GIRIJA A PEON, Home for Physically Handicapped (Women), Thevara Ferry, Ernakulam, Kochi-13, presently working as L.D. Tylist, Sub Court, Ernakulam-682 011 v The Kerala Public Service Commission and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 14TH DAY OF MARCH 2017 / 23RD PHALGUNA, 1938 OP(KAT).No. 311 of 2014 AGAINST THE ORDER IN TA 4682/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 10-07-2014 ## **PETITIONER** GIRIJA.A PEON, HOME FOR PHYSICALLY HANDICAPPED (WOMEN), THEVARA FERRY, ERNAKULAM, KOCHI-13, (RESIDING AT 117-B, RAILWAY QUARTERS, ERNAKULAM SOUTH) PRESENTLY WORKING AS L.D.TYPIST, SUB COURT, ERNAKULAM-682 011). BY ADV.SRI.KALEESWARAM RAJ ## **RESPONDENTS:** 1. THE KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY. 2. THE DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, ERNAKULAM. 3. MS.SINDHUMOL .P.R L.D.TYPIST, COCHIN CORPORATION, ERNAKULAM, (PRESENTLY WORKING AS CONFIDENTIAL ASSISTANT, SUB COURT, ERNAKULAM, ERNAKULAM-682 011, RESIDING AT A3, POLICE QUARTERS, KAKKANAD, ERNAKULAM-682 030). 4. MS.SUJA A.V. L.D.TYPIST, SALES TAX OFFICE, PERUMBAVOOR, ERNAKULAM, PRESENTLY WORKING AS L.D.TYPIST, SPECIAL CIRCLE OFFICE, SALES TAX, PERUMBAVOOR, ERNAKULAM) 683 542. 5. MR.SASIKUMARAN UNNI PESON, IRRIGATION SUB DIVISION, PATHANAMTHITTA, PRESENTLY WORKING AS L.D.TYPIST, PWD BUILDING DIVISION, KOTTAYAM-686 001). R3 BY ADV. SRI.C.RAJENDRAN R3 BY ADV. SRI.K.R.RANJITH R3 BY ADV. SMT.R.S.SREEVIDYA R1 & 2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 14-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 311 of 2014 (Z) APPENDIX ## PETITIONER(S)' EXHIBITS ANNEXURE 1 TRUE COPY OF THE TRANSFERRED APPLICATION NO.4682/2012 (WPC NO.32780/2009) ALONG WITH EXHIBITS. - EXT.P1. TRUE COPY OF NOTIFICATION WHICH APPEARED IN KERALA GAZETTE DATED 31/12/2005 (RELAVANT PORTION). - EXT.P2. TRUE COPY OF ADMISSION TICKET ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT - EXT.P3. TRUE COPY OF RANK LIST PUBLISHED ALONG WITH NOTIFICATION DATED 28/10/2009 ISSUED BY THE 2ND RESPONDENT ANNEXURE 2. TRUE COPY OF THE ORDER DATED 10/7/2014 IN T.A.No.4682/2012.. - ANNEXURE 3. TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PSC. RESPONDENTS' EXTS: NIL TRUE COPY P.A. TO JUDGE ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** **-------------------------------------------------O.P.(KAT)No.311 OF 2014** **-------------------------------------------------DATED THIS THE 14[th] DAY OF MARCH, 2017** ## **JUDGMENT** ## **C.T. RAVIKUMAR, J.** The petitioner, who unsuccessfully called in question the placement of respondents 3 and 4 herein in Ext.P3 ranked list for by transfer appointments, before the Kerala Administrative Tribunal in T.A.No.4682/2012 filed the captioned Original Petition challenging Ext.P2 order of the Tribunal passed thereon. The petitioner, while working as a Peon under the Department of Social Welfare, responded to Ext.P1 notification dated 31.12.2005 issued by the Kerala Public Service Commission (for short 'PSC' only) inviting applications from qualified hands to effect 'by transfer appointments' to the post of Confidential Assistant Gr.II, in various departments. The minimum academic qualification prescribed under Ext.P1 was SSLC. A technical qualification of KGTE with Typewriting was also prescribed. As part of the selection process, a dictation test was also contemplated thereunder and at the same time no interview was contemplated. In the dictation test conducted as part of the selection process, the petitioner got 88 marks out of 100 O.P.(KAT)No.311/2014 -2- marks. Respondents 3 to 5 got 70, 75 and 64 marks respectively in the said dictation test. Evidently, due credit was given to their academic performance, i.e., marks obtained by each of them in SSLC examination while preparing the rank list. In short, marks scored by each of them in the dictation test was added to their percentage of marks in the SSLC and the total marks reckoned in that matter was the basis for deciding ranks in Ext.P3 ranked list. It is evident from Ext.P3 itself. 2. The contention of the petitioner is that the notification did not contain any indication of reckoning the percentage of marks in the SSLC and therefore the petitioner was under the bonafide belief that selection pursuant to Ext.P1 would be made solely based on the performance in the dictation test. The contention of the petitioner is that since she had scored 88 marks in the dictation and respondents 3 and 4 who were assigned rank Nos.1 and 2 respectively, had scored only less than 88 marks, she ought not to have been placed below them. In the said circumstances, challenging Ext.P3 and seeking for consequential reliefs, the petitioner filed W.P.(C)No.32780/09 before this Court. The said Writ Petition was transferred pursuant to the O.P.