Kerala High Court
Sajan J. Menon vs State Of Kerala And Ors. on 6 July, 2007
Equivalent citations: 2007(3)KLJ793
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, Antony Dominic
JUDGMENT K.S. Radhakrishnan, J.
1. These writ, petitions have been placed before us on a reference made by a learned single Judge of this Court doubting the correctness of a judgment of a learned single Judge in WJP(C) No. 178 of 2005 and the decision of a Division Bench in Mohan v. Public Service Commission 1994(2) KLT 585 in view of the decision of the apex court in Dr. Dinesh Kumar and Ors. v. Motilal Nehru Medical College, Allahabad and Ors. . Apex Court in Dr. Dinesh Kumar and Ors. case (supra) was dealing with a case of admission to MBBS Post Graduate Courses in Medical Faculty; in Motilal Nehru Medical College, Allahabad. Court held it would be wholly unjust to grant the admissions to students by assessing their relative merits with reference to the marks obtained by them not at the same qualifying examination where standard or judging would be reasonably uniform but at different qualifying examinations held by different State Governments or Universities where the standard of judging would necessarily vary and not be the same and that would indeed be blatantly violative of the concept of equality enshrined in Article 14 of the Constitution.
2. A Division Bench of this Court in Mohan v. Public Service Commission (supra) was examining the legality in accepting the marks in the qualifying examination and marks in interview for appointment to various teaching posts in the Medical Education Department through the Kerala Public Service Commission. Petitioner therein laid considerable stress on the decision of the apex court in Dr. Dinesh Kumar's case (supra) and contended that the marks obtained by the applicants in the qualifying examination should not be reckoned for the purpose of selection to various teaching posts since the same would violate Article 14 of the Constitution of India. The Bench distinguished the judgment of the apex court in facts and took the view that the apex court was dealing with admission of students to the Post Graduate Medical Courses and not dealing with appointment of Teachers and/or Professors through a selection conducted by the Public Service Commission. Another learned single Judge of this Court in O.P. No. 11079 of 1999 following the judgment in Mohan's case held that awarding of marks in a selection on the basis of interview and weightage for educational attainments would not be objectionable even if the evaluation by various universities might not be uniform. A learned single Judge of this Court in W.P.(C) No. 178 of 2005 also held that there is no illegality in giving weightage for the marks obtained in the qualifying examinations by the Public Service Commission while conducting selection to the post of HSST. Learned single Judge who made the reference felt that the matter requires a second look in the light of the decision of the apex court in Dinesh Kumar's case and hence the matter has been placed before us.
3. Kerala Public Service Commission published a notification in the Kerala Gazette Extra Ordinary dated 29-6-2004 inviting applications for the post of Higher Secondary School Teacher in Computer Science/Computer Application (HSST in Computer Science/Computer Application) in the Kerala Higher Secondary Education Department. The post of HSST in Computer Science/Computer Application is a post under the Special Rules for the Kerala Higher Secondary Education State Service. The qualification prescribed for the post are as follows:
1.Masters Degree in Engineering or Technology in the concerned subject/M.Tech Degree in Computer Science. Computer Engineering or Information Technology/Software Engineering with not less than 50% marks from a recognised University.
OR Masters Degree in Computer Application/Masters Degree in Computer Science Information Technology with not less than 50% marks from a recognised University.
2.In the absence of qualified candidates in item (1) above, B.Tech/Bachelor of Engineering Degree with not less than 50% marks in Computer Science/Computer Engineering/Information Technology from a recognised University.
OR B.Tech/Bachelor of Engineering Degree with not less than 50% marks in any branch of study with Post Graduate Diploma in Computer Application from a recognised University or Lal Bahadur Sastri Centre for Science and Technology/Institute of Human Resource Development or Department or Department of Electronics 'A' level accredited.
OR Masters Degree with not less than 50% marks in Mathematics/Physics with Post Graduate Diploma in Computer Application from a recognised University/Institute of Human Resource Development/Lal Bahadur Sastri Centre for Science and Technology or Department of Electronics 'A' level accredited.
OR M.Tech. Degree with not less than 50% marks in Electronics and Telecommunication/Electronics Engineering from a recognised University.
OR B.Sc. Degree in Computer Science with not less than 50% marks and Post Graduates Diploma in Computer Application from a recognised University or Lai Bahadur Sastri Centre for Science and Technology/Institute of Human Resource Development or Department of Electronics 'A' level accredited.
OR M.Sc. statistics with not less than 50% marks with post Graduate Diploma in Computer Application from a recognised University.
