IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 WP(C).No. 18627 of 2008(P) ---------------------------------------- PETITIONER(S): ------------------------- 1. MAHESH O.R., S/O. O.RAMANKUTTY, OLIPPARA HOUSE, SREEKRISHNAPURAM P.O., PALAKKAD DIST. 2. JAYASREE S., D/O. A.SHANMUGHAN, CHERAPPADAM, OLASSERRY P.O., PALAKKAD DISTRICT. 3. SHAJID P., PANTHOLA HOUSE, KOZHUKKALLUR P.O., MEPPAYUR VIA, KOZHIKODE DIST. 4. RAJEESH A.V., AMBIDAM VEETTIL, KARAYAD P.O., MEPPAYUR VIA, KOZHIKODE DISTRICT. 5. SANTHOSH T., THADATHIL HOUSE, NARAKKODE, KEEZHARIYOOR P.O., KOZHIKODE DISTRICT. 6. PRASAD K., 'PADINJARE VEEDU', AMBALAMUKKU, KAKKENGAD P.O., KANNUR DIST. 7. ASHA CHANDRAN, KORANGODE HOUSE, KEDUVAYUR P.O., PALAKKAD DIST. 8. FELIX LOURDUSWAMY A., PADALAYAN HOUSE, NEELIPPARA, KOZHIPPARA P.O., PALAKKAD DIST. BY ADV. MR.KALEESWARAM RAJ W.P.(C) NO.18627/2008 RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. BY SR. GOVT. PLEADER MR.MUHAMOOD T.T. BY ADV. MR.ALEXANDER THOMAS,SC,KPSC FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2009, ALONG WITH WPC NO. 31995 OF 2008 THE COURT ON 23/-7/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.18627/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTIFICATION. P2:- COPY OF THE ADMISSION TICKET OF THE IST PETITIONER. P3:- COPY OF THE ADMISSION TICKET OF THE 2ND PETITIONER. P4:- COPY OF THE ADMISSION TICKET OF THE 5TH PETITIONER. P5:- COPY OF THE ADMISSION TICKET OF THE 6TH PETITIONER. P6:- COPY OF THE SHORT LIST FOR THE POST OF HSST (SENIOR) GEOGRAPHY. P7:- COPY OF THE SHORT LIST FOR THE PSOT OF HSST (JUNIOR) GEOGRAPHY. P8:- COPY OF THE RELEVANT PAGE OF THE SSLC BOOK OF THE IST PETITIONER. P9:- COPY OF THE M.SC. CERTIFICATE AND MARK LIST OF IST PETITIONER. P10:- COPY OF THE B.ED CERTIFICATE AND MARK LIST OF IST PETITIONER. P11:- COPY OF THE SET CERTIFICATE OF IST PETITIONER . P12:- COPY OF THE RELEVANT PAGE OF THE SSLC BOOK OF THE 2ND PETITIONER. P13:- COPY OF THE B.A. CERTIFICATE AND MARK LIST OF THE 2ND PETITIONER. P14:- COPY OF THE M.A. CERTIFICATE AND MARK LIST OF THE 2ND PETITIONER. P15:- COPY OF THE B.ED CERTIFICATE AND MARK LIST OF THE 2ND PETITIONER. P16:- COPY OF THE CERTIFICATE OF SET ISSUED TO THE 2ND PETITIONER. P17:- COPY OF THE RELEVANT PAGE OF SSLC BOOK OF THE 3RD PETITIONER. P18:- COPY OF THE PRE-DEGREE MARK LIST OF THE 3RD PETITIONER. P19:- COPY OF THE B.A. CERTIFICATE AND MARK LIST OF THE 3RD PETITIONER. P20:- COPY OF THE B.ED CERTIFICATE AND MARK LIST OF 3RD PETITIONER. P21:- COPY OF THE M.A. CERTIFICATE AND MARK LIST OF THE 3RD PETITIONER. P22:- COPY OF THE EQUIVALENCY CERTIFICATE ISSUED BY UNIVERSITY OF CALICUT. P23:- COPY OF THE M.ED CERTIFICATE AND MARK LIST OF THE 3RD PETITIONER. W.P.(C) NO.18627/2008 P24:- COPY OF THE EQUIVALENCY CERTIFICATE ISSUED BY UNIVERSITY OF CALICUT TO THE 3RD PETITIONER. 25:- COPY OF THE CERTIFICATE OF SET ISSUED TO THE 3RD PETITIONER. P26:- COPY OF THE RELEVANT PAGE OF THE SSLC BOOK OF THE 4TH PETITIONER. P27:- COPY OF THE B.A. CERTIFICATE AND MARK LIST OF THE 4TH PETITIONER. P28:- COPY OF THE M.A. CERTIFICATE AND MARK LIST OF THE 4TH PETITIONER. P29:- COPY OF THE B.ED CERTIFICATE AND MARK LIST OF THE 4TH PETITIONER. P30:- COPY OF THE CERTIFICATE OF SET ISSUED TO THE 4TH PETITIONER. P31:- COPY OF THE B.ED CERTIFICATE AND MAKR LIST ISSUED TO THE 5TH PETITIONER. P32:- COPY OF THE M.A. CERTIFICATE AND MARK LIST OF THE 5TH PETITIONER. P33:- COPY OF THE CERTIFICATE OF SET OF THE 5TH PETITIONER. P34:- COPY OF THE M.A. CERTIFICATE AND MARK LIST OF THE 6TH PETITIONER. P35:- COPY OF THE B.ED CERTIFICATE AND MARK LIST OF THE 6TH PETITIONER. P36:- COPY OF THE CERTIFICATE OF SET OF THE 6TH PETITIONER. P37:- COPY OF THE M.SC CERTIFICATE OF THE 7TH PETITIONER. P38:- COPY OF THE B.ED CERTIFICATE MARK LIST OF THE 7TH PETITIONER. P39:- COPY OF THE CERTIFICATE OF SET OF THE 7TH PETITIONER. P40:- COPY OF THE RELEVANT PAGE OF THE SSLC BOOK OF THE 8TH PETITIONER. P41:- COPY OF THE M.A. CERTIFICATE AND MARK LIST OF THE 8TH PETITIONER. P42:- COPY OF THE B.ED CERTIFICATE AND MARK LIST OF THE 8TH PETITIONER. P43:- COPY OF THE CERTIFICATE OF SET OF THE 8TH PETITIONER. P44:- COPY OF THE RANKED LIST FOR THE POST OF HSST (SENIOR) GEOGRAPHY) P45:- COPY OF THE NOTIFICATION FROM CATEGORY NO.182/09 FOR THE POST OF HSST (GEOGRAPHY) FROM CANDIDATES BELONGING TO LATIN CATHOLIC. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.18627/2008-P& 31995/2008-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of July, 2009. JUDGMENT Since the same questions arise in both these writ petitions, they are disposed of by a common judgment. In Writ Petition No.18627/2008, the petitioners are applicants to the post of HSST (Senior) (Geography) and HSST (Junior) (Geography). In Writ Petition No.31995/2008 the petitioners are candidates who have applied for the post of HSST (Senior) Commerce. Ext.P1 produced in the writ petitions is the notification concerned. All the petitioners have applied for the post pursuant to the notification issued by the Public Service Commission and they were included in the short list after they have participated in the written test. Thereafter, the petitioners were called for certificate verification prior to the interview. Apprehending that the petitioners may not be called for the interview since they are not having B.Ed. in the concerned subjects, the petitioners have filed these writ petitions. In Writ Petition No.18627/2008, the petitioners have passed B.Ed. in Social Studies, whereas the posts notified are HSST (Senior) (Geography) and HSST (Junior) (Geography). wpc 18627/08 & 31995/08 2 In Writ Petition No.31995/2008, the petitioners have got B.Ed. in English and Mathematics as well as in Social Studies and History respectively. 2. The contentions raised by the petitioners are the following: Going by the notification, the qualification for the post is B.Ed. in the concerned subject and in the absence of persons with B.Ed. in the concerned subject, B.Ed. degree acquired in the concerned faculty and in the absence of persons with B.Ed. degree as specified in items 1 and 2 above, persons with B.Ed. in any subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognized as equivalent thereto by any of the Universities in Kerala. It is therefore contended that as the petitioners are having B.Ed. in the concerned faculty and as some of the petitioners have B.Ed. in any subject, the same will satisfy the purpose of the notification and therefore they have to be included in lists 2 and 3. 3. It is mainly contended that Rule 12A of the Public Service Commission Rules of Procedure makes it mandatory for the Public Service Commission to prepare separate rank lists in respect of candidates possessing the higher qualification and lower qualification. Therefore, the Public Service Commission cannot refuse to publish such separate rank lists. Lastly, it is contended that there are large number of vacancies in the wpc 18627/08 & 31995/08 3 respective posts and therefore the Commission cannot overlook the statutory mandate and the Rules of Procedure. It is pointed out that if separate rank lists are not published, that will cause acute hardship to the candidates. Reliance is placed on the decision of a learned Single Judge of this court in Jyothish Kumar v. State of Kerala (1996 (2) KLT 444). 