Vipin Kumar V.V. and others vs Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 26TH DAY OF JUNE 2012/5TH ASHADHA 1934** **OP(KAT).No. 1709 of 2012 (Z)** **----------------------------** **OA.423/2012 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** **PETITIONER(S): -------------** **1. VIPIN KUMAR V.V., S/O.VIDYADHARAN V.G., AGED 27, VEERALASSERIL HOUSE ARTHUNKAL P.O.CHERTHALA, ALAPPUZHA-688 530.** **2. RENJITH KRISHNAN S.K., S/O.KRISHNAN S., AGED 26, AJITH BHAVAN, VENNIYOR NELLIVILA PO, THIRUVANANTHAPURAM 695 523.** **3. SANEESH S., S/O.SIVAJI, AGED 25, VELAMPARAMIL HOUSE PARAYAKKAD PO, CHERTHALA ALAPPUZHA 686 540.** **4. DWIPU D., S./O.DASAN, AGED 24 VADAKKEVYPPISERI, PARAYAKADU PO THURAVOOR ALAPPUZHA-688 540.** **5. ANEESH M.R., S/O.RAJAN M.K. AGED 32, MANACKAPARAMBU HOUSE, KONGORPILLY PO ERNAKULAM-683 525.** **6. SURESH T.M., S/O.MARTIN AGED 30, THOTTUNKAL HOUSE VADACKAL PO ALAPPUZHA 688 003.** **7. PRASHOBHAN V.A., S/O.ASOKAN AGED 28, VALPHIRAYIL HOUSE, THAICKIN PO CHERTHALA ALAPPUZHA 698 854.** **8. SAHAD K., S/O.K.P.MUHAMMED HAJI, AGED 25, KALLAKKALS, KOTTUPURAM KURUMATHUR PO TALIPARAMBA, KANNUR- 670 142.** **9. MANAF M., S/O.A.MAKKU, AGED 29 MANAF MAHAL, NADUVATHAPARA PO PERINGOTTUKURISSI PALAKKAD-678 574.** **10. RENJITH T.R., S/O.REMANAN AGED 26, THAZCHAYIL HOUSE MUHAMMA PO ALAPPUZHA 688 525.** ## **OP(KAT).No. 1709 of 2012** **11. SIBY K.THOMAS, S/O.T.O.THOMAS, AGED 27, KURUSINKAL HOUSE, PATHIRAPALLY PO NEAR NEW BHARATH COIR, CHETTIKADU ALAPPUZHA-688 521.** **12. MATHEW V.J., S/O.JACOB, AGED 31, VALIYA VEETTIL, KATOOR PO ALAPPUZHA-688 546.** **13. MANOJ KUMAR T.K., S/O.KARUNAKARAN, AGED 30, THUNDAYYATHU HOUSE, AYANI NORTH S.V.MARKET PO, KARUNAGAPPALLY, KOLLAM-690 573.** **14. SIJU M., S/O.MOHANAN V., AGED 24, THADATHARIKATHU VEEDU, KANNANCODE AYIRAKUZHY PO, KOLLAM-691 559.** **15. RAJEEV S.A., , S/O.SATHEESHKUMAR V., AGED 27, RAJEEV BHAVAN, MELAKUNDAYATHUKONAM PUTHUKULANGARA PO, NEDUMANGADU THIRUVANANTHAURAM-695 541.** **16. ANOOP CHAND C.V., S/O.VISWANATHAN C., AGED 25, ASWATHY BHAVAN, PERILA PANACODE PO NEDUMANGADU THIRUVANANTHAPURAM-695 542.** **17. RAVI KUMAR V., S/O.VELAYUDHAN K. AGED 33, KOLUMBIL HOUSE, VITHANASSERY NEMMARA PO PALAKKAD 678 508.** **18. MUHAMMED RAFEEK S., S/O.SAINULABDEEN A. AGED 28, MUTTATHU HOUSE, PALACKAL THEVALAKARA PO, KOLLAM-690 524.** **19. ANEESH S., S/O.SIVADASAN AGED 27, DHANISHALAYAM, CHENTHAPURU DECENT JUNCTION PO, KOLLAM 691 577.** **20. JIJIN RAJ T.V., S/O.RAJAN AGED 28, THAZHATHU VALAPPIL MEDICAL COLLEGE PO CALICUT-673 008.** **21. JITHEESH C., S/O.CHENTHAMARAKSHAN K. AGED 27, ETTIKANDAMPURA, KARINJALIPPALAM CHITTUR PALAKKAD 678 101.** **22. SUNEENDRAN K.B., S/O.BHADRAN, AGED 29, KODIVEETTIL HOUSE, KODAKKARAPPALLY PO CHERTHALA, ALAPPUZHA 688 529.** **23. RAHUL V., S/O.PRAKASHAN, AGED 25, RADNA NIVAS HOUSE, PUTHUKODE PO RAMANATTUKARA VIA., PERINGAVE, MALAPPURAM 673 633.** ## **OP(KAT).No. 1709 of 2012** **24. RASHID M.T., S/O.ASSAINAR, AGED 25, MALAYILTHAZHA HOUSE, PURAKKAD PO MELADI VIA., KOZHIKODE 673 522.** **25. SURESH A.K., S/O.GOPIDAS A.K. AGED 24, ELANTHIKULANGARA HOUSE, S.R.K.NAGAR PO OTTAPALAM, PALAKKAD 679103.** **26. SARATH CHANDRAN B., S/O.T.BALACHANDRAN, AGED 26, SARATH CHANDRA BHAVAN, VAZHUTHANAMUKAL POOVACHAL PO, THIRUVANANTHAPURAM 695 575.