Nair Service Society v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 10TH DAY OF OCTOBER 2014/18TH ASWINA, 1936** ## **WP(C).No. 28721 of 2013 (M) -------------------------------------** ## **PETITIONER(S):** **----------------------** **NAIR SERVICE SOCIETY, REPRESENTED BY ITS GENERAL SECRETARY, G.SUKUMARANNAIR, N.S.S. HEAD OFFICE, PERUNNA, CHANGANASSERY P.O., KOTTAYAM.** **BY ADVS.SRI.R.T.PRADEEP SRI.P.BIJIMON SRI.T.G.JAYAKUMAR** ## **RESPONDENT(S):** **-------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **3. THE DIRECTOR,** - **DIRECTORATE OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM-695 001.** ## **4. THE DIRECTOR,** - **LBS CENTRE FOR SCIENCE AND TECHNOLOGY, PALAYAM, NANDAVANAM, THIRUVANANTHAPURAM-695 033.** **R1 TO R3 BY GOVERNMENT PLEADER SMT.ANITHA RAVINDRAN R4 BY ADVS. SRI.LEO GEORGE,SC SRI.K.P.SUJESH KUMAR,SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-08-2014 ALONG WITH WPC. NOS. 14741/2014 & 22831/2014, THE COURT ON 10-10-2014, DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 28721 of 2013 (M)** **----------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1: THE COPY OF PROSPECTUS FOR SET IN JUNE 2013.** **EXHIBIT P2: THE COPY OF ORDER DATED 9/10/2013 BY WHICH THE GOVERNMENT APPROVED BY THE PROPSECTUS.** **EXHIBIT P3: THE COPY OF PROSPECTUS FOR SET IN DECEMBER 2013.** **EXHIBIT P4: THE COPY OF REPRESENTATION DATED 16/11/2013 BY PETITIONER BEFORE THE CHIEF MINISTER OF KERALA.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** ## **NIL** **/TRUE COPY/** **P.S. TO JUDGE** **msv/** ## **A.MUHAMED MUSTAQUE, J.** ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ## **W.P.(C).Nos.28721/2013, 14741/2014 & 22831/2014** ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10[th] day of October, 2014 ## **J U D G M E N T** The writ petition No.28721/2013 is filed by Nair Service Society challenging prescription of relaxation of cut off marks for reserved category candidates in State Eligibility Test (for short, “SET”). The writ petition 14741/2014 is filed by a candidate, who appeared for SET for the year 2013, praying similar relief in W.P.(C).No.28721/2013. W.P.(C).No. 22831/2014 is filed by candidate on account of non publication of results of SET for the year 2013. 2. A pass in SET is a mandatory requirement for appointment as Higher Secondary School Teacher in the State of Kerala as per the special rules for appointment. The Government have entrusted conduct of ## **W.P.(C).Nos.28721/2013, 14741/2014 & 22831/2014** ## **-:2:-** SET with the Director of LBS Centre for Science and Technology. The requirement of pass in SET-2013 is prescribed in the prospectus under clause (3) thus: “The minimum requirement for a pass in the State Eligibility Test, shall be as follows: |**Category **|**Paper-I**|**Paper-I**|**Paper-II**|**Paper-II**|**Total**|**Total**| |---|---|---|---|---|---|---| ||Mark|%|Mark|%|Mark|%| |General|48|4<br>0|48|40|120|50| |OBC*|42|3<br>5|42|35|108|45| |PWD**<br>SC/ST|42|3<br>5|42|35|96|40| * Non-Creamy Layer **PWD includes VH & PH Candidates The pass percentage shall be calculated as follows: ## - Marks secured for (Paper I + Paper II) Maximum marks for (Paper-I + Paper II) In computing marks, fraction shall be rounded off to the first two decimal places in the calculation of aggregate percentage of marks only. No rounding off of marks shall be made for ## **W.P.(C).Nos.28721/2013, 14741/2014 & 22831/2014** **==> picture [40 x 9] intentionally omitted <==** calculating the pass percentage for Paper I and Paper II separately.” 3. The challenge is regarding lower prescription of marks for certain categories of candidates like OBC, SC/ST etc. on the ground that it is violative of Article 14 of the Constitution. According to the petitioners, who have challenged cut off marks, the classification of candidates for the purpose of declaring pass is without any basis. 4. State Eligibility Test is necessary for all the candidates, who are aspiring for appointment in Government, aided and unaided schools as HSST. The pass mark in the SET is only a qualifying criteria for appointment. 5. The main plank of the argument of the learned counsel for the petitioners challenging prescription of relaxation of cut of marks is that Articles 15 or 16 of the Constitution enables the State to provide ## **W.P.(C).Nos.28721/2013, 14741/2014 & 22831/2014** ## **-:4:-** measures for reservation in admission or appointment in public service. However, it do not enable the State to come out with measures relaxing eligibility norms in common eligibility test, thereby offending equal protection under Article 14 of the Constitution. 