Writ Appeal No. 2012 of 2010 and W.A. No. 47 of 2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 WA.No. 2012 of 2010 --------------------AGAINST THE JUDGEMENT IN WPC.18088/2009 Dated 07/10/2010 .................... APPELLANT/PETITIONER: --------------------------- C.GEETHA, AARAMAM, NEAR GOVERNMENT UPS, CHANDAVILA, KATTAYIKONAM P.O., KAZHAKUTTOM, THIRUVANANTHAPURAM. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH RESPONDENTS/RESPONDENTS: ---------------------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 3. RAJAN K.V., S/O.K.P.VELAYUDHAN NAIR, ARUN VIHAR, PUTHUR, AKALUR P.O., OTTAPPALAM, PALAKKAD DISTRICT, PIN 679 302, NOW WORKING AS PEON, IN THE LOCAL FUND AUDIT DEPARTMENT, DISTRICT OFFICE, PALAKKAD. 4. SAIJU P.G., S/O.GOPINATH, HIMABINDU HOUSE, NEAR GOVERNMENT COLLEGE, NEDUMANGAD P.O., THIRUVANANTHAPURAM-695085 NOW WORKING AS VILLAGE MAN, VILLAGE OFFICE, VEMBAYAN, NEDUMANGAD TALUK, THIRUVANANTHAPURAM. R1 BY SENIOR GOVT. PLEADER, SMT.K. MEERA R2 BY SRI.P.C.SASIDHARAN, SC, KPSC R3 & R4 BY ADV. SRI.K.V. SOHAN SRI.G.SUDHEER SMT.M.JAYASREE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2011, ALONG WITH W.A. NO.47 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Manjula Chellur, Ag. C.J. & P.R.Ramachandra Menon, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 2012 OF 2010 and W.A. No. 47 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of November, 2011 ## **JUDGMENT** ## **Manjula Chellur, Ag. C.J.** It is not in dispute that the two appellants herein were prospective candidates who were eligible to appear for the test conducted by the Public Service Commission/1[st] respondent for the posts reserved for employees belonging to low-paid posts included in the subordinate services with 4 years aggregate service in their respective category or posts. 2. The main grievance of the appellants seems to be that in the notifications dated 03.10.1981 and 08.12.1989, there was no indication that the test contemplated therein could be changed and further contend that in the advertisement as per Ext.P1 issued by the first respondent Commission, there was no indication that there would be three stages of selection process, i.e., preliminary test, competitive test and interview(Viva). 3. According to the learned counsel for the appellants, the two Government Orders did not contemplate any other test W.A. No.2012 of 2010 and W.A. No. 47 of 2011 -:2:- except one test with minimum marks of 40% and the advertisement calling for the applications both direct and from the employees belonging to the low-paid posts did indicate only an interview but not competitive exam. Therefore, prejudice is caused by changing the procedure of selection process by the respondent Commission. 4. So far as the facts are concerned, the appellant in the first appeal, i.e. W.A. No.2012 of 2010, though secured 37 marks was allowed to take the competitive test as the Commission reduced the bench mark from 40% to 33% to acquire eligibility to write the competitive exam. So far as the appellant in the second matter, i.e. W.A. No. 47 of 2011, secured 47% and he was allowed to take the competitive exam. The fact remains that both these appellants after writing the preliminary test were allowed to write competitive test and in fact they wrote the competitive test, but they could not be sent to interview/Viva as they could not secure the bench marks to W.A. No.2012 of 2010 and W.A. No. 47 of 2011 -:3:- shortlist them for interview/Viva. Aggrieved by the same, these two appellants approached the learned Single Judge. 5. The learned Single Judge after referring to the fact that the parties who would be affected were not impleaded as the parties, opining that the writ petitions were bad for nonjoinder of necessary parties, held that the writ petitions were not maintainable. He also proceeded to consider the other contentions raised by the writ petitioners regarding the competency of the Commission to change the procedure in conducting the selection process in order to finalise the rank list. After referring to several judgments of the apex court, with regard to the jurisdiction of the recruiting agencies or the Commission to adopt procedure to short list the selection list, the learned Judge dismissed the writ petitions opining that there was no illegality coming in the way of the rank list prepared by the Commission as the Commission was entitled to adopt its own policy depending upon the facts and circumstances in a W.A. No.2012 of 2010 and W.A. No. 47 of 2011 -:4:- particular situation. Aggrieved by the same, the present appeals are filed. 6. According to the learned counsel for the appellants, when the notification dated 03.10.1981 which was clarified in another notification dated 08.12.1989 refers conducting only one test wherein the employees of low-paid posts are required to secure only 40 marks, there was no justification on the part of the 1[st] respondent Commission to conduct another competitive test in order to go to the next stage of selection process/Viva. According to them, the very process adopted by the Commission is against the advertisement in pursuance of which they had applied for the posts as they appeared with an understanding that there would be only one test required on their part to be completed wherein they have to secure 40% to qualify them to be placed in the rank list. 7. As a matter of fact, the learned counsel for the appellant in W.A. No. 2012 of 2010 submits that both the orders W.A. No.2012 of 2010 and W.A. No. 47 of 2011 -:5:- referred to above indicate only one selection process, therefore, whatever the name the Commission gives to the process of selection, it has to be considered as one process which consists of preliminary test, competitive test and interview/Viva. Therefore, in all these three tests, if the aggregate marks were to be 40%, they would be qualified to be placed in the rank list. They also rely upon the decision of Full Bench of this Court reported in **Surabh Jain v. State of Kerala** [ **2011(1) KLT 888** ]. 