Several persons who had satisfied the prescribed qualification including the petitioner and 4th respondent applied for the post of HSST Computer Science/Computer Application. Public Service Commission conducted a written test on 24-12-2005 and based on the performance in the written test, the petitioner, 4th respondent and others were short listed for an interview and interview was conducted on 6-10-2006. Public Service Commission then published a rank list on 8-12-2006. Petitioner in WP(C) No. 2394 of 2007 was shown as 148 in the rank list and the 4th respondent was shown as rank No. 19. Later petitioner came to know that he had scored 43 marks in the written test while the 4th respondent and others who have taken the same written test were having only lesser marks than the petitioner but were ranked above the petitioner. Petitioner made enquiries and he came to know that while preparing the rank list the Public Service Commission awarded credit marks to the candidates based on the percentage of marks secured by them in the qualifying examination, in addition to the marks secured in the written test and interview. Petitioner submits the selection should have made taking into consideration of the marks obtained by the candidate in the common written test alone and not by giving weightage for the marks obtained in the qualifying examination, the standard of which differs. Petitioner came to know that credit marks were awarded following the procedure laid down by the Public Service Commission Office Manual. Petitioner submitted, the procedure followed by the Public Service Commission is arbitrary and illegal and violative of Article 14 of the Constitution of India.
4. Sri. Anil K. Narendran, counsel appearing for the petitioner submitted that the Public Service Commission was not justified in awarding credit marks based on Clause 202 of the Manual, which according to the counsel, in any view, would apply only to the teaching post in a college and not to a post in the Higher Secondary School in the State of Kerala. Further it was also stated that award of credit marks for qualifying examination cannot be extended in the case of recruitment to the post of HSST in Computer Science/Computer Application where alternative academic qualifications are prescribed for the post. Counsel submitted that petitioner possesses M.Sc. (Mathematics) from Kerala University, Masters Degree in Computer Application (MCA) from Indira Gandhi National Open University and Post Graduate Diploma in Computer Application (PGDCA) from the Institute of Human Resource Development. Counsel submitted, MCA was awarded to the petitioner after undergoing six semester course unlike M.Tech and M.Sc. offered by various other educational institutions where the course is only 4 semester course. Further counsel also submitted, the syllabi in those courses are not similar, and the mode of evaluation of these courses are not identical. Further it is also pointed out that the marks awarded for internal and external assessments are also different. Counsel submitted, the award of credit marks for qualifying examination in the case of recruitment to the post of HSST Computer Science/Computer Application is arbitrary, illegal and violative of Article 14 of the Constitution of India.
5. Public Service Commission has filed a detailed counter affidavit stating that the procedure followed by the Public Service Commission for selection to the post of HSST Computer Science/Computer Application is in accordance with the existing practice followed by the Pubic Service Commission and also on the basis of the qualification laid down under the Special Rules for the Kerala Higher Secondary Education State Service. Counsel appearing for the Public Service Commission Sri. P.C. Sasidhafan submitted that the selection was conducted strictly following the procedure laid down under the PSC Rules of Procedure as well as the Manual of Office Procedure. Counsel submitted Rule 11(ii) of the P.S.C. Rules of Procedure read with Clause 202 of the Kerala Public Service Commission Office Manual enables the Public Service Commission to adopt a procedure of grading which would minimise inequality if any, between the qualifications obtained by the applicants undergoing the examinations conducted by various universities and the educational institutions. Counsel submitted the method followed by various other recruiting agencies and has also got the approval of the apex court in various decisions. Reference was made to the decision of the apex court in State of Kerala v. T.P. Roshana and Ors. . Further it was stated that in the rank list published on 8-12-2006, 199 candidates were included in the main list and 61 candidates in the supplementary list which was prepared following the rules for reservation.
6. The cardinal question to be considered in this case is whether the Public Service Commission is justified in awarding credit marks to the candidate based on the percentage of the marks secured by them in the qualifying examination in addition to the marks secured in the common written test and interview. Public Service Commission after having noticed that the candidates have passed the qualifying examination conducted by the various universities as well as the educational institutions thought it fit to follow a procedure which to a large extent standardize and normalize the merit of the applicants. We have to examine whether the method followed by the PSC for common evaluation of merits of the applicants, who have passed qualifying examinations conducted by various universities and educational institutions is arbitrary and violative of Article 14 of the Constitution of India.
