1    

  REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

Civil Appeal Nos.6178-6185 of 2019  (@SLP (C) Nos. 11863-11870 of 2019)  

Ajith K & Ors.               …Appellants              

                              Versus  

Aneesh K.S.& Ors.                       …Respondents  

J U D G M E N T  

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  

Court dismissed the writ petition filed by the appellants under Article 227 of the  

Constitution.

2    

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 Commission 1  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‖

3    

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 Course 2 , 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‖

4    

the DHIC programme and the Sanitary Inspector Diploma Course 3 . 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 1958 4 . 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  

                                                           3  ―SIDC‖  

4  ―KSSSR‖

5    

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.  

6    

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 Commission 5  (―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                                                              5  (2010) 15 SCC 596

7    

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

8    

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."  

9    

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."  

10    

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

11    

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…‖

12    

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 Board 7 . 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‖

13    

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

14    

decision in Jyoti K K was subsequently distinguished in State of Punjab v Anita 8 ,  

as noted by this Court in a more recent decision in Zahoor Ahmad Rather v Sheikh  

Imtiyaz Ahmad 9 . (See also in this context, the decision of the two judge Bench in P  

M Latha v State of Kerala 10

.)   

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)   

                                                           8  (2015) 2 SCC 170  

9  (2019) 2 SCC 404  

10  (2003) 3 SCC 541

15    

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.      

                   …..…….……………..………...............J.                                                               [Dr Dhananjaya Y Chandrachud]  

 …..…….……………..………...............J.  

       [Indira Banerjee]  New Delhi;  August 21, 2019.