The defendant's failure to perform constituted a material breach of the contract.

S.RAJENDRA BABU, J.

(1) DELAY condoned in filing SLP (C) Nos. 13684-13685/2001.

(2) LEAVE granted.

(3) THESE appeals arise out of an order made by the High Court in original petitions filed under Article 226 of the Constitution.

(4) THE Kerala Public Service Commission invited applications for selection to the post of sub-engineers (electrical) in the Kerala State Electricity Board as per the notification dated 21/6/1994. The said notification provided that the qualifications for the post would be as follows:

"1. SSLC or its equivalent 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 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 II grade overseer (electrical) under the Board."

(5) THE appellants before us are holders of B. Tech. degree in electrical engineering or bachelors degree in electrical engineering. On the basis that the appellants did not possess the necessary qualifications, the commission held that they were not eligible for selection. In the writ petitions, the same having been challenged, it was contended that they possess higher qualifications and therefore non consideration of their cases is not correct. They sought for a direction to the commission to consider them as eligible candidates. It was also pointed out that ever since the inception of the board, persons possessing higher qualifications have been considered and appointed in terms of rule 13 (1) of the Kerala State and Subordinate Services Rules, 1956 and the board having accepted higher qualifications to be applicable in all such cases could not exclude them in the present cases.

(6) THE commission contended before the High Court as is done before us now that the graduates in engineering or persons possessing other qualifications, as held by the appellants, that may not be taken as higher qualifications, they are not equivalent qualifications prescribed for that post and persons who possessed higher qualifications can only be taken note of, in cases where they acquired such higher qualifications after acquiring the prescribed qualifications. Rule 10 (a) (ii) of part I of the rules was also adverted to contend that such of those higher qualifications which presuppose the acquisition of the lower qualifications prescribed for the post shall be sufficient for the post. The qualifications, it was stated, possessed by the appellants do not presuppose the acquisition of the prescribed lower qualifications and, therefore, they were not eligible to be considered.

(7) ON the question that the said rules are applicable to the selection posts in the board, there is no dispute. The High Court after setting out the contentions noticed that there were no executive orders in relation to equivalent qualifications prescribed by the government. The High Court stated that the position is that, the qualifications possessed by the appellants do not presuppose the acquisition of prescribed lower qualifications and when qualification has been prescribed for a post, the same cannot be diluted and persons not possessing those qualifications cannot be permitted to be eligible. It was noticed that all those who had similar or even better qualifications than those candidates would not have applied for the post because they did not possess the qualifications mentioned in the advertisement and such a position would result in "fraud on public to appoint persons with inferior qualifications, in such circumstances, unless it is clearly stated that qualifications are relaxable". On that basis, the High Court dismissed the petitions filed by the appellants. The contentions urged before t