7. Public Service Commission had conducted a written test and based on the performance in the written test a short list was published followed by an interview. Public Service Commission as we have already indicated awarded credit marks based on the marks secured by the candidates in the qualifying examination in addition to the marks secured in the written test and interview. Public Service Commission, in our view, has got the power to award marks for the qualifying examination. Rule 11(ii) of the PSC Rules of Procedure enables the Commission to decide the basis on which marks would be awarded. Public Service Commission has decided, that in order to minimise the inequality between the candidates who have obtained the educational qualification in the different examinations conducted by various universities and educational institutions, a method of equalisation of marks based on the procedure laid down in the Kerala Public Service Commission Office Manual be followed. Clause 202 deals with the basis of marking which is extracted below for easy reference.
Basis of marking in respect of Teaching Posts in the colleges (General as well as professional) shall be percentage of marks for the Written Test + Credit for the percentage of academic marks unto a maximum of 50 + Interview marks out of 30.
In respect of teaching posts in the Colleges (General as well as professional) where the academic marks secured by candidates also have to be reckoned with for the purpose of ranking the academic marks will be converted into proper grades and credit marks awarded.
Petitioners' counsel as we have already indicated challenges the above procedure followed by the Public Service Commission as arbitrary and violative of Article 14 of the Constitution of India.
8. Public Service Commission is a constitutional functionary and the duties and functions of the Commission have been laid down in Article 320 of the Constitution and they are: (1) to conduct examinations for appointments to the services of the State; (2) The Commission shall be consulted (a) on all matters relating to methods of recruitment to civil services and for civil posts, (b) on the principles to be followed in making appointments to civil services and posts arid in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions, transfers. Public Service Commission follows the Kerala Public Service Commission Rules of Procedure in the matter of conducting selection to various posts in the State service. As we have already indicated, in accordance with Rule 11(ii) read with Clause 202 of the Kerala Public Service Commission Officer Manual PSC follows a system of grading. By that system the basis of marking in respect of teaching posts in colleges (general as well as professional) shall be the percentage of marks for the written test plus credit for the percentage of academic marks upto a maximum of 50 plus interview marks out of 30. In respect of teaching posts in the colleges (general as well as professional) where the academic marks secured by the candidates also have to be reckoned for the purpose of ranking, the academic marks will be converted into proper grades and credit marks awarded. In the grading system candidates who have got 85 and above will be graded as A+, 75 to 84 - Grade A, 65 to 74 - Grade B+, 55 to 64 - Grade B, 45 to 54 - Grade C+, 35 to 44 - Grade C and below 35% if any, - Grade D. As only credit is given for the percentage of academic marks the sessional/internal assessment marks also would be reckoned. Such a method has been adopted for providing a common basis for selection of candidates and therefore vulnerability if any, between the various qualifying examination can be met to a large extent thereby attaining equality.
9. Constitutional body like the PSC invested with the task of selecting best suitable person for the post, has evolved a method which they believe would minimise the inequality between the candidates who have come out of qualifying examinations conducted by various Universities and Educational Institutions. The question is, in the absence of a better system suggested, whether the PSC can be found fault with, in following the above mentioned system which, to a large extent, though not fully, eliminates inequality. Courts sitting under Article 226 of the Constitution of India in such a situation would be slow to unsettle a process followed by PSC, which according to that expert body would bring the candidates to a common plat form while testing their merits in the qualifying examinations. Such a method, in our view, cannot be termed as arbitrary and violative of Article 14 of the Constitution of India.
10. Counsel appearing for the petitioner mainly relied upon the decision of the apex court in Dr. Dinesh Kumar's case (supra) and contended that the procedure adopted by the PSC is against the principle laid down by the apex court in the above mentioned decision wherein the qualifying examinations held by different Universities/States is violative of Article 14 of the Constitution of India. We are in this case concerned with a selection conducted by the PSC, a constitutional body, entrusted with the task of conducting a proper and fair selection to civil services and not with regard to die admission to various educational institutions on the basis of the marks obtained by candidates. In Dr. Dinesh Kumar's case apex court was dealing with the admission to the Professional Courses. In our view, the same yardstick cannot be adopted in selection conducted by the PSC for recruitment to civil post and to that of admission to professional courses. Even in the case of admission to Medical Colleges the apex court in T.P. Roshana's case (supra) held as follows:
The vagarious element in marking an moderation of marks may be a fact of life, but too marginal to qualify for substantial difference unless otherwise made out. Indeed, there may be differences among the colleges under the same University, among the examiners in the same University. Such fleeting factors or ephemeral differences cannot be the solid foundation for a substantial differentiation which is the necessary pre-condition for quashing an executive or legislative act as too discriminatory to satisfy the egalitarian essence of Article 14. The functional validation of the writ jurisdiction is an appropriate examination of the substitutability of the alleged disparity.... We are persuaded to make these observations for future guidance, so that academic schemes may not be struck down as arbitrary or irrational save where some sound basis has been laid.