(KAT)No.311/2014 -3- constitution of the Administrative Tribunal and re-numbered as T.A.No.4682/2012. It is the consideration of the said transfer application that culminated in the above mentioned impugned order, viz., Ext.P2. The Tribunal, on consideration of the rival contentions and the relevant provisions, held that the method adopted by the Public Service Commission (PSC) could not be said to be outside its jurisdiction or ultra vires its power and consequently dismissed the T.A. It is in the said circumstances that the above Original Petition has been filed. 3. We have heard the learned counsel for the petitioner, the learned Standing Counsel for respondents 1 and 2 and the learned counsel appearing for the 3[rd] respondent. 4. A careful consideration of the pleadings of the petitioner and the contentions raised before us, would reveal that the case of the petitioner is founded on the decision of the Hon'ble Apex Court in **Manjusree v. State of Andra Pradesh & Another** reported in **[(2008) 3 SCC 512]** . In that decision, the Hon'ble Apex Court held that a selection criterion has to be prescribed in advance and the rules of the game could not be changed after the commencement of the game. The contention O.P.(KAT)No.311/2014 -4- of the petitioner is that since the intention to take into account the percentage of marks obtained in the SSLC was not made specifically in Ext.P1 notification, the action from the part of the PSC in reckoning the percentage of marks in the SSLC and adding the same to the percentage of marks scored in the dictation test would amount to deviation from the selection criteria notified under Ext.P1 letter and therefore, in the light of the decision in Manjusree's case, it has to be held that the selection procedure is vitiated. It is contended that the Tribunal had not considered the said question in its true perspective and it is the erroneous appreciation of the said contention raised by the petitioner that culminated in Ext.P2 order. The petitioner also relies on a decision of the Hon'ble Apex Court in **Secretary, Andra Pradesh Public Service Commission** v. **B. Swapna and others reported in (2005) 4 SCC 154** . Virtually, in the decision in Swapna's case, the Apex Court held that the norms of selection could not be altered after commencement of selection process. Relying on the aforesaid decisions, it is contended that the action on the part of the PSC in adding percentage of marks in SSLC to the percentage of marks obtained by each of the O.P.(KAT)No.311/2014 -5- candidates in the dictation test amounts to deviation from the notified selection criteria and therefore, it is liable to be interfered with. In short, it is contended that in the said circumstances, the placement of respondents 3 and 4 as rank Nos.1 and 2 above the petitioner is liable to be interfered with and the ranks have to be re-arranged based solely on the percentage of marks scored at the dictation test. 5. The learned counsel for the party respondent as also the learned Standing Counsel appearing for respondents 1 and 2 strongly resisted the said contentions. The learned Standing Counsel appearing for the PSC contended that the procedure adopted by the PSC in preparing the rank list, as aforesaid, is perfectly permissible in terms of Rule 11 of the Kerala Public Service Commission (Procedure) Rules. It is contended that the procedure adopted in this case, i.e., adding the percentage of marks obtained by the candidates in SSLC, cannot be said to be illegal in the light of the decision of a Division Bench of this Court in **Mohan** v. **Public Service Commission (1994 (2) KLT 585)** . The learned counsel has also placed reliance on a Full Bench decision of this Court in **Ravidas** v. **Public Service** O.P.(KAT)No.311/2014 -6- **Commission (2009 (2) KLT 295)** . The learned counsel appearing for the 3[rd] respondent also endorsed the contentions raised by the learned Standing Counsel. 6. While considering the tenability of the contentions, certain basic facts are to be borne in mind. In Ext.P1 notification, SSLC was prescribed as the minimum academic qualification. A minimum qualifying mark in the dictation test was also prescribed therein as 40%. True that it is not specifically stated therein that the percentage of marks obtained in the SSLC would be reckoned for the purpose of deciding the ranks, in the list then to be drawn. Therefore, the short question is whether the action on the part of the PSC in adding the percentage of marks of candidates obtained in the SSLC to the percentage of marks scored in the dictation test, can be said to be beyond its jurisdiction. 7. As noticed hereinbefore, the petitioner assailed the aforesaid action relying on the decisions of the Apex Court in **Manjusree's** case (supra), **Swapna's** case (supra) and also a Full Bench decision in **Ravidas's** case (supra). In **Manjusree's** case (supra), what was called in question was a selection to the O.P.