above purpose.
(ii) The applicants should have taken Botany or Zoology or
Home Science or Micro Biology as Main subjects for
graduation or post graduation.
(iii) Question papers for written test if any will be in
Malayalam, The candidates should answer the questions in
Malyalam.
(iv) The disciplines in Degree and B.Ed Degree were
obtained should be mentioned in brackets in the application
form.
(v) Those candidates who secured B.Ed/B.T Degree from
the Universities outside Kerala should note in the
application form, the number and date of relevant orders
declaring the said degree as equivalent to those prescribed
for this selection. The copies of such order shall be
produced before the commission when it is called for.”
4. PK had obtained B.Ed. Degree in Biological Science from the
University of Mysore, the course which he pursued in Ramakrishna
Institute of Moral and Spiritual Education, Yadavgiri, Mysuru. The
University from which PK obtained B.Ed. Degree stood recognized by
University of Calicut, as would be apparent from Annexure P-10 to the
petition for special leave to appeal. This certificate stipulates:-
“UNIVERSITY OF CALICUT
Sl.No.24619 Calicut University P.O
673635
No.EQ/30123/2018 Dated 05 Jul 2018
CERTIFICATE
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Certified that the B.Ed (Biological Science) Degree
of the University of Mysore after regular study has been
recognized as equivalent to the B.Ed Natural Science
Degree of this University.
Sd/-
For Registrar
Issued to :
Sri :- Praveen Kumar C.P.
Note: This is a general certificate and the original
certificate of the individual concerned has not been
verified in this office while issuing this. The eligibility
and the mode of study will be verified by the Admitting
Authority.”
5. PK’s certificate for B.Ed. degree did not specify the individual
subjects which formed part of his curriculum but in a document
captioned “Study Certificate” dated 12th December, 2019 issued by the
institute from which he pursued the B.Ed. course, it has been specified
he had passed B.Ed. Degree examination conducted by the University of
Mysore, Mysuru and his subjects in the B.Ed. were Content-cum-
Methodology 1-Biology and Content-cum-Methodology 2-Chemistry-
(Biological Science). This certificate was issued during pendency of the
dispute in the High Court of Kerala.
6. In the Appeal arising out of the Special Leave Petition (Civil) No.
3927 of 2021, the petitioner is one P. Anitha Devi. We shall refer to her
later in this judgment as AD. The selection process in her case was
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initiated by a similar employment notification dated 15 th March, 2014 by
the KPSC. The subject-post was the same, i.e. High School Assistant
(Natural Science) but the category of schools for which this notification
was issued was Tamil medium institutions in the district of Palakkad and
Idukki. The relevant Clause pertaining to the qualification criteria of the
candidates in this notification was also Clause 7 and the stipulations
therein were broadly similar to that contained in the employment
notification dated 31st December, 2012. The said Clause in the
notification dated 15th March, 2014 specified: –
“7. Qualifications: –
A degree of Postgraduate degree in the concerned subject
and B.Ed/BT in the concerned subject conferred or recognised
by the Universities in Kerala (Concerned subjects are specified
in Note (ii) below) Note:-
(i) Diploma in Rural Service awarded by the
National Council for Rural Higher Education will be
treated as equivalent to Degree for the above
purpose.
(ii) The applicants should have taken Botany or
Zoology or Home Science or Micro Biology as
Main subject for graduation or post graduation.
(iii) Post title degree holders are not eligible to
apply for the post of HSA.
(iv) Candidates applying for this post should have
sufficient knowledge in Tamil. Question papers for
written test/OMR test if any will be in Tamil. The
candidates should answer the questions in Tamil.
(v) The disciplines in which Degree and B.Ed
degree were obtained should be mentioned in
brackets in the application form.
(vi) Those candidates who secured B.Ed/B.T.
Degree from the Universities outside Kerala should
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note in the application form, the number and date of
relevant orders declaring the said degree as
equivalent to those prescribed for this selection. The
copies of such order shall be produced before the
commission when it is called for.”
7. AD had obtained B.Ed. Degree in Biological Science and Physical
Science from Bharathiar University, Coimbatore, Tamil Nadu. The said
degree was also recognized by the University of Calicut in the State of
Kerala and certificate to that effect was issued on 31 st October, 2017.
