Sabareenath Hariharan vs State Of Kerala on 13 September, 2012

[Cites 8, Cited by 2]

Kerala High Court

Sabareenath Hariharan vs State Of Kerala on 13 September, 2012

These Original Petitions are filed against the common order of the Kerala Administrative Tribunal (hereinafter referred to as "the Tribunal") in a batch of Transferred Applications. The petitioners herein were aspirants to the post of Sub Inspector of Police (Trainee) in the Police Department (General Executive Branch) called for by Exhibit P1 notification. All the petitioners except one of them in O.P.(KAT).No.3540 of 2012 are general candidates. The 3rd petitioner in the said Original Petition is a candidate belonging to the Latin Catholic community. The petitioners having applied for the selection notified as per Exhibit P1 were called for an objective test. The petitioners, without demur, appeared in the said test which was held on 12.10.2010. While the test was going on, two instances of malpractice were detected at two different centres in Kollam OP (KAT).No.3540/2012 & - 2 - connected cases.

District, wherein two candidates were found to carry mobile phones inside the examination hall, through which answers to the questions in the test were received by them.

2. The two candidates were caught red handed and the Public Service Commission (hereinafter referred to as "the Commission") referred the matter to its Vigilance Wing. Meanwhile, the police too took up the matter and started investigation, since there were allegations of a group operating behind the scenes to aid such malpractices in return for illegal gratification. The Commission short-listed the candidates allegedly on the basis of marks and proposed a descriptive type test for such short-listed candidates. It was at that point the petitioners approached this Court invoking the remedy under Article 226 of the Constitution; they having not been short-listed.

3. Initially when the writ petitions were moved, an interim order dated 4.1.2011 was passed as follows:-

"Any advice made by the PSC would be subject to the result of the writ petition. But this shall not be construed as a permission to the PSC to continue proceedings if otherwise not possible".

OP (KAT).No.3540/2012 & - 3 -

connected cases.

When the short-listed candidates were called for a descriptive test to be held on 19.11.2011, the petitioners moved the writ petition to enable the petitioners also to appear for the descriptive test. A learned Single Judge of this Court by an elaborate order dated 17.11.2011 in all the writ petitions, produced as Exhibit P2, declined the relief. However, noticing the interim order passed on 4.1.2011, it was also observed that if eventually the petitioners' claims were found to be sustainable, this Court could direct initiation of remedial measures. Subsequently, the matters were transferred to the Tribunal, which, renumbered the same, heard the petitioners/ applicants and disposed of the same by the impugned order.

4. The Tribunal formulated three issues as under:-

"(1) In the absence of any stipulation in the notification, holding of the preliminary test by the P.S.C. is unauthorised and therefore liable to be set aside.

(2) Publication of the unified short list is not authorised by any of the provisions of the Kerala State and Subordinate Service Rules or the Rules of the Procedure of the P.S.C. The fixation of cut off marks as 49 and its lowering only for the purpose of OP (KAT).No.3540/2012 & - 4 - connected cases.

including candidates belonging to communities eligible for reservation are illegal. The preliminary test is conducted as an eligibility test. Therefore, there cannot be any relaxation of standards for candidates belonging to candidates eligible for reservation. Alternatively it is submitted that if there is lowering of the cut off marks, the same should be extended to all candidates including Open Competition candidates.

(3) The next point canvassed before us is the alleged illegalities and irregularities that took place in the conduct of the test which has the effect of vitiating the selection process. Therefore to maintain transparency and purity in selection, the present test should be cancelled and a fresh test should be held".

5. With respect to the 1st issue, the Tribunal found that the petitioners/applicants had appeared for the preliminary test without demur and having been declared unsuccessful, cannot now turn around and challenge the conduct of preliminary test. The 2nd issue with respect to permitting all the candidates to appear for the descriptive test was negated relying on decisions of this Court and the Apex Court. The Tribunal also rejected the prayer for a re-test on OP (KAT).No.3540/2012 & - 5 - connected cases.

the ground that the malpractice detected was confined to a minimal number of candidates and the gravity of the same did not warrant a re-test.

6. The petitioners in the various Original Petitions before us were represented by learned Senior Counsel Sri.P.Santhalingam, learned counsel Sri.Sivan Madathil and Devan Ramachandran. The Commission was represented by its Standing Counsel Sri.P.C.Sasidharan and on behalf of the State Sri.P.I.Davis, learned Senior Government Pleader appeared and both defended the procedure adopted by the Commission.