8. As against this, the learned counsel for the Commission while referring to the practical problems faced by the Commission, narrates the procedure adopted. According to him, that after calling for the applications, both for direct recruitment and from the employees of low-paid posts, they received as many as one lakh applications so far as direct recruitment and so far as the category of low-paid posts they received 4882 applications. Therefore, in order to save time, W.A. No.2012 of 2010 and W.A. No. 47 of 2011 -:6:- they adopted a process to shortlist the candidates so that all 4882 candidates need not appear for interview. According to them, such option was within the powers vested in them to proceed with the selection and finalise the rank list. 9. We have gone through the orders of the learned Single Judge as well as the relevant orders pointed out by the appellants and also the notification for the posts in question. What we could understand from the submissions across the Bar is, once the candidates are placed in the rank list, they would continue to remain in the rank list till the exhaustion of the rank list. In between whenever rank lists are prepared, the subsequent persons in the rank list would be added to the said rank list. i.e., preference would be given to the persons in the earlier list on priority basis. 10. It is not in dispute, as on the date of preparation of rank list, there were already 40 persons from the earlier rank list who had to be placed above the names of the persons who W.A. No.2012 of 2010 and W.A. No. 47 of 2011 -:7:- got selected in the present rank list. There were only 23 posts in all, both for direct recruitment and for the employees from the low-paid posts. Out of these 23 anticipated posts, 2% of the posts was to be filled up by the low-paid posts depending upon the placement in the rank list. Subsequent to the advertisement, 4882 applications were received, having regard to the time that would be consumed, if all the 4882 were to be allowed to go for the interview, after securing eligible marks as contemplated, the Commission having regard to the fact that only 2% of the anticipated vacancies were reserved for the employees of the low-paid posts, thought of dividing the selection process into three stages, first stage as preliminary test, second stage as competitive test and the final/third stage as oral interview/Viva. Definitely, the notifications referred to above calling for the applications, indicate that in the selection process, 40% is the eligible criterion to be placed in the rank list. Having regard to the number of candidates, they adopted a method to shortlist W.A. No.2012 of 2010 and W.A. No. 47 of 2011 -:8:- the list by dividing the written test into two portions, i.e. one preliminary test and the second one competitive test. In the preliminary test, as a matter of fact, the Commission reduced the eligible marks to appear for the competitive test from 40 to 33. This would indicate that they wanted to encourage as many as possible from the first preliminary test to appear for the second competitive test. Therefore, the contention of the learned counsel for the appellant that 40% marks indicated were to be secured even in the preliminary test cannot be accepted, as the Commission keeping the 40% of the marks for the competitive test reduced the marks to be obtained in the preliminary test to 33%. By this process, more number of candidates could appear for competitive test. This would only go to show that Commission was intending to encourage as many employees as possible to appear for the competitive test, therefore, we cannot agree with the contention of the appellants that there was mala fide intention on the part of the W.A. No.2012 of 2010 and W.A. No. 47 of 2011 **==> picture [23 x 10] intentionally omitted <==** Commission to deviate the process of selection from that of the advertisement. 11. Then coming to the preliminary test and the competitive test, the hall tickets issued to the candidates at the time of preliminary test specifically required them to appear for the preliminary test and being fully aware that they were appearing only for the preliminary test, these two appellants did appear for the test. After appearing for the preliminary test, as the eligible criterion of 40% was reduced to 33%, the first appellant also got hall ticket for the competitive test. By virtue of this concession shown by the Commission, both the appellants were sent hall tickets to write the competitive test. But, to their misfortune, they were not able to secure the bench marks of 40% to go to the next stage of the selection process, i.e. Viva. It is quite possible that the candidates who secured less marks than these two appellants in the preliminary test were able to get bench marks in the second test and when once it is called W.A. No.2012 of 2010 and W.A. No. 47 of 2011 -:10:- competitive test, the persons who get 40% alone would be entitled to go to the next stage of selection process. Therefore, the Commission is not at fault in conducting the competitive exam and if at all the appellants were aggrieved by the process, they had opportunity to knock at the doors of the Court when they were issued with the hall tickets for the preliminary test and at least at the second stage when they received hall tickets for the competitive test, they could have approached the Court challenging the process adopted by the Commission. They have failed to do so. When final rank list came to be published and when their names were not found, they have approached the Court saying that the entire selection process is erroneous and not in accordance with the procedure contemplated. 