This would be evident from Annexure P-4 to her petition. This
certificate read:-
“UNIVERSITY OF CALICUT
Sl.No.20414 Calicut University P.O.-673635
No.EQ/26497/2017 Dated 31st October 2017
CERTIFICATE
Certified that the B.Ed Degree of the Bharathiar University
Coimbatore after regular study has been recognized as
equivalent to the B.Ed Degree of this University.
(Office Seal)
Sd/-
For Registrar
Smt. Anitha Devi P.
————————————————————————
Note: This is a general certificate and the original certificate
of the individual concerned has not been verified in this office
while issuing this. The eligibility and the mode of study will
be verified by the Admitting Authority.”
6
8. Both of them had participated in the selection process and were
included in the “main list”, which in substance signified their success in
the written test. But question arose as to whether their B.Ed. degrees
were in subjects equivalent to the “concerned subject” which was
stipulated in the employment notification. What would constitute
concerned subject has been stipulated in Note (ii) of Clause 7 of both the
employment notifications and neither of them possessed B.Ed. degree in
the subjects stipulated to be concerned in the said Clause.
9. As none of the appellants had B.Ed. degree in Natural Science, at
the time of verification of the documents of PK after publication of the
written test results, objection was raised in his case for not having B.Ed.
in the “concerned subject”. He was given time to produce the
Government Order regarding acceptance of his qualification. In the case
of AD also, similar objection was raised. PK had asked for extension of
time, which was denied, as submitted by his learned counsel. In case of
AD, she along with certain other candidates had approached the Kerala
Administrative Tribunal by filing an application (O.A. (EKM) No. 346
of 2018), inter-alia, claiming that she had the requisite qualification. An
interim order was passed on 20th February, 2018 by the Tribunal
7
permitting her to participate in the interview, subject to final outcome of
her petition. PK also had approached the Tribunal with an application
[O.A. (EKM) No. 257 of 2018] and an order was passed by the Tribunal
on 30th January, 2018 permitting him to take part in the interview subject
to further order in his case. On the basis of these orders, they
participated in the interview. Thereafter, the ranked lists were published
but the results of both the appellants were shown to have had been
withheld. PK again approached the Tribunal with an Original
Application registered as O.A. No. 1525 of 2019 challenging the
decision of the authorities in not accepting his B.Ed. Degree, the subject
of which he has termed as “Double Option”. During pendency of their
cases before the Tribunal, the Department of Higher Education,
Government of Kerala had issued two Government Orders (GOs) which
broadly sustained the claim of the appellants of having degrees
equivalent to that of the concerned subject. In the case of PK, the
Government Order dated 7th March, 2019 stipulated:-
“HIGHER EDUCATION (B) DEPARTMENT
G.O. (…) No. 54/2019/H Edn.
THIRUVANANTHAPURAM 07/03/2019
Reference:- 1. Request submitted by Sri. Praveenkumar CP on
8
06.08.2018.
2. Letter No. ACD/03/Reg-1143/REC/18 dated
24.09.2018 of Registrar, Mahatma Gandhi
University.
ORDER
Praveenkumar CP who was included in the list of the Kerala
Public Service Commission had requested that a Government
Order be given stating that B Ed. degree in Biological Science
obtained from University of Mysore is equivalent to B Ed.
Degree in Natural Science, as per reference No. 1.
Government has considered the issue in detail on the basis of
the report of the Registrar of Mahatma Gandhi University as
per reference No. 2 which accepted that B. Ed. degree through
regular study obtained from University of Mysore is equivalent
to B.Ed. degree in Natural Science from Mahatma Gandhi
University. It is hereby ordered that B.Ed. degree in Biological
Science obtained through regular study from University of
Mysore is equivalent to B.Ed. Degree in Natural Science
obtained from Mahatma Gandhi University.
(As per Order of Governor)
SWAPNA. P
Under Secretary
Secretary, Kerala Public Service Commission,
Thiruvananthapuram
Registrar- Kerala/M.G./Kannur/Calicut Universities
Sri. Praveen Kumar CP, Cheriyaputhukulangara House,
Iringath
PO, Kozhikode-673523, Office Copy
www.highereducation.kerala.gov.in
As per Order
Sd/-
Section Officer”
10. In the case of AD, a similar order dated 23rd July, 2019 was issued.
This GO also covered the case of another candidate Smt. Mafferith. The
said order provided:-
9
“Higher Education (B) Department
G.O.(….) No.254/2019/H.Edn. Dated, Thiruvanathapuram,
23/07/2019
Reference: 1. Application submitted by Smt. Mafferith,
Anithadevi
2. Letter No. 103542/EQ&MG SO/2019/Admn. dated
28.06.19 of the Registrar, University of Calicut.
