Kerala High Court
Dr.Mary Juliet Francis vs Kerala Public Service Commission on 16 March, 2009
Bench: K.Balakrishnan Nair, A.K.Basheer, P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11916 of 2005(R)
1. DR.MARY JULIET FRANCIS,
... Petitioner
Vs
1. KERALA PUBLIC SERVICE COMMISSION,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
3. DR.JACOB MATHEW,
For Petitioner :SRI.P.SANKARANKUTTY NAIR
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :16/03/2009
O R D E R
CR
K.Balakrishnan Nair, A.K.Basheer & P.N.Ravindran, JJ.
========================================
W.P. (C) Nos.11916 of 2005, 11906, 17352, 18409, 22710,
23272, 23799 of 2006, 2926, 3244, 9833, 11105,
12347, 14846, 15805, 18588, 18637, 18893, 19186,
21033, 21735, 23900 & 28848 of 2007
==============================
Dated this the 16th day of March, 2009
JUDGMENT
Ravindran,J.
These writ petitions have been referred to us to decide whether the decision of the Division Bench of this Court in Ajayan v. State of Kerala [2006(3) KLT 854] has been correctly decided. The main issue raised in these writ petitions is whether Rule 11 of the Kerala Public Service Commission Rules of Procedure, hereinafter referred to as the "Rules" for short, and Condition No.9 of the General Conditions which forms part of every notification issued by the Kerala Public Service Commission, hereinafter referred to as the "Commission" for short, empower and authorize the Commission to prescribe cut off marks to shortlist the candidates to be called for interview/physical efficiency test. Writ Petition (C) Nos.11916 of 2005 and 23272 of 2006
2. These Writ Petitions relate to appointment to the post of Veterinary Surgeon Grade II in the Animal Husbandry Department. Writ Petition (C) No.11916 of 2005 is treated as the main case and the documents referred to are those produced and marked therein. By Ext.P1 notification published in the Kerala Gazette dated 26.8.2003, the Commission invited WP(C) 11916/05, etc. -: 2 :- applications for appointment by direct recruitment to the post of Veterinary Surgeon Grade-II in the Animal Husbandry Department. The number of vacancies notified was 81 and the last date fixed for receipt of applications was 22.10.2003. A written test was conducted on 25.8.2004 and thereafter, Ext.P6 shortlist of 294 candidates, consisting of 195 in the main list and 99 in the supplementary lists was published on 10.12.2004. After verification of documents, 6 candidates who were found ineligible to apply were excluded from the shortlist. In Ext.P6 shortlist it is stated that candidates who have obtained 50 marks and above have been included in the Main List and that cut off marks have been lowered to the extent necessary in respect of candidates included in the supplementary list. The shortlisted candidates were interviewed between 22.4.2005 and 28.4.2005 and a ranked list was published on 2.7.2005. The petitioners contend that though only 81 vacancies had been notified, the vacancies had increased due to retirement/creation of additional posts, that the Commission does not have the power or authority to prescribe cut off marks for preparing the shortlist and that the Commission has not ensured that candidates corresponding to 3 to 5 times the total number of notified/anticipated vacancies are included in the shortlist. The petitioners contend that by prescribing cut off marks, eligible candidates were excluded from the shortlist and that prescription of cut off marks is illegal. They rely on the decision of the Division Bench of this Court in Ajayan v. State of Kerala (supra) in support of their WP(C) 11916/05, etc. -: 3 :- contention that the Commission cannot prescribe cut off marks and thereby exclude eligible candidates from being considered for selection.
3. The Commission has filed a counter affidavit and an additional counter affidavit in W.P.(C) No.11916 of 2005 contending inter alia that from the ranked list published on 2.7.2005 candidates were advised against the notified vacancies and the vacancies that arose subsequently, that the main list of the ranked list was exhausted after advising 258 candidates, that a fresh notification was thereupon issued on 15.1.2007, that 566 candidates were admitted for the written test held on 19.12.2007 and that the petitioner has also applied for the post. The Commission has also contended that they have the power to fix cut off marks to shortlist candidates. In the counter affidavit filed in W.P(C) No.23272 of 2006, the Commission has stated that when Ext.P6 shortlist was finalized, 121 vacancies of Veterinary Surgeon Grade-II had been reported and were pending with them. The petitioner in W.P.(C) No.11916 of 2005 has filed a reply affidavit contending that in the year 2001, about 400 candidates were advised for appointment to the post of Veterinary Surgeon Grade-II, that as 258 candidates were advised from the ranked list published on 2.7.2005, inclusion of only 195 candidates in the main list of Ext.P6 short list is arbitrary and illegal and that in the main list of the shortlist at least 81x3 = 243 candidates ought to have been included.
Writ Petition (Civil) Nos.11906 of 2006 and 2926 of 2007 WP(C) 11916/05, etc. -: 4 :-
4. These Writ Petitions relate to appointment to the post of L.D. Compiler/Investigator/Punch Card Operator in the Economics and Statistics Department. W.P.(C) No.2926 of 2007 is treated as the main case and the documents referred to are those produced and marked therein. By Ext.P1 notification published in the Kerala Gazette dated 15.6.2004, the Commission invited applications for appointment by direct recruitment to the post of L.D. Compiler/Investigator/Punch Card Operator in the Economics and Statistics Department in all the revenue districts. Except in Malappuram District, where the notified vacancy was 1, in the other Districts, the number of vacancies was not estimated. The last date fixed for receipt of applications was 28.7.2004. In Palakkad District, with which we are concerned, 7462 candidates applied for the post. A written test was conducted on 22.10.2005 and thereafter, Ext.P2 shortlist consisting of 20 candidates in the main list and 26 candidates in the supplementary lists was published on 18.2.2006. Ext.P2 states that candidates who have obtained 68 marks and above have been included in the main list of the short list and that cut off marks have been lowered to the extent necessary in respect of candidates included in the supplementary lists. Ext.P3 ranked list was thereafter published on 28.3.2006 wherein, 19 candidates were included in the main list and 23 in the supplementary lists. In Ext.P3 also it is stated that candidates who have obtained 68% marks and above have been included in the main list and that cut off marks have been lowered to the extent necessary in WP(C) 11916/05, etc. -: 5 :- respect of candidates belonging to the communities eligible for reservation. After W.P.(C) No.2926 of 2007 was filed, the Commission published Ext.P9 notification in the Kerala Gazette Extra Ordinary dated 12.3.2007 inviting applications for appointment to 21 vacancies of L.D. Compiler/Investigator/Punch Card Operator in Palakkad District.
5. The petitioners contend that more than 50 vacancies of L.D. Compiler/Investigator/Punch Card Operator were available in Palakkad District, that 19 candidates from the main list and 9 candidates from the supplementary lists were advised on 9.5.2006 and that further advices could not be made since by the advices made on 9.5.2006, the main list of 19 candidates was exhausted. The petitioners rely on Ext.P4, Ext.P5, Ext.P7 and Ext.P8 letters to contend that at least 48 vacancies had been reported to the Commission before Ext.P2 shortlist was published, that the 21 vacancies notified in Ext.P9 notification dated 12.3.2007 are vacancies which were available when Ext.P2 shortlist and Ext.P3 ranked list were published and that by prescribing 68% marks as the cut off marks, the Commission has excluded a large number of candidates from being considered for selection to the post of L.D. Compiler/Investigator/ Punch Card Operator in Palakkad District.
6. The Commission has filed a counter affidavit in W.P.(C) No.11906 of 2006 contending inter alia that the number of vacancies in Palakkad District had not been estimated when Ext.P1 notification was issued, that while the selection was in progress, 8 vacancies were reported to the WP(C) 11916/05, etc. -: 6 :- Commission and therefore, a shortlist was prepared on that basis. It is further contended that the petitioner cannot seek enlargement of the ranked list so as to include more candidates, taking note of the vacancies presently in existence. The Commission also contends that the process of selection is a continuing process and the fact that the ranked list is exhausted before all the vacancies that arose in the meanwhile could be filled up does not matter for the reason that the Commission will immediately take steps to notify the vacancies afresh so that candidates who become qualified subsequently will also be able to compete. A counter affidavit has been filed on behalf of the Deputy Director of Economics and Statistics, Palakkad, wherein it is stated that as on the date of preparation of Ext.P2 shortlist, the actual vacancies were 46 and that the said vacancies had been reported to the Commission by 20.1.2006. It is also stated that though all the 25 candidates advised by the Commission were appointed, only 16 candidates joined duty and that 9 non joining duty vacancies were reported to the Commission by letter dated 19.8.2006. It is further stated that the District Officer of the Commission has in his letter dated 28.8.2006 informed the Deputy Director of Economics and Statistics, that the advice memos issued to the 9 candidates who did not join duty have been cancelled. Writ Petition (Civil) Nos. 17352 of 2006, 18409 of 2006, 22710 of 2006 and 23799 of 2006.
7. These Writ Petitions relate to appointment to the post of Lecturer WP(C) 11916/05, etc. -: 7 :- in Law in the Collegiate Education Department. W.P.(C) No.18409 of 2006 is treated as the main case and the documents referred to are those produced and marked therein. By Ext.P1 notification published in the Kerala Gazette dated 29.5.2005, the Commission invited applications for appointment by direct recruitment to the post of Lecturer in Law. The number of vacancies notified was 3. The last date fixed for receipt of applications was 11.5.2005. Pursuant to Ext.P1, a written test was conducted on 7.4.2006 and thereafter, Ext.P4 shortlist consisting of 16 candidates in the main list and 18 in the supplementary lists was published on 19.6.2006. Ext.P4 shortlist states that candidates who have obtained 60 marks and above have been included in the main list of the short list and that cut off marks have been lowered to the extent necessary in respect of candidates included in the supplementary lists. After interviewing the shortlisted candidates, Ext.P11 ranked list was published on 23.11.2006 wherein, 15 candidates are included in the main list and 17 in the supplementary lists. The petitioners contend that though only 3 vacancies had been notified, 16 vacancies were in existence when Ext.P4 shortlist was published, that 7 vacancies were anticipated to arise in the next two years viz. 2005 and 2006 and that the action of the Commission in restricting the number of candidates included in the main list of the shortlist to 16, by resorting to prescription of cut off marks, is arbitrary and illegal.
8. A statement dated 5.8.2006 has been filed on behalf of the State WP(C) 11916/05, etc. -: 8 :- of Kerala wherein it is stated that as per letter No.11998/C1/04/H.Edn dated 9.12.2004, the Government had reported 3 anticipated vacancies of Lecturer in Law in Government Law Colleges to the Commission, that subsequently 5 more vacancies arose during the years 2005-2006, and that the actual number of vacancies of Lecturer in Law in Government Law Colleges is 8. The Commission has filed a counter affidavit, relying on Ext.R1(a), Circular No.30 of 2003 dated 1.12.2003 and contending inter alia that it is open to the Commission to decide on the number of candidates to be included in the shortlist depending on the number of vacancies reported to them, the number of candidates advised from the previous list, the nature of the post and the chances of occurrence of vacancies in future. It is contended that 60 marks was not fixed as the cut off mark, that when the Commission prepared Ext.P4 shortlist of candidates it decided to restrict the number of candidates to be called for interview and that all the candidates who had secured the marks secured by the last of such candidates were also included in the shortlist. Relying on Ext.R1(a) circular, the Commission contends that it had only decided to restrict the number of candidates to be short listed for the purpose of interview and that the decision to include in the shortlist only those candidates who have secured 60 marks and above in the written test is not a decision fixing a cut off mark as such, but the effect of limiting the number of candidates to be shortlisted. The Commission also contends that they are not always bound to include candidates WP(C) 11916/05, etc. -: 9 :- corresponding to 3 to 5 times the number of existing/anticipated vacancies in the shortlist and that the writ petitions are bad for non- joinder of necessary parties.
Writ Petition (Civil) Nos. 3244 of 2007, 9833 of 2007, 11105 of 2007, 12347 of 2007, 14846 of 2007, 15805 of 2007, 18588 of 2007, 18637 of 2007, 18893 of 2007, 19186 of 2007, 21033 of 2007, 21735 of 2007, 23900 of 2007 and 28848 of 2007.