7. Though the contention was not a part of the pleading before the Tribunal, at the time of hearing before the Tribunal as also before us it was urged that the shortlisting fell short of the ratio prescribed by the Supreme Court and this Court, between the short-listed candidates and the vacancies available initially and more so by passage of time and hence it was only proper that all the candidates are allowed to appear for the descriptive test.

8. We have to notice that the descriptive test was held long back and the physical efficiency test is to be held for OP (KAT).No.3540/2012 & - 6 - connected cases.

preparing a comprehensive rank list of candidates eligible for selection. We also notice that none of the candidates who were short-listed from the general category or from the reserved category have been impleaded even in a representative capacity. We have to notice that the preliminary defect was also noticed by the Tribunal and the Tribunal having considered all the issues and found them against the petitioners/applicants, dismissed the claims comprehensively on merits and also on the preliminary issue. The issues having been dealt with comprehensively by the Tribunal and arguments having been addressed before us, we would first deal with the merits of the issue and then look into whether the petitioners are to be non-suited for having failed to implead necessary parties.

9. Regarding the 1st issue, we concur with the Tribunal that the candidates having willingly appeared for the objective test, cannot later, on being found unsuccessful, turn around and challenge the conduct of the same. Exhibit P1 does not lay down specifically the mode by which the candidates will be selected, though there are indications that OP (KAT).No.3540/2012 & - 7 - connected cases.

there would be an interview and a physical efficiency test. It is the contention of the Commission that pursuant to Exhibit P1 notification they received a total number of 42401 applications for the post under direct recruitment. The large number of applications required that a preliminary test be conducted and hence the prescription of an OMR test as the first phase of selection, in which 19187 candidates appeared. The steps taken for a smooth conduct of the test has been highlighted in the counter affidavit dated 27.8.2011 filed in the writ petitions. The malpractices alleged did not at all emanate in the conduct of the test; nor are there any allegation of leakage of papers or any laxity on the part of the Commission in the preparation of question papers, conduct of test, valuation or so on and so forth.

10. The detection of malpractice was made by the officers of the Commission itself at two centres in Kollam District, where two candidates were found to be receiving answers through the mobile phones; which they carried inside the examination hall, surreptitiously and against the specific rules of conduct enforced and enjoined upon the candidates. OP (KAT).No.3540/2012 & - 8 - connected cases.

Pursuant to the detection of malpractices, the two candidates were sent out and on subsequent investigation, further instances of the very same malpractice was also detected. Even going by the communication received from the Investigating Officer, the Assistant Commissioner of Police, Kollam City, produced as Exhibit R2(a), by the Commission, six candidates who appeared in the OMR test pursuant to Exhibit P1 notification were identified as involved in malpractices.

11. Regarding the malpractice as such, which, according to the petitioners, is of the magnitude which would warrant cancellation of entire selection procedure, we have to look at the statement filed by the Government Pleader in W.P. (C).No.21323 of 2011 (subsequently transferred to the Tribunal) and the affidavit of the State Police Chief as also Report of Progress of Investigation filed by the Assistant Commissioner of Police, Kollam filed in W.P.(C).No.141 of 2011 (subsequently transferred to the Tribunal) and available in the paper book of O.P.(KAT)No.3540 of 2012. A conjoint reading of the above statements show that one of the malpractices detected at Kollam by the officers of the Commission had OP (KAT).No.3540/2012 & - 9 - connected cases.

some ramification and the investigation led to a group of outsiders being apprehended as being instrumental in developing a plot by which a person masquerading as a candidate entered one of the examination centres and passed out the question paper to his accomplices standing outside and they, with the aid of a lawyer and a teacher, passed on the correct answers through the mobile phones of certain candidates. The other instance was a solitary case, by which the candidate connected to a person outside attempted to indulge in a similar malpractice through the mobile phone. The group unearthed on investigation, led to detection of malpractices, in other examinations conducted by the Commission also. However, we have to notice that no finger is pointed at any of the officers of the Commission. Nor is any lapse of the Commission raised as a source of the above malpractice. Without for a moment discounting the gravity of the malpractice, we cannot but notice that it does not cut at the root of the conduct of the examination and though many paper reports are produced, the records would reveal solitary instances not warranting the cancellation of the entire OP (KAT).No.3540/2012 & - 10 - connected cases.

selection process as such. A mountain, definitely, cannot be made out of a molehill.

12. We are also persuaded to hold against the scrapping of the entire selection process by reason of the fact that the Commission is conducting a further descriptive test and this would ensure that any person in the short-listed candidates who had resorted to such sharp practise and had avoided detection would not figure in the final select list. Considering the enormity of the task set upon the Commission to select candidates from vast number of aspirants, we are of the opinion that the holding of the preliminary test cannot be faulted.