ORDER
Smt. Mafferith, Smt. Anithadevi, who passed the exam
conducted by Kerala Public Service Commission had
submitted application as per Reference (1) to pass an
Order recognizing equivalence of Double Main B.Ed
(Biological Science Education & Physical Science
Education), Double Main B.Ed (Biological Science
Education & English Education) degrees obtained from
Bharathiar University through regular mode to B.Ed
Natural Science degree of University of Calicut. The
University of Calicut vide Reference (2) informed that
Double Main B.Ed (Biological Science Education &
Physical Science Education), Double Main B.Ed
(Biological Science Education & English Education)
degrees obtained from Bharathiar University through
regular mode has been recognised equivalent as B.Ed
Natural Science degree of University of Calicut.
In the said circumstances, it is hereby ordered
that Double Main B.Ed (Biological Science Education
& Physical Science Education), Double Main B.Ed
(Biological Science Education & English Education)
degrees obtained from Bharathiar University through
regular mode is recognized equivalent to B.Ed. Natural
Science degree of University of Calicut.
(As per the Order of Governor)
SWAPNA P
Under Secretary”
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11. On the basis of these GOs, the Tribunal allowed both the petitions
and directed KPSC to include the appellants’ names in the ranked list. In
PK’s case, the order was passed by the Tribunal on 20th September, 2019
whereas the decision in AD’s petition was delivered on 2 nd September,
2019.
12. The KPSC assailed the Tribunal’s orders before the High Court of
Kerala. Their stand before the High Court was that equivalency ought to
operate from the dates of issue of the respective GOs and the said GOs
could not be given retrospective effect. This argument was sustained by
the High Court. In the case of PK, it was inter-alia held by the High
Court in OP (KAT) No. 518 of 2019:-
“The learned Standing Counsel appearing for the
PSC also contends that the equivalency issued is
after the notification and it could apply only for
future selections. Reliance is also placed on two
decisions of this Court in Lalitha Bai v. Public
Service Commission [1999 (2) KLT 894 and
Rajasree v. State of Kerala [2009 (1) KLT 259]. We
accept the contention, especially noticing the
decision of the Hon’ble Supreme Court in Zonal
Manager, Bank of India & Others v. Aarya K. Babu
and Another [(2019) 8 SCC 587]. Therein the
candidate did not have the qualification specified in
the notification, but on the basis of equivalency, this
Court allowed the candidate to be continued in the
post to the which she was appointed. The Hon’ble
Supreme Court deprecated the practice of the High
Court granting equivalency and categorically held
11
that the equivalency had to be specified in the
notification. The reasoning was also that there
would have been many other candidates with the
very same qualification, who would not have
applied in the belief that the said qualification is not
one prescribed in the notification.
For all the above reasons, we do not agree with the
Tribunal and we allow the original petition setting
aside the order of the Tribunal. Parties shall suffer
their respective costs.”
(quoted verbatim)
13. KPSC’s petition before the High Court, registered as OP (KAT)
No. 465 of 2019 against the Tribunal order in respect of AD was also
sustained on similar grounds and the orders of the Tribunal were set
aside in both their cases. In PK’s case, the judgment was delivered on
18th December, 2019 whereas KPSC’s petition against the Tribunal
judgment in AD’s case was rendered on 12th March, 2020.
14. The broad reasoning of the High Court in both the aforesaid
judgments was that the GOs could not be relied upon by the appellants
as these were issued subsequent to the employment notifications and on
conclusion of the selection processes. Opinion of the High Court was
that the acceptance of the Government Orders with retrospective effect
would amount to change in the rule of the game mid-way, which is
impermissible. The appellants have assailed legality of these judgments
12
before us. Their main argument is that the GOs only recognised a
subsisting position as regards status of their respective educational
qualifications and confirmation of the equivalency of their B.Ed.
subjects by the respective GOs met the eligibility requirement. It has
also been submitted on behalf of the appellants that the rejection of the
GOs issued recognizing their subsisting degrees as equivalent to that
specified on the ground that they could not be treated to have
retrospective operation would not apply in the facts of their cases.