9. These Writ Petitions relate to appointment to the post of Police Constable in the Armed Police Battalions in Thiruvananthapuram, Kollam, Kottayam, Ernakulam, Thrissur, Malappuram and Kannur districts. W.P (C) Nos.18637 and 23900 of 2007 relate to Thiruvananthapuram District; W.P.(C) Nos.3244, 11105, 21033 and 28848 of 2007 relate to Kollam District; W.P.(C) Nos.15805 and 21735 of 2007 relate to Kottayam District; W.P.(C) No.18588 of 2007 relates to Ernakulam District; W.P.(C) Nos.9833 and 14846 of 2007 relate to Malappuram District and W.P.(C) Nos.12347, 18893 and 19186 of 2007 relate to Kannur District. By a notification published in the Kerala Gazette dated 28.6.2005, the Commission invited applications from eligible persons for appointment by direct recruitment to the post of Police Constable in the Armed Police Battalions in Thiruvananthapuram, Kollam, Kottayam, Ernakulam, Thrissur, Malappuram and Kannur districts. The vacancies had not been estimated in the notification. A written test was held by the Commission on 4.3.2006 in respect of all the Districts and shortlists of candidates to be called for the physical efficiency test were thereafter published on WP(C) 11916/05, etc. -: 10 :- 18.12.2006 for Thiruvananthapuram District, on 8.1.2007 for Kollam District, on 5.12.2006 for Kottayam District, on 30.12.2006 for Ernakulam District, on 6.1.2007 for Thrissur District, on 28.12.2006 for Malappuram District and on 10.1.2007 for Kannur District. The ranked lists were thereafter published on 9.5.2007 in Thiruvananthapuram District, on 24.3.2007 in Kollam District, on 2.4.2007 in Kottayam District, on 16.4.2007 in Ernakulam District, on 4.5.2007 in Thrissur District and on 18.4.2007 in Malappuram and Kannur Districts. The petitioners state that the Commission had fixed cut off marks for various Districts at different levels viz., 57 marks for Thiruvananthapuram, 63 marks for Kollam, 49 marks for Kottayam, 54 marks for Ernakulam, 48 marks for Thrissur, 59 marks for Malappuram and 46 marks for Kannur and that there is no rationale in fixing different cut off marks for the Armed Police Battalions in various Districts. The petitioners contend that as the Commission did not stipulate the minimum marks to be secured in the written test in the notification inviting applications, it did not have the power to exclude candidates based on cut off marks. It is also contended that adequate number of candidates corresponding to 3 to 5 times the number of vacancies existing and anticipated had to be included in the shortlists and that having not been done, the prescription of cut off marks and exclusion of candidates from the shortlist are bad in law.
10. The Commission has along with the affidavit dated 12.3.2008 filed WP(C) 11916/05, etc. -: 11 :- in W.P.(C) No.18893 of 2007 produced Ext.R1(c), a tabular statement setting out the total number of applications received, the number of candidates short listed, the number of vacancies available at the time when the Commission decided to shortlist candidates and also on the date when the shortlist was prepared, the number of candidates included in the short lists and the ranked lists and the number of candidates advised by the Commission for appointment to the post of Police Constable in the Armed Police Battalions in various Districts. It is also stated that a fresh notification was issued on 15.9.2007 inviting applications for appointment by direct recruitment to the post of Police Constables in the Armed Police Battalions in various Districts. Pursuant to the notification issued by the Commission on 28.6.2005, 28752 candidates applied in Thiruvananthapuram District, 30766 candidates in Kollam District, 20261 candidates in Kottayam District, 20499 candidates in Ernakulam District, 33774 candidates in Thrissur District, 34184 candidates in Malappuram District and 30725 candidates in Kannur District. The statement filed by the Commission discloses that in Thiruvananthapuram District 28601 candidates, in Kollam District 28332 candidates, in Kottayam District 18512 candidates, in Ernakulam District 18936 candidates, in Thrissur District 31262 candidates, in Malappuram District 30637 candidates and in Kannur District 28300 candidates were called for the written test held on 4.3.2006. The Commission thereafter published separate shortlists for the various Districts. The break up of WP(C) 11916/05, etc. -: 12 :- candidates included in the main list and in the supplementary lists of the shortlists published by the Commission is as follows:
Thiruvananthapuram District Total number of candidates : 2363 Main list : 677 Supplementary lists : 1686 Kollam District Total number of candidates : 1053 Main list : 301 Supplementary lists : 752 Kottayam District Total number of candidates : 1071 Main list : 302 Supplementary lists : 769 Ernakulam District Total number of candidates : 998 Main list : 285 Supplementary lists : 713 Thrissur District Total number of candidates : 3852 Main list : 1109 Supplementary lists : 2743 Malappuram District :
Total number of candidates : 869
Main list : 243
Supplementary lists : 626
WP(C) 11916/05, etc. -: 13 :-
Kannur District
Total number of candidates : 3430
Main list : 979
Supplementary lists : 2451
11. All the shortlisted candidates were called for the physical efficiency test. In Thiruvananthapuram District, out of 2363 shortlisted candidates only 1668 candidates appeared for the physical efficiency test and out of them 1099 candidates passed the test. In Kollam District, out of 1053 shortlisted candidates, only 664 candidates appeared for the physical efficiency test and out of them 422 candidates passed the test. In Kottayam District, out of 1071 shortlisted candidates only 853 candidates appeared for the physical efficiency test and out of them 592 candidates passed the test. In Ernakulam District, out of 998 shortlisted candidates only 752 candidates appeared for the physical efficiency test and out of them 570 candidates passed the test. In Thrissur District, out of 3852 shortlisted candidates, only 3073 candidates appeared for the physical efficiency test and out of them 1894 candidates passed the test.
In Malappuram District, out of 869 shortlisted candidates, only 586 candidates appeared for the physical efficiency test and out of them 346 candidates passed the test. In Kannur District, out of 3430 shortlisted candidates only 2486 candidates appeared for the physical efficiency test and 1457 candidates passed the test. The statement filed by the Commission discloses that when they decided to shortlist candidates, the total number of vacancies reported to the Commission was 259 in WP(C) 11916/05, etc. -: 14 :- Thiruvananthapuram District, 158 in Kollam District, 136 in Kottayam District, 136 in Ernakulam District, 513 in Thrissur District, 99 in Malappuram District and 452 in Kannur District. After the physical efficiency test was held, a ranked list consisting of 315 candidates in the main list and 784 candidates in the supplementary lists was published on 9.5.2007 in respect of Thiruvananthapuram District. In respect of Kollam District, a ranked list consisting of 108 candidates in the main list and 314 candidates in the supplementary lists was published on 24.3.2007. In respect of Kottayam District, a ranked list consisting of 137 candidates in the main list and 421 candidates in the supplementary lists was published on 2.4.2007. In respect of Ernakulam District, a ranked list consisting of 146 candidates in the main list and 418 candidates in the supplementary lists was published on 16.4.2007. In respect of Thrissur District, a ranked list consisting of 538 candidates in the main list and 1356 candidates in the supplementary lists was published on 4.5.2007. In respect of Malappuram District, a ranked list consisting of 86 candidates in the main list and 249 candidates in the supplementary lists was published on 18.4.2007. In respect of Kannur District, a ranked list consisting of 445 candidates in the main list and 998 candidates in the supplementary lists was published on 18.4.2007. When the ranked lists were published, the vacancy position was 336 in Thiruvananthapuram District, 206 in Kollam District, 138 in Kottayam District, 187 in Ernakulam District, 513 in Thrissur District, 114 in WP(C) 11916/05, etc. -: 15 :- Malappuram District and 455 in Kannur District. The statement also discloses that the ranked list stood exhausted in Thiruvananthapuram District on 25.1.2008, in Kollam District on 9.5.2007, in Kottayam District on 12.7.2007, in Ernakulam District on 22.6.2007 and in Malappuram District on 28.5.2007. As on the date on which the tabular statement was filed, 2 candidates alone remained to be advised from the main list in Thrissur District and 9 candidates alone remained to be advised from the main list in Kannur District. The tabular statement also discloses that from the previous ranked lists, over a period of 3 years, 1426 candidates were advised in Thiruvananthapuram District, 1665 candidates were advised in Kollam District, 1115 candidates were advised in Kottayam District, 1284 candidates were advised in Ernakulam District, 1474 candidates were advised in Thrissur District, 1687 candidates were advised in Malappuram District and 1382 candidates were advised in Kannur District.
12. The Commission has filed a counter affidavit dated 20.7.2007 in W.P.(C) No.18893 of 2007 contending inter alia that Condition No.9 of the General Conditions empowers the Commission to restrict the number of candidates to be called for the oral test (interview) to such extent as they may decide on the basis of the qualifications/marks/written test/practical test or on any other basis. The Commission has also contended that Ajayan v. State of Kerala (supra) has not been correctly decided and requires reconsideration. The Commission has in the WP(C) 11916/05, etc. -: 16 :- affidavit dated 12.3.2008 filed in W.P.(C) No.18893 of 2007, relying on the decision of the Apex Court in Ashok Kumar Yadav and others v. State of Haryana and others - (1985) 4 SCC 417, contended that they are empowered to restrict the number of candidates to be called for the interview and that such restriction on the number of candidates to be called for the interview, will only help to improve the quality of the selectees. The Commission has also relied on Circular No.30 of 2003 dated 1.12.2003 [Ext.R1(a)] and Circular No.27 of 2006 dated 26.6.2006 [Ext.R1(b)] to contend that the number of candidates to be included in the shortlist cannot be decided mechanically but has to be decided in each case considering the number of vacancies reported, the number of candidates advised previously, the nature of the post and chances of occurrence of vacancies. It is stated that the number of candidates to be included in the supplementary lists has to be decided by the Commission in each case considering the turn at which the rotation stands and the number of pending turns such as Non Joining Duty/Temporary Pass Over/No Candidate Available, etc. to be satisfied, bearing in mind that the communities entitled for reservation should not loose their turn due to paucity of candidates. The Commission contends that after the number of candidates to be included in the shortlist is decided, the number of candidates who have secured the top marks is ascertained and if the desired number of candidates cannot be obtained on the basis of such marks, and if the next lower range of marks is taken, it would WP(C) 11916/05, etc. -: 17 :- exceed this number, then the nearest number in the higher range alone will be taken into account. By way of illustration it is submitted that if the Commission decides to include the top 100 candidates in the main list of the shortlist and while preparing the shortlist there are only 95 candidates in a particular range of marks, the range of marks is to be lowered in order to reach 100 candidates. But, if on lowering the range of marks, the number reaches 110 or 115, i.e. above 100, then the nearest number i.e. 95 is to be reckoned as the number of candidates to be included in the main list. The marks secured by the last candidate included in the main list of the shortlist are also indicated in the shortlist, so as to ensure transparency and dissemination of information. This, the Commission contends is not strictly speaking, a decision prescribing cut off marks.
13. The marks secured by the last candidate included in the main list of the shortlist prepared by the Commission in the manner indicated above, cannot be termed as fixation of a cut off mark, it is contended. The Commission further contends that prescription of cut off marks, as contended by the petitioners, is the prescription of a particular mark as the bench mark without any consideration for the number of candidates to be called for interview. The preparation of the main list of the shortlist is predominantly based on the decision taken by the Commission about the size of the shortlist and in this process, the range of marks secured by the candidates may have an incidental bearing, it is submitted. The WP(C) 11916/05, etc. -: 18 :- Commission also contends that there is no need to prepare a shortlist which is always 3 to 5 times the number of existing/anticipated vacancies, which the Commission states would be a colossal waste of time and precious resources. It is also contended that Circular No.17 of 1987 relied on by the petitioners has been modified by issuing Ext.R1(a) circular wherein, the guidelines for preparing the main list of the shortlist have been laid down and that Ext.R1(b), Circular No.27 of 2006 dated 26.6.2006 was issued altering the method of preparation of the supplementary lists of the shortlist in view of Rule 14(e) of Part II of the Kerala State and Subordinate Services Rules, 1958 as amended in the year 2006. The Commission also contends that the shortlists for the post of Police Constable in the various Armed Police Battalions were prepared in accordance with the stipulations in Ext.R1(a) and Ext.R1(b) and that adequate number of candidates has been included therein.
