RAMAN UNNI Vs. STATE OF KERALA

JUDGEMENT

(1.) These Original Petitions involve a common question regarding the legality of selection made by the 2nd respondent to the posts of Part-time Sweepers in Kozhikode District. The Employment Exchange sponsored 1001 candidates for selection to the post of Part-time sweepers in Health Department in Kozhikode District. The total number of vacancies were 113. The method of appointment and qualifications are prescribed in the Special Rules for the Kerala Part-time Contingent Servants. Category 2 of the above Special Rules includes Sweepers. The qualification prescribed in the table under R.5(b) is good physique. All the petitioners in these Original Petitions satisfied the above qualification of having good physique! The 2nd respondent followed Ext. P1 and P2 Government Orders (produced in O. P. No. 4689 of 1996). According to the above Government Orders marks are allotted for persons who are having SSLC qualification and above. Preference was to be given for the older in age (by date of birth). In the counter affidavit filed on behalf of the 2nd respondent, the above fact has been detailed as follows:

(2.) The petitioners in O. P. No. 4689/96 have impleaded the 3rd respondent in a representative capacity representing the persons who were selected by the 2nd respondent. Paper publication was also made as enjoined by the Rules in C. M. P. 3751/96. In O. P. No. 2151/96 this Court by order dated 20.2.1996 ordered the 2nd respondent not to fill up one post of Part-time Sweepers until further orders from this Court. This Court again in C. M. P. No. 17163/96 in O. P. 4689/96 dated 19.8.1996 directed the 2nd respondent not to make further appointment to the post of part-time sweepers until further orders. In C. M. P. No. 5452/96 in O. P. No. 3119/96 this Court on 20.2.96 ordered the 2nd respondent not to fill up two posts of Part-time Sweepers in the Health Services under the 2nd respondent until further orders from this Court. Later, by order dated 28.6.1996, this Court ordered that any appointments made will be subject to the result of the Original Petitions.

(3.) Sri. M.C. Sen, Learned Counsel appearing for some of the petitioners, argued that when the Special Rules prescribed the qualification of good physique only for the purpose of selection and appointment to the post of Part-time Sweepers, it was illegal on the part of the 2nd respondent to take into consideration the cases of persons with higher qualification on the basis of Exts. P1 and P2. In support of this contention, the learned counsel relied on the decision of the Division Bench of this Court reported in Jesilet v. State of Kerala ( 1987 (2) KLT 984 ). In the above judgment, the qualifications for the post of Sewing teachers were prescribed in R.3(3)(iv) of Chap.31 of the Kerala Education Rules. But the Government by executive order prescribed higher qualification of SSLC. Considering the validity of the above order, this Court held that the Government cannot prescribe higher qualification, in exercise of its executive powers, than what is prescribed under the Rules. Therefore, it was argued that the selection of the candidates on the basis of higher qualification is illegal.