15. The authorities which have been cited before us on behalf of
respondents, in support of the two judgments of the High Court are (i) P.
Mahendran v. State of Karnataka [(1990) 1 SCC 411], (ii) Prafulla
Kumar Swain v. Prakash Chandra Mishra & Ors. [1993 Supp (3)
SCC 181], (iii) Secretary, A.P. Public Service Commission v. B.
Swapna & Ors. [(2005) 4 SCC 154], (iv) Prakash Chand Meena &
Ors. v. State of Rajasthan & Ors. [(2015) 8 SCC 484] and (v) Zonal
Manager, Zonal Officer, Bank of India Kochi & Ors. v. Aarya K
Babu & Anr. [(2019) 8 SCC 587]. These decisions are mainly
authorities on the point that the Rules prevailing on the date of issue of
employment notifications ought to prevail under normal circumstances
and new Rules or amendments coming midway through a selection
13
process cannot be applied to that process. Such new Rules would
operate prospectively. Certain judgments of the Kerala High Court have
also been relied upon by the KPSC on the same proposition of law. But
we do not consider it necessary to multiply the authorities in this
judgment on the same point.
16. Before us, argument has also been advanced by the learned
counsel for the appellants on legality of introducing specific subjects in
B.Ed. as qualifying criteria for the posts in question. Our attention in this
regard has been drawn to Clause 2(2)(a) of Chapter XXXI of the Kerala
Education Rules, 1959. The said Clause lays down that “A Degree in
concerned subject and B.Ed./ B.T./L.T conferred or recognized by the
Universities of Kerala” as qualification of a High School Assistant in a
particular subject. According to the appellants, there is no provision for
requiring a candidate having B.Ed. in concerned subject under the said
Rules. The heading of that chapter specifies that these are
“Qualifications of Private School Teachers”. But in their written
submissions, the State government has referred to the same Rules to be
applicable in the appellants’ cases as well. The appellants were seeking
employment in the State educational sector. The State wants us to give a
strained interpretation to the said Rules treating the same to be
14
applicable for the subject-posts, which are in State institutions and
simultaneously read the words “concerned subject” in relation to B.Ed.
Degree also. This argument of the State is advanced on the ground that
it would be in the interest of maintaining quality of education. But on a
plain reading of the said clause, it is apparent that there is no specific
subject in B.Ed. has been made to be the qualifying criteria in Clause
2(2)(a) of Chapter XXXI of the 1959 Rules. The graduation requirement
in concerned subject is there, but going by the said Clause, it postulates
B.Ed. degree simplicitor as the eligibility criteria. No other Rule has
been shown to us by the learned counsel for the State of Kerala or the
Commission from which it can be inferred that there was requirement of
a candidate for the subject posts to hold B.Ed. degree in the concerned
subject. So far as the present appellants are concerned, no dispute has
been raised over their graduation being in the concerned subject.
17. On behalf of KPSC, it has been contended that it was within their
power to stipulate qualification beyond that what is specified in
aforesaid Clause 2(2)(a) and they have relied on Kerala State and
Subordinate Services Rules, 1958 to establish that they had power to do
so. The said Rules lay down various aspects of recruitment and
conditions of service in the State of Kerala and Rule 10 thereof deals
15
with qualification requirements for a post in State and Subordinate
Services. The Kerala State and Subordinate Services Rules, 1958 have
been framed under Article 309 of the Constitution of India. The relevant
provisions of Clause 10 thereof provide:-
“10. Qualifications. _____ (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 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.”
18. Clause 13 of the 1958 Rules permits the Commission to prescribe
special qualifications in cases where appointments have to be made in
consultation with it or by the State Government or by an appointing
authority with approval of State Government in other cases. No specific
notification or order issued by the KPSC has been brought to our notice
under which the eligibility criteria of holding B.Ed. Degree had to be in
the concerned subject for the posts of High School Assistants. KPSC’s
submission on this point is that the same was not raised at any earlier
16
stage of the proceeding. But in our opinion, the appellants cannot take
aid of this argument as the respective employment notifications had
specified B.Ed. in concerned subject. The appellants having participated
in the said selection process without raising any objection on that count,
it would not be open to them to question the eligibility criteria specified
in the employment notification. We shall, thus, proceed on the basis that
the candidates for the posts in question were required to have B.Ed.
degree in the concerned subject and it is not in dispute that B.Ed.
degrees of the appellants were not in the concerned subjects. The two
GOs, however, confer on the subjects in which the appellants obtained
B.Ed. degrees, equivalency to the required subjects.