14. We heard Sri.M.V.Bose, Sri.T.V.Ajay Kumar, Sri.Kaleeswaram Raj, Sri. V.Rajendran, Sri.O.D.Sivadas, Sri.P.T.Dinesh and Dr.George Abraham, the learned counsel appearing for the writ petitioners, Sri.T.B.Hood, the learned Senior Government Pleader appearing for the State of Kerala, Sri. Alexander Thomas, the learned standing counsel appearing for the Commission and Sri.K.R.B. Kaimal, the learned Senior Advocate appearing for the party respondents. The learned counsel appearing for the petitioners contended that as the Rules do not contemplate the preparation of a shortlist of candidates to be called for the interview and WP(C) 11916/05, etc. -: 19 :- as Rule 11 of the Rules enables the Commission to prescribe the minimum or minima of marks only for inclusion in the ranked list, the Commission cannot fix cut off marks for preparation of the shortlist. The learned counsel for the petitioners also contended that Condition No.9 of the General Conditions which forms part of every notification issued by the Commission is referable to Rule 5 of the Rules which applies only to selection by an oral test (interview) and therefore, Condition No.9 also cannot be relied on to prescribe cut off marks to shortlist candidates. The learned counsel for the petitioners also contended that Rule 11 of the Rules and Condition No.9 of the General Conditions do not authorize and empower the Commission to fix cut off marks and that if the mark secured in the written test is taken as the basis to shortlist candidates to be called for the interview, then it would amount to a selection before the interview. Dr.George Abraham, one among the learned counsel appearing for the writ petitioners contended that selection to the post of Police Constables is by holding a written test followed by physical efficiency test and as interview is not part of the selection process, Rule 5 has no application. Sri.T.B.Hood, the learned Senior Government Pleader appearing for the State of Kerala contended that the eligibility conditions and qualifications can be fixed only by the State Government and that though the Commission could shortlist candidates for the purpose of interview, they cannot fix cut off marks to shortlist candidates. The learned counsel appearing for the petitioners WP(C) 11916/05, etc. -: 20 :- and the learned Senior Government Pleader contended, relying on the decisions of the Apex Court in State of Punjab and others v. Manjit Singh and others - A.I.R. 2003 S.C. 4580 and Inder Prakash Gupta v. State of J & K and others - (2004) 6 S.C.C. 786 that the Commission cannot prescribe cut off marks for the purpose of shortlisting, that Rule 11 of the Rules and Condition No.9 of the General Conditions do not empower the Commission to prescribe cut off marks and that the Commission has to shortlist candidates in such a manner that the number of shortlisted candidates corresponds to 3 to 5 times the number of vacancies.
15. Per contra; Sri. Alexander Thomas, the learned standing counsel appearing for the Commission and Sri.K.R.B. Kaimal, the learned Senior Advocate appearing for the party respondents contended that the Commission has not fixed cut off marks as such and that the power of the Commission to shortlist candidates is not confined to cases where the method of appointment is by oral test (interview) alone. Relying on the decision of the Apex Court in State of U.P. v. Rafiquddin and others
- 1987 (Supp) S.C.C. 401, they contended that cut off marks can be fixed during the process of selection. They further contended that the issue before the Apex Court in State of Punjab and others v. Manjit Singh and others (supra) arose out of a recruitment process that did not involve the holding of a written test and therefore no test could have been held and cut off marks could not have been fixed to shortlist the WP(C) 11916/05, etc. -: 21 :- candidates to be called for the interview. They further contended that all that the Commission had done is to fix the size of the shortlist and that in that process, all the candidates who have secured the same marks as the last of the candidate falling within that group were also included in the shortlist. They further contended that in Inder Prakash Gupta v. State of J & K and others (supra), the Apex Court had only held that cut off marks cannot be fixed in a case where the method of recruitment is based on interview alone. In the cases on hand, as the interview was preceded by a written test, the Commission had the right and authority to shortlist candidates, bearing in mind the vacancy position and the anticipated vacancies, it is contended. The learned counsel for the Commission also referred to and relied on the decision of a Division Bench of this Court in Indulekha v. State of Kerala - 2001 (1) KLT 951 to contend that the Commission can shortlist the candidates to be called for the interview on the basis of the marks obtained by them in the written test and that the Commission is not bound to shortlist all the candidates who have appeared for the written test.
16. The power of the Commission to shortlist candidates is not in dispute before us. The dispute centres round the question whether the Commission can fix cut off marks to shortlist candidates and whether in the cases on hand, shortlisting of candidates was done by prescribing cut off marks. In the nature of the contentions advanced on either side, it is necessary to refer to Condition No.9 of the General Conditions which WP(C) 11916/05, etc. -: 22 :- forms part of every notification issued by the Commission inviting applications for appointment to various posts and also the relevant rules. Condition No.9 of the General Conditions is extracted below.
"Where the number of qualified applicants is unduly large, having regard to the number of vacancies, the Commission may restrict the number of candidates to be called for oral test (interview) to such extent as they may decide on the basis of qualification/marks/written test/practical test or on any other basis."
17. Rule 2(c) of the Rules defines the term "Examination" to include written examinations, practical examinations, physical efficiency test, oral test (interview) and any other test or examinations which the Commission may deem fit to hold. Rule 2(g) defines the term "Ranked List" as a list of candidates arranged in the order of merit, either on the basis of the interview or examination or by both. Rule 3 stipulates that the Commission may conduct all or any one or more of the following examinations, namely written test or practical test or physical efficiency test or oral test (interview) or any other test or examination, which the Commission may deem fit to hold, to assess the merits of the candidates considered for recruitment to a service or post. Rule 4 of the Rules stipulates that where a written examination and/or a practical test is conducted by the Commission for recruitment to a service or post, the Commission shall-
(i) Announce:
WP(C) 11916/05, etc. -: 23 :-
(a) the qualifications required of the candidates for the examination,
(b) the conditions of admission to the examination including the fees,
(c) the subjects, scheme or syllabus of the examination, and
(d) the number of vacancies to be filled from among the candidates for the examination.
(ii) invite applications and consider all the applications so received,
(iii) make all arrangements for the conduct of the examination for the candidates whose applications are found to be in order, and
(iv) prepare a list in the order of merit of such number of candidates as the Commission may determine from time to time.
18. Rule 5 of the Rules stipulates that where an oral test (interview) alone is to be conducted by the Commission for recruitment to a service or post, the Commission shall:-
(i) announce the qualification and other conditions including fee required of candidates and the number of vacancies to be filled up;
(ii) invite applications, consider all applications so received and interview the candidates whose applications are found to be in order.
The first proviso to Rule 5(ii) stipulates that where the number of qualified applicants is unduly large, having regard to the number of vacancies, the Commission may restrict the number of candidates to be WP(C) 11916/05, etc. -: 24 :- called for the oral test (interview) to such extent as they may decide after conducting any examination as they deem fit. The second proviso to Rule 5(ii) stipulates that the Commission may also restrict the number of candidates to be called for oral test (interview) on the basis of (a) higher qualification (b) higher marks and (c) age. The second proviso to Rule 5
(ii) was declared void as offending Article 14 of the Constitution by a Division Bench of this Court in Asokan v. State of Kerala - 1987(1) K.L.T.
44. Rule 11 empowers the Commission to decide whether any candidate possesses the prescribed qualifications for the post, the basis on which the marks should be awarded, the minimum or minima of marks for inclusion in the ranked list, the manner in which the practical examination, physical efficiency test or any other test or examination is to be conducted and to decide upon any other matter incidental to the selection. Rule 12 states that all the candidates interviewed and who have obtained not less than the minimum marks fixed by the Commission shall be included in the ranked list prepared in the order of merit.
19. In Ajayan v. State of Kerala (supra), the correctness of which arises for consideration, the Division Bench of this Court held that though the Commission can shortlist candidates where the number of candidates is very large, the criteria for shortlisting cannot be cut off marks unless the cut off mark is stipulated in the notification or in the rules governing the selection to the post or service. The Division Bench further held that WP(C) 11916/05, etc. -: 25 :- shortlisting should be done taking note of the existing vacancies and also the vacancies anticipated to arise during the currency of the list and that the manner in which the shortlisting is proposed to be done should be prescribed before the selection process commences. In Ajayan v. State of Kerala (supra), the Division Bench directed the Commission to assess the vacancies that may arise during the currency of the ranked list and to shortlist candidates, so that the number of candidates thus shortlisted corresponds to 3 to 5 times the total number of vacancies existing and anticipated. There was a further direction that shortlisting shall be done without fixing cut off marks. The Division Bench of this Court has in Ajayan v. State of Kerala (supra) relied on the decisions of the Apex Court in State of Punjab and others v. Manjit Singh and others (supra), Inder Prakash Gupta v. State of J & K and others (supra) and Siraj v. High Court of Kerala - 2006(2) K.L.T. 923. Though the Commission moved the Apex Court in Civil Appeal No.5626 of 2006, canvassing the correctness of the decision of the Division Bench in Ajayan v. State of Kerala (supra), the said appeal was dismissed on the ground that the appeal at the instance of the Commission is not maintainable. It is brought to our notice that the Commission has thereupon moved the Apex Court for review of the judgment in Civil Appeal No.5626 of 2006 and that the review petition is pending.
20. The power of the Public Service Commission to shortlist candidates has been the subject matter of judicial pronouncements of WP(C) 11916/05, etc. -: 26 :- this Court and the Apex Court. In State of Haryana v. Subash Chander Marwaha and others - (1974) 3 S.C.C. 220, the Apex Court held that where appointment is by selection from a large number of eligible candidates, it is open to the Government, with a view to maintain high standards of competence to fix a score higher than the one required for mere eligibility. The Haryana Public Service Commission invited applications for appointment to the post of Subordinate Judge in the Haryana Civil Service (Judicial Branch). In response to the advertisement, a number of candidates applied and appeared for the written test held in November, 1970. The result of the examination was declared and published in the Gazette dated 6.4.1971. The list contained the names of 40 candidates, who had secured 45% marks and above. 7 out of the 40 candidates were appointed. Though vacancies existed, other candidates were not appointed for the reason that the State Government had decided that candidates who have secured less than 55% marks in the examination should not be appointed as Subordinate Judges in the interests of maintaining high standards of competence in Judicial Service. The candidates who did not have the said requirement, moved the Punjab and Haryana High Court. They contended that the Government was not entitled to impose a new standard, namely, securing 55% marks in the written test when the Rules provided for a minimum of 45% marks. The High Court of Punjab and Haryana upheld their contention and held that the Government was not entitled to impose a new standard, namely, 55% WP(C) 11916/05, etc. -: 27 :- marks in the written test as a rule of eligibility. On appeal filed by the State of Haryana, the Apex Court held that though Rule 8 of the Rules framed by the Government for recruitment to the post of Subordinate Judges stipulates only 45% marks in the aggregate as a rule of eligibility, Rule 10(ii) states that candidates will be selected for appointment strictly in the order in which they have been placed by the Public Service Commission in the list of those who are qualified under Rule 8 and as Rule 10(ii) contemplates a selection for appointment, it is open to the Government, with a view to maintain high standards of competence to fix a score higher than the one required for mere eligibility.
21. In Ashok Kumar Yadav and others v. State of Haryana and others - (1985) 4 S.C.C. 417, a four Judges Bench of the Apex Court held interpreting Regulation 3 of the Regulations in Appendix I of the Punjab Civil Services (Executive Branch) Rules, 1930 that the Haryana Public Service Commission was not bound to call all the candidates who have secured 45% marks in the aggregate in all the subjects to appear for the viva-voce. It was held that though to become eligible to appear for the viva-voce, a candidate must obtain at least 45% marks in the aggregate in the written examination, it was open to the Haryana Public Service Commission to say that out of the candidates who satisfy the eligibility criterion, only a limited number of candidates at the top of the list will be called to appear for the viva-voce. After referring to the Kothari Committee's report on selection to the Indian Administrative Service and WP(C) 11916/05, etc. -: 28 :- other allied services and the practice followed by the Union Public Service Commission, the Apex Court held that where there is a composite test consisting of a written examination followed by a viva voce test, the number of candidates to be called for interview in the order of the marks obtained in the written examination, should not exceed twice or at the highest, thrice the number of vacancies to be filled. The Apex Court did not however interfere with the action of the Haryana Public Service Commission in calling for the interview all the candidates who had secured the minimum prescribed 45% marks in the written examination for the reason that the said decision was not actuated by any mala fide or oblique motive and it had been the consistent practice of the Haryana Public Service Commission over the years, to call all candidates who qualify in the written test for the interview.
