IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 WP(C).No. 672 of 2008(E) PETITIONERS: ----------------------- 1. DR.AKHI.B.S., AGED 28 YEARS, S/O.BABU RAJ, RAJ BHAVAN, KOTTIYAM P.O., KOLLAM DISTRICT. 2. DR.JUMAN.C.P., AGED 25 YEARS, S/O.JALALUDHEEN.C.P., CHAKKUPARAMBIL HOUSE, KADANNAMANNA, MANKADA, MALAPPURAM DISTRICT. 3. DR.SABIR.M.C., AGED 26 YEARS, S/O.ABDUL SATHER, RAHMATH HOUSE, KIZHAKKOTH P.O., KODUVALLY, KOZHIKODE DISTRICT. 4. DR.JABEED.P., AGED 26 YEARS, S/O.P.AHAMMED, CHANDHNI HOUSE, KUZHIMANNA P.O., MALAPPURAM DISTRICT. 5. DR.JAFFER BASHEER, AGED 27 YEARS, S/O.K.V.MOHAMMED BASHEER, OASIS, NEAR VETENARY CLINIC, 12TH MILE P.O., NIT KOZHIKODE. 6. ABDUL MAJEED, AGED 28 YEARS, S/O.ALI.C.T., CHETTIYANTHODIYIL HOUSE, CHELAKKAD P.O., THIRUNARAYANAPURAM, MALAPPURAM DISTRICT. WP(C).No. 672 of 2008(E) :: 2 :: 7. DR.MOHAMMED RASHEED.K., AGED 26 YEARS, S/O.ABOOBACKER, KALATHINGAL HOUSE, MANJERRY, MALAPPURAM DISTRICT. 8. DR.RAJESH.K.T., AGED 34 YEARS, S/O.THANKAPPAN, KALLANTHOTTAM HOUSE, VELIMANAM P.O., KANNUR DISTRICT. BY ADV. SRI.C.A.NAVAS RESPONDENTS: ------------------------- 1. THE SECRETARY, THE KERALA STATE PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 2. THE CHAIRMAN, THE KERALA STATE PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 3. THE SECRETARY TO THE GOVERNMENT, HEALTH DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. R1 & R2 BY SRI.ALEXANDER THOMAS-STANDING COUNSEL R3 BY GOVERNMENT PLEADER SRI.BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/01/2008, THE COURT ON 30/01/2008 DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- W.P.(C).No.672 of 2008 E ------------------------- Dated this the 30th day of January, 2008. JUDGMENT By Ext.P1 notification dated 28.9.2007, the Public Service Commission {for short “the Commission”} invited applications for the post of Assistant Surgeons in the Health Services Department. Qualifications prescribed for the said post is a Degree in Modern Medicine or equivalent qualification and permanent Registration in Class A of Modern Medicine with Travancore Cochin Medical Council. Persons who have registered themselves with other State/Central Medical Council may also apply, but they will have to get themselves registered under Travancore Cochin Medical Practitioners Act before they join duty. 2. Petitioners applied pursuant to the notification, but had thought it fit to approach this court on the ground that the Commission is conducting the selection solely on the basis of the interview without any written examination as such. Petitioners had earlier filed W.P.(C)No.37071/07 challenging the said decision taken W.P.(C).NO.672/08 :: 2 :: by the Commission. A counter affidavit had been filed by the Commission in the said writ petition. When W.P.(C) No.37071/07 was taken up, it was submitted on behalf of the Commission that the marks obtained in the MBBS examination shall also be considered in the selection process. In fact, it was specifically made clear in the counter affidavit that the interview would account only for 20 marks and that the marks obtained by the candidate in the qualifying examination will be the major criteria. Accordingly, W.P.(C)No.37071/07 was withdrawn with liberty to approach this court again and hence this writ petition has been filed challenging the selection process. 3. In circumstances where the Commission had already filed a counter affidavit in W.P.(C)No.37071/07, I had called for the judges papers in the said writ petition also. I heard counsel on both sides. Since the counter affidavit filed in W.P.(C)No.37071/07 has already been served on the counsel for the petitioners in the said writ petition, who are the same as the petitioners herein, learned counsel for the Commission had referred to the W.P.(C).NO.672/08 :: 3 :: contents of the counter affidavit in W.P.(C)No.37071/07 as well, in the course of the submissions in the present case. 4. Essentially, the petitioners contend that the adoption of criteria by the Commission for selection to the post of Assistant Surgeon in the Medical Services Department is illegal and even unconstitutional. It is contended that the selection ought to be conducted on the basis of a common written examination. They contend that the basis for the selection seems to be the marks obtained by the candidates in the qualifying examination. Interview accounts only for 20 marks. The candidates would have obtained their MBBS degree from different Universities which would have adopted different criteria in awarding marks to their students. Thereby gross inequality would be generated by adopting the marks obtained in the qualifying examination as the basis for selection. Adoption of interview, another aspect of the selection procedure, which accounts for 20 marks will not improve the situation. W.P.(C).NO.672/08 :: 4 :: 5. On the other hand, the stand taken by the Commission is that the marks obtained in the qualifying examination, along with the marks awarded in the interview is a safe method of selection. Rule 11(ii) of the Public Service Commission Rules of Procedure empowers the Commission to decide the basis on which marks could be awarded in respect of selections made by them. Reference is also made to Clause 202(ii) of the Public Service Commission Office Manual, which reads as follows: “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.” 6. Reference is also made to the previous selection for the post of Assistant Surgeons that led to a rank list which came into force on 10.1.2007. The following statement made in paragraph 5 of the counter affidavit filed in W.P.