19. There is support for adoption of principle of equivalency in Clause
10 (a)(ii) of the 1958 Rules. The appellants’ case is also that their B.Ed.
degrees should have been accepted as their subjects in the respective
degree courses were equivalent to the designated subjects, as was
stipulated in the employment notifications.
20. We shall now turn to the question as to whether the two GOs dated
07th March, 2019 and 23rd July, 2019 could apply in the cases of the
appellants for consideration of the equivalent status of their degrees in
B.Ed., the employment notifications having been published in the years
17
2012 and 2014. In that perspective, will consideration of their degrees in
B.Ed. in the light of the aforesaid two GOs result in changing the rules
of the game mid-way?
21. Before we address that question, we shall refer to Note (v) and
Note (vi) of Clause 7 of the respective employment notifications
concerning PK and AD respectively. We have reproduced the said
Clauses earlier in this judgment. There was requirement in Clause 7 that
the candidates ought to disclose the dates of GOs declaring equivalency
to the concerned subjects. But neither the KPSC nor the State has
argued before us that there was any defect in the appellants’ applications.
They were permitted to participate in the written test. On this count, the
respondents have relied on a judgment of this Court in the case of T.
Jayakumar v. A. Gopu [(2008) 9 SCC 403] to contend that oversight
on the part of the authorities at the stage of processing applications
would not be treated to be condonation of some fatal defect in such
applications. Next requirement, as per said Clause 7 was production of
such Orders before the Commission when the same was called for. The
respective clauses did not, however, identify the authorities who should
issue such orders. The two universities of the State of Kerala have
certified the appellants’ B.Ed. degrees to have equivalent status to the
18
ones required and this was followed by the two GOs. These documents,
however, were generated during the selection process.
22. A large body of authorities was cited to contend that such
recognition subsequent to publication of the employment notification
was impermissible. The High Court particularly relied on a Full Bench
decision of the Kerala High Court in the case of A. Suma v. The Kerala
Public Service Commission & Ors. reported in [(2011) 1 KLT1 (FB)].
In that judgment, referring to the 1958 Rules, it was held that the
Commission was incompetent to deal with the question of equivalence
of educational and other qualifications prescribed unless the subject
rules provided for recognition of qualifications other than that prescribed
as equivalent. But so far as these two appeals are concerned, we are not
dealing with a question as regards the authority of Commission to deal
with the question of equivalency. In this case, equivalency has been
declared by the State Government, and prior to that, by two universities
of the State of Kerala. The power of the State Government to make
orders on the question of equivalence is not in dispute. Such power, inter
alia, stems from Clause 10(a) (ii) of 1958 Rules. Thus, the case of A.
Suma (supra) has no application as regards the appellants’ rights to be
considered for the posts in question having regard to their B.Ed. degrees.
19
23. Learned counsel for the respondents have emphasised on the
decision of this court in the case of Aarya K. Babu (supra). This case
involved the question of appointment of certain individuals by the
appellant bank in the post of Agricultural Field Officer. One of the
degrees prescribed in the eligibility criteria was Agro-Forestry. The
clause relating to qualification requirement in the notification dated
involved in the said case read:-
“4-year degree (graduation) in
Agricultre/Horticulture/Animal Husbandry/Veterinary
Science/Diary Science/Agri Engineering/Fishery
Science/Pisciculture/Agri Marketing & Co-operation/Co-
operation & Banking/Agro-Forestry.”
