IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 WP(C).No. 23559 of 2008(D) ---------------------------------------- PETITIONER(S): ----------------------- 1. UNNIKRISHNAN. U, KRISHNAVILASAM, PARACKAL, ALIYADU P.O., VENJARAMMOODU, THIRUVANANTHAPURAM- 695 607. 2. ROSHY. K.K., KAITHAMALA HOUSE, KOLITHATTU P.O., KANNUR - 670 706. 3. RATHEESH BABU. K., PUTHILATH HOUSE,, VILAKKANAMCODE, PATTANCHERY P.O., PALAKKAD- 678 532. 4. RAJESH. S., SAPHALYAM, THAMARAPADAM, KARIPODE P.O., PALAKKAD- 678 503. 5. JISHNUBARDHAN. G.K., EDAMUTTATH HOUSE, ARAKURSSI, MANNARKKAD P.O,, PALAKKAD, 678 582. BY ADV. SMT.P.V.ASHA RESPONDENT(S): -------------------------- 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM -4. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. R1 BY ADV. SRI.ALEXANDER THOMAS, SC, KPSC. R2 BY GOVT. PLEADER SMT.M.R. SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2010, ALONG WITH WPC NO. 24430 OF 2008, THE COURT ON 27/09/2010 DELIVERED THE FOLLOWING: WP(C).No. 23559 of 2008(D) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PORTION OF THE NOTIFICATION DATED 14/11/2005 FOR HSST GEOGRAPHY. EXT.P1(a): COPY OF THE RELEVANT PORTION OF THE NOTIFICATION DATED 14/11/2005 FOR HSST JR. GEOGRAPHY. EXT.P2: COPY OF THE ADMISSION TICKET OF 1ST PETITIONER FOR EXAMINATION FOR HSST. EXT.P2(a): COPY OF THE ADMISSION TICKET OF 2ND PETITIONER FOR HSST EXAMINATION. EXT.P2(b): COPY OF THE ADMISSION TICKET OF 3RD PETITIONER FOR HSST EXAMINATION. EXT.P2(c): COPY OF THE ADMISSION TICKET OF 4TH PETITIONER FOR HSST EXAMINATION. EXT.P3: COPY OF THE ADMISSION TICKET OF 2ND PETITIONER FOR HSST JR. JR.EXAMINATION EXT.P3(a): COPY OF THE ADMISSION TICKET OF 4TH PETITIONER FOR HSST JR. EXAMINATION. EXT.P4: COPY OF THE SHORT LIST DATED 03/04/2008 FOR THE POST OF HSST GEOGRAPHY. EXT.P5: COPY OF THE SHORT LIST DATED 24/04/2008 FOR THE POST OF HSST JR. IN GEOGRAPHY. EXT.P6: COPY OF THE APPLICATION DATED 15/05/2008 OF ONE CANDIDATE. EXT.P6(a): COPY OF THE LETTER DATED 13/06/2008 OF THE INFORMATION OFFICER OF 2ND RESPONDENT. EXT.P7: COPY OF THE APPLICATION DATED 15/05/2008 OF A CANDIDATE. EXT.P7(a): COPY OF THE LETTER DATED 16/06/2008 OF INFORMATION OFFICER OF 2ND RESPONDENT. EXT.P8: COPY OF THE RANKED LIST DATED 19/08/1998 FOR THE POST OF HSST GEOGRAPHY. EXT.P9: COPY OF THE G.O.(MS)NO.160/08/G.EDN. DATED 15/09/2008. WP(C).No. 23559 of 2008(D) EXT.P10: COPY OF THE LIST OF NEW SCHOOLS WITH GEOGRAPHY. EXT.P11: COPY OF THE LETTER NO.AD.C1/26390/HSE DATED 13/04/2009 ALONG WITH RELVANT PORTION OF THE SENIORITY LIST OF HSST JUNIOR IN GEOGRAPHY. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE JUDGMENT DATED 23/07/2009 IN WP(C) NO. 31995/2008. //TRUE COPY// P.S. TO JUDGE rs. C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)Nos.23559 & 24430 of 2008 ---------------------------- Dated 27th September, 2010 JUDGMENT The petitioners in these writ petitions except the 8th petitioner in W.P.(C)No.24430 of 2008, are rank holders either in the short list published by the Kerala Public Service Commission (for short `the Commission' only) for appointment to the post of Higher Secondary School Teacher in Geography or