6. The pass in the SET is a pre-condition for appointment as HSST. The object of relaxation of cut off marks is to provide equal opportunity in the matter of appointment. The cut off marks is prescribed for different classes; whether it has any rationale is the only question. This is not to be confused with reservation in public employment. Therefore, the question is whether different cut off marks can be prescribed in SET for declaring a 'pass'. 7. In the counter affidavit filed by the State, it is stated that SET exams are not governed by any statutory laws. It is further stated that it was decided by the pass Board under the Chairmanship of the ## **W.P.(C).Nos.28721/2013, 14741/2014 & 22831/2014** ## **-:5:-** Secretary, General Education Department, the minimum requirement of marks for the SET examination shall be in the pattern of UGC NET examination. 8. The relaxation of the cut off marks is based on criteria of backwardness or for PWD candidates. Thus, there is already an identification of a class. The question is whether the State is entitled to prescribe different cut off marks. Article 14 forbids class legislation; it does not forbid reasonable classification for the purpose of legislation. However, in order to sustain permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and, (ii) that the differentia must have a rational relation to the objective sought to be achieved by the action in question. The classification may be founded on differential basis according to ## **W.P.(C).Nos.28721/2013, 14741/2014 & 22831/2014** ## **-:6:-** objects sought to be achieved. The validity of classification must be adjudged with reference to the purpose of law (see judgments in **Budhan Choudhry and others v. State of Bihar [AIR 1955 SC 191], State of Kerala and another v. N.M.Thomas and others [AIR 1976 SC 490] and Deepak Sibal and another v. Punjab University and another [(1989) 2 SCC 145]** . 9. Thus, this Court has to find out whether classification based on intelligible criteria having nexus with objects sought to be achieved. The Hon’ble Supreme Court in **Ashoka Kumar Thakkur Vs. Union of India [(2008 (6) SCC 1]** held that “principles of equality is delicate, vulnerable and supremely precious concept for our society and has embarrassed critical and essential components of constitutionality and further held that facet of principle of equality can always be altered, especially, to carry out the directive principles of State policy”. In Article 39 of the Constitution of India, the State shall direct ## **W.P.(C).Nos.28721/2013, 14741/2014 & 22831/2014** ## **-:7:-** its policy for securing justice towards citizen and the right to have adequate means of livelihood, equally. Article 14 does not forbid reasonable classification. The candidates having been identified based on intelligible criteria, backwardness and disability, the endeavour of the State is to provide equal opportunity for the candidates, belonging to backward community and also to those who are suffering from disability, in public employment as well as in private employment. Thus, the State prescribe different cut off marks for candidates among general candidates, backward community candidates and PWD candidates. It is to be noted that in **Ashoka Kumar Thakkur’s** case ( _supra_ ) it was held that reasonable cut off marks should be set so that standards of excellence are not gravely affected; also held that there should be no case where gap of cut off marks between OBC and general category candidates will be too large and; prescribed that to maintain standards cut off marks should be not more than 10 marks below than that of general category. It is to be noted, the ## **W.P.(C).Nos.28721/2013, 14741/2014 & 22831/2014** ## **-:8:-** difference is only 5% of marks between general and OBC candidates. 10. The learned counsel for the petitioners argue that relaxation of cut off marks to the candidates of OBC can aspire only for reservation in public appointment and they cannot be considered for appointment for general category. The question of public appointment does not arise in this case as the prescription of different cut off marks for the SET examination as eligibility for appointment as HSST in public appointment has to be decided in appropriate cases. That issue is not germane for consideration in this writ petition. The issue therefore is left open. In view of the above W.P.(C).Nos.28721/2013 and 14741/2014 are dismissed. W.P.(C).No.22831/2014 is filed for declaration of results held for the year 2013. In view of the dismissal of the other writ petitions, the Director of LBS Centre for Science and Technology is directed to publish the results of the ## **W.P.(C).Nos.28721/2013, 14741/2014 & 22831/2014** ## **-:9:-** SET examination within one month. W.P.(C). No.22831/2014 is accordingly disposed of. **Sd/A.MUHAMED MUSTAQUE, JUDGE** ms