24. The candidates who brought that action initially did not possess
degree in any of the subjects specified therein, but their degrees were in
Forestry. They were successful in the selection process but their
selection was cancelled on the ground that they did not possess the
prescribed qualification in terms of the notification. It transpired that
there was no 4-year degree programme being offered in this country for
Agro-Forestry. Indian Council of Agricultural Research (ICAR) had
taken a view that definition of agriculture included forestry. It appears
that on that basis the degrees of the respective candidates in that
20
proceeding were accepted at the initial stage. In the month of November,
2015, an Office Memorandum was issued by the Ministry in which the
fact of there being no 4-year bachelor programme in Agro-Forestry
available in the country was taken note of. On the ground that Agro-
Forestry was covered comprehensively as a subject in the ICAR
approved syllabus for B.Sc. Forestry, it was suggested that it would be
appropriate that degree in B.Sc. Forestry ought to be considered for the
posts of Agricultural Field Officer in banks. A corrigendum was
subsequently issued by the Indian Bank Personnel Selection (IBPS) on
16th January, 2016 in that regard. The cancellation order was
successfully challenged by the terminated candidates in the High Court
of Kerala, against which the Bank instituted the petition for special leave
to appeal. Leave was granted in the Bank’s petition. It was held by a
coordinate Bench of this Court in the case of Aarya K. Babu (supra):-
“17. In that backdrop, though in the instant facts presently
the qualification possessed by the private respondents is
decided to be included for the purpose of recruitment to the
post of Agricultural Field Officer, as on the date of the
recruitment notification the same was not included therein,
which cannot be substituted by the Court with
retrospective effect for the reasons stated above. Therefore,
in the said circumstance, in the present facts, the High
Court was not justified in its conclusion. We, however,
make it clear that though we have referred to the legal
position and applied the same to the case of the parties
who are before us, if in the case of similar recruitment, the
employers themselves have permitted the equivalence and
21
have continued such of those officers recruited, this
decision shall not be applied to initiate action against such
officers at this distant point of time. Subject to the above,
the orders passed by the High Court of Kerala which are
impugned herein are set aside.
18. Having arrived at the above conclusion we also take
note of the submission of the learned counsel for the
private respondent in the appeal arising out of SLP (C) No.
16567 of 2016, namely, Smt. Aarya K. Babu that she is
placed in very difficult circumstances subsequent to the
discharge from service which is also due to certain setback
in her personal life. Though we do not wish to articulate
the actual fact situation narrated we have no reason to
disbelieve the same, hence, we find it appropriate that in
her case it is necessary to exercise our discretion under
Article 142 of the Constitution to serve the ends of justice
and do complete justice without prejudicing either of the
parties. In that view, we direct the appellant Bank of India
to provide appointment to Smt. Aarya K. Babu as
Agricultural Field Officer or such other equivalent post if
the vacancy exists as on today or in the vacancy that would
arise in future. In that regard it is made clear that the same
will be considered as a fresh appointment from the date of
appointment and no previous benefit can be claimed by
her. Further, it is made clear that this direction is issued in
the peculiar facts and circumstances of this case and the
same shall not be treated as a precedent for any other
case.”
25. So far as the present appeals are concerned, the facts are not
identical or near similar also considering the factual background of the
case of Aarya K. Babu (supra). In the two GOs which have been
reproduced earlier, it has been specified that the respective B.Ed. degrees
of the appellants through regular study were equivalent to B.Ed. degree
in Natural Science. In the case of PK, his B.Ed. Degree in Biological
Science was recognized as equivalent to B.Ed. Natural Science Degree
22
of Mahatma Gandhi University, Kerala. In the case of AD, the GO
stipulated that Double Main B.Ed. (Biological Science Education and
Physical Science Education) degree obtained by her through regular
mode was recognized as equivalent to B.Ed. Natural Science Degree of
University of Calicut. It is a fact that these orders came much after the
employment notifications were issued. But what we have to address in
these appeals is as to whether the respective B.Ed. degrees of the
appellants declared as equivalent to those of the concerned subjects as
notified would operate from the dates of issue of the respective GOs or
the same would relate back to the time when they obtained the degrees
or at least to the date of the employment notification. The appellants
have relied on a decision of a coordinate Bench in the case of Beena R.
v. Kerala Public Service Commission and Ors. [(2017) 15 SCC 306].
In that case, however, there was no dispute in the case of appellant that
she possessed equivalent qualification of KGTE (English typewriting)
but she did not have separate certificate as far as the computer
wordprocessing was concerned. In this judgment, a coordinate Bench
examined the implication of the expression “produced”. This authority
does not aid the appellants.