(KAT)No.311/2014 -7- post of District and Sessions Judge (Grade II) conducted by the Andra Pradesh High Court. After the commencement of the selection process, in fact, after the completion of the selection process consisted of a written examination and interview, a condition requiring minimum mark for interview was introduced and consequently, candidates who did not score the prescribed minimum mark in the interview were excluded from the field of selection. In the said circumstances, the Apex Court held that selection criteria had to be prescribed in advance and at any rate the rules of game could not be changed afterwards. As noticed hereinbefore, in that case, after completing the written examination and the interview, the new criteria, i.e., requirement of minimum marks for interview was introduced. In **Swapna's** case (supra), after the commencement of the selection procedure, taking note of the amendment brought to Andra Pradesh Service Commission (Procedure) Rules, particularly, Rule 6, the minimum percentage of mark was lowered. In other words, Rules regarding qualification for appointment was changed taking note of the amendment after the commencement of the selection process. In that context, the Apex Court held that norms of O.P.(KAT)No.311/2014 -8- selection could not be altered after commencement of selection process, merely because the Rules prescribing qualification got amended during the continuation of the selection process unless in the amendment Rules, retrospective operation was made expressly or by necessary implication. In **Ravidas** ' case (supra), a Full Bench of this Court held that the PSC could not prescribe cut off marks, to short-list candidates for interview in the absence of a provision in the Statute or in the notification concerned. 8. The facts of this case are totally different from the facts obtained in those cases and therefore, we are of the considered view that the decision in **Manjusree's** case is not applicable to the facts and circumstances of this case. The same is the position with respect to the decision of the Apex Court in **Swapna's** case (supra) as also in **Ravidas** ' case (supra). On considering the factual situation obtained in this case with reference to the powers under Rule 11 of the Procedure Rules, we are of the considered view that the decisions relevant for considering the case on hand are the decisions rendered by Division Bench of this Court in **Mohan's** case (supra) and in O.P.(KAT)No.311/2014 -9- **Bineesh v. KPSC, Tvm. and others** reported in **(2014 KHC 774)** in which one among us [Anil K. Narendran, J.] was a member. In **Bineesh's** case supra, the Division Bench held that Rule 11 of the PSC Rules of Procedure empowers the Commission to take a decision regarding the basis of which mark should be awarded, the minimum marks for inclusion in a rank list, etc. A scanning of the decision in **Mohan's** case (supra) would reveal that the grievance of the petitioner herein is exactly similar to the grievance of the petitioner therein. It is evident from Para.18 of the decision in **Mohan's** case (supra). In that context, first two sentences of Para.18 are extractable in view of the factual position obtained in this case, and they read thus: “These principles, if applied, make out no case for interference of any kind. Only grievances are (1) that academic performance has been made the basis of selection and (2) that the petitioners did not know from the notifications that academic performance would be considered which is violative of the principles of natural justice.” The principles referred to in paragraph 18 are enunciated in paragraph 17 therein thus:- “1) Selection is an administrative act and not a O.P.(KAT)No.311/2014 -10- judicial or quasi judicial act; requires no reasons to be recorded. 2) Taking into consideration the academic performance and practice in regard thereto cannot be termed as arbitrary, but it reduces its possibility. 3) Where there is nothing to show that the selection was arbitrary or whimsical or the Committee did not act fairly towards a particular candidate and where the Selection Committee consists of experts in the subjects for selection and are men of high status, of unquestionable impartiality, the Court has to be slow to interfere. 4) The Public Service Commission is an independent expert body established under the Constitution. It has to act in an in dependent manner in making selection on the prescribed and established norms. The purpose of competitive selection is to select most suitable candidates for the appointment to public services. The rules of natural justice do not apply to competitive examinations. 