** **27. AUGUSTINE LAWRENCE, S/O.V.A.LAWRENCE, AGED 26, VELIYIL HOUSE, ARATTUVAZHY WARD ALAPPUZHA 688 007.** **28. SEBASTIAN A.C., S/O.CLEETUS, AGED 30, ARACKAL HOUSE, KATTOOR PO OMANAPPUZHA, ALAPPUZHA 688 546.** **29. ASHARUDHEEN K., S/O.MOIDEEN K., AGED 24, PARAPPURATH HOUSE, CHENGARA IRUVETTY PO MALAPPURAM 673 639.** **30. ANOOB A.LATHEEF, S/O.ABDUL LATHEEF, AGED 24, PUTHENPURAYIL HOUSE EDAKKULANGARA PO KARUNAGAPPALLY, KOLLAM 690 523.** **31. VISHNU R., S/O.RAGHUNATHAN K. AGED 24, VISHNU SREE, PAVITHRAM NAGAR 44, KALLUMTHAZHAM PO, KILIKOLLOOR KOLLAM 691 004.** **32. ANEESH O.A., S/O.APPUKUTTAN O.G., AGED 26, ORAVATHOTTIYIL HOUSE, ADUKKON PO CHAMATARA KOTTAYAM 686 580** **33. BABITH M., S/O.BABU M., AGED 24, MEPPANATTIL HOUSE, MAKKADA PO KAKKODI KOZHIKODE 673 611.** **34. MANEESH K.U., S/O.UDAYAPPAN, AGED 27, KIZHAKKEVILY HOUSE, VADUTHALA JETTY PO CHERTHALA, ALAPPUZHA 688 535.** **35. ARUN KUMAR TS., S/O.THAMPIKUNJU N., AGED 28, AVIKUZHI VEEDU, OLATHANNI NEYYATTINKARA PO THIRUVANANTHAURAM 695 121.** **36. BIJOY R.K., S/O.RAGHAVAN G., AGED 25, KAMALA BHAVAN, CHITTACODE KADAVATTARAM NEYYATTINKARA PO, THIRUVANANTHAPURAM 695 121** ## **OP(KAT).No. 1709 of 2012** **37. SYAM KUMAR S., S/O.SASIKUMAR, AGED 24, PATHALIL HOUSE, PIVALLEY BHAGOM PUTHANPEEDIKA, OMALLOOR PO PATHANAMTHITTA 689 647.** **BY ADVS.SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN** - **RESPONDENT(S): --------------** **1. KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, PIN 695 004.** **2. THE COMMANDANT GENERAL,** - **FIRE AND RESCUE SERVICES** **HOUSING BOARD JUNCTION THIRUVANANTHAPURAM-1.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC BY GOVERNMENT PLEADER SMT.GIRIJA GOPAL BY SRI.P.C.SASIDHARAN, SC, KPSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 26-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(KAT).No. 1709 of 2012** APPENDIX PETITIONER(S) EXHIBITS – EXHIBIT-P1 - TRUE COPY OF THE ORIGINAL APPLICATION NO.423/2012 FILE DBY THE PETITIONERS BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL. ANNEXURE-A1 - TRUE COPY OF THE NOTIFICATION ISSUED BY THE PSC FOR APPOINTMENT TO THE POST OF FIREMAN (TRAINEE) ANNEXURE-A2 - TRUE COPY OF THE SHORT LIST PUBLISHED BY THE PSC FOR APPOINTMENT TO THE POST OF FIREMAN (TRAINEE) ANNEXURE-A3 - TRUE COPY OF THE RANKED LIST PUBLISHED BY THE PSC FOR APPOINTMENT TO THE POST OF FIREMAN (TRAINEE) ANNEXURE-A4 - TRUE COPY OF THE APPLICATION DATED 15-2-2012 SUBMITTED UNDER THE R.T.I. ACT. ANNEXURE-A5 - TRUE COPY OF THE REPLY DATED 16-2-12 ISSUED FROM THE OFFICE OF THE 2ND RESPONDNET. EXHIBIT-P2 - TRUE COPY OF THE COUNTER AFFIDAVDIT FILED BY THE PSC BEFORE THE KAT IN O.A.NO.423/2012. EXHIBIT-P3 – TRUE COPY OF THE REJOINDER AFFIDAVIT FILE DBY THE PETITIONERS BEFORE THE KAT IN O.A.NO.423/2012. ANNEXURE-A6 - TRUE COPY OF THE PROCEEDINGS OF THE KERALA LEGISLATIVE ASSEMBLY DATED 22-3-2012 EVIDENCING THE FACT THAT 1333 VACANCIES OF FIREMAN (TRAINEE) HAVE BEEN REPORTED TO THE PSC. ANNEXURE-A7 - TRUE COPY OF THE PROCEEDINGS OF THE KERALA LEGISLATIVE ASSEMBLY DATED 22-3-2012 CONTAINING THE QUESTION AND ANSWER EVIDENCING THE FACT THAT THERE ARE 101 FIRE STATIONS IN THE STATE. ANNEXURE-A8 - TRUE COPY OF THE INFORMATION COLLECTED BY THE PETITIONERS FROM THE WEBSITE OF