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26. Note (v) of Clause 7 of the employment notification in the case PK
and Note (vi) of Clause 7 of the employment notification in the case of
AD required disclosure of the equivalency orders. A plain reading of the
two GOs clearly reflect that their degrees were equivalent to the
requisite qualifications contained in the eligibility criteria. In the case of
Aarya K. Babu (supra), the disputed subject was recognized
subsequently and introduced as part of the eligibility criteria. The
principle of equivalency was not the main reasoning on the basis of
which the said case was decided. The word “equivalence” in its plain
meaning implies something which is equal to another. In the field of
academics, application of the principle of equivalency in relation to
degrees in two subjects would mean that they had the same standing or
status all along, unless the official instrument according equivalency
specifies a date from which the respective subjects would be treated as
such, in express terms or by implication.
27. Whether a GO would have prospective effect or relate back to an
earlier date is a question which would have to be decided on the basis of
text and tenor of the respective orders. The GOs which declared
appellants’ degrees to be equivalent to those required as per the
applicable notifications were not general orders but these two orders
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were person specific, relating to the two appellants. Once the GOs
specifically declared that their B.Ed. degrees were equivalent to the
designated subject which formed part of the employment notification,
the GOs in substance have to be interpreted as clarificatory in nature and
these cannot be construed to have had elevated the status or position of
the degree they already had after the declaration was made in the GOs.
The subject GOs only recognised an existing state of affairs so far as the
nature of the degrees were concerned and did not create fresh value for
the degrees which the appellants possessed. Though these equivalent
orders were not in existence on the dates of issue of employment
notifications, the GOs in substance recognize such status from the dates
of obtaining such degrees. The GOs do not reveal any intervening
circumstances which could be construed to imply that the respective
degrees acquired the equivalent status because of such circumstances
occurring subsequent to grant of their B.Ed. degrees. The aforesaid
Notes to Clause 7 of the employment notifications postulated disclosure
of the number and date of the orders on equivalence. But the GOs to
which we have referred treat the equivalency to be operating on the dates
of obtaining such degrees. Thus, the defect, if any, on disclosure
requirement, shall stand cured on issue of the University orders followed
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by the GOs. The GOs also specify the context in which these were
issued and refer to the appellants being included in the list of KPSC.
This being the case, we do not think treating the appellants’ degrees as
equivalent to those required under the applicable notifications by the
GOs issued in the year 2019 would result in change in the rules of the
game midway. At best, it can be termed as interpreting the rules when
the game was on, figuratively speaking. Such a course would, in our
opinion, be permissible. For this reason, we do not consider it
necessary to deal with the different authorities cited on the principle of
“change in the rule of the game midway”. We have opined that the
appellants’ degrees in B.Ed. were equivalent to those required by the
employment notifications and the equivalency orders were merely
clarificatory in nature. For this reason, we do not think there was any
fundamental breach of Notes (v) and (vi) of Clause 7 of the respective
employment notifications in the cases of the appellants.
28. Once we hold so, we do not think relief can be denied to these two
appellants on the ground that other similarly situated persons may not
have had applied for the same posts and were being put to disadvantage.
In the case of Aarya K. Babu (supra), that course was adopted by a
coordinate Bench as it was a new subject which was added to a
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subsisting range of subjects in the qualification criteria. The principle of
service jurisprudence that a candidate must possess the requisite
qualification for a post on the date of issue of employment notification
cannot be applied in the appellants’ cases, as in our view, they possessed
equivalent qualifications when they applied for the posts. The GOs only
confirmed the equivalency of their B.Ed. degrees. In our opinion, they
shall be deemed to have had the equivalent qualification on the relevant
date. As we have held that the respective GOs only clarified or
confirmed an existing status of certain educational qualifications, in
absence of specific instance of similarly situated but unspecified number
of persons having not applied for the posts would be unfair to the ones
who apply for the same and undergo three levels of litigations to
establish that they had equivalent degrees.
29. The judgments under appeal are accordingly set aside and the
orders of the Tribunal dated 20th September, 2019 and 2nd September
2019 shall stand restored. Let result of the appellants be disclosed and in
the event, on the basis of their performance, they come within the list of
selected candidates as per the ranked lists, the benefit thereof shall not
be denied to the appellants on the ground of lapse of the list by efflux of
time. In the event they qualify for appointment, they shall be given
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appointment and they shall be treated to have been in service from the
date of their appointment in their respective posts. The appeals stand
allowed in the above terms. All pending applications stand disposed of.
30. There shall be no orders as to costs.
………………………….J
(L.NAGESWARA RAO)
………………………….J
(ANIRUDDHA BOSE)
New Delhi
Dated 17th August, 2021
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