22. In State of U.P. v. Rafiquddin and others (supra), the Apex Court considered the question whether the U.P. Public Service Commission was empowered to fix minimum qualifying marks for the viva voce test. The U.P. Public Service Commission issued a notification dated 3.9.1970 inviting applications for recruitment to the post of Munsiff. The number of vacancies notified was 85. 918 candidates appeared for the written test, out of whom, 294 candidates were called for the viva-voce based on the marks secured in the written examination. After the viva-voce was held, the Commission submitted a list of 46 candidates, who had secured the prescribed minimum of 40% marks in the written test and 35% marks WP(C) 11916/05, etc. -: 29 :- in the interview, for appointment. On receipt of the said communication, the Government requested the Commission to recommend some more candidates as there was shortage of Munsiffs. The Government also suggested that the minimum marks may be reduced from 40% to 35%. The Commission thereupon forwarded another list of 33 candidates for appointment to the post of Munsiff. All the 79 candidates were appointed on different dates. Later, another competitive examination was held in the year 1972 for appointment to the post of Munsiff. The number of vacancies notified was 150. After written test and interview, the Commission forwarded a list of 150 candidates to the Government for appointment and they were appointed between 1975 and 1977. Some of the candidates who did not come out successful in the 1970 examination represented to the Government to consider their case for appointment on the basis of the marks obtained by them. The Government requested the Commission to reconsider the result of the examinations conducted in the years 1967 to 1970 and to approve all candidates who have obtained 40% or more marks in the aggregate even if they might have failed to secure the minimum marks in the viva-voce. The Commission declined to act as requested by the Government. The Government pursued the matter and requested the Commission to forward the application forms and marks obtained by the unsuccessful candidates. The Commission expressed its inability to comply with the request of the Government, but forwarded a letter dated 19.6.1974 along WP(C) 11916/05, etc. -: 30 :- with a list of 37 candidates who had appeared for the 1970 examination and had obtained 40% marks in the aggregate, but had failed to secure 35% marks in the viva-voce. The said list contained the names of Sri.Rafiquddin and 36 others. The State Government obtained the approval of the High Court and appointed 21 out of the said 37 candidates as Munsiffs with a note that the appointments are being made on the basis of the 1970 examination and that their seniority will be decided later.
23. In March, 1977, the seniority list was prepared. 21 candidates including Sri.Rafiquddin were placed below those who were recruited in the 1972 examination. They claimed seniority over the persons recruited in the 1972 examination and moved the High Court of Allahabad. The learned Single Judge dismissed the writ petition. On appeal, the Division Bench of the Allahabad High Court held that they are entitled to seniority over the persons recruited in the 1972 examination. The judgment of the Division Bench was challenged by the State of Uttar Pradesh and also by the persons selected in the 1972 examination in the Apex Court and the Apex Court held that seniority on the basis of the year of the competitive examination is available only to those who were approved by the Commission on the basis of the marks secured in the written test and the viva-voce at the examination. It was held that Clause (2) of the proviso to Rule 19 of the U.P. Civil Service (Judicial Branch) Rules, 1951 confers power on the Commission to fix minimum marks for the viva-voce for WP(C) 11916/05, etc. -: 31 :- judging the suitability of the candidate for the service. The judgment of the Division Bench of the Allahabad High Court was accordingly set aside and in that context the Apex Court observed in paragraph 12 as follows:
"The Division Bench of the High Court observed that the Commission had no authority to fix any minimum marks for the viva voce test and even if it had such a power it could not prescribe the minimum marks without giving notice to the candidates. The Bench further observed that if the Commission had given notice to the candidates before the steps for holding the competitive examination were taken the candidates may or may not have appeared at the examination. In our opinion the High Court committed a serious error in applying the principles of natural justice to a competitive examination. There is a basic difference between an examination held by a college or university or examining body to award degree to candidates appearing at the examination and a competitive examination. The examining body or the authority prescribes minimum pass marks. If a person obtains the minimum marks as prescribed by the authority he is declared successful and placed in the respective grade according to the number of marks obtained by him. In such a case it would be obligatory on the examining authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. A person may obtain sufficiently high marks and yet he may not be selected on account of the limited number of posts WP(C) 11916/05, etc. -: 32 :- and availability of persons of higher quality. Having regard to the nature and characteristics of a competitive examination it is not possible nor necessary to give notice to the candidates about the minimum marks which the Commission may determine for purposes of eliminating the unsuitable candidates. The rule of natural justice does not apply to a competitive examination."
24. In M.P. Public Service Commission v. Navnit Kumar Potdar and another (1994) 6 SCC 293, the Apex Court considered the question whether the decision taken by the M.P. Public Service Commission to call for interview only those candidates who have completed 7= years of practice as an Advocate, instead of 5 years of practice as an Advocate for recruitment to the post of Presiding Officer of the Labour Court is arbitrary. While considering the question whether in the process of shortlisting, the Commission altered or substituted the criteria or the eligibility of a candidate to be considered for being appointed to the post of Presiding Officer of the Labour Court, the Apex Court held as follows:
"6. The question which is to be answered is as to whether in the process of short-listing, the Commission has altered or substituted the criteria or the eligibility of a candidate to be considered for being appointed against the post of Presiding Officer, Labour Court. It may be mentioned at the outset that whenever applications are invited for recruitment to the different posts, certain basic qualifications and criteria are fixed and the applicants must possess those basic qualifications and criteria before their applications can be entertained for consideration. The WP(C) 11916/05, etc. -: 33 :- Selection Board or the Commission has to decide as to what procedure is to be followed for selecting the best candidates from amongst the applicants. In most of the services, screening tests or written tests have been introduced to limit the number of candidates who have to be called for interview. Such screening tests or written tests have been provided in the concerned statutes or prospectus which govern the selection of the candidates. But where the selection is to be made only on basis of interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview. It has been impressed by the courts from time to time that where selections are to be made only on the basis of interview, then such interviews/viva voce tests must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate. (emphasis supplied)
7. Herman Finer in his book Theory and Practice of Modern Government at page 779 says:
"If we really care about the efficiency of the civil service as an instrument of Government, rather than as heaven-sent opportunity to find careers for our brilliant students, these principles should be adopted. The interview should last at least half an hour on each of two separate occasions. It should be almost entirely devoted to a discussion ranging over the academic interests of the candidate as shown in his examination syllabus, and a short verbal report could be required on such subject, the scope of which would be announced at the interview..."
8. The sole purpose of holding interview is to search and WP(C) 11916/05, etc. -: 34 :- select the best among the applicants. It is obvious that it would be impossible to carry out a satisfactory viva voce test if large number of candidates are interviewed each day till all the applicants who had been found to be eligible on basis of the criteria and qualifications prescribed are interviewed. If large number of applicants are called for interview in respect of four posts, the interview is then bound to be casual and superficial because of the time constraint. The members of the Commission shall not be in a position to assess properly the candidates who appear before them for interview. It appears that Union Public Service Commission has also fixed a ratio for calling the candidates for interview with reference to number of available vacancies.
9. In Kothari Committee's Report on the "Recruitment Policy and Selection Methods for the Civil Services Examination" it has also been pointed out in respect of interview where a written test is also held as follows:
"The number of candidates to be called for interview, in order of the total marks in written papers, should not exceed, we think, twice the number of vacancies to be filled...."
In this background, it is all the more necessary to fix the limit of the applicants who should be called for interview where there is no written test, on some rational and objective basis so that personality and merit of the persons who are called for interview are properly assessed and evaluated. It need not be pointed out that this decision regarding short-listing the number of candidates who have applied for the post must be based not on any extraneous consideration, but only to aid and help the process of WP(C) 11916/05, etc. -: 35 :- selection of the best candidates among the applicants for the post in question. This process of short-listing shall not amount to altering or substituting the eligibility criteria given in statutory rules or prospectus. In substance and reality, this process of short-listing is part of the process of selection. Once the applications are received and the Selection Board or the Commission applies its mind to evolve any rational and reasonable basis, on which the list of applicants should be short-listed, the process of selection commences. If with five years of experience an applicant is eligible, then no fault can be found with the Commission if the applicants having completed seven and half years of practice are only called for interview because such applicants having longer period of practice, shall be presumed to have better experience. This process will not be in conflict with the requirement of Section 8(3)(c) which prescribes the eligibility for making an application for the post in question. In a sense Section 8(3)(c) places a bar that no person having less than five years of practice as an advocate or a pleader shall be entitled to be considered for appointment to the post of Presiding Officer of the Labour Court. But if amongst several hundred applicants, a decision is taken to call for interview only those who have completed seven and half years of practice, it is neither violative nor in conflict with the requirement of Section 8(3)
(c) of the Act."
The method of selection to the post of Presiding Officer of the Labour Court was by interview. The Apex Court held that when there is no written test, shortlisting of applicants to be called for the interview has WP(C) 11916/05, etc. -: 36 :- to be rational and objective, that it must not be based on any extraneous consideration, but only to aid and help in the selection of the best among the candidates for the post in question. It was held that the process of shortlisting shall not amount to altering or substituting the eligibility criteria given in the statutory rules or the prospectus and that shortlisting is part of the process of selection. The action of the M.P. Public Service Commission in having shortlisted only candidates having 7= years of practice as an Advocate was held to be not arbitrary or violative of Section 8(3)(c) of the M.P. Industrial Relations Act, 1960.
25. In Dr. Krushna Chandra Sahu and others v. State of Orissa and others - (1995) 6 S.C.C. 1, the Apex Court held that the members of the Selection Board or for that matter, any Selection Committee do not have the jurisdiction to lay down the criteria for selection unless they are authorized specifically in that regard by the rules made under Article 309 of the Constitution. It was held that the Selection Committee does not have the inherent jurisdiction to lay down the norms for selection, nor can such power be assumed by necessary implication. It was also held that the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection.