12. The learned counsel appearing for the Commission brought to our notice the reported decision in **B.Ramakichenin v. Union of India** [ **(2008) 1 SCC 362** ]. In this case also, the challenge was to the short listing adopted by W.A. No.2012 of 2010 and W.A. No. 47 of 2011 -:11:- the recruiting agency in the recruitment process. The challenge was that in the advertisement calling for the applications there was no indication with regard to the method of recruitment process, therefore the recruitment process adopted by the recruiting authority was erroneous. Their Lordships while opining that as long as the rational and objective basis was adopted by the recruiting agency, if recruiting agency resorted to a particular method of process to short list the selection list, it cannot be found fault with. Paragraphs 15 to 18 are relevant which read as under: “ **15** . It is well settled that the method of shortlisting can be validly adopted by the selection body vide _M.P. Public Service Commission v. Navnit Kumar Potdar_ (vide paras 6, 8, 9 and 13) and _Govt. of A.P. v. P. Dilip Kumar_ . **16** . Even if there is no rule providing for shortlisting nor any mention of it in the advertisement calling for applications for the post, the selection body can resort to a shortlisting procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. For example, if for one or two posts there are more W.A. No.2012 of 2010 and W.A. No. 47 of 2011 ## -:12:- than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of shortlisting can be resorted to by the selection body, even though there is no mention of shortlisting in the rules or in the advertisement. **17** . However, for valid shortlisting there have to be two requirements - (i) it has to be on some rational and objective basis. For instance, if selection has to be done on some post for which the minimum essential requirement is a Bsc degree, and if there are a large number of eligible applicants, the selection body can resort to shortlisting by prescribing certain minimum marks in Bsc and only those who have got such marks may be called for the interview. This can be done even if the rule or advertisement does not mention that only those who have the aforementioned minimum marks, will be considered or appointed on the post. Thus the procedure of shortlisting is only a practical via media which has been followed by the courts in various decisions since otherwise there may be great difficulties for the selecting and appointing authorities as they may not be able to interview hundreds and thousands of eligible candidates; (ii) if a prescribed method of shortlisting has been mentioned in the rule or advertisement then that method alone has to be followed. **18** . In the present case, no doubt, UPSC had resorted to an objective and rational criteria that only those who have two years' experience after getting Msc degree will be considered, ## W.A. No.2012 of 2010 and W.A. No. 47 of 2011 ## -:13:- while those who have got such experience but only before getting Msc degree will not be called for the interview. Ordinarily we would not have taken exception to this procedure since it is based on an objective criteria, and ordinarily this Court does not interfere with administrative decisions vide _Tata Cellular v. Union of India_ . As observed in the said decision, the modern approach is for courts to observe restraint in administrative matters.” Reading of the above paragraphs explicitly clarifies the position that the selection body can resort to a short listing procedure, if there are large number of eligible candidates and it is not possible for the authority to interview all of them. 13. In the present case, applicants who appeared for the preliminary test were 4882 and the persons who secured 33% and above were about 500 and above. These 500 candidates were allowed to take competitive test and ultimately 127 candidates got through in the competitive test and these 127 candidates were interviewed in the Viva and the final rank list came to be published on 15.03.2011. W.A. No.2012 of 2010 and W.A. No. 47 of 2011 -:14:- 14. The persons who are in the rank list are not before us in these proceedings as indicated by the learned Single Judge. The third parties were not made parties to the writ petitions. That apart, having regard to the fact that the recruiting agency, i.e. the Commission, in the cases in hand adopted a particular method to short list the rank list, having regard to the huge number of applications received both from the direct recruitees and from the employees of low-paid posts, one cannot find fault with them for adopting such a procedure. There was feeble attempt on the part of the appellants to contend that there is change of process from what was advertised. On going through the advertisement, what we notice is that the advertisement indicates conducting one test for selection process. If that test was not conducted and the selection list was published, then we can definitely say there is deviation from what was advertised. Here, instead of one test two tests came to be conducted, therefore, we cannot find fault W.A. No.2012 of 2010 and W.A. No. 47 of 2011 **==> picture [30 x 10] intentionally omitted <==** with the first respondent Commission for conducting two tests in order to short list the rank list. Viewed from any angle, the learned Single Judge was justified in dismissing the writ petitions and we are of the opinion that no grounds are made out warranting interference with the opinion of the learned Single Judge. Accordingly, the Writ Appeals are dismissed. **Manjula Chellur, Ag. Chief Justice.** **P.R.Ramachandra Menon, Judge.** ttb