JYOTHY LAKSHMI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner who possesses M.Sc. (Information Science and Management) from Bharatiyar University in the year 2003 applied for the post of H.S.S.T./H.S.S.T. Junior in Computer Science/Computer Application in response to Ext.P9 notification issued by the Kerala Public Service Commission. The petitioner has submitted online application. Admittedly, the petitioner did not possess the prescribed qualification under the special rules and naturally, the qualifications prescribed in Ext.P9 notification as well, for selection to the aforesaid post. The petitioner did not have a case that qualifications have been prescribed in Ext.P9 notification by the second respondent against the special rules. Admittedly, the special rules prescribe qualifications for appointment to the said post and the aforementioned qualification possessed by the petitioner is not included therein even as an alternative or equivalent qualification. The contention of the petitioner is that, earlier, she has taken up the matter before the Government. The Government as per Ext.P8 order dated 25.4.2007, pursuant to a direction of this Court in judgment dated 6.7.2006 in W.P.(C) No. 17123 of 2006, passed an order disposing of the application of the petitioner in her favour. The relevant portion of Ext.P8 in the context of the contentions raised in this Writ Petition, reads as follows:

(2.) The contentions raised by the petitioner in this Writ Petition would reveal that the petitioner is seeking reliefs based on the aforesaid proposal to amend the special rules. The question is whether such proposal to amend the special rules can be the basis for issuance of a writ of mandamus. There can be no doubt that rights of parties are to be decided based on the relevant rules governing the issue on the relevant date. Admittedly, in this case, even after considering the representation made by the petitioner favourably, the Government in specific terms made it clear that to incorporate the said qualification as an alternate qualification, an appropriate amendment has to be made in the special rules and it is for that purpose that the Government directed the Director, Higher Secondary Education to furnish a draft notification for the amendment. In short, the admitted position available in this case is that the qualification possessed by the petitioner is yet to be recognized as a qualification for the aforesaid post as per the special rules. Ext.P9 notification issued by the second respondent is strictly in accordance with the special rules.

(3.) The learned Counsel for the petitioner submits that in the light of the decision of this Court in Baiju v. Suguna Prakash, 2003 2 KerLT 182 the petitioner is entitled to the reliefs sought for in this Writ Petition, especially for a direction to the respondents to consider her application for selection to the post of H.S.S.T. in Computer Science. In Baiju v. Suguna Prakash (supra) this Court held that executive orders can be issued to fill up gaps in rules provided they are not inconsistent with the rules. It is true that executive orders can be issued by the Government in the light of Article 162 of the Constitution of India. However, orders passed invoking the said power cannot contravene a Legislation which is already governing a field. In this case, admittedly, special rules have been framed in the matter of appointment to the post including the post to which the petitioner seeks consideration. It is common case that the qualifications prescribed thereunder for selection to the said post did not include the qualification possessed by the petitioner. In such circumstances, I am of the view that the decision of this Court in Baiju v. Suguna Prakash (supra) cannot have any application in the facts and circumstances of this case. As already stated, the second respondent has issued Ext.P9 notification strictly in terms of the special rules and therefore persons possessing the qualifications prescribed under the said notification which was issued strictly in terms of the special rules, alone can apply in response to that notification.