13. We have considered the very same issue with respect to the recruitment of Deputy Collectors in Sonu John v. State of Kerala [2013 (1) KHC 801 (DB)]. In fact the issues raised in the instant batch of Original Petitions regarding the short-listing of candidates and the procedure adopted by the Commission have been elaborately considered and decided in the said decision. While upholding the short-listing, we expressed serious reservation about the procedure adopted in OP (KAT).No.3540/2012 & - 11 - connected cases.

short-listing the reserved category of candidates and expressed a word of caution to the State and the Commission. The said Original Petition was also rejected on the ground of locus standi and the non-impleadment of necessary parties, who are prejudicially affected.

14. We notice that in the instant case also the short-listing has been done not on the basis of cut off marks. The counter affidavit of the Commission reveals that the Commission, taking into account the number of probable vacancies, decided upon short-listing 2000 candidates and the last of such candidates obtained 49 marks. To satisfy the requirement of reservation, taking the marks obtained by the last candidate in the general list as a benchmark, marks were lowered between 32 and 46 for the various reserved communities, thus bringing in 712 candidates exclusively from the reserved category. The short-listing as such cannot be assailed and is sustainable on the ratio of the decision of the Hon'ble Supreme Court in B.Ramakichenin v. Union of India [(2008) 1 SCC 362]. In the context of there being a large number of eligible candidates who applied and the selection OP (KAT).No.3540/2012 & - 12 - connected cases.

procedure consisting of a interview and a physical efficiency test, it was perfectly within the authority of the selection body to resort to a short-listing procedure, as has been laid down in the above cited decision. As noticed above, it is also of considerable moment that the petitioners, without protest, subjected themselves to the test and having failed, challenged the same. The descriptive test also would ensure that any candidate who had appeared in the written test and had been short-listed by reason of any malpractice would be weeded out at the second stage, or rather would be pushed down in the rank list to be prepared by the Commission on the basis of the marks obtained at the written test, interview and physical efficiency test. We also record the submission of the learned Standing Counsel for the Commission that none found to be involved in malpractice would be retained in the final list. The short-listing, hence, was proper and justified in the facts and circumstances of the case.

15. The next issue we consider is with respect to the malpractices conducted, the nature of which has been enumerated above. Considering the fact that such OP (KAT).No.3540/2012 & - 13 - connected cases.

malpractices were not sourced from the recruiting agency, i.e., the Commission, and the fact that it is not of an all-pervasive nature, we are not inclined to hold that a re-test after scrapping the entire selection would be a reasonable option which satisfies the proportionality test as laid down by the Supreme Court in Union of India v. Rajesh P.U., Puthuvalnikathu [(2003) 7 SCC 285]. It was a case in which a successful candidate challenged the scrapping of the entire selection procedure for reason of detection of certain malpractices. There, as against 134 successful as well as the 184 unsuccessful candidates, the 31 candidates declared successful were found to have indulged in such malpractices. Though the learned Single Judge of this Court upheld the fresh selection ordered by the authority, the Division Bench, after going through the entire records as also of the report of a Committee appointed to go into the irregularities and lapses, found that the cancellation of the entire selection would be arbitrary and unreasonable. The said decision of the Division Bench was upheld by the Supreme Court on the ground that.-

OP (KAT).No.3540/2012 & - 14 - connected cases.

"... in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all-pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for anyone or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual considerations throwing to the winds the principle of proportionality in going father than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, OP (KAT).No.3540/2012 & - 15 - connected cases.

and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational".

16. Chairman, All India Railway Recruitment Board and another v. K.Shyam Kumar and others [(2010) 6 SCC 614] was a case, in almost a similar situation, raising the question of advisability of a Recruitment Board to conduct a re-test for only those candidates who obtained a minimum qualifying mark in the test which was alleged to be tainted with malpractices. The Supreme Court upholding the decision of the Railway Recruitment Board, held so:

"41. We have already indicated the three alternatives available to the decision-maker (the Board) when serious infirmities were pointed out in the conduct of the first written test. Let us examine which was the best alternative the Board could have accepted applying the test of Wednesbury unreasonableness. Was the decision taken by the Board to conduct a retest for those candidates who had obtained minimum qualifying marks in the first written test so unreasonable that no reasonable authority could ever have decided so and whether the OP (KAT).No.3540/2012 & - 16 - connected cases.