26. In State of Punjab and others v. Manjit Singh and others (supra), the Apex Court considered the question whether the Punjab Public Service Commission was competent to resort to a screening test with a WP(C) 11916/05, etc. -: 37 :- view to shortlist candidates for appointment to the post of Medical Officers; so as to maintain the ratio of 3 to 5 candidates per vacancy. Incidentally the Apex Court also considered the question whether, the method of selection being by interview only, the Commission could have fixed a minimum cut off mark in the written test. The Punjab Public Service Commission had in the year 1997 invited applications for appointment by direct recruitment to the post of Medical Officer pursuant to which 303 Scheduled Caste candidates had also applied. The number of vacancies was 500. The Punjab Public Service Commission scrutinized the applications and decided to hold a screening test on 28.9.1997 for all categories of candidates. In the screening test, the Punjab Public Service Commission fixed 45% marks as cut off marks for general category candidates and 40% marks as cut off marks for Scheduled Caste candidates. The method of selection prescribed by the rules to the post of Medical Officer was by interview and the rules did not prescribe a written test as one of the methods for selection. Out of 303 candidates belonging to the Scheduled Castes, 279 candidates appeared for the screening test and out of them 59 alone cleared the test. The Government of Punjab had in its letters dated 14.5.1969 and 5.5.1970 instructed all Heads of Departments that reservation posts should be offered to Scheduled Caste and Backward Class candidates who fulfill the minimum prescribed qualifications. It was further directed that candidates belonging to the Scheduled Castes and Backward Classes WP(C) 11916/05, etc. -: 38 :- possessing the minimum educational qualifications/experience should not be put to any test to check their suitability for appointment against reserved posts. The Punjab Public Service Commission however passed a resolution dated 21.10.1991 to the effect that in future, no candidate belonging to the general category shall be called for the interview unless he obtains 45% marks in the screening test and in the case of candidates belonging to the Scheduled Castes and Backward Classes unless he obtains 40% marks in the screening test. In the said resolution, the Commission also decided to conduct a screening test for various posts in order to shortlist candidates and also decided that the number of candidates to be called for the interview shall be limited to 3 to 5 times the number of vacancies notified by the Government. Later, on 15.4.1997, the Punjab Public Service Commission passed yet another resolution whereby they resolved that they are not subservient to the directions of the Government unless such directions are permissible in law and that they are competent and duty bound to hold competitive examinations and conduct interviews for selecting suitable candidates as per the criteria fixed by them so long as it does not militate against the law. The holding of the screening test was challenged before the High Court of Punjab and Haryana. The High Court held that the decision of the Commission to hold a screening test was arbitrary and discriminatory and directed the Punjab Public Service Commission to interview all the candidates and declare the results of the selection. The State of Punjab WP(C) 11916/05, etc. -: 39 :- and the Punjab Public Service Commission carried the matter in appeal to the Apex Court. Dismissing the appeals, the Apex Court held as follows:
"6. Now adverting to the point under consideration. It may be observed that so far the powers and functions of the Commission in shortlisting of candidates is concerned, there can certainly be no doubt about it. Say for example, 10,000 candidates apply for recruitment to 100 posts it would obviously not be possible to take full test/examination and interview of such large number of applicants, though eligible. In that event shortlisting of the candidates by screening out those, in respect of whom it would serve no purpose to call them for further test, may be excluded by adopting the method of screening test. Generally speaking a ratio of 3:5 candidates for one post is normally accepted depending upon the number of seats. Therefore, for 100 posts the selecting body may in order of merit take out about first 500 candidates for further tests/interview. The rest of the candidates would be screened out. No candidate excluded by adopting such a method for shortlisting can raise any grievance whatsoever.
7. But for such shortlisting as indicated above, it is not necessary to fix any minimum qualifying marks. Any candidate on the top of the list at number 1 down up to 500 would obviously constitute the shortlisted zone of consideration for selection. For the purpose of elaboration it may be observed that in case some cut off marks is fixed in the name of shortlisting of the candidates and the number of candidates obtaining such minimum marks, suppose is less than 100 in that event screening test itself will amount to a selection by excluding those who though possess the WP(C) 11916/05, etc. -: 40 :- prescribed qualification and are eligible for consideration but they would be out of the field of consideration by reason of not crossing the cut-off marks as may be fixed by the recruiting body. This would not be a case of shortlisting. In shortlisting, as observed above, any number of candidates required in certain proportion of the number of vacancies, they may be shortlisted in order of merit from serial No.1 up to the number of candidates required. (emphasis supplied)
8. xx xx xx
9. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut off marks. Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit. For example, there may be a situation where more than required number of candidates may obtain marks above the cut off marks say for example out of 10,000 if 8,000 or 6,000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so any candidate who is otherwise eligible up to the 500th position whatsoever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut off marks.
10. In the case in hand, it was not for the Commission to have fixed any cut off marks in respect of reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis WP(C) 11916/05, etc. -: 41 :- of merit say, they do not have the up to the mark merit, as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Art.320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant- Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview."
27. In State of Punjab and others v. Manjit Singh and others (supra) the Apex Court held that though the Commission is empowered to shortlist candidates, it could not have fixed cut off marks, since the screening test itself would in that event amount to a selection. It was held that as the rules prescribed selection by interview, the Commission was not competent to prescribe cut off marks in the screening test. The Apex Court also held that where the method of selection is by interview, the Commission has to shortlist candidates by screening out those lower WP(C) 11916/05, etc. -: 42 :- in the order of merit, having regard to the number of vacancies and that cut off marks cannot be fixed to screen out candidates. The Apex Court did not hold that the screening test was illegal, but the prescription of qualifying marks in the screening test alone was held to be illegal.
28. In Inder Prakash Gupta v. State of J & K and others (supra), a three Judges Bench of the Apex Court held that for the purpose of shortlisting, the Public Service Commission can lay down its own procedure which should strictly be in consonance with the statutory rules. The Apex Court however held that for the purpose of shortlisting candidates, the Commission cannot fix any kind of cut off marks. In Siraj v. High Court of Kerala (supra) the Apex Court considered the question whether prescription of minimum marks in the oral examination in a selection which comprises of both written test and interview was sustainable in law. It was held that though Rule 7 of the Kerala Judicial Service Rules, 1991 did not prescribe the minimum marks to be obtained in the oral test, it was open to the High Court to supplement the rules by prescribing the relevant standards in the notification. In Ajayan v. State of Kerala (supra), the Division Bench of this Court has relied on the decisions of the Apex Court in State of Punjab and others v. Manjit Singh and others (supra), Inder Prakash Gupta v. State of J & K and others (supra) and Siraj v. High Court of Kerala (supra) to hold that as the notification did not stipulate that candidates who do not secure the prescribed minimum marks in the written test will be screened out and as WP(C) 11916/05, etc. -: 43 :- there was no such prescription in the rules, the Commission was not competent to prescribe cut off marks.
29. In Indulekha v. State of Kerala (Supra), a Division Bench of this Court considered the question whether the Commission was competent to shortlist candidates on the basis of marks obtained in the written test. By a notification published in the Kerala Gazette dated 4.6.1996 the Commission invited applications for appointment to the post of Veterinary Surgeon Grade II in the Animal Husbandry Department. A written test was held on 30.5.1997 in which 487 candidates appeared. After the written test was held, the Commission published a shortlist of 268 candidates consisting of 211 in the main list and 57 in the supplementary lists. The shortlist was challenged by candidates who were not included therein. They contended that as 526 vacancies were in existence when the written test was conducted and the notification was silent as regards the conduct of the examination, the Commission was bound to include all the candidates who had appeared for the written test in the shortlist. Reliance was placed on Circular No.20 of 1986 dated 20.9.1986 issued by the Commission in support of the said contention. The writ petition was dismissed. On appeal, the Division Bench of this Court, repelling the contention of the appellants that the Commission was bound to shortlist all the candidates who had appeared for the written test, held that the Rules of Procedure enable the Commission to adopt various methods by which they could screen out WP(C) 11916/05, etc. -: 44 :- candidates for the preparation of the ranked list and that holding a written test is a well known method for screening candidates to be called for the interview. The Division Bench also held that Rule 11 enables the Commission to fix the minimum or minima of marks for inclusion in the ranked list. The Division Bench in Indulekha v. State of Kerala (supra) held as follows:
"6............... We may in this connection refer to the decision of the Apex Court in M.P. Public Service Commission v. Navnit Kumar Potdar, (1994) 6 SCC 293. The Court held as follows:
"The Selection Board or the Commission has to decide as to what procedure is to be followed for selecting the best candidates from amongst the applicants. In most of the services, screening tests or written tests have been introduced to limit the number of candidates who have to be called for interview. Such screening tests or written tests have been provided in the concerned statutes of prospectus which govern the selection of the candidates. But where the selection is to be made only on the basis of interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview."
We have already indicated that the Rules of procedure enables the P.S.C. to adopt various methods by which they could screen candidates for the preparation of the rank list. Method of conducting written test is a well known method for screening candidates for the purpose of interview. R.3 of the Kerala Public Service Commission Rules of Procedure provides so. S. 11 also enables the PSC to fix the minimum WP(C) 11916/05, etc. -: 45 :- or minima of marks for inclusion in the ranked list. In this case P.S.C. conducted a written test in which all the petitioners and others participated. P.S.C. decided to weed out candidates on the basis of marks. The P.S.C. called for interview only those persons who have secured more than 40% marks in the written test. Petitioners are persons who have got below 40%. Consequently they were not included in the short list which was published on 26.11.1997.
7. We are of the view the selection committee has got the power to lay down criteria so as to find out the best and suitable persons for the post notified. The decision to short- list candidates on the basis of the written test is to aid and help the process of selection of the best candidates among the applicants. The Commission could judge the suitability of a candidate on the basis of the marks obtained by him in the written test. The process of selection of suitable candidate to a responsible post may involve a minimum standard to be achieved. A written test basically assesses a candidate's knowledge and intellectual ability while interview assesses a candidate's overall personality and other traits." The Division Bench held that the decision taken by the Commission to call for interview only those candidates who have secured more than 40% marks in the written test cannot be termed as arbitrary or unreasonable and that the number of vacancies in existence or which may arise during the recruitment process, is not the sole guiding factor.
30. In Indulekha v. State of Kerala (supra), the Division Bench had relied on the decisions of the Apex Court in Government of A.P. v. P. Dilip Kumar - (1993) 2 S.C.C. 310, M.P. Public Service Commission v. WP(C) 11916/05, etc. -: 46 :- Navnit Kumar Potdar - (1994) 6 S.C.C. 293 and Union of India v. T. Sundararaman - (1997) 4 S.C.C. 664. In Government of A.P. v. P. Dilip Kumar (supra), the issue regarding fixation of cut off marks did not arise for consideration. The Andhra Pradesh Public Service Commission invited applications for appointment to the category of Deputy Executive Engineer in various services. The minimum educational qualification was a degree in Engineering. In respect of some services, it was stated that post graduate qualification will be treated as additional qualification and preference given to such candidates. The selection was on the basis of a written test followed by oral test/interview. Pursuant to the notification issued by the Andhra Pradesh Public Service Commission, both graduates and post graduates applied. They were subjected to a written test and those who secured the qualifying marks in the written test were called for the oral test/interview. The Andhra Pradesh Public Service Commission first selected post graduate candidates for the available vacancies in the open competition category and since sufficient number of post graduates were available, graduates were not selected. In the case of posts reserved for the Backward Classes, Scheduled Castes and Scheduled Tribes, post graduates to the extent they were available were selected and where they were not available, graduates were selected. The candidates who were not called for the oral test/interview moved the Andhra Pradesh Administrative Tribunal constituted under the Administrative Tribunals Act, 1985. The Tribunal allowed the applications WP(C) 11916/05, etc. -: 47 :- and quashed the select list. On appeal, the Apex Court held that classification on the basis of higher educational qualification to achieve higher administrative efficiency is permissible under our constitutional scheme and that it is always open to the recruiting agency to prescribe a minimum eligibility qualification with a view to demarcating and narrowing down the field of choice with the ultimate objective of permitting candidates with higher qualifications to enter the zone of consideration. It was held that screening a candidate out of consideration at the threshold of the process of selection is neither illegal nor unconstitutional, if a legitimate field demarcating the choice by reference to some rational formula is carved out. The action of the Andhra Pradesh Public Service Commission in narrowing down the zone of consideration by preferring post graduates was upheld. In M.P. Public Service Commission v. Navnit Kumar Potdar (supra), the Apex Court considered the question whether the decision taken by the M.P. Public Service Commission to call for interview only those Advocates who have completed 7= years of practice as an Advocate instead of 5 years practice as Advocate which was the prescribed standard, was arbitrary. The Apex Court held that the decision taken by the M.P. Public Service Commission cannot be said to be arbitrary. In Union of India v. T. Sundararaman (supra), the Apex Court considered a similar question. The Union Public Service Commission had invited applications for appointment to the post of Assistant Professors of Medicine. One WP(C) 11916/05, etc. -: 48 :- among the qualifications was a minimum of three years teaching experience in the concerned specialty. The notification also stipulated that the prescribed essential qualifications were the minimum qualifications and that mere possession of the minimum qualifications does not entitle the candidates to be called for the interview. Pursuant to the said notification, 37 applications were received for three posts. The Union Public Service Commission decided to shortlist only those candidates having an experience of four years or more. As a result, 20 candidates alone were called for the interview. This was challenged by Sri.T.Sundararaman and Dr.V.S.Gopalakrishnan in the Central Administrative Tribunal, Chennai Bench. The Tribunal disapproved the method of shortlisting and remitted the case to the Commission to reprocess all applications including those of the applicants before the Tribunal and to make a fresh selection. On appeal by the Union of India, the Apex Court, following the decisions in M.P. Public Service Commission v. Navnit Kumar Potdar (supra) and Government of A.P. v. P. Dilip Kumar (supra) held that it is open to the recruiting agency to screen candidates at the threshold of selection by prescribing a higher eligibility qualification. The action of the Union Public Service Commission was upheld.
