IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 30266 of 2009(C) --------------------------------------- PETITIONER(S): ---------------------- JAISON.V.JOSEPH, S/O.LATE JOSEPH, AGED 37 YEARS, NOW WORKING AS HSST, ST.THOMAS HIGH SCHOOL, THOMAPURAM, KASARAGODE DISTRICT, RESIDING AT VAZHAYIL HOUSE, CHERUPUZHA, KANNUR DISTRICT. BY ADV. MR.R.SURENDRAN RESPONDENT(S): ------------------------ 1. THE KERALA PUBLIC SERVICE COMMISSION THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO THE GOVERNMENT, COLLEGIATE EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R2 & R3 BY GOVERNMENT PLEADER R1 BY ADV. MR.ALEXANDER THOMAS, SC, KPSC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.30266 of 2009-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of November, 2009. JUDGMENT The writ petition is one challenging the ranked list Ext.P10 for appointment to the post of Lecturer in Economics under the Collegiate Education Department. The petitioner herein was an applicant to the post. He is rank No.63 in Ext.P10 list. 2. The petitioner is aggrieved by the method adopted by the Public Service Commission in awarding credit marks for academic qualification along with the marks obtained in the written test and the marks awarded in the interview. It is submitted that the same is in gross violation of rule 3 of Kerala Public Service commission Rules of Procedure. 3. Gong by the notification, the required qualifications are: (a) Masters degree in the concerned subject with at least 55% marks or its equivalent and good academic record, (b) must have passed a comprehensive test in the concerned subject specifically conducted for the purpose by UGC or any agency duly constituted by the State Government in this behalf and (c) when qualifications are being equal, preference shall be given to candidates who possess adequate knowledge in Malayalam. The wpc 30266/2009 2 petitioner has got a further case that in Ext.P1 notification also no indication was given as regards the grant of credit marks. 4. The petitioner's qualification is M.A. Economic degree from University of Calicut in the year 1997, qualified UGC - NET in Economics in the year 2000 and Ph.D. in Economics from M.G. University in the year 2009. He is having an aggregate teaching experience of 12 years also. 5. As noticed, the main contention raised by the petitioner is that Rule 3 of the Rules of procedure provides only certain types of examinations for candidates for selection to particular posts. The award of credit marks on the basis of qualifying examination is not provided in the Rule. Rule 11(ii) of the Rules of Procedure has to be read along with Rule 3. It is further submitted that Clause 202 of the Kerala Public Service Commission Office Manual is in conflict with the Rules of Procedure. 6. Heard Shri R. Surendran, learned counsel for the petitioner and Shri Alexander Thomas, learned Standing Counsel for the Public Service Commission. 7. Learned Standing Counsel for the Commission submitted that the issue is covered against the petitioner in the light of the decision of a Division Bench of this Court in Sajan N. Menon v. State of Kerala (2007 wpc 30266/2009 3 (4) KLT 126) and that of the Apex Court in Anzar Ahmad v. State of Bihar and others (AIR 1994 SC 141). 8. It is the contention of the learned counsel for the petitioner that the substantial question raised herein is not one considered by the Division Bench while rendering the judgment in Sajan N. Menon's case (supra) and therefore the matter requires a reference to the larger Bench. Therefore, the dictum laid down in the above decision will have to be considered for appreciating the argument raised by the learned counsel for the petitioner. 9. In fact, there was an earlier decision of the Division Bench in Mohanan v. Public Service Commission (1994 (2) KLT 585, the correctness of which was doubted by the learned Single Judge and in the above circumstances, the matter was placed before the Division Bench in Sajan N. Menon's case (supra). The true interpretation of clause 202 of the P.S.C. Office Manual and Rule 11(ii) of the P.S.C. Rules of Procedure came up for consideration before the Division Bench. The Bench was of the view that the written test alone cannot be said to be a sure method and that the marks obtained by the candidates in the qualifying examinations cannot be said to be not a yardstick to measure merit, even if the candidates qualify themselves in various examinations conducted by different wpc 30266/2009 4 educational institutions. The conclusions of the Bench is evident from paragraphs 11 and 12 of the judgment which are as follows: “Written test is only a method of selection, primarily intended to provide a common platform to ensure equality between the candidates. But it cannot be 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 be welcomed, provided the method is fair and reasonable. Marks obtained by candidates in the qualifying examinations cannot be said to be 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 equalisation of marks through normalisation process. To ignore the marks obtained by a candidate in the qualifying examination as a whole may be 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. Common Entrance Test causes undue hardship and harassment to the socially and economically backward ad weaker wpc 30266/2009 5 section of the people hailing from both urban and rural areas. For getting higher ranks in the common entrance examination it is an almost accepted fact that the candidates have to undergo rigorous coaching in Coaching Centres which many of the students from the marginalised sections of the society can ill-afford. But by reckoning the marks in the qualifying examination by employing a normalisation method, inequality between the standard of education prevailing in various universities and other educational institutions can be minimised to a large extent. Results of a qualifying examination is generally a reflection of the overall standard of the candidate and his perception. P.S.C. in our view has taken a conscious decision to give weightage for credits to the marks obtained by the candidates in the qualifying examination following a method of grading which would only increase the quality of selection, consequently a better qualified and meritorious candidate could be selected for the post, a method which even can be tested for admission to the Professional Courses.” 