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1. Common question to be considered in these cases is whether Public Service Commission can prescribe cut off marks and shortlist the candidates in the absence of such a provision in the Rules and notification. The learned single Judge noticed that in view of the decision of the Supreme Court in State of Punjab and Ors. v. Manjit Singh and Ors. AIR 2003 SC 4580, it is not open for the PSC to prescribe any cut off mark. The learned Judge also noticed that Division Bench of this Court in Indulekha v. State of Kerala (2001 (1) KLT 951) has approved the stand of the PSC that it has power to fix cut off marks. The learned Judge was of the view that after the decision of the Supreme Court in Manjit Singh's case, earlier decision of this Court may not be good law. Hence, the matter was referred to the Division Bench.

2. Before answering the question, we may refer to the facts in W.P.(C) No. 10751 of 2004. Petitioners, two in number, applied in pursuance of the notification issued by the Public Service Commission for the post of Medical Officers in Homoeopathy Department. They fully possessed educational qualification and other criteria as per the notification. Therefore, they were called for written test and after the written test, they were called for an interview. Ext.P2 dated 30-5-2003 is the interview card issued to the first petitioner. It is stated that they were interviewed in June, 2003 and they were waiting for the advice of the PSC. While so, a show cause notice dated 15-12-2003 was issued to the petitioners by the respondent informing the petitioners that on rechecking of the answer scripts, they found that inaccuracies had crept in while counting marks and they scored only 64 marks whereas cut off mark was 65 and, therefore, their names will be deleted from the shortlist of candidates being called for interview as can be seen from Ext.P3. Petitioners replied the show cause notice by Ext.P4. Petitioners also approached this Court by filing W.P. (C) No. 76 of 2004 and Ext. P5 interim order was passed directing that select list should not be finalised till disposal of Ext.P4. Personal hearing was conducted on 11-3-2004 as directed in the Writ Petition as per the direction of this Court. Final rank list (Ext.P9) was published on 15-3-2004 before passing orders on Ext.P4 as directed by this Court. Petitioners were informed by Exts. PIO (a) and P10 (b) dated 14-5-2004 that their representations were rejected. It is contended by the petitioners that fixation of cut off marks at 65 is highly illegal and, in any event, publication of the list before rejecting the representation is not only illegal, but also, in violation of the order of this Court. Ext. P9 rank list is effective from 15-3-2004 and is valid for three years. So, it is effective till 15-3-2007. Rank list is prepared not only on the basis of the existing vacancies reported at the time of preparation of the rank list, but also, considering the fact that rank list will be valid for a particular period and anticipated vacancies are also to be taken into account. Circular of the Commission dated 1-12-2003 reads as follows:

But at the same time it has to conformto 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.

(underlining for emphasis) It is true that when number of vacancies are very large, PSC can make a procedure for screening for eliminating undeserving candidates and taking into account the number of vacancies to be filled up. In the absence of fixation of cut off marks in the notification and in the rules, fixation of cut off marks cannot be made as a criteria, especially as was done in this case. Here, the short list was prepared as can be seen from Ext.P9 and petitioners' names were not included as they obtained only 64% marks. We also agree that in order to improve the quality of service, PSC will be entitled to fix cut off marks in the written examination or in the oral examination to weed out incompetent candidates provided the PSC shall make it clear in the notification itself. But, cut off marks cannot be prescribed without mentioning it in the notification or in the procedure. Averments will show that PSC decided about the cut off marks after written examination was over. To avoid interviewing large number of candidates and as held in Manjit Singh's case, screening can be done by eliminating persons in the lower rank. If 100 vacancies are there, PSC can eliminate all candidates below 300 or 500 in the ranking in written examination. But, there should be some rationale. The counter affidavit in this case shows that 100 Vacancies were advised before 15-3-2005 and the list will continue for another two years. If anticipated vacancies also are taken into account, 139 candidates selected will not be sufficient and cut off marks prescribed after written examination was over considering the number of candidates required is against the norms mentioned by the Supreme Court.

9. With regard to other Writ Petitions, namely, W.P.(C) Nos. 21300,21840,22080, 23382, 25576, 25577, 27540 and 27706 of 2005, they applied for the post of HSA (English) in various districts. Posts of HSA are filled on district-wise selection. Earlier, English was taught in High Schools by teachers in other subjects. However, rule was changed and now it is insisted that English should be taught by the teachers who were having degree in English with B. Ed. In the above circumstances, applications were called for appointment of English teachers. The applicants applied for the post of HSA English and the petitioners were having the required qualification having passed B.A. in English literature and B. Ed in English. They were called for written test, but, they were not called for interview as they did not get the cut off marks in the written test. A reading of the counter affidavit will show that cut off marks were fixed differently in different districts depending on the number of vacancies. For example, cut off marks in Thrissur district was 43 whereas it was 28 in Ernakulam and 32 in Kottayam. According to the PSC, such a different cut off marks were taken because number of vacancies in each district were different. Hence, cut off marks were fixed only to shorten the list. It is the contention of the petitioners that anticipated vacancies were not taken into account. According to the petitioners, even if all the persons shortlisted are appointed, there will be further vacancies. For example, ranked list was published on 17-10-2005 for Malappuram district. 125 persons were in the main list and already 148 vacancies were reported and the rank list was exhausted. Even now there are vacancies to be reported. Still, there are vacancies to be filled up. Therefore, it is very clear that three to five times of the number of vacancies which may occur during the currency of the list as mentioned in Manjit Singh's case were not considered while shortlisting the candidates. Therefore, we direct the PSC to consider anticipated vacancies also and then refix the number of persons to be called for interview on the basis of the directions in Manjit Singh's case. Admittedly, in all the districts even three times of the vacancies that may arise during the currency of the list were not considered while shortlisting the candidates. PSC is directed to assess the vacancies that may arise during the currency of the list in a reasonable manner within one month from today and shortlist the candidates at least three times the number of vacancies in the order of merit without fixing cut off marks and complete the formalities and publish additional list within two months from today and advise candidates for the vacancies reported during the currency of the list. However, we make it clear that petitioners, even if were shortlisted, will not be entitled to get any seniority over the persons who were already listed. All the Writ Petitions are disposed.