THE FIRE DEPARTMENT CONTAINING THE NAMES OF THE FIRE STATIONS. ANNEXURE-A9 - TRUE COPY OF THE PROCEEDINGS OF THE LEGISLATIVE ASSEMBLY DATED 22-3-2012 EVIDENCING THE FACT THAT THERE SHOULD BE MINIMUM 24 FIREMAN IN EACH FIRE STATION ANNEXURE-A10 - TRUE COPY OF THE ORDER, G.O. DATED 21-12-2011 ISSUE BY THE GOVERNMENT. EXHIBIT-P4 – TRUE COPY OF THE ORDER DATED 13.4.2012 IN O.ANO.423/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL. ## **RESPONDENTS' EXHIBITS : NIL** **/TRUE COPY/** **PS TO JUDGE** ## **MANJULA CHELLUR, Ag.C.J & A.M.SHAFFIQUE, J.** ## **----------------------------------------------** ## **O.P(KAT).No. 1709 of 2012** ## **---------------------------------------------Dated this the 26[th] day of June, 2012 JUDGMENT** ## **Manjula Chellur, Ag.C.J.** Heard learned counsel for the petitioners as well as learned Standing Counsel for the Kerala Public Service Commission. 2. The present petition is directed against the dismissal order of Kerala Administrative Tribunal in O.A.No.423 of 2012. The petitioners herein approached the Tribunal challenging the jurisdiction of the first respondent-Commission in not publishing the shortlist and the rank list by including the candidates in the ratio of atleast 1:3 or 1:5 as held by the Apex Court and the Full Bench of this Court. 3. The brief facts that led to the filing of the present petition are as under: The Kerala Public Service Commission (for short, 'the Commission') called for applications for appointment to the post of Firemen (Trainee) in the Fire and Rescue Services Department. A shortlist came to be published as per Annexure A2 on 28.2.2011, after holding a written test. The main list contained 2 _**OP(KAT).1709/12**_ 3121 candidates and the supplementary list contained 3959 candidates. According to the Commission, the very post of Fireman (Trainee) required physical efficiency screening as well and all the 7000 and odd candidates included in the main rank list and the supplementary list were sent for screening test simultaneously in order to arrive at a final rank list. It is not in dispute that 53851 applications were received, when the notification inviting the applications came to be published. Out of this, the short list as per Annexure A2 came to be made. The last candidate in the list seems to have secured 47 marks and this, as pointed out by the Tribunal, was not the cut off marks fixed by the Commission. The fact remains, as on the date of shortlist on 28.2.2011, there were definitely, certain number of vacancies reported and according to the petitioners, it was 1333 vacancies and not 911, as claimed by the Commission. Taking into consideration the number of candidates published in the main list and the supplementary list, one has to see what was the exact vacancy reported to the Commission as on the date of publication of the shortlist on 28.2.2011. 