5) The rules of natural justice are not rigid rules, they are flexible and their application depends on the setting and background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends on the facts and circumstances of each case, and is excluded in regard to administrative actions as it would have the effect of paralysing the administrative process. O.P.(KAT)No.311/2014 -11- 6) Selection for admission to educational institutions vis-a-vis to public employment have different consideration re: emphasis on interview and written test. 7) Where the candidates personality is to be yet developed and it is too early to identify the personal qualities for which greater importance may have to be attached in later, life, greater weight has to be given to performance in written examination to the interview be minimal. 8) In the case of employment to which recruitment has necessarily to be made from persons of mature personality, interview must be the only way, subject to basic and essential academic and professional requirements being satisfied. 9) The written examination assesses a candidate's overall intellectual and personal qualities and has certain distinct advantages over interview. 10) There are yet no written tests to evaluate a candidate's initiative, co-operativeness, capacity for clear and logical presentation, effectiveness in discussion, in meeting and dealing with others, adaptability, judgment, ability to make decisions, ability to lead, intellectual, and moral integrity. Some of these qualities, perhaps with some degree of error, by an interview test are much depending on the constitution of the Board. 11) It is entirely for the Selection Committee or the Commission to decide what would be appropriate in O.P.(KAT)No.311/2014 -12- a given case, and it is not for the Court to lay down whether interview test, be held at all and there cannot be any hard and fast rule regarding the precise weight to be given and it differs from situation to situation and the Court does not possess the necessary equipment and it would not be proper to pronounce unless “exaggerated weight has been given with proven or obvious oblique motive.” 9. Ultimately, after considering the scope of power under Rule 11 with reference to the grievances raised therein, the Division Bench held that there is no illegality in the selection process which culminated in the drawing of the ranked list concerned, requiring, an interference in exercise of the powers under Article 226 of the Constitution of India. On perusal of the decision in **Mohan's** case (supra) it is evident that the grievances of the petitioner herein are akin to the grievances of the petitioner therein. As noticed hereinbefore, the main grievance of the petitioner herein is that there is nothing in Ext.P1 notification indicating that the percentage of marks obtained in SSLC examination would also be reckoned for the purpose of preparing the rank list. In such circumstances, the contention of the petitioner is that selection ought to have been made solely O.P.(KAT)No.311/2014 -13- based on the marks scored in the dictation test. 10. In the case on hand, the petitioner was having only 39% marks in the SSLC whereas respondents 3 and 4 got 80% and 70% respectively. The post concerned is Confidential Assistant Grade II. In such circumstances, taking note of the duties attached to the post of Confidential Assistant Grade II, we are of the considered view that reckoning the academic performance cannot be said to be without any rationale and in fact, the PSC is perfectly justified in reckoning the percentage of marks obtained by each candidate in the SSLC examination, especially when in the notification itself they have prescribed SSLC as the basic qualification. We are of the considered view that the PSC had conducted the dictation test as a test to assess the suitability of candidates to be appointed against the said post. In such circumstances, when the marks scored in that test which was conducted to assess the suitability was added to the percentage of marks scored in the basic qualification prescribed, one cannot attribute any illegality or arbitrariness in the selection process. It is to be noted that the petitioner has not attributed and established any malafides against respondents 1 and 2. In O.P.(KAT)No.311/2014 -14- the said factual situation obtained and in the light of the decision of this Court in **Mohan's** case (supra) and **Bineesh's** case (supra), we are of the considered view that the decision of the Tribunal in Ext.P2 cannot be said to be infected with any illegality warranting an interference in exercise of the power of judicial review. In short, the challenge against the placement of respondents 3 and 4 in Ext.P3 rank list cannot be said to be one illegal. There is no merit in this Original Petition and consequently, it is dismissed. ## Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn