Kerala High Court
Archana.K.R vs State Of Kerala on 2 November, 2021
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 12TH DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943
WP(C) NO. 17180 OF 2019
PETITIONER:
ARCHANA.K.R.
AGED 39 YEARS
W/O.RASHY S. INDRAN, RAJEEV BHAVAN, TC.7/578, MARUTHAN
KUZHY, KANJIRAMPARA, THIRUVANANTHAPURAM-695030.
(PRESENTLY WORKING AS ASST. PUBLIC PROSECUTOR, JUDICIAL
FIRST CLASS MAGISTRATE COURT-I, KOCHI)
BY ADVS.
T.C.GOVINDA SWAMY
SMT.KALA T.GOPI
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF
KERALA, STATE SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE HIGH COURT OF KERALA,
REPRESENTED BY ITS REGISTRAR GENERAL, ERNAKULAM, KOCHI-
682031.
3 MS.RAJITHA.T.H.,
THER HOUSE, KUNDALIYOOR.P.O., CHAVAKKAD, THRISSUR-
680616,
BY ADVS.
GOVERNMENT PLEADERSMT.PARVATH KOTTOL
ELVIN PETER P.J. (r2)
SRI.RAJIT (r3)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.11.2021, THE COURT ON 12/11/2021 DELIVERED THE FOLLOWING:
WPC No.17180/2019 2
JUDGMENT
The 2nd respondent, the High Court of Kerala, issued Ext.P1 notification inviting applications to three separate recruitments for the post of District & Sessions Judge by direct recruitments in the Kerala State Higher Judicial Service. Recruitment No.22 of 2017 related to two NCA vacancies for scheduled casts. The petitioner, being a member of the scheduled caste community, submitted her application. After elaborate process of selection, Ext.P6 rank list was published, wherein the petitioner was ranked as 8th and the 3rd respondent herein was ranked as the 7 th . Ext.P7 final list dated 8/6/2019 was issued by the 2nd respondent which included the names of the persons who were approved by the High Court as candidates selected for appointment as the District & Sessions Judges. The name of the petitioner was not included in the above list and the 3rd respondent was placed as the second candidate. The petitioner was found excluded from the list of appointees. The petitioner claims that she obtained the mark list which is produced as Ext.P8. Ext.P8 disclosed that the petitioner obtained 97.5 marks for the written examination and 24 marks for viva voce, totaling to 121.5 marks. The 3 rd respondent got 102.5 marks in the written examination and 19 in the viva voce, totaling to 121.5 marks. Hence, both got same marks in the examination in the aggregate. According to the petitioner, she later understood that, the third respondent, who was elder to the petitioner, was preferred in the selection process, relying on clause 10 of Ext.P12 , which was the decision of the Full Court dated WPC No.17180/2019 3 10/11/1987. The above Rule provided that in the selection process, if two persons secured same marks and they have to be considered towards one vacancy, the person who is elder in age, was liable to be considered for selection. According to the writ petitioner, this procedure is patently wrong and against the settled legal principles. It was contended that normally in all selection procedure, the viva voce marks should get predominance. If at all for any reason, the viva voce marks cannot be taken into consideration, the length of practice should be adopted. The petitioner relied on Ext.P11 which was a true copy of the relevant pages of the answers provided by the UPSC under the heading "frequently asked questions regarding examinations" to indicate that date of birth is not the sole criteria to assess inter- se merit, when there is a tie between two candidates by securing equal marks in the aggregate, in the written examination and viva voce. Ext.P11 provided that amidst other criteria, the marks obtained in the interview could also be a criterion. It was further claimed by the petitioner, that in service jurisprudence in matters of promotion by selection, when two candidates are of equal merit, then the relevant factor between them would be seniority in the feeder cadre for deciding which one should be preferred. On the same analogy, it was contended that feeder category for the appointment to the post of District & Sessions Judge would be that of the advocates and that is so, the date of enrollment should be the criteria for placement of the candidates. Both ways, petitioner ought to have been selected.
2. On the basis of the above pleadings, the above writ petition was filed WPC No.17180/2019 4 challenging Exst.P6, P7 and P12 and the reliefs sought was to quash Ext.P6,P7 and P12. A further prayer was sought commanding the second respondent to include the petitioner in Ext.P7, in place of the third respondent and direct to grant her all consequential benefits thereof.
