Vijayakumari K. v. State of Kerala & Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942** ## **OP(KAT).No.196 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OA 1482/2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 08.08.2018** ## **PETITIONER/APPLICANT:** **VIJAYAKUMARI K AGED 39 YEARS W/O.SUDHEESH KUMAR A.M, SUNIL NIVAS, FAROOQ COLLEGE P.O, MALAPPURAM, KERALA-673632** **BY ADVS. SRI.T.D.SUSMITH KUMAR SRI.C.SIVADAS** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE DIRECTOR, COLLEGIATE EDUCATION, DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001 2 KERALA PUBIC SERVICE COMMISSION THIRUVANANTHAPURAM-695004, REPRESENTED BY ITS SECRETARY** ## **SRI.P.C.SASIDHARAN,SC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No.196 OF 2020** **2** # **ALEXANDER THOMAS & T.R.RAVI, JJ.** # **============================= O.P (KAT) No. 196 of 2020 [Arising out of order dated 08.08.2018 in O.A.No.1482 of 2018 of the Kerala Administrative Tribunal, Thiruvananthapuram]** **=============================** Dated this the 07[th] day of January, 2021 ## **JUDGMENT** ## **ALEXANDER THOMAS, J.** The prayers in the aforecaptioned Original Petition (KAT) filed under Articles 226 & 227 of the Constitution of India are as follows: - _“i) to call for the entire records pertaining to the Exhibit P-4, the Order dated 08.08.2018 in OA No.1482 of 2018 on the file of the learned Kerala Administrative Tribunal, Thiruvananthapuram, and set aside the same as arbitrary, unreasonable and illegal;_ - _ii) to call for the entire records pertaining to Exhibit P-3, Circular No.17/2013 dated 16.08.2013, issued by the 2[nd] Respondent and to set aside the same as arbitrary, unreasonable, and unscientific to the limited extent of earmarking credit marks for academic marks out of 30 as the “Basis of marking” in the selection process for the post of Lecturer in Botany on UGC Scale in collegiate Education Department;_ - _iii) to declare that there is utmost disparity while treating the candidates belongs to Semester system Post Graduate Programme and Year-wise system Post Graduate Programme while considering the academic marks out of 30 as the “Basis of marking” in the selection process for the post of Lecturer in Botany on UGC Scale in collegiate Education Department and other posts;_ - _iv) to pass an Order directing the 2[nd] Respondent to promulgate the Method of Selection and Basis of marking strictly in consonance with the letter and spirit under Rule 3 and Rule 11(ii) of Kerala Public Service Commission Rules and Procedures and Clause 202 of the Public Service Commission Manual, without violating the Article 14 and Article 16 of the Constitution of India is an illagal, irrational and arbitrary manner;_ - _v) to grant any other reliefs that are paryed for and is deemed just and proper to grant in order to secure ends of justice.”_ 2. Heard Sri.T.D.Susmith Kumar, learned counsel appearing for the petitioner in the O.P./applicant in the O.A., Sri.P.C.Sasidharan, learned **OP(KAT).No.196 OF 2020** **3** standing counsel for the Kerala Public Service Commission appearing for R2 and Sri.B.Vinod, learned Senior Government Pleader appearing for R1State of the Kerala. 3. The petitioner herein has filed the instant original application as O.A.No.1482/2018 before the Kerala Administrative Tribunal, Thiruvananthapuram, seeking the following reliefs: - _“i) To issue an order directing the second respondent to set aside Annexure A1 rank list and thereafter prepare new rank list either on the base of marks obtained by the candidates only in test and interview or by giving special weightage to the applicant and similar candidates who secured highest marks/rank in Post Graduation Examination._ - _ii) Issue such other directions or orders as this Honourable Tribunal deems fit and proper in the facts and circumstances of the case, in the interest of justice.”