4. The Public Service Commission has filed separate counter affidavits in the writ petitions. In the counter affidavit filed in Writ Petition No.18627/2008, it is averred that even though several candidates were admitted for the written test, during certificate verification prior to the interview, it was found that they are not having B.Ed. in the concerned subject. The shortlist for HSST Geography (Junior) was published on 24.4.2008. The number of vacancies reported at the time of preparation of the shortlist was 8. A total number of 94 candidates were included in the short list (39 candidates in the main list and 55 in the supplementary list). Considering the number of vacancies, sufficient number of candidates were included in the short list. In the case of HSST (Senior), the short list was published on 3.4.2008 by including 70 candidates (25 candidates in the main list and 45 in the supplementary list). No vacancies were reported to the post of HSST (Geography) and therefore 70 candidates in the list are wpc 18627/08 & 31995/08 4 sufficient to meet the requirements. It is therefore submitted that there is no need to admit candidates with B.Ed. in Social Studies and B.Ed. in other subjects. 5. In the counter affidavit filed in Writ Petition No.31995/2008, the Commission has explained that a total number of 2836 candidates were admitted for the OMR test based on their claims in the applications. Since there is no dearth of candidates who claimed B.Ed. in the concerned subject, i.e. Commerce, candidates who claimed B.Ed. in Social Studies and B.Ed. in any other subjects were not admitted for the OMR test. A short list of 1086 candidates (330 candidates in the main list and 756 candidates in the supplementary list) was published on 11.10.2007. In para 8 of the counter affidavit, it is submitted that as there were sufficient number of candidates having B.Ed. in Commerce (List I), lists II and III were not prepared in the selection. Lists II and III are to be prepared only in the absence of candidates in the preceding list. 149 vacancies were reported for the post and the ranked list was published on 7.7.2008 by including 892 candidates. Learned Standing Counsel for the Commission further relied upon the decision of a Division Bench of this Court in Writ Appeal No.1508/2003 to contend for the position that there is no violation of Rule wpc 18627/08 & 31995/08 5 12A of the Rules of Procedure. 6. Learned counsel for the petitioners vehemently submitted that the Commission cannot wriggle out of the mandatory obligation under Rule 12A of the Rules of Procedure. It is pointed out that the words used in sub- rule (ii) are that the Commission shall prepare separate ranked lists in respect of candidates possessing the higher qualification and the lower qualification, and therefore the rule is mandatory. It is therefore submitted that a direction has to be issued to prepare rank lists concerning candidates to be included in lists 2 and 3. Apart from that, it is pointed out that as held by this court in Jyothish Kumar’s case (1996 (2) KLT 444), the rank list will have to be kept alive for three years and since it is specifically mentioned that the rank list will be applicable also to the vacancies to be reported during the currency of the rank list, nothing could be foreseen at this stage and therefore as the existing vacancies notified and the vacancies which may arise during the currency of the rank list have to be made use of for appointment of the candidates, it is mandatory for the Commission to prepare such a list. 7. It is true that in Jyothish Kumar’s case (supra) this court held that “if vacant posts arising or expected are notified, it will not offend the wpc 18627/08 & 31995/08 6 fundamental rights under Articles 14 and 16 of the Constitution of India.” It was noticed that “future vacancies may include any vacancy that may occur subsequent to the expiry of the list. All the vacancies that are to occur till the date of expiry of the list are anticipated vacancies covered by the notification itself.” 