3. The 2nd respondent in its statement specifically referred to clause10 of Ext.P12, wherein the Full Court had adopted that if there are more than one candidate securing identical number of marks and only or some of them alone have to be selected, the candidate who is older in age shall be preferred. The 3rd respondent was ranked above the petitioner by applying the above clause. It was stated that the procedure adopted by almost all major recruitment agencies, including the Kerala Public Service Commission has accepted that in case of identical marks for two candidates, the date of birth was the deciding factor of seniority in the rank list. Clauses 349 of the PSC Manuel provided that in cases where more than one candidate secures same marks, the relative position among them was to be fixed on the basis of their date of birth i.e.the elder should be given preference to the younger. Hence, it was pleaded that the procedure followed by the High Court cannot be termed as irrelevant, arbitrary, discriminatory or unconstitutional. The length of practice becomes a determining factor only if the candidates are having identical marks and same date of birth. Hence, length of practice cannot be given priority over a candidate. The Full Court also stated that though it was correct to say that the viva voce was a relevant factor, to find out the eligibility of the candidate for appointment, it cannot be a relevant factor in determining the inter se rank of WPC No.17180/2019 5 candidate having identical marks. It was stated that, it was evident from the fact that ranking was made on the aggregate marks of written test and viva voce. Only one seventh of the total marks is allotted for viva voce. Hence, the marks in the one seventh portion of the aggregate cannot be a relevant factor in determining the rank among candidates having identical marks. Neither, KS & SSR 1958 nor Kerala State Higher Judiciary Rules 1961, prescribe what is to be done if two candidates get identical marks. The High Court has been following its own procedure for the conduct of the examination and preparation of the rank list. Though KS & SSR, 1958 does not prescribe the tie breaking method in the case of recruitments, it does prescribe date of birth as the tie breaker in case of determining seniority under Rule 27(a) and Rule 27(e). It was further stated that it was evident from Ext.P11 that UPSC was not adopting a uniform procedure for determining the inter se merit of the candidates having identical marks, for various examinations, though they were following a prescribed method for a particular examination. In all these examinations, one of the criteria for determining inter-se merit was the date of birth. Hence, it cannot be denied that the date of birth do play a relevant role in determining the rank of candidates having identical marks. It was only a reasonable , practicable and valid that the third respondent who is older in age was placed above the petitioner as both had secured equal marks.
4. In the additional statement filed by the High court, it was again stated that the Full Court of the High Court had framed the procedure which was to be followed in the matter of selection of candidates for appointment as District & WPC No.17180/2019 6 Sessions Judges by direct recruitment. A copy of it was produced as Annexure R2(a). Thereafter, the Full Court of the High Court had amended the scheme of examination for the Kerala Higher Judicial Service Examination in the meeting dated 13/12/2012 of the Full Court, copy of which was produced as Annexure R2(b).
5. The third respondent filed a separate counter affidavit . It was stated therein that the 3rd respondent was holding the post of Additional District & Sessions Judge, Palakkad. She was earlier practicing in High Court and thereafter shifted her practice to the Supreme Court of India, prior to joining the present post. She was qualified for Advocate On Record examination enabling her to appear independently before the highest court in India . The petitioner had qualified for the Kerala State Higher Judicial Service Examination 2017, held for the selection of the District & Sessions Judge. There were only two NCA vacancies available and since the petitioner and the third respondent got same marks invoking clause 10 of Ext.P12, the third respondent was selected. It was contended that being the person older than the writ petitioner, she is legally entitled to the benefit of the relevant clause. There is no arbitrariness, discrimination or violation of Article 14 of the Constitution. The fact of selecting a junior, placing reliance to the feeder cadre norm claimed by the petitioner can be answered relying on the provisions to Rule 27(a) and 27(e) of KS & SSR giving priority to the date of birth. It was settled that the marks secured in the written examination shall prevail over the marks secured in the viva voce to determine merit, when candidates secured identical marks. Hence, WPC No.17180/2019 7 date of birth shall be the criteria. Consequently, Ext.P11 has no application to the facts of the case. The procedure approved by the Full Court in 1987 has survived the test for the last 33 years and hence there is no valid and reasonably sustainable grounds raised by the petitioner challenging the said procedure.