_ 4. The case of the petitioner in the O.P./applicant in the O.A. is to the effect that she is a candidate duly included in Annexure A1 rank list published by the respondent-Kerala Public Service Commission for selection and appointment for the post of Lecturer in Botany in the Collegiate Education Department of the Government of Kerala, notified as Category No. 278/2016. The said rank list has come into force on 02.07.2018 and the petitioner in the O.P./applicant in the O.A. is stated to have secured Rank No.47 in the said list. The petitioner in the O.P./applicant in the O.A. would point out that she is a gold medalist and is also the 1[st] rank holder in the M.Sc. Applied Botany course conducted by the Kuvempu University, Karnataka. The complaint voiced by the **OP(KAT).No.196 OF 2020** **4** petitioner/applicant in the O.A. is as against the basis of marking adopted by the respondent-Kerala Public Service Commission, whereby 30% credit is given for the marks obtained in the Post Graduate examination conducted by the University concerned, which is added to the marks obtained in the written examination and the selection process conducted by the respondent-Kerala Public Service Commission. The petitioner/ applicant in the O.A. would contend that when the respondent-Kerala Public Service Commission has already conducted a written examination and also an interview for the selection process, it is not reasonable to take into account the academic marks obtained by the candidates in their respective M.Sc degree examinations, as various candidates who participated in the selection process, would have secured the degrees from various Universities across the country and that the gradation and assessment of marking would be widely varied in many of the Universities concerned, whereas the written examination and selection process are the same and uniform criteria as the same is conducted only for the purpose of abovesaid selection and that too, by none other than the respondent-Kerala Public Service Commission and that when such a wholesome selection criteria has already been adopted and conducted by the respondent-Public Service Commission, it does not stand to reason or logic to have even **OP(KAT).No.196 OF 2020** **5** placed extra reliance on the academic marks obtained by the candidates in their respective M.Sc degrees. Further it is pointed out that the weightage of 30% is also rather unreasonable and arbitrary and that if at all the said criteria is otherwise acceptable, giving weightage only for the marks in the written examination and not giving any weightage or special consideration for the ranks obtained by the candidates concerned in the M.Sc degree examination of the Universities concerned, is rather arbitrary and improper. In that regard, the petitioner/applicant in the O.A. would point out that she has secured the top rank and gold medal in the Post Graduate examination conducted by the University from where she has secured a degree from the State of Karnataka. 5. Per contra, Sri.P.C.Sasidharan, learned standing counsel for the Kerala Public Service Commission appearing for the 2[nd] respondent would point out that the basis of marking and credit marks for the academic examination is granted in accordance with Circular No.17/2013 dated 16.08.2013 issued by the respondent-Kerala Public Service Commission and various other norms in that regard issued from time to time. That the marks obtained in the written test plus the credit marks for the academic examination plus the interview marks, is the relevant criteria for marking, which forms the basis for the selection for determining the _inter se_ merit of **OP(KAT).No.196 OF 2020** **6** the candidates who had part taken in the selection process. That from this objective criteria, that the Commission has prepared the impugned Annexure A1 rank list which has come into force on 02.07.2018. Further, Sri.P.C.Sasidharan, learned standing counsel for the respondent-Kerala Public Service Commission would elucidate that the substantive source of power for the Kerala Public Service Commission is traceable to the provisions contained in Rule 11(ii) of the Kerala Public Service Commission Rules of Procedure, which has been framed under the enabling provisions conferred for the functioning of the Commission in terms of Article 315 of the Constitution of India and that in that regard, the Commission has also brought out Clause 339 of the Kerala Public Service Commission Office Manuel, which enables the Commission to adopt a procedure of crediting, which would minimize inequality, if any, between the qualifications obtained by the applicants undergoing examinations conducted by various Universities/Educational institutions across the country. Rule 11(ii) of the Kerala Public Service Commission Rules of Procedure would enable the respondent-Kerala Public Service Commission to decide the basis of marking to be awarded in the selection process, etc. 6. After hearing both sides, it appears that the matter in issue is no longer _res integra_ and is covered against the petitioner and in favour of the **OP(KAT).No.196 OF 2020** **7** respondent-Kerala Public Service Commission, as per the dictum laid down by Division Bench of this Court in a series of cases as in **Sajan N. Menon V. State of Kerala** [2007 (4) KLT 126 (DB)], judgment dated 04.09.2019 of the Division Bench of this Court in O.P.