31. In B.Ramakichenin v. Union of India and others - (2008) 1 S.C.C. 362, the Apex Court held that shortlisting of candidates can be validly adopted by the Selection Board even if there is no rule providing for WP(C) 11916/05, etc. -: 49 :- shortlisting nor any mention of it in the advertisement inviting applications for the post. It was held that if there are a large number of eligible candidates who have applied and it is not possible for the authorities to interview all of them, the Selection Board can resort to shortlisting on some rational and objective basis and that if a method for shortlisting has been prescribed either in the rules or in the notification inviting applications, then that method alone can be followed. The Union Public Service Commission invited applications from eligible candidates for appointment to the post of Deputy Director (Agriculture) in the Agriculture Department, Government of Pondicherry. The qualifications prescribed were, M.Sc. degree in Agriculture from a recognized University or Institution and two years experience in extension work/soil/input analysis. The notification did not stipulate that the experience should be after obtaining the post graduate degree. In paragraph 3.1 of the notification issued by the Union Public Service Commission inviting applications for the post, it was stated as follows:
"Where the number of applications received in response to an advertisement is large and it will not be convenient or possible for the Commission to interview all the candidates, the Commission may restrict the number of candidates to a reasonable limit on the basis of either qualifications and experience higher than the minimum prescribed in the advertisement or on the basis of the experience higher than the minimum prescribed in the advertisement or on the basis of experience in the relevant WP(C) 11916/05, etc. -: 50 :- field, or by holding a screening test. The candidate should, therefore, mention all the qualifications and experience in the relevant field over and above the minimum qualifications and should attach attested/self-certified copies of the certificates in support thereof."
32. The Union Public Service Commission decided to call for interview only those candidates who had acquired the prescribed experience after obtaining the post graduate degree. Sri.B.Ramakichenin was not called for the interview on the ground that he did not have two years experience after obtaining the post graduate degree, though he had the experience before he obtained the post graduate degree. Sri.B.Ramakichenin challenged the decision of the Union Public Service Commission not to call him for interview before the Central Administrative Tribunal, Chennai Bench. By an interim order, the Central Administrative Tribunal permitted him to participate in the interview. When the application was finally disposed of the Tribunal observed that as Sri.B.Ramakichenin had been interviewed pursuant to the interim order passed by the Tribunal, no further direction is required and that the result of the interview should be published. The result was accordingly published and Sri.B.Ramakichenin found a place in the merit list and was appointed as Deputy Director. The Union of India and others challenged the order passed by the Central Administrative Tribunal in the High Court of Madras. The High Court of Madras allowed the writ petition and quashed the appointment of Sri. B.Ramakichenin who moved the Apex WP(C) 11916/05, etc. -: 51 :- Court in appeal. Allowing the appeal filed by him and setting aside the judgment of the High Court of Madras, the Apex Court held as follows:
"15. It is well settled that the method of shortlisting can be validly adopted by the selection body vide M.P. Public Service Commission v. Navnit Kumar Potdar (vide paras 6, 8, 9 and 13) and Govt. of A.P. v. P. Dilip Kumar.
16. Even if there is no rule providing for shortlisting nor any mention of it in the advertisement calling for applications for the post, the selection body can resort to a shortlisting procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. For example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of shortlisting can be resorted to by the selection body, even though there is no mention of shortlisting in the rules or in the advertisement.
17. However, for valid shortlisting there have to be two requirements - (i) it has to be on some rational and objective basis. For instance, if selection has to be done on some post for which the minimum essential requirement is a B.Sc. degree, and if there are a large number of eligible applicants, the selection body can resort to shortlisting by prescribing certain minimum marks in B.Sc. and only those who have got such marks may be called for the interview. This can be done even if the rule or advertisement does not mention that only those who have the aforementioned minimum marks, will be considered or appointed on the post. Thus the procedure of shortlisting is only a practical via media which has been followed by the courts in various decisions since otherwise WP(C) 11916/05, etc. -: 52 :- there may be great difficulties for the selecting and appointing authorities as they may not be able to interview hundreds and thousands of eligible candidates; (ii) if a prescribed method of shortlisting has been mentioned in the rule or advertisement then that method alone has to be followed. (emphasis supplied)
18. In the present case, no doubt, UPSC had resorted to an objective and rational criteria that only those who have two years' experience after getting M.Sc. degree will be considered, while those who have got such experience but only before getting M.Sc. degree will not be called for the interview. Ordinarily we would not have taken exception to this procedure since it is based on an objective criteria, and ordinarily this Court does not interfere with administrative decisions vide Tata Cellular v. Union of India. As observed in the said decision, the modern approach is for courts to observe restraint in administrative matters.
19. Hence, if the method of shortlisting had not been prescribed by UPSC or in a statutory rule, it is possible that the argument of learned counsel for the respondents may have been accepted and we may not have interfered with the method of shortlisting adopted by UPSC since it appears to be based on a rational and objective criteria."
The Apex Court held that as the method of shortlisting had been prescribed in the notification itself, the Union Public Service Commission cannot resort to any other method of shortlisting other than what has been prescribed in paragraph 3.1 thereof, which did not include the criterion adopted by the Union Public Service Commission.
33. An issue similar to the one involved in the cases on hand arose for WP(C) 11916/05, etc. -: 53 :- determination by this Court in W.P.(C) No.22809 of 2005 and connected cases. By a notification dated 9.4.2002, the Commission invited applications for appointment to the post of Assistant Engineer (Electrical) in the Kerala State Electricity Board. The number of vacancies notified was 42. The method of selection was by written test and interview. The petitioners in the aforesaid cases and others applied and appeared for the written test. After the written test, the Commission published a shortlist of 96 candidates who had secured 50 marks and above. It was challenged on the ground that the shortlist was prepared without reference to the vacancies existing in the Board. The petitioners prayed for a direction to the Commission to publish an additional ranked list and to advise them for appointment. The Commission resisted the writ petition contending inter alia that it is empowered to shortlist the candidates to be called for the interview based on the marks secured in the written test and that they have not fixed cut off marks for preparing the shortlist. The Commission contended that what is described as cut off mark is the mark secured by the last candidate included in the shortlist. The learned Single Judge held that as 50 marks had not been fixed as the cut off mark, but is the mark secured by the last candidate included in the shortlist prepared, having regard to the number of vacancies reported, the action of the Commission cannot be said to be irregular. The writ petition was accordingly dismissed. W.A.No.1365 of 2007 filed by the petitioners was also dismissed. The very same issue WP(C) 11916/05, etc. -: 54 :- was again considered by this Court in W.P.(C) No.1381 of 2005 and connected cases. In the said cases, the Commission invited applications for appointment to the post of Assistant Motor Vehicles Inspector. After the written test was held, a shortlist of candidates to be called for the interview was published. The last of the candidates had secured 81% marks in the written test. The shortlist was challenged on the ground that the Commission is not competent to fix cut off marks. Reliance was placed on the decision of the Apex Court in State of Punjab and others v. Manjit Singh and others (supra) to contend that prescription of 81% marks in the written test as cut off marks is arbitrary and unconstitutional. The learned Single Judge held that when the Commission fixed the number of persons to be included in the shortlist as 211 as against 69 vacancies, the procedure adopted by the Commission in fixing the number of candidates to be called for the interview and then choosing those number of persons from those who have come out successful in the written test in the order of merit, cannot be faulted. The writ petitions were accordingly dismissed. The judgment of the learned Single Judge in W.P.(C) No.1381 of 2005 and connected cases was upheld in W.A.No.327 of 2006 and connected cases wherein the Division Bench held that it is open to the Commission to take into account the number of vacancies reported and expected while preparing the shortlist and that it is a reasonable method of shortlisting. It was also held that the Commission could have fixed cut off marks only if they WP(C) 11916/05, etc. -: 55 :- had announced it in advance as provided in Rule 11(iii) of the Rules
34. The principle that emerges from the decisions of the Apex Court and this Court referred to above is that the Public Service Commission does not have the authority to lay down the criteria for selection unless it is specifically authorized in that regard by the rules governing the selection. However, the power of the Public Service Commission to shortlist the candidates to be called for interview based on the marks secured by them in the written examination which precedes the interview, has been recognized by the Apex Court. The Apex Court has however held that such short listing cannot be on the basis of any cut off mark fixed by the Public Service Commission, unless the rules governing the selection specifically authorize the prescription of cut off marks or it is prescribed in the notification inviting applications for the post. It has also been held that where the norms for shortlisting candidates are thus prescribed, the Public Service Commission cannot deviate from the norms. It is also well settled by the decisions of the Apex Court that in respect of posts to which the selection is by interview, a screening test can be conducted to shortlist candidates though such shortlisting cannot be done by prescribing cut off marks in the screening test, unless it is specifically authorized by the rules governing the selection and is also notified. The Apex Court has also held that Selection Committees do not have the jurisdiction to lay down the criteria for selection unless they are authorized specifically in that regard by the rules made under Article 309 WP(C) 11916/05, etc. -: 56 :- of the Constitution and that they do not have the inherent jurisdiction to lay down any standard or basis for selection, nor can such power be assumed by necessary implication as it would amount to legislating a rule of selection. The Apex Court has also held that where there is a composite test consisting of a written examination followed by a viva voce test, the number of candidates to be called for interview in the order of the marks obtained in the written examination, should not exceed twice or at the highest, thrice the number of vacancies to be filled.
35. We shall now consider whether the Kerala Public Service Commission Rules of Procedure or Condition No.9 of the General Conditions authorize and empower the Commission to prescribe cut off marks to shortlist the candidates to be called for the interview. This Court has in Appukuttan Pillai v. Kerala Public Service Commission 1984 KLT 880 held that the Kerala Public Service Commission Rules of Procedure are not statutory rules and are only guidelines for the guidance of the Commission. As noticed earlier, the power of the Commission to shortlist candidates is not disputed before us. Rule 3 empowers the Commission to conduct a written examination, practical test, physical efficiency test, oral test or any other test or examination which the Commission may deem fit to hold, to assess the merits of the candidates considered for recruitment to a service or post. Rule 4 stipulates that where a written examination or a practical test is WP(C) 11916/05, etc. -: 57 :- conducted for recruitment to a service or post, the Commission shall announce the qualifications, conditions of admission to the examination, the number of vacancies to be filled, invite applications, consider all the applications so received, make arrangements to conduct the examination for the candidates whose applications are found to be in order and prepare a list in the order of merit of such number of candidates as the Commission may determine from time to time. In cases where the method of recruitment is by oral test (interview) alone, where the number of qualified applicants is unduly large having regard to the number of vacancies, the Commission is empowered under Rule 5 to restrict the number of candidates to be called for the oral test to such extent as they may decide after conducting any examination as they deem fit. Therefore, Rules 4 and 5 authorize and empower the Commission to shortlist candidates, in cases where the method of recruitment is by written examination followed by interview/practical test or by interview alone. In cases where the method of selection is by written examination or practical test, the Commission can prepare a shortlist consisting of such number of candidates as the Commission may determine from time to time. In cases where the method of selection is by interview alone, the first proviso to Rule 5 (ii) authorizes and empowers the Commission to hold a test for the purpose of shortlisting the candidates to be called for interview. The Rules do not in our opinion specifically authorize and empower the Commission to prescribe cut off marks to shortlist WP(C) 11916/05, etc. -: 58 :- candidates. The notifications issued by the Commission in the cases on hand also do not contain any stipulation in that regard except Condition No.9 of the General Conditions, which we have extracted above.