4. According to learned counsel for the petitioners, the law laid down by the Apex Court in the decision reported in _**Ashok**_ 3 _**OP(KAT).1709/12**_ _**Kumar Yadav v. State of Haryana**_ [(1985)4 SCC 417], though by a Larger Bench, will not apply to the facts of the present case, as the facts of the present case attract the law laid down by the Supreme Court in the decision reported in _**State of Punjab and others v. Manjit Singh and others**_ (AIR 2003 SC 4580). The Tribunal, apart from referring to _**Ashok Kumar Yadav's case**_ (Supra) and _**Manjit Singh's case**_ (Supra), has referred to the decision reported in _**Nair Service Society v. District Officer, Kerala Public Service Commission**_ (2003(3) KLT 1126) and a Full Bench decision of this Court reported in _**Ajayan v. State of Kerala**_ (2006(3) KLT 854), where the shortlist method adopted by the Commission was in consonance with the law declared by the Apex Court and this Court. 5. In the additional affidavit filed before this Court by the Commission, they have, in detail, mentioned how many advices reporting the vacancies were received till the date of shortlist along with the requisitions sent from time to time reporting the vacancies. As per this document and as per the affidavit and the accompanying documents, as on the date of shortlisting, there were 911 vacancies. They arrived at this figure on the ground that only on 16.8.2010 the Commission took a decision to finalise _**OP(KAT).1709/12**_ 4 the shortlist and therefore, the vacancies reported till 16.8.2010 were alone taken into consideration to arrive at the number of vacancies so as to prepare the shortlist. However, they also admit receiving requisition on 3.12.2010, i.e., about 183 fresh vacancies. 911 vacancies are upto 16.8.2010 and if 183 vacancies are also included, it would come to 1094 vacancies. Therefore, the contention of the petitioners that as on the date of shortlist, there were clear vacancies of 1333, cannot be accepted in view of the records produced by the Commission along with the details in the affidavit. 6. Then, coming to the law laid down by the Apex Court, which was followed by this Court, learned counsel for the petitioners brought to our notice the dictum laid down by the Supreme Court in _**Manjit Singh's case**_ (Supra). Paragraphs 6 and 7 of the said decision read as under: _“6. Now adverting to the point under consideration, it may be observed that so far the powers and functions of othe Commission in shortlisting of candidates is concerned, there can certainly be no doubt about it. Say for example 10,000 candidates apply for recruitment to 100 posts, it would obviously not be possible to take full test/examination and interview of such large number of applicants, though eligible. In that event, shortlisting of the candidates by screening out those, in respect of whom it would serve no purpose to call them for_ 5 _**OP(KAT).1709/12**_ _further test, may be excluded by adopting the method of screening test. Generally speaking a ratio of 3:5 candidates for one post is normally accepted depending upon the number of seats. Therefore, for 100 posts the selecting body may in order of merit take out about first 500 candidates for further tests/interview. The rest of the candidates would be screened out. No candidate excluded by adopting such a method for shortlisting can raise any grievance whatsoever._ _7. But for such shortlisting as indicated above, it is not necessary to fix any minimum qualifying marks. Any candidate on the top of the list at number 1 down up to 500 would obviously constitute the shortlisted zone of consideration