(KAT) No.442/2017 ( **Kerala Public Service Commission V. Vineetha M.C. & Ors.** [I.L.R. 2020 (1) Kerala 86]), judgment dated 21.12.2020 of the Division Bench in O.P. (KAT) No.111/2020, etc., It would be profitable to refer paragraphs 10 & 11 of the decision rendered by the Division Bench of this Court in **Sajan N. Menon's case** supra [2007 (4) KLT 126 (DB)] which reads as follows: “10. Counsel appearing for the petitioner mainly relied upon the decision of the apex court in Dr. Dinesh Kumar's case (supra) and contended that the procedure adopted by the PSC is against the principle laid down by the apex court in the abovementioned decision wherein the apex court held that admission on the basis of marks obtained at the qualifying examinations held by different Universities/States is violative of Article 14 of the Constitution of India. We are in this case concerned with a selection conducted by the PSC, a constitutional body, entrusted with the task of conducting a proper and fair selection to civil services and not with regard to the admission to various educational institutions on the basis of the marks obtained by candidates. In Dr. Dinesh Kumar's case apex court was dealing with the admission to the Professional Courses. In our view, the same yardstick cannot be adopted in a selection conducted by the PSC for recruitment to civil post and to that of admission to professional courses. Even in the case of admission to Medical Colleges the Apex Court in T.P.Roshana's case (supra) held as follows: "The vagarious element in marking and moderation of marks may be a fact of life, but too marginal to qualify for substantial difference unless otherwise made out. Indeed, there may be differences among the colleges under the same University, among the examiners in the same University. Such fleeting factors or ephemeral differences cannot he the solid foundation for a substantial differentiation which is the necessary precondition for quashing an executive or legislative act as too discriminatory to satisfy the egalitarian essence of Art. 14. The functional validation of the writ jurisdiction is an appropriate examination of the sustainability of the alleged disparity............... We are persuaded to make these observations for future guidance, so that academic schemes may not be struck down as arbitrary or irrational save where some sound basis has been laid." The Division Bench o f this Court in Mohan's case after referring to the judgment of this court in State of Kerala v. Rafia Rahim 1979 K.L.T. 369 and Dr. Dinesh Kumar's case, felt **OP(KAT).No.196 OF 2020** **8** that the approach of the court exercising its extraordinary jurisdiction in the matter of selection and appointment effected by a body like PSC would he different from that of admission to the Professional Courses. The Division Bench felt that the principles governing aspects of admissions to Medical Colleges and public employment have been distinct and separate. The apex court in Anzar Ahamed v. State of Bihar A.I.R. 1994 S.C. 141 upheld the selection made by the PSC to the post of Unani Medical Officers on the basis of interview and also the academic performance. Commission in that case gave weightage of 50% marks for academic performance and 50% marks for interview. The apex court held by giving equal weightage to academic performance, the Commission had rather reduced the possibility of arbitrariness. State of Tamil Nadu, it may be pointed out, have done away with Common Entrance Examination even for admission to the professional courses and have decided to accept the marks in the qualifying examination as the criteria for admission. The procedure was challenged before the Madras High Court in Minor S. Aswin Kumar v. State of Tamil Nadu (2007 (2) C.T.C. 677) but without success. The court held as follows: "Abolition of Common Entrance Test does not have the ipso facto effect of lowering