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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 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 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 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.

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 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.