36. Condition No.9 states that where the number of qualified applicants is unduly large, having regard to the number of vacancies, the Commission may restrict the number of candidates to be called for oral test (interview) to such extent as they may decide on the basis of qualification/marks/written test/practical test or on any other basis. Condition No.9 also does not specifically authorize and empower the Commission to prescribe cut off marks to shortlist the candidates to be called for the interview. The stipulations in Condition No.9 are in our opinion only a verbatim reproduction of the first proviso to Rule 5 (ii) and illustrative of the type of examinations which the Commission may conduct to restrict the number of candidates to be called for the interview. In other words, there is no express conferment of power on the Commission to prescribe cut off marks either in the Rules or in Condition No.9 of the General Conditions. We accordingly hold that the Kerala Public Service Commission Rules of Procedure and Condition No.9 of the General Conditions in the notifications issued by the Commission inviting applications, do not expressly authorize or empower the Commission to prescribe cut off marks to shortlist candidates to be called for the interview. However, the Commission can in view of the stipulations in the first proviso to Rule 5 (ii) hold a written test for the WP(C) 11916/05, etc. -: 59 :- purpose of shortlisting the candidates to be called for interview, where the method of selection is by interview alone and also prescribe the cut off marks in advance in the notification inviting applications.
37. In the view that we have taken, we are in respectful agreement with the view taken by the Division Bench of this Court in Ajayan v. State of Kerala (supra) that the Commission cannot prescribe cut off marks to shortlist the candidates to be called for the interview and that though the Commission can shortlist candidates where the number of candidates is very large, the criteria for shortlisting cannot be cut off marks unless it is published in the notification or prescribed in the rules governing the selection to the post or service. We are unable to agree with the view taken by the Division Bench in Indulekha v. State of Kerala (supra) that the Kerala Public Service Commission Rules of Procedure empower the Commission to prescribe cut off marks to shortlist candidates.
38. That leads us to the question whether the shortlists in the cases on hand, which have been prepared in terms of the stipulations in the circulars issued by the Commission are vitiated for the reason that the Commission has fixed cut off marks for shortlisting the candidates. Incidentally the question whether the Commission has fixed any cut off marks at all is also a point which arises for decision. The guidelines for preparation of the shortlists and ranked lists were issued by the Commission in Circular No.17 of 1987 dated 4.7.1987 wherein it was stipulated that shortlists and ranked lists should contain three times the WP(C) 11916/05, etc. -: 60 :- number of vacancies reported and advised from the previous ranked list. A copy of the said circular is on record as Ext.P7 in W.P.(C) No.11916 of 2005. The said circular was modified by Ext.R1(a), Circular No.30 of 2003 dated 1.12.2003, the relevant portion of which reads as follows:
1. The number of candidates to be included in the Short Lists and Ranked Lists should not be decided mechanically.
Commission will decide the number to be included in each case considering the number of vacancies reported, number of candidates advised from the previous list, nature of the post and chances of occurrence of vacancies. The number of candidates to be included in the supplementary list of reservation group of communities will also be decided by the Commission in each case considering where the rotation stands and the number of turns such as NJD/NCA/TPO etc. to be satisfied, of course bearing in mind that reservation communities should not lose their turn due to the paucity of candidates.
2. In cases where the commission have ordered to include a particular number of candidates (who have secured top marks in the Main List, if this number cannot be exactly obtained on the basis of the cut off marks and if the next lower range is taken it would exceed this number then the nearest number in the higher range alone shall be considered. For example, if the Commission have ordered to include top 100 candidates in the Main List and while thus preparing the list there is only 95 candidates in a particular range of marks, the range is to be lowered in order to reach 100 candidates. But if on lowering the range the number reaches to 110, i.e. above 100, the nearest WP(C) 11916/05, etc. -: 61 :- number i.e. 95 is to be reckoned as the number of candidates to be included in the Main List.
3. There shall be no modification in the guidelines in Circular No.17/87 regarding preparation of the Supplementary List. However, the number of candidates to be included in each community shall be reduced from three to two.
4. While submitting the selection proposals the recruitment sections and the District Officers should consider the above aspects and necessary details may also be put up before the Commission for taking a decision on the proposals.
39. By Circular No.30 of 2003 dated 1.12.2003, the Commission has clarified that the number of candidates to be included in the shortlists and in the ranked lists should not be decided mechanically and that the Commission will decide upon the number to be included in each case considering the number of vacancies reported, the number of candidates advised from the previous list, the nature of the post and the chances of occurrence of vacancies. In the said circular, it is also stipulated that where the Commission decides to include a particular number of candidates who have secured the top marks in the main list, if the desired number of candidates cannot be obtained on the basis of the cut off marks and if the next lower range of marks is taken, then the number of candidates would exceed the number decided upon by the Commission, then the nearest number in the higher range of marks alone shall be considered. By way of illustration, it is stated that if the WP(C) 11916/05, etc. -: 62 :- Commission decides to include 100 candidates in the main list and while preparing the list there are only 95 candidates in a particular range of marks, the range of marks is to be lowered in order to reach 100 candidates. But if on lowering the range of marks, the number reaches 110, that is, above 100, the nearest number, that is 95, is reckoned as the number of candidates to be included in the main list. Circular No.30 of 2003 dated 1.12.2003 was again modified by Circular No.27 of 2006 dated 26.6.2006, but that modification relates only to the preparation of supplementary lists, with which we are not concerned in these cases.
40. As noticed earlier, though the Commission has in some of the cases raised a contention that they have the authority to prescribe cut off marks, the stand taken by the Commission during the course of the arguments is that they have not fixed or prescribed any cut off marks as such to shortlist candidates. According to the Commission, when they determined the number of candidates to be called for the oral test (interview), taking into account the vacancies reported, after following the stipulations in Exts.R1(a) and R1(b) circulars, all the candidates who have secured the same marks as the last candidate thus shortlisted were also included in the shortlists and that there really was no prescription of cut off marks as alleged by the petitioners. A reading of Circular No.30 of 2003 dated 1.12.2003 indicates that the Commission prepares the main list of the shortlist by first deciding on the number of candidates to be included in the main list of the shortlist. In a given case, having regard to WP(C) 11916/05, etc. -: 63 :- the number of vacancies, if the Commission decides to shortlist 100 candidates within a particular range of marks, and at that stage, if the desired number of candidates cannot be obtained and the number falls short of 100 by 10, then candidates who have secured lower marks are also included to make up the deficiency in the number. In so doing, the Commission cannot stop with the 100th candidate. All the candidates who have secured the same mark as the 100th candidate have also to be shortlisted as otherwise, it would be plainly arbitrary and discriminatory. But if on lowering the range of marks, the number of candidates exceeds 100 and reaches 110, the nearest number, that is 95, is reckoned as the number of candidates to be included in the main list. Therefore, the method adopted by the Commission in the cases on hand, to shortlist candidates is not really by prescribing a cut off mark as such. Though the shortlists state that candidates who have obtained, say for example 50 marks and above have been included in the main list of the shortlist and that cut off marks have been lowered to the extent necessary in respect of candidates included in the supplementary lists, the Commission has explained that the said statement only reflects the marks secured by the last candidate included in the main list of the shortlist which is also indicated in the shortlist, so as to ensure transparency and dissemination of information. This, the Commission contends is not strictly speaking, fixation of cut off marks. On the facts placed before us we are persuaded to agree with the Commission that WP(C) 11916/05, etc. -: 64 :- they have not prescribed cut off marks to shortlist candidates.
41. We shall now consider the question whether the shortlisting done by the Commission in the cases on hand suffers from any other infirmity. In the writ petitions relating to appointment to the post of Veterinary Surgeon Grade II in the Animal Husbandry Department, the number of vacancies notified was 81. The petitioners contend that though only 81 vacancies had been notified in Ext.P1, the vacancies had increased due to retirement/creation of additional posts and that the Commission has not ensured that adequate number of candidates corresponding to 3 to 5 times the total number of notified/anticipated vacancies, is included in Ext.P6 shortlist. Ext.P6 shortlist, the method of preparation of which is objected to, consists of 195 candidates in the main list and 99 in the supplementary lists. The pleadings disclose that 258 candidates were advised from the ranked list published on 2.7.2005 and the main list of the ranked list exhausted after advising 258 candidates. The writ petitions relating to appointment to the post of Veterinary Surgeon Grade II were presented on 6.4.2005 and 28.8.2006. It is also not in dispute that a fresh notification inviting applications for appointment to the post of Veterinary Surgeon Grade II in the Animal Husbandry Department was issued on 15.1.2007 and a written test was also held for those who applied pursuant to it on 19.12.2007. Though Ext.P7 circular (Circular No.17 of 1987) stipulated that shortlists should contain three times the number of vacancies reported and advised during the currency WP(C) 11916/05, etc. -: 65 :- of the previous ranked list, that stipulation was modified by Circular No.30 of 2003 dated 1.12.2003 wherein it is stipulated that the Commission will decide the number of candidates to be included in each case considering the number of vacancies reported, the number of candidates advised from the previous list, the nature of the post and the chances of occurrence of vacancies. On the terms of Circular No.30 of 2003, by which Ext.P7 circular in W.P.(C) No.11916 of 2005 was modified, it was not mandatory for the Commission to prepare a main list containing 3 times the number of vacancies reported and advised during the currency of the previous ranked list. The number of vacancies of Veterinary Surgeon Grade II in the Animal Husbandry Department notified in Ext.P1 was only 81 and it cannot therefore be said that the shortlist and the ranked list did not contain adequate number of candidates.
42. Further, the petitioners have no right to claim that all the vacancies arising over a period of 3 years should be filled up from only one ranked list. As per the rules, the validity of a ranked list (except in the case of recruitment to posts involving training) is for a period of 3 years from the date of publication or till a fresh ranked list is published, whichever is earlier. The Commission is therefore free to notify vacancies and publish a fresh ranked list without waiting for the period of 3 years to run out. Further, recruitment by the Commission to the State Civil Service is a continuous and ongoing process. Every year hundreds of thousands of students pass out of schools and colleges in the State. If the contention WP(C) 11916/05, etc. -: 66 :- of the petitioners that the Commission should publish ranked lists large enough to fill up all the vacancies arising during a period of 3 years from its publication is accepted, students who pass out of schools and colleges will have to wait for years after completion of their studies to even apply for employment. The Commission decides on the number of candidates to be included in the ranked list based on the vacancies actually reported to them and where the vacancies do not exist and are not reported, based on vacancies anticipated to arise. The Apex Court has in Ashok Kumar Yadav & others v. State of Haryana and others (supra) held that where there is a composite test consisting of written examination followed by a viva-voce, the number of candidates to be called for the interview in the order of marks obtained in the written examination, should not exceed twice or at the highest, thrice the number of vacancies to be filled. The shortlist and the ranked list published for appointment to the post of Veterinary Surgeon Grade-II satisfy the above criterion. Though in State of Punjab and others v. Manjit Singh & others (supra) the Apex Court has held that generally speaking the shortlist has to be in the ratio of 3:5 candidates per post, a larger bench of four Judges of the Apex Court has in Ashok Kumar Yadav & others v. State of Haryana (supra) held that the number of candidates to be called for interview should not exceed twice or at the highest, thrice the number of vacancies to be filled. No material has been placed before us to show that besides the 81 notified vacancies, other WP(C) 11916/05, etc. -: 67 :- vacancies had been reported to the Commission before the preparation of the shortlist and the ranked list. Therefore, it cannot be said that adequate number of candidates were not included in Ext.P6 shortlist or in the ranked list published on 2.7.2005. In any case, the ranked list contained more than 3 times the number of notified vacancies and from the ranked list, 258 candidates were also advised. Therefore, we find no illegality in the preparation of Ext.P6 shortlist or the ranked list published by the Commission on 2.7.2005 for the post of Veterinary Surgeon Grade II in the Animal Husbandry Department.