10. In fact, in para 8 of the judgment, the empowerment of the Commission as a Constitutional functionary as laid down in Article 320 of the Constitution of India, was adverted to. The Bench was of the view that in accordance with Rule 11(ii) read with clause 202 of the P.S.C. Office Manual, the P.S.C. follows a system of grading. The question whether this Court could interfere with the method adopted by the P.S.C., under Article 226 of the Constitution of India, was also examined in para 9 of the wpc 30266/2009 6 judgment and it was answered in the following words: “Constitutional body like the P.S.C. invested with the task of selecting best suitable person for the post, has evolved a method which they believe would minimise the inequality between the candidates who have come out of qualifying examinations conducted by various Universities and Educational Institutions. the question is, in the absence of a better system suggested, whether the P.S.C. can be found fault with, in following the above mentioned system which, to a large extent, though not fully, eliminates inequality. Courts sitting under Art. 226 of the Constitution of India in such a situation would be slow to unsettle a process followed by P.S.C., which according to that expert body would bring the candidates to a common platform while testing their merits in the qualifying examinations. Such a method, in our view, cannot be termed as arbitrary and violative of Art. 14 of the Constitution of India.” The decision of another Division Bench of this Court in Kerala Self Financing Engineering College Managements Association v. The Admission Supervisory Committee for Professional Colleges & another (2007 (3) KLT 136) laying down that adopting a method of equalisation, marks awarded in the qualifying examination can also be reckoned, was also relied upon. 11. Thus, the issue is clearly covered against the petitioner in the wpc 30266/2009 7 light of the above decision of the Division Bench. Learned counsel for the petitioner relied upon Rules 3 and 10 of the P.S.C. Rules of Procedure, which are extracted below: “3. The Commission may conduct all or any one or more of the following examinations to assess the merits of candidates considered for recruitment to a service or post; (i) Written Examination (ii) Practical Test (iii) Physical Efficiency Test (iv) Oral Test (interview) (v) Any other test or examination which the Commission may deem fit to hold. 10. Notwithstanding anything contained in these rules the Commission may in consultation with the Government adopt for purposes of recruitment in any particular cases or class of cases a special procedure as more appropriate than the one prescribed in any of these rules.” It is submitted that when a different procedure has to be adopted, it can only be in terms of Rule 10 and admittedly as the P.S.C. has not adopted the procedure herein in the manner contained in Rule 10, it cannot be recognised. It is also submitted that as Rule 3 is exhaustive in the matter, the said method alone can be adopted by the P.S.C. wpc 30266/2009 8 12. It is evident that Rule 10 envisage a different situation altogether. If the Commission seeks to introduce a different procedure in the matter of selection of candidates, then alone Rule 10 will come into effect. This is evident from the non-obstante clause contained therein. Herein, the Commission has adopted a particular method, by issuance of notification for calling applications. A written test and interview were conducted. That is in terms of Rule 3 of the Rules of Procedure There is specific conferment of power under Rule 11(ii) to take a decision in regard to the award of marks. Clause 202 of the P.S.C. Office Manual is extracted below: “202. Basis of Marking: (i) If selection to a post is finalised by written test and interview, the maximum marks for interview shall be 20% of the maximum marks for the Written Test. The Basis of ranking in such cases shall be marks for the Written Test + marks for the interview. (ii) In the case of selections finalised on the basis of qualifying marks and interview, the basis of marking will be percentage of marks for the qualifying examination plus interview marks out of 20. (iii) If the selection is made on the basis of the aggregate of the percentage of marks for the qualifying examination, percentage of marks for the written test and the marks for the interview, wpc 30266/2009 9 the maximum marks for the interview should be fixed as 40. (iv) If the selection is made on the basis of practical test and interview, the basis of marking should be grade marks for the practical test plus interview marks out of 25. (v) In cases where selection is made on the basis of interview alone, the marks for the interview should be out of 100. (vi) In cases where the selection is to be finalised on the basis of written test, practical test and interview, the basis of marking will be marks for the written test + Grade Mark for the Practical test + interview mark out of 25. (vii) Basis of marking in respect of Teaching Posts in the colleges (General as well s professional) shall be percentage of marks for the Written Test + Credit for the percentage of academic marks upto a maximum of 50 + Interview marks out of 30. (viii) In respect of teaching posts in the Colleges (General) as well as professional) where the academic marks secured by candidates also have to be reckoned with for the purpose of ranking the academic marks will be converted into proper grades and credit marks awarded.” A conjoint effect of all the three provisions thus enable the Commission to award credit marks. 12. The argument that clause 202 of the Office Manual goes against the specific provisions of Rule 3 cannot therefore be accepted. Apart from wpc 30266/2009 10 that, the Commission is a repository power under Article 320 of the Constitution of India. Therefore, for achieving the object of conducting a proper selection, they are entitled to adopt such procedures which are not arbitrary and illegal. As held by the Division Bench in Sajan N. Menon's case (supra), the method of awarding credit marks cannot be said to be illegal and if qualifying examination is ignored, that would affect the very standard of education in the State. In that view of the matter also, the petitioner's contention cannot be accepted. 13. Learned Standing Counsel for the Commission also relied upon the decision of the Apex Court in Anzar Ahmad's case (AIR 1994 SC 141) wherein a similar method was held to be legal and valid. the Apex Court held thus: “Where the Public Service Commission o, the basis of letter of Govt. clearly stating that selection should be made on the basis of interview could have made the selection wholly on the basis of marks obtained at the interview but in accordance with the past practice, the Commission made the selection on the basis of interview while keeping in view the academic performance and with that end in view the Commission has allocated 50% marks for academic performance and 50% marks for interview, it could not be said that the procedure adopted by the Commission suffered from the vice of arbitrariness. By giving equal weight to academic performance the Commission wpc 30266/2009 11 had rather reduced the possibility of arbitrariness.” I respectfully follow the decision of the Division Bench in Sajan N. Menon's case (2007 (4) KLT 126). Therefore, the writ petition is not liable to be entertained and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/