The Division Bench of this Court in Mohan's case after referring to the judgment of this Court in State of Kerala v. Rafia Rahim 1978 KLT 369 and Dr. Dinesh Kumar's case, felt that the approach of the court exercising its extra ordinary jurisdiction in the matter of selection and appointment affected by a body like PSC would be different from that of admission to the Professional Courses. The Division Bench felt that the principles governing aspects of admissions to Medical Colleges and Public employment have been distinct and separate. The apex court in Anzar Ahamed v. State of Bihar AIR 1994 SC 141 upheld the selection made by the PSC to the post of Unani Medical Officers on the basis of interview and also the academic performance. Commission in that case gave weightage of 50% marks for academic performance and 50% marks for interview. The apex court held by giving equal weightage to academic performance, the Commission had rather reduced the possibility or arbitrariness. State of Tamil Nadu, it may be pointed out, have done away with Common Entrance Examination even for admission to the professional courses and have decided to accept the marks in the qualifying examination as the criteria for admission. The procedure was challenged before the Madras High Court in Minor S. Aswin Kumar v. State of Tamil Nadu but without success. The court held has follows:
Abolition of Common Entrance Test does not have the ipso facto effect of lowering the standard. The only effect is that selection is not based on a common platform and therefore vulnerable to the attack based on the Principle of Equality. This vulnerability has been overcome by equalisation. As a matter of fact, the basic conclusion in both the Division Bench decisions is that without common Entrance Test the Principle of Equality would be offended. Even the object of Common Entrance Test (without even a minimum pass mark) is only to ensure equality and not minimum merit. If equality can be achieved up to a reasonable level by any another method, no objection can be sustained. Absolute equality is a myth, even when Common Entrance Test is held because of the inherent possibility of ticking some answers more by guess as in KBC T.V. programme rather than by any conscious selection of the right answer.
In this case we may also refer to the decision of the Division Bench in Kerala Self Financing Engineering College Managements Association v. The Admission Supervisory Committee for Professional Colleges and Anr. 2007(2) KHC 916 wherein the Bench held that adopting a method of equalisation, marks awarded in the qualifying examination can also be reckoned.
11. Common Written Test and qualifying Examination Written test is only a method of selection, primarily intended to provide a common platform to ensure equality between, the candidates. But it cannot be said that it is the only sure and safe method to find out the best of the lot. Independent of that or added to that - any other method which would still help the appointing authority or even the Entrance Examiner for admission to professional colleges, to find out the best should be welcomed, provided the method is fair and reasonable. Marks obtained by candidates in the qualifying examinations cannot be said to be not a yardstick to measure merit, even if the candidates qualify themselves in various examinations conducted by different educational institutions, of course the inequality between the qualifying examinations should be reduced by adopting a system of equalisation of marks through normalisation process. To ignore the marks obtained by a candidate in the qualifying examination as a whole may be suicidal, after all, students take a qualifying examination after undergoing a system of education which develops their overall personality. If we ignore the qualifying examination completely that would affect the very standard of education in the State because the students would be concentrating more on the Entrance Examination rather than the qualifying examination.
12. Common Entrance Test causes undue hardship and harassment to the socially and economically backward and weaker section of the people hailing from both urban and rural areas. For getting higher ranks in the common entrance examination it is an almost accepted fact that the candidates have to undergo rigorous coaching in Coaching Centres which many of the students from the marginalised sections of the society can ill-afford. But by reckoning the marks in the qualifying examination by employing a normalisation method, inequality between the standard of education prevailing in various universities and other educational institutions can be minimised to a large extent. Results of a qualifying examination is generally a reflection of the overall standard of the candidate and his perception, PSC in our view has taken a conscious decision to give weightage for credits to the marks obtained by the candidates in the qualifying examination following a method of grading which would only increase the quality of selection, consequently a better qualified and meritorious candidates could be selected for the post, a method which even can be tested for admission to the Professional Courses.
13. PSC in the case followed a procedure which in our view is fair and reasonable. Of course there may be still scope for improvement to attain the ultimate goal of hundred percent equality, which may be a far fetched dream but more and more innovative methods need to be explored and applied so that we will be nearer to the ultimate goal.
14. We therefore find no reason to differ with view expressed by the Division Bench in Mohan's case (supra), so also the judgment of the learned single Judge in WP(C) No. 178 of 2005. We find no illegality in the procedure followed by the PSC. Writ petitions therefore lack merits and are dismissed.