6. Heard the learned counsel for the petitioner, learned counsel for the second respondent and the learned counsel for the third respondent.
7. The only short point that arises for consideration is whether clause 10 of Ext.P12 is sustainable or not. The learned counsel for the petitioner assailing clause 10 of Ext.P12, vehemently contended that the adoption of elder in age was irrational, illogical and does not stand to reason. It was specifically contended that in the case of a tie, the seniority by age alone shall not be the criteria and for the selection, the marks obtained in the viva voce shall be considered as the crucial criteria. That stands to reason according to the learned counsel for the petitioner.
8.To buttress the contention that the marks secured by a candidate in a viva voce should obtain predominance and priority in all selection procedures, the learned counsel for the petitioner placed reliance on the decision reported in Lila Dhar v. State of Rajasthan and others (1981 KHC 680). In that, the Rajasthan Judicial Service Rules provided for a competitive examination for selection of candidates to the post of judicial officers. The written examination consisted of two papers in Law of 100 marks each and two other papers of 15 marks each in languages. Viva voce carried 100 marks. The petitioner got WPC No.17180/2019 8 higher marks than the next selected candidate in the written examination, but the selected candidate got higher marks in the viva voce than the petitioner who got lesser marks. He challenged the selection process contending that the viva voce marks should obtain predominance.
9. Analysing the entire procedure, the Supreme Court held that the object of any process of selection for entry into a public service was to secure the best and most suitable person for the job, avoiding patronage and favoritism. Selection based on merit, tested impartially and objectively, was the essential foundation of any useful and efficient public service. After referring to the various authorities regarding the ideal mode of selection process, the Supreme Court quoted the United Nations Hand Book on Civil Service Laws & Practice, which opined that the written papers permit an assessment of cultural and intellectual competence. The interview permit an assessment of qualities of character which written papers ignore. It attempts to assess the man himself and not his intellectual abilities. Relying on it, the Supreme Court held that the written examination assess the man's intellect and the interview test, the man himself . If both the written examination and the interview test are to be essential, features of proper selection, the question may arise as to the weight to be attached respectively to them. The court expressed the view that in the case of admission to a college for instance, where the candidate's personality was yet to develop and it was too early to identify the personal qualities for which greater importance may have to be attached in later life, the greater weight has perforce to be given to the performance in the written WPC No.17180/2019 9 examination. The importance to be attached to the interview must be minimal. On the other hand, in case of service to which recruitment has necessarily to be made from persons with matured personality, the interview may be the only way subject to the basic and essential academic and provisional requirements being satisfied. To subject such person to a written examination may yield unfruitful and negative results, apart from it being an act of cruelty to those persons. There are, of course, posts to which recruitment was made from younger candidates whose personalities are on the threshold of development and who shows signs of great promise and the discerning may, in an interview test, catch a glimpse of future personality. In the case of such services, where sound selection must confine academic ability with personality promise some weight has to be given, though not much too great weight to the interview test. There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of service, the minimum qualification prescribed, the age group from which selection is to be made, the body to which the task of holding the interview test is proposed to be interested and a host of other factors.
10. The observations made by the learned Judges in Lila Dhar's case(supra) was referred to by the Supreme Court in a Four Judges Bench decision reported in Ashok Kumar Yadav & Others v. State of Haryana & others (1985 KHC 737). The above case related to the selection of candidates to the Punjab Civil Services (Executive Branch Rules Examination).The learned counsel further referred to the decision reported in WPC No.17180/2019 10 Ramjit Singh Kardam & others v. Sanjeev Kumar & others (2020 KHC 6322) in which the question of selection to the post of physical training inspector under the Haryana School Education (Group C)State Cadre, Civil Service Rules was under challenge. In that case, at paragraph 42, the Supreme Court referring to Lila Dhar's case, referred to the object of any process of selection for entry into public service as to secure the best and the most suitable person for the job avoiding patronage and favoritism. The court referred elaborately to the decision reported in Lila Dhar's case, wherein the significance of viva voce was affirmed. To further support the contention of the petitioner, the learned counsel referred to the decision reported in Tania Malik v. Registrar General of High Court of Delhi (2018 14 SCC 129). It related to the recruitment of the District Judges. In that decision, referring to the significance of viva voce in matters of recruitment to the post of District & Sessions Judges , the Supreme Court referred to the earlier decisions and held that it was now well recognized that while a written examination assesses the candidates' knowledge and intellectual ability, interview test is valuable tests of candidate's overall intellectual and personal qualities. It was considered that interview was the main factum for judging the suitability of the candidate for an appointment of District Judge in the higher judiciary.