8. Herein, the issue whether the petitioners’ names could be included in the rank list is intermingled with the question whether there is absence of candidates who are liable to be included under list 1. From the facts noticed above, it is clear that large number of candidates with B.Ed. in the concerned subjects are available. Depending upon the vacancies notified, it can be seen that the method adopted by the Commission cannot be said to be illegal. The candidates eligible to be included in lists 2 and 3 need be considered only if there is absence of sufficient number of candidates to be included in list 1. Going by the vacancy position, it is clear that sufficient number of candidates are available and they have been included in the rank list. Even though it is contended by the learned counsel for the petitioners that large number of vacancies are there, it is not supported by any material. 9. Recently, a Full Bench of this court considered a similar issue regarding the obligation of the Commission to fix the number of candidates wpc 18627/08 & 31995/08 7 to be included in the rank list, in the decision in Ravidas v. P.S.C. (2009 (2) KLT 295 (FB). It was held that the Commission need include the number of candidates in the rank list only a minimum of three times the vacancies reported to them. This issue was considered while considering the power of the Commission to fix a cut off mark. In that view of the matter also, it can be seen that the method adopted by the Commission cannot be said to be arbitrary. 10. In Writ Appeal No.1508/2008, a Similar question was considered by the Division Bench. It was thus held in para 7: “It is undoubtedly true that clauses (2) and (3) contemplate that if a person with B.Ed. in the concerned subject is not available, those with B.Ed. in the same faculty or B.Ed. in any subject can be considered. However, the opening words of clauses (2) and (3) are relevant. It is only when persons with B.Ed. in the concerned subject are not available, that resort can be had to others. In a case where the candidates with B.Ed. in the concerned subject are available, it cannot be said that those like the appellant who do not have a B.Ed. qualification at all have a right to be considered.” While considering the applicability of Rule 12A of the Rules of Procedure, it was held thus in para 13: “So far as Rule 12A is concerned, it deals with the preparation of the wpc 18627/08 & 31995/08 8 merit list of candidates possessing preferential qualifications. A perusal of the rule shows that in a case where minimum qualification is prescribed with the condition that candidates with certain additional qualification will be preferred, the Commission cannot award any separate marks for the preferential qualification. It is only when two candidates have the same score in the written test and/or interview, the person possessing the preferential qualification is ranked above the other who does not have such a qualification. In cases where the qualification for the post is “so prescribed that candidates possessing a lower qualification will be selected only in the absence of candidates with certain higher qualification, the Commission shall prepare separate rank lists in respect of candidates possessing the higher qualification and the lower qualification.” In the present case, there was no violation of this provision. The rule does not require that the candidates who do not possess the qualification of B.Ed. have a right to be preferred to those who possess such qualification. In fact, the scheme of the rule is that it is only in the absence of qualified candidates, that those with lower qualification can be considered. In the facts and circumstances of this case, we do not find that the action of the Commission was in violation of the provisions of the rules governing recruitment to the post of Higher Secondary School Teachers or the rules regulating its own procedure.” In the light of the above legal position, I hold that the petitioners are wpc 18627/08 & 31995/08 9 not entitled to succeed in the writ petitions. Accordingly the same are dismissed. (T.R. Ramachandran Nair, Judge.) kav/