Board before reaching that conclusion had taken into account the matters which they ought not to have taken into account or had refused to take into account the matters that they ought to have taken into account and the decision taken by it was so unreasonable that no reasonable authority could ever have come to it? Judging the decision taken by the Board applying the standard laid down in the Wednesbury principle of unreasonableness, the first alternative, that is, the decision to cancel the entire written test and to conduct a fresh written test would have been time-consuming and expensive. Initially 10,02,909 applications were received when the advertisement was issued by the Board out of which 5,86,955 were found to be eligible and call letters were sent to them for appearing in the written test held at various centres. 3,22,223 candidates appeared for the written test, out of which 2690 were selected. Further, the candidates who had approached the court had also not opted that course instead many of them wanted to conduct a retest for 2690 candidates, the second alternative. The third alternative was to go ahead with the first written test confining the investigation to 62 candidates against whom there were serious allegations of impersonation. The Board felt in the wake of the vigilance report and the reports of CBI, it would not be the best OP (KAT).No.3540/2012 & - 17 - connected cases.

option for the Railway Administration to accept the third alternative since there were serious allegations of malpractices against the test. From a reasonable man's point of view it was felt that the second option i.e. to conduct a retest for those candidates who had obtained minimum qualifying marks in the first written test was the best alternative.

xx xx xx

51. We, therefore, find no infirmity in the decision taken by the Board in conducting the second written test for those who have obtained minimum qualifying marks in the first written test rather than going ahead with the first written test which was tainted by large-scale irregularities and malpractices. The Board can now take further steps to regularise the results of the second test and the appointments of the selected candidates. Ordered accordingly. The appeals are accordingly allowed and the judgment of the High Court is set aside".

The principle of proportionality relied on in both the above decisions, according to us, is apt to the present case. We are not convinced that the selection process in toto has to be scrapped.

OP (KAT).No.3540/2012 & - 18 - connected cases.

17. Now we come to the additional issue raised with respect to the short-listed candidates, i.e., their number falling short of the expected vacancies. In the context of the conflicting claims of expected vacancies projected by the petitioners on the basis of documents received under the Right to Information Act, this Court directed an affidavit to be filed specifically chalking out the exact vacancies available. The Under Secretary to Government, Home Department has filed an affidavit dated 21.01.2013, wherein it has been stated that as on 12.09.2012 the vacancies would be 166, which were reported to the Commission. Going by the percentage of reservation, the vacancies available for the reserved category would be half of the total number of vacancies, i.e.,83. The total short-listed candidates are 2712 and as has been stated by the Commission, there cannot be any rule that during the currency of the list the entire vacancies arising should be filled up from the list itself. In fact, the law is otherwise as declared by the Full Bench of this Court in Ravidas v. Public Service Commission [2009 (2) KLT 295(FB)].

OP (KAT).No.3540/2012 & - 19 - connected cases.

18. However, the word of caution expressed by us in Sonu John's case (supra) is relevant here too:

"14. We are constrained to express a word of caution to the Public Service Commission. The candidates eligible for reservation, who have been now allowed to appear for the main examination, does not compete for the reserved vacancies alone. Their candidature would be for all the four vacancies notified. In the order of merit, in the final list, if a candidate from the reserved category stands first he would have to get the post by reason of the merit and that would not entitle the next vacancy, which is reserved, to be granted to any other, than the one eligible for reservation. Though hypothetical, there can arise a situation wherein a candidate having far less than the required minimum marks of the general candidate in the preliminary examination would eventually obtain more marks in the final examination and by virtue of the marks obtained in the final examination would be eligible to be considered to an open merit seat. If two of such reserved candidates who obtained relaxation gets the first two ranks; then it would lead to a situation where all the vacancies would be filled up by reservation. We are not however going into such issues since the prospect of the reserved OP (KAT).No.3540/2012 & - 20 - connected cases.

category candidates stealing a march over the general category candidates is a cause of concern to only the general category candidates who have been shortlisted. Only they can plead prejudice; not persons who have not been shortlisted; like the petitioner.

15. In the instant case the petitioner a general candidate is not entitled to inclusion since he is not within the 1000 shortlisted on the basis of their merit ranking. Nor is he entitled to challenge inclusion of 2500 or more reserved candidates for two reasons, (i) non impleadment of affected parties and (ii) he in any event is not entitled to be shortlisted. But, however, we feel the inclusion of so many from reserved categories does not strike a balance between general and reserved categories (refer Post Graduate Institution of Medical Education and Research v. Faculty Assn. [1998(4) SCC 1] ). Obviously, the method adopted by the PSC is also not that provided in R14(e). However, it is trite that a more reasonable opinion of this court cannot replace or substitute an apparently reasonable exercise by the public authority and in attempting a judicial review much less is the sanctity of a reasonable hypothesis. It is for the State in consultation with the Public Service Commission to decide such measures to ensure fair selection without arbitrariness and discrimination".