for selection. For the purpose of elaboration it may be observed that in case some cut off marks is fixed in the name of shortlisting of the candidates and the number of candidates obtaining such minimum marks, suppose is less than 100 in that event screening test itself will amount to a selection by excluding those who though possess the prescribed qualification and are eligible for consideration but they would be out of the field of consideration by reason of not crossing the cut off marks as may be fixed by the recruiting body. This would not be a case of shortlisting. In shortlisting as observed above, any number of candidates required in certain proportion of the number of vacancies, they may be shortlisted in order of merit from serial No.1 up to the number of candidates required.”_ 7. He also brought to our notice the law laid down by this Court reported in _**Ajayan v. State of Kerala**_ (2006(3) KLT 854), wherein a reference was made to the law declared by the Apex Court. The relevant portion of the said judgment reads as under: 6 _**OP(KAT).1709/12**_ _“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._ _xx xx xx xx_ 7 _**OP(KAT).1709/12**_ _So, shortlisting should not be done in an arbitrary manner and it should relate not only to the existing vacancies, but also, to the anticipated vacancies and it is always better to prescribe the manner why shortlisting is done before the selection process starts.”_ 8. According to the learned Senior Counsel, as there were chances of occurrence of vacancies and all these vacancies have to be considered before the shortlist being prepared, the shortlist now prepared is deficit of the number of candidates as declared by the Apex Court and this Court. If we consider the stand of the Commission that as on 16.8.2010 it was only 911 clear vacancies reported, the shortlist prepared includes more than 7000 candidates and it would come to 1:7. If 183 reported vacancies of December, 2010 is also taken into consideration, it would also be more than 1:6 ratio. In that view of the matter, if the stand of the petitioners were to be that, atleast 1:3 or 1:5 should be the ratio, while preparing the shortlist, we are of the opinion, the number of vacancies occurred by reporting to the Commission as on 28.2.2011 would be only 1094 vacancies and the shortlist prepared by them is nothing short of the guidelines and also the observations of the Apex Court and this Court. In that view of the matter, the Tribunal was justified in saying that the shortlist 8 _**OP(KAT).1709/12**_ contains more than the numbers suggested in the Circulars and the guidelines laid down by the Apex Court and this Court. 9. A careful reading of the decisions indicates that as per the circulars of the Commission, the shortlist must be prepared by taking into consideration not only the number of vacancies clearly reported, but also the number of vacancies advised from the previous list, the nature of the post and the chances of occurrence of vacancies. In that view of the matter, we are of the opinion, nothing remains for us to consider in this Original Petition. Accordingly, the Original Petition is dismissed. **MANJULA CHELLUR, ACTING CHIEF JUSTICE** **A.M.SHAFFIQUE, JUDGE** **vgs27.06**