the standard. The only effect is that selection is not based on a common platform and therefore vulnerable to the attack based on the Principle of Equality. This vulnerability has been overcome by equalization. As a matter of fact, the basic conclusion in both the Division Bench decisions is that without Common Entrance Test the Principle of Equality would be offended. Even the object of Common Entrance Test (without even a minimum pass. mark) is only to ensure equality and not minimum merit. If equality can he achieved up to a reasonable level by any another method, no objection can be sustained. Absolute equality is a myth, even when Common Entrance Test is held because of the inherent possibility of ticking some answers more by guess as in KBC. T.V. programme rather than by any conscious selection of the right answer." In this case we may also refer to the decision of the Division Bench in Kerala Self Financing Engineering College Managements Association v. The Admission Supervisory Committee for Professional Colleges and another 2007 (2) K.H.C. 916 wherein the Bench held that adopting a method of equalization, marks awarded in the qualifying examination can also be reckoned. ## 11. Common Written Test and Qualifying Examination. Written test is only a method of selection, primarily intended to provide a common platform to ensure equality between, the candidates. But it cannot he said that it is the only sure and safe method to find out the best of the lot. Independent of that or added to that - any other method which would still help the appointing authority or even the Entrance Examiner for admission to professional colleges, to find out the best should he welcomed, provided the method is fair and reasonable. Marks obtained by candidates in the qualifying examinations cannot be said to he not a yardstick to measure merit, even if the candidates qualify themselves in various examinations conducted by different educational institutions, of course the inequality between the qualifying examinations should be reduced by adopting a system of equalization of marks through normalization process. To ignore the marks obtained by a candidate in the qualifying examination as a whole maybe suicidal, after all, students take a qualifying examination after undergoing a system of education, which develops their overall personality. If we ignore the qualifying examination completely that would affect the very standard of education in the State because the students would be concentrating more on the Entrance Examination rather than the qualifying examination.” **OP(KAT).No.196 OF 2020** **9** 7. The Division Bench of this Court in the aforementioned judgment rendered in O.P.(KAT) No.442/2017 has also elaborately considered the dictum laid down by the Division Bench of this Court in **Sajan N. Menon's case** supra [2007 (4) KLT 126 (DB)] and has relied on the said dictum, as can be seen from a reading of the said judgment. So also, the judgment of the Division Bench of this Court in O.P.(KAT) No.111/2020 is also on the same line. It is on this basis that the Kerala Administrative Tribunal has repelled the above said contentions of the petitioner and has dismissed the abovesaid original application as per the impugned Ext.P4 final order dated 08.08.2018 rendered by the Kerala Administrative Tribunal, Thiruvananthapuram in O.A.No. 1482/2018 filed by the petitioner herein. 8. As already held by the Division Bench of this Court in the aforecited judgments, the respondent-Public Service Commission being a constitutional body created and established in terms of Article 315 of the Constitution of India to discharge the duties and functions envisaged in terms of Article 320 of the Constitution of India, is a constitutional entity and as a constitutional entity, it can regulate its own procedure. Rule 11(ii) of the Kerala Public Service Commission Rules of Procedure would explicitly manifest in the said aspect. It is in the light of these powers **OP(KAT).No.196 OF 2020** **10** conferred on the Kerala Public Service Commission that the said body has framed the above said criteria in question. The Tribunal in the impugned judgment has also taken note of the fact that the respondent-Kerala Public Service Commission after conducting detailed study has modified the earlier Circular No.12/1995 dated 19.12.1995 and subsequent Circular No.3/2011 dated 18.01.2011 and has issued Circular No.17/2013 dated 16.08.2013 for arriving at the present basis of marking and decided to grant credit marks up to 30 for the marks obtained in the academic examinations. It is also pointed out that credit for the academic marks is granted by reducing the percentage of marks secured to a unit of 30 employing a normalisation method. These are all matters, which would come not only within the jurisdictional competence of the Kerala Public Service Commission but also within their selection policy prerogatives, as it is not only constitutional body but is also authority to conduct and finalize selection to various posts in Public Services. Any such criteria of marking adopted by a selection body like Kerala Public Service Commission, may not find equal favour with all the candidates concerned and it may be wellneigh impossible for any selection authority to devise a perfect formula, which would be acceptable to all or majority of the candidates who part take in the selection process. Based on the jurisdictional competence and **OP(KAT).No.196 OF 2020** **11** the policy prerogative as well as their consistent long experience, it is for the selection body like Public Service Commission to devise a method, which should be free from arbitrariness or unreasonableness. The impugned method of marking cannot be said to be arbitrary or unreasonable and certainly cannot be found fault with as beyond the jurisdictional competence of the respondents. As noted hereinabove, the matter in issue is no longer _res integra_ and is covered against the petitioner by the aforementioned judgments of the Division Bench of this Court. 9. After hearing both sides and after giving anxious consideration to the pleadings and materials on record in this case, we are in respectful concurrence with the above said considered views rendered by the Division Bench of this Court in the aforementioned judgments. The Tribunal cannot be found fault with for having arrived at the impugned conclusions in the impugned order. 10. Further it was also to be noted that Annexure A1 rank list has come into force as early as on 02.07.2018 and the petitioner has not impleaded any of the affected parties. This the Court would say so, as inevitably, if the main plea of the petitioner is acceded to, then it would inevitably lead to the recasting of the rank list. As a matter of fact, one of **OP(KAT).No.196 OF 2020** **12** the prayers in the O.A. is for recasting of the impugned rank list. If that be so, the candidates included in the rank list are directly affected by the said pleas and therefore, the petitioner indisputably has not impleaded any of the affected parties concerned. Hence this Original Petition (KAT) should also fail on the ground of non impleadement of the affected parties. The upshot of the above discussion is that the Original Petition fails and the same will stand dismissed. **Sd/-** ## **ALEXANDER THOMAS, JUDGE** **Sd/-** **T.R.RAVI, JUDGE** **Pn** **OP(KAT).No.196 OF 2020** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE ORIGINAL APPLICATION DATED 01.08.2018 ALONG WITH ANNEXURES A-1 TO A4 PERTAINING TO OA NO.1482 OF 2018 BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **ANNEXURE A1 THE TRUE COPY OF THE RANKED LIST BEARING NO.471/18/OLE PUBLISHED BY THE 2ND RESPONDENT WAS ANNEXED ALONG WITH AFORESAID OA NO.1482/2018 ON THE FILE OF HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ANNEXURE A2 THE TRUE COPY OF THE RANK CERTIFICATE BEARING NO.02642, DATED 28.12.2004 ISSUED TO THE PETITIONER FROM KUVEMPU UNIVERSITY ANNEXURE A3 THE GOLD MEDAL CERTIFICATE BEARING NO.01352 PERTAINING TO LATE P.C.THAMMAIAH'S MEMORIAL DATED 28.12.2004, ISSUED TO THE PETITIONER FROM KUVEMPU UNIVERSITY ANNEXURE A4 THE GOLD MEDAL CERTIFICATES BEARING NO.01353 PERTAINING TO LATE SMT.CHENNAMMA AND NADEPPA KUMBAR DATED 28.12.2004, ISSUED TO THE PETITIONER FROM KUVEMPU UNIVERSITY EXHIBIT P2 THE TRUE COPY OF GAZETTE NOTIFICATION DATED 29.09.2016 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION, PERTAINING TO THE CATEGORY NO.278/2016 OF APPLICATION IN FREQUENCY WITH POSTS OF LECTURER IN BOTANY. EXHIBIT P3 THE TRUE COPY OF THE CIRCULAR NO.17/2013 DATED 16.08.2013 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION EXHIBIT P4 THE CERTIFICATE COPY ORDER DATED 08.08.2018 IN OA NO.1482/2018 ON THE FILE OF HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.**