43. The petitioner in W.P.(C) No.11916 of 2005 has prayed for setting aside the shortlist and the entire selection process for appointment to the post of Veterinary Surgeon Grade II, pursuant to Ext.P1 notification. The petitioner in W.P.(C) No.23272 of 2006 has prayed for a writ of mandamus commanding the Commission to include her in the shortlist without taking into account the cut off marks. The petitioners have not impleaded any of the selected candidates as parties to these writ petitions. If the petitioners' contentions are accepted it would result in a total rearrangement of the ranked list, leading to displacement of candidates already recruited and in service since the year 2005. Though the petitioner in W.P. (C) No. 11916 of 2005 has impleaded the third respondent in that writ petition in a representative capacity and has taken out notice of the writ petition by paper publication in the newspaper, the third respondent has been impleaded only to represent WP(C) 11916/05, etc. -: 68 :- candidates who do not possesses the qualifications prescribed for the post, on the allegation that he is not qualified. The Apex Court has in Siraj v. High Court of Kerala (supra) held in similar circumstances that it is imperative that all the selected candidates are joined as parties to the writ petition and that publication of the notice of the writ petition in the newspaper does not cure the defect. It was held that Rule 148 of the Kerala High Court Rules can be applied only when a large and unspecified number of candidates are involved. Therefore, for that reason also, no relief can be granted in W.P.(C) No.11916 of 2005 and W.P.(C) No.23272 of 2006.
44. We shall now deal with the writ petitions relating to appointment to the post of L.D. Compiler/Investigator/Punch Card Operator in the Economics and Statistics Department. In Ext.P1 notification, the number of vacancies in Palakkad District had not been specified. The Commission states that as the selection process progressed, 8 vacancies were reported to them and therefore, a shortlist consisting of 20 candidates in the main list and 26 candidates in the supplementary lists was prepared. However, the petitioners contend, relying on Exhibits P4, P5, P7 and P8 letters that besides the said 8 vacancies, other vacancies had also been reported to the Commission. In Ext.P4 letter dated 14.7.2006 sent by the Deputy Director, Economics and Statistics, Palakkad to the petitioner in W.P.(C) No.11906 of 2006, it is stated that even after 25 candidates selected by the Commission are appointed, 27 vacancies will still be WP(C) 11916/05, etc. -: 69 :- available and that it is not possible to ascertain the exact number of vacancies that are likely to arise in the next three years due to retirement/promotion. In Ext.P5 letter dated 12.9.2006 sent by the Deputy Director, Economics and Statistics, Palakkad to the petitioner in W.P.(C) No.11906 of 2006 it is stated that besides 27 existing vacancies, 9 "non joining duty" vacancies and 1 resignation vacancy (37 in all) exist and that after setting apart 2 vacancies for appointment under the dying- in-harness scheme and 1 for persons with disability, 34 vacancies have been reported to the Commission. In Ext.P7 letter dated 2.2.2007 sent by the District Officer of the Commission at Palakkad to the petitioner in W.P. (C) No.11906 of 2006 it is stated that as on 28.3.2006, 46 vacancies of L.D. Compiler/Investigator/Punch Card Operator were in existence and that 25 candidates have been advised from the ranked list. In Ext.P8 letter dated 2.3.2007 sent by the Deputy Director, Economics and Statistics, Palakkad to the petitioner in W.P.(C) No.11906 of 2006 it is stated that 46 vacancies had been reported to the Commission before 18.2.2006, the date of publication of Ext.P2 shortlist and before 28.3.2006, the date of publication of Ext.P3 ranked list.
45. Relying on these letters, the petitioners contend that the 21 vacancies notified in Ext.P9 notification dated 12.3.2007 are vacancies which were available when Ext.P2 shortlist and Ext.P3 ranked list were published and that by prescribing 68% marks as the cut off marks, the Commission has excluded a large number of candidates from being WP(C) 11916/05, etc. -: 70 :- considered for appointment to the post of L.D. Compiler/Investigator/ Punch Card Operator in Palakkad District. The petitioners contend that in any case the 21 vacancies notified in Ext.P9 notification dated 12.3.2007 had been reported to the Commission and were available to be filled up when Ext.P2 shortlist and Ext.P3 ranked list were published. The stand taken by the Commission is that only 8 vacancies had been reported. The Deputy Director of Economics and Statistics, Palakkad has stated that as on the date on which Ext.P2 shortlist was prepared, the vacancy position was 46 and that before the ranked list was published, 46 vacancies had been reported to the Commission. From the pleadings it is evident that Ext.P3 ranked list which consisted of 19 candidates in the main list and 23 in the supplementary list stood exhausted on 9.5.2006 when all the 19 candidates in the main list and 9 candidates from the supplementary lists were advised. Therefore, the remaining candidates in the supplementary lists could not be advised though 14 more candidates remained to be advised in the supplementary lists. In the teeth of the statement made by the Deputy Director of Economics and Statistics, Palakkad the stand taken by the Commission that only 8 vacancies were reported to them before the shortlist was prepared cannot be accepted.
46. We are of the opinion that applying the principle laid down by the Apex Court in Ashok Kumar Yadav & others v. State of Haryana (supra) the Commission ought to have included at least a minimum of 3 times WP(C) 11916/05, etc. -: 71 :- the number of vacancies reported to them viz., 46 x 3 = 138 candidates in the shortlist. That was admittedly not done, though 46 vacancies were available and had been reported to the Commission by 20.1.2006, nearly a month before Ext.P2 shortlist was published. We accordingly hold that adequate number of candidates were not included in Ext.P2 shortlist and resultantly in Ext.P3 ranked list. We shall now consider whether in view of our finding, the petitioners are entitled to any relief. The main relief sought in W.P.(C) No.11906 of 2006 is to enlarge the ranked list for the post of L.D. Compiler/Investigator/Punch Card Operator in Palakkad District, taking note of the existing vacancies. The main relief sought in W.P.(C) No.2926 of 2007 is to quash Ext.P2 shortlist and Ext.P3 ranked list and to publish an additional shortlist as well as ranked list, taking note of the vacancies available. If the reliefs prayed for in these writ petitions are granted, it would result in a total rearrangement of Ext.P3 ranked list, leading to displacement of candidates already recruited and in service since the year 2006. The petitioners have however not impleaded any of the selected candidates as parties to these writ petitions either individually or in a representative capacity. Further, the Commission has by issuing Ext.P9 notification dated 12.3.2007 initiated a fresh recruitment process in respect of 21 vacancies in Palakkad District. Any direction issued in these writ petitions to enlarge the ranked list published on 28.3.2006 will prejudicially affect the rights of those who have applied pursuant to Ext.P9 notification to be considered for WP(C) 11916/05, etc. -: 72 :- selection. Those who became qualified after Ext.P1 notification was issued will be disabled from being considered for selection. The candidates who have applied pursuant to Ext.P9 notification are not before us even in a representative capacity. Though a larger ranked list would have been desirable in this case, the publication of a shorter ranked list will not make it illegal. No material has been placed before us to hold that the Commission was actuated by any mala fide or oblique motive to prepare a shorter ranked list. The fact that the Commission had issued Ext.P9 notification in the Kerala Gazette Extra Ordinary dated 12.3.2007 to fill up the balance vacancies makes it evident that the Commission has acted in good faith. Therefore in principle also, it is unnecessary for us to interfere with the exhausted ranked list and to enlarge it. We accordingly hold that no relief can be granted in W.P.(C) Nos.11906 of 2006 and 2926 of 2007.
47. We shall now deal with the writ petitions relating to appointment to the post of Lecturer in Law in the Collegiate Education Department. The number of vacancies notified by the Commission in Ext.P1 notification published in the Kerala Gazette dated 29.5.2005 was only 3. Ext.P4 shortlist published on 19.6.2006 consisted of 16 candidates in the main list and 18 candidates in the supplementary lists. Ext.P11 ranked list published on 23.11.2006 consists of 15 candidates in the main list and 17 in the supplementary lists. The petitioners contend that though only 3 vacancies were notified, when the shortlist was published, 16 vacancies WP(C) 11916/05, etc. -: 73 :- were in existence and that 7 vacancies were anticipated to arise in the next two years viz. 2005 and 2006. The stand taken by the State of Kerala is that they had reported 3 anticipated vacancies of Lecturer in Law to the Commission in their letter dated 9.12.2004 and that subsequently 5 more vacancies arose during the years 2005-2006. Ext.P4 shortlist was published on 19.2.2006. As on that date, going by the stand of the State Government, the total number of vacancies was 8. However, the State has no case that the 5 vacancies that arose during the years 2005-2006 had been reported to the Commission before the shortlist was prepared. Ext.P11 ranked list consists of 15 candidates in the main list and 17 in the supplementary lists. Since the vacancies reported to the Commission before the notification was issued were 3 anticipated vacancies, even if we proceed on the basis that 8 vacancies were available by the time the ranked list was published, applying the principles laid down by the Apex Court in Ashok Kumar Yadav & others v. State of Haryana and others (supra) it cannot be said that adequate number of candidates were not included in the shortlist and in the ranked list. We therefore hold that there is no merit in the case put forward by the petitioners in W.P.(C) Nos.17352, 18409, 22710 and 23799 of 2006.
48. We shall now deal with the writ petitions relating to appointment to the post of Police Constables in the Armed Police Battalions. In the notification issued by Commission, the vacancies had not been WP(C) 11916/05, etc. -: 74 :- estimated. The shortlist for Thiruvananthapuram District consisted of 2363 candidates, for Kollam District consisted of 1053 candidates, for Kottayam District consisted of 1071 candidates, for Ernakulam District consisted of 998 candidates, for Thrissur District consisted of 3852 candidates, for Malappuram District consisted of 869 candidates and for Kannur District consisted of 3430 candidates. From among the shortlisted candidates, only 1099 candidates in Thiruvananthapuram District, only 422 in Kollam District, only 592 in Kottayam District, only 570 in Ernakulam District, only 1894 in Thrissur District, only 346 in Malappuram District and only 1457 in Kannur District passed the physical efficiency test. The vacancies reported to the Commission before preparation of the shortlists were 259 in Thiruvananthapuram District, 158 in Kollam District, 136 in Kottayam District, 136 in Ernakulam District, 513 in Thrissur District, 99 in Malappuram District and 452 in Kannur District. Therefore, it is evident that candidates corresponding to more than 5 times the number of vacancies were included in the shortlists. From the pleadings and the materials on record, it cannot be said that adequate number of candidates had not been shortlisted having regard to the vacancies existing in the various districts.
49. After the physical efficiency test was conducted for the shortlisted candidates, a ranked list consisting of 315 candidates in the main list and 784 in the supplementary lists was published in Thiruvananthapuram District. In Kollam District, a ranked list consisting of 108 candidates in WP(C) 11916/05, etc. -: 75 :- the main list and 314 candidates in the supplementary lists was published. In Kottayam District, a ranked list consisting of 137 candidates in the main list and 421 candidates in the supplementary lists was published. In Ernakulam District, a ranked list consisting of 146 candidates in the main list and 418 candidates in the supplementary lists was published. In Thrissur District, a ranked list consisting of 538 candidates in the main list and 1356 candidates in the supplementary lists was published. In Malappuram District, a ranked list consisting of 86 candidates in the main list and 249 candidates in the supplementary lists was published. In Kannur District, a ranked list consisting of 445 candidates in the main list and 998 candidates in the supplementary lists was published. The pleadings disclose that when the ranked lists were published, the vacancy position was 336 in Thiruvananthapuram District, 206 in Kollam District, 138 in Kottayam District, 187 in Ernakulam District, 513 in Thrissur District, 114 in Malappuram District and 455 in Kannur District. Going by the number of vacancies as on the date of publication of the ranked lists also, applying the principles laid down by the Apex Court in Ashok Kumar Yadav & others v. State of Haryana and others (supra) it cannot be said that adequate number of candidates had not been included in the ranked lists. Therefore we find no merit in the case set out by the petitioners that adequate number of candidates had not been included in the shortlists and ranked lists published by the Commission for the post of Police Constable in the Armed Police WP(C) 11916/05, etc. -: 76 :- Battalions in various districts. We accordingly hold that no relief can be granted in W.P.(C) Nos. 3244 of 2007, 9833 of 2007, 11105 of 2007, 12347 of 2007, 14846 of 2007, 15805 of 2007, 18588 of 2007, 18637 of 2007, 18893 of 2007, 19186 of 2007, 21033 of 2007, 21735 of 2007, 23900 of 2007 and 28848 of 2007.
For the reasons stated above, we hold that there is no merit in these Writ Petitions. The Writ Petitions fail and are accordingly dismissed.
K.BALAKRISHNAN NAIR JUDGE A.K.BASHEER, JUDGE P.N.RAVINDRAN JUDGE ess/