11. Relying on the above judicial pronouncements, the learned counsel for the petitioner vehemently contended, that emphasizing on the age as the relevant factor of breaking of tie was unscientific and does not stand to reason. It was contended that since academic criteria is also put to relevance, the WPC No.17180/2019 11 marks secured by the parties in the light of the significance of viva voce marshalled by the Supreme Court in the above decisions should find a place. It was contended that to that extent Ext.P 12 is liable to be set aside.
12. Defending the decision of the High Court, the learned counsel for the High Court of Kerala contended that Full Court, after its due deliberation, had in its wisdom adopted a tie breaking method. The learned counsel pointed out that, the Full Bench had taken all factors into consideration including the provisions contained in KS & SSR, the practice adopted by the PSC and also the practice adopted by the UPSC and had resolved to accept the age factor. It was contended by the learned counsel that, the choice of age as a first method of tie breaking was substantiated on various grounds. It was contended that the person being elder can be expected to be more mature and have better understanding of the facts. Yet another contention was that a person who is elder in age might cross the minimum required age without much delay and probably has lesser chance of contesting in future examinations, whereas the person with younger in age stand to better chance of writing examination in future.
13. The learned counsel relying on Bhavnagar University v. Palitana Sugar Mill (P) Ltd.(2003) 2 SCC 111) contended that the decision relied on by the petitioner was peculiar to the facts of that case and cannot be drawn to apply in dissimilar facts. In the earlier cases, the question of relevance of viva voce was considered in the background that whether it should have more predominance over the marks obtained in written examination and not as a WPC No.17180/2019 12 component for time breaking.
14. The learned counsel for the 3 rd respondent supported the contention of the learned counsel for the second respondent and relied on the decision reported in J.P. Kulshrestha v. Chancellor Allahabad University (Laws (SC) 1980 439). It was held that any administrative or quasi judicial body clothed with powers and left unfettered by procedure was free to devise its own pragmatic, flexible and functionaly violable process of transacting business, subject to the basic of natural justice, fair play in action, reasonableness in collecting decision, materials, avoidance of arbitrariness and extraneous considerations and otherwise keeping with him the leading strings of law. It was also held that what we must remove was the blind veneration of marks of examination as the main measure of merit.
15. Evidently, by virtue of Ext.P12, the Full Court had fixed age as the first criteria for tie break. As Ext.P12 indicate, in case of tie, the person who is older in age shall be preferred. If the age of the candidate was also identical, one with a longer period of practice shall be preferred. If the length of practice was also identical, committee shall decide who among the candidates who have secured equal marks should be selected. This process can be supported for more reasons than one. Evidently, there is some justification in the contention of the learned counsel for the petitioner that the eligibility of the person is dependent on the marks that he obtained in the written examination as well as in the viva voce taken together. Hence, while evaluating the competence of a person and fixing the eligibility on the basis of rank, viva voce marks has got WPC No.17180/2019 13 its own relevance and forms a component along with written marks. Various decisions have also held that the marks obtained in viva voce shall not be at a higher pedestal, since it confers wider discretion on the interview board to exercise discretion in favour of a particular person so as to upset the marks obtained in the written examination. That has become the settled legal proposition. Hence, while fixing the rank of a person, viva voce with its maximum marks allotted being one seventh of the total marks, for written examination is taken as the base. Hence, there is no reason for again adding the same component once again in case of a tie. Probably that indicates the reason why the component which has already been taken into consideration for fixing the eligibility is not considered as a component for breaking the tie. Three new different components are contemplated in such a situation under clause 10 of Ext.P12. To that extent, it seems to be rational.