(C)No.37071/07 is significant: “It is humbly submitted that for the previous selection for the post of Assistant Surgeons, the ranked list W.P.(C).NO.672/08 :: 5 :: came into force w.e.f. 10-11-2006, in which 704 candidates were included in the main list and 948 candidates were included in various supplementary lists, thus totaling to 1652 candidates. The main list of that ranked list got exhausted within a year and the said ranked list thus got cancelled. The total number of applications received for the previous selection was 3868. The previous selection was done only on the basis of written test and without interview. Several candidates did not join duty or had later left the service and in view of the extreme compelling necessity to fill up such vital posts which cater to the health needs of the public, especially the poor, it was considered necessary to immediately finalise the present selection, so as to fill up the vacant posts without much delay, in public interest. With a view to resolve the problem faced in the previous selection wherein many candidates had not joined/or left subsequently, when the number of candidates included in the ranked list was 1652 out of the total applicants coming to 3868, it was considered necessary to enlarge the field of choice for the present selection.” W.P.(C).NO.672/08 :: 6 :: 7. Learned counsel for the Commission referred to the judgment of a Division Bench of this court reported in Mohan v. Public Service Commission {1994(2) KLT 585} which upheld the action of the Commission in adopting a similar criteria for selection to the post of Assistant Professor in the ENT Department. The number of candidates, who had responded to the notification in the said case were quite limited, but nevertheless, the principles laid down in the said decision would afford an adequate guidance and at any rate is applicable to the present selection also, it is contended. The principles laid down therein were again followed with approval by another Division Bench in Sajan N.Menon v. State of Kerala {2007(4) KLT 126}. 8. In my view, the adoption of marks in the qualifying examination as also the performance in the interview, as the criteria for the selection cannot be considered as illegal or unconstitutional. The principle that the marks obtained in the qualifying examination conducted by different Universities in the country would W.P.(C).NO.672/08 :: 7 :: possibly generate inequality is a principle that has been upheld and applied in relation to admission to the Universities. It is, therefore, that Common Entrance Examination is adopted as the basis for regulating such admissions. The criteria to be employed in the case of selection to the post of Assistant Surgeons in the Health Services Department would be different and such criteria would be part of the legitimate exercise being undertaken by the Commission in that regard. 9. One will also have to take note of the fact that the level of competition generated at the stage of admission to Medical Colleges is vastly different from the competitiveness seen at the stage of seeking employment to a post of entry in the Health Services Department in the Government. One will also have to take into account the fact that the body which conducts the selection is dealing with persons of mature age commensurate with the nature of duties to be discharged by an Assistant Surgeon. The inequality that may be generated by adoption of the marks obtained in the qualifying examination is obviously a factor that would W.P.(C).NO.672/08 :: 8 :: have been reckoned with by a constitutional body like the Commission and it is, therefore, that personal interview accounts for 20 marks. The interview, would, therefore, be not an insignificant part of the selection process, accounting for 20 marks and therefore, a criteria which affords adequate leeway to the selecting authority to assess the merits of the candidate in an objective manner and to ensure that the selection process results in merit and suitability for the post in question constituting the basis of selection. 10. The further justification offered by the Commission for dispensing with a Competitive Written Examination also cannot be lost sight of. In my view, it is a significant factor. The following extract from paragraph 6 of the counter affidavit is relevant in this context. “It is submitted that the present selection notification for the post of Assistant Surgeon was published in Gazette dt. 28.9.2007. There are about more than 300 vacancies reported and now pending with the Service Commission. The total number of candidates who had applied for the W.P.(C).NO.672/08 :: 9 :: present selection is 3156. In view of the fact that previous ranked list for the same post got exhausted within one year and considering the exigency of the health sector as reported by the Govt., the Service Commission have decided to expedite the selection process and finalise the ranked list.” 11. In my view, there is a rationale and justification for the criteria adopted by the Commission in conducting the selection to the post of Assistant Surgeon. The judgment of the Divison Bench of this court reported in Mohan's case {1994(2) KLT 585} as also Sajan N.Menon's case {2007(4) KLT 126} supports the stand taken by the Commission. For all these reasons, I do not find any merit in the writ petition. The same is, therefore, dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge.