Praveen Kumar C.P. vs Kerala Public Service Commission

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

3 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 4 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

5 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”

10

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.

23

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

24 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

25 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

26 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

27 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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