16. If the marks obtained in viva voce is to be taken as a component, equally other possible contentions may also arise; for the instance that, in case of tie, marks obtained in the written examination can be chosen for breaking the tie. Further, other components like marks obtained for drafting, marks obtained in particular subjects may also be projected as possible criteria. It has also to be noted that the above Rule has been in existence for the past 33 years and has stood the test of time.
17. It is also on record that the Kerala Public Service Commission has adopted the same methodology as a component for breaking the tie and gets its support from the provisions contained in Rule 27(a) and 27(e) of the KS & WPC No.17180/2019 14 SSR 1958 where date of birth is considered as tie breaker in the case of determining seniority.
18. Having accepted these as the parameters, I find no reason to hold clause 10 in Ext.P12 as irrational, illogical or as one which does not stand to reason. Hence, the challenge to it has to be rejected as sans substratum. Accordingly, the selection of the third respondent evidenced by Exts.P7 and P8 is liable to be sustained.
The writ petition fails and is dismissed.
Sd/-
SUNIL THOMAS Judge dpk WPC No.17180/2019 15 APPENDIX OF WP(C) 17180/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF NOTIFICATION BEARING NO.REC4- 75832/2017 DATED 21.11.2017 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF MASTER OF LAWS (LL.M)
CERTIFICATE DATED DECEMBER 11, 2007 ISSUED
BY THE UNIVERSITY OF KERALA.
EXHIBIT P3 TRUE COPY OF CERTIFICATE INDICATING AWARD
OF DIPLOMA IN ENGLISH FOR COMMUNICATION
DATED MARCH 9, 2005, ISSUED BY THE FACULTY
OF ARTS, UNIVERSITY OF KERALA.
EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED MARCH 2,
2009 INDICATING SUCCESSFUL COMPLETION OF
POST GRADUATE CERTIFICATION IN CYBER LAWS
ISSUED BY INDIRA GANDHI NATIONAL OPEN
UNIVERSITY.
EXHIBIT P5 TRUE COPY OF THE CERTIFICATE INDICATING A
SUCCESSFUL COMPLETION OF NATIONAL
ELIGIBILITY TEST FOR LECTURESHIP DATED
24.4.2008 ISSUED BY THE UNIVERSITY GRANT
COMMISSION.
EXHIBIT P6 TRUE COPY OF 'NOTICE' BEARING NO.ERC4-
75832/2017 DATED 7.6.2019, ISSUED BY THE
2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF 'NOTICE' BEARING NO.REC4-
75832/2017 DATED 8.6.2019 ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P8 TRUE COPY OF MARK LISTS RELATING TO THE
KERALA STATE HIGHER JUDICIAL SERVICE MAIN
EXAMINATION-2017, AS DOWNLOADED FROM
WEBSITE OF THE HON'BLE HIGH COURT.
EXHIBIT P9 TRUE COPY OF THE DECISION OF THE HON'BLE
APEX COURT, IN TANIYA MALIK V.REGISTRAR
GENERAL OF THE HIGH COURT OF DELHI, AS
DOWNLOADED FROM THE WEBSITE, DATED
6.2.2018.
WPC No.17180/2019 16
EXHIBIT P10 A TRUE COPY OF THE KERALA STATE HIGHER
JUDICIAL SERVICE RULES 1961 AS AMENDED BY
NOTIFICATION BEARING SRO NO.614/2017 DATED
20TH SEPTEMBER, 2017.
EXHIBIT P11 TRUE COPY OF THE RELEVANT PAGES OF THE
ANSWER BY THEUPSC UNDER THE HEADING
"FREQUENTLY ASKED QUESTIONS REGARDING
EXAMINATIONS" - INDICATES CRITERIA TO
ASSESS THE INTER-SE MERIT, WHEN THERE IS A
TIE BETWEEN TWO CANDIDATES.
EXHIBIT P12 A TRUE EXTRACT OF CLAUSE X OF 'PROCEDURE TO
BE FOLLOWED IN THE MATTER OF SELECTION OF
CANDIDATES FOR APPOINTMENT AS DISTRICT &
SESSIONS JUDGE IN THE KERALA STATE HIGHER
JUDICIAL SERVICE BY DIRECT RECRUITMENT' AS
TYPED OUT FROM THE STATEMENT FILED ON
BEHALF OF THE 2ND RESPONDENT IN THE W.P.(C)
NO.17180/2019.