OP (KAT).No.3540/2012 & - 21 -

connected cases.

19. We do not have any statistics as to the category of candidates included on the basis of merit in the General Merit List by short-listing, i.e., 2000 candidates who have 49 marks and above. It definitely would include some candidates from the reserved category too. According to the Commission, relaxation of marks were given to ensure that sufficient candidates are available for filling up the reserved vacancies. The 712 candidates who have been given relaxation at the threshold for the purpose of short-listing enough number of reserved candidates; we have not been told, whether they would be allowed to be ranked along with the shortlisted candidates on the basis of merit alone, or whether they would be relegated to a supplementary list which would be used only for filling up the reserved vacancies; on the contingency only of reserved category candidates being not available in the rank list prepared from the merit based 2000 short-listed candidates. We say this in view of Jitendra Kumar Singh v. State of Uttar Pradesh [(2010) 3 SCC 119]. We state this not as a direction, but as an expression of our anxiety when the State has to strike a balance, ensuring due representation of OP (KAT).No.3540/2012 & - 22 - connected cases.

reserved candidates but not compromising merit in any manner. The State and its recruiting agency, the Commission, would be the competent bodies, with the necessary inputs, to decide on the issue in the background of the concern and anxiety raised by us.

20. We intend to raise a further source of concern. In defending the ratio adopted by the Commission as against the claim of inadequate short-listing, the Commission asserts its object in para 13 of its counter affidavit dated 27.8.2011:-

"The objective of the Commission is to ensure as far as possible, to prepare for yearly recruitments to various posts. So if a list gets exhausted, then the natural and logical consequence is only that the next selection process to that post is to be set in motion so that young qualified unemployed persons waiting for proving their merit, be given the next opportunity to be considered for selection. As held by this Hon'ble Court in W.P.(C).No.1381/05 and connected cases, the process of selection is a continuing process and if a list gets exhausted before all vacancies could be filled up, does not matter since immediately the Commission would take steps to make a fresh selection in which subsequently qualified candidates would also be available to compete".

OP (KAT).No.3540/2012 & - 23 -

connected cases.

The objective, no doubt, is laudable, but we are unsure as to whether it is being properly implemented. In the present case, Exhibit P1 notification is of the year 2007. The preliminary test happened more than about 3 years later, on 12.10.2010. Then of course, there were skirmishes regarding the malpractices, etc.; but again it is disconcerting to note that the selections are not yet over; the advices have not yet been sent. We are almost 6 years from the date of publication of the notification. A candidate who is eligible to relaxation of 5 years and competing as a last chance would be 41 years now and left with hardly 15 years of service; that too in a sensitive department, dealing with law and order of the State. It is time for introspection and a revamp.

21. No recruiting agency constituted to make appointments to public services can rest on its haunches and conform to age old procedures, lamenting the enormity of the task they are set to. That would be failing in its appointed duty and an usurpation of its own power and authority. We said in Sonu John (supra) that in exercising judicial review, we would not upset a procedure merely on a reasonable OP (KAT).No.3540/2012 & - 24 - connected cases.

hypothesis. But none can ignore the reasonableness of the hypothesis. In the rigmarole of technicalities and expertise involved in devising an effective selection procedure and in the context of circumscribed jurisdiction we exercise in the above matters with respect to a particular selection procedure, we do not intend to venture into fields uncharted, but the apprehensions expressed by us and the concerns raised in the context of the instant case, we are sure, are of the magnitude and significance; which has to be dealt with seriously by the State and its recruiting agency.

22. We have not dealt with the issue of maintainability, without the necessary parties on the party array; as a preliminary issue, lest we accuse ourselves of not dealing with the issues which have been dealt with by the Tribunal. We are of the definite view that the concerns raised by us regarding the inclusion of reserved category candidates by relaxing their marks is not an issue which the petitioners herein can validly raise; since they have failed to be short-listed on the basis of merit. Their claims for being admitted to the descriptive test fails as we have found above. OP (KAT).No.3540/2012 & - 25 - connected cases.

We have found the short-listing to be proper and justified. As far as the 2000 candidates are concerned, the prejudice caused, if at all, is by inclusion of reserved category candidates in a unified short-list; after prescribing relaxed standards with respect to marks. This is an issue which would prejudice only those who have been included in the short-list on the basis of merit. A person not included does not suffer any prejudice.

The grounds raised having been found against the petitioners, we are of the opinion that the order of the Tribunal is not liable to be interfered with. We confirm the same and dismiss the Original Petitions as devoid of merit. The parties are left to suffer their respective costs.

Sd/-

Manjula Chellur, Chief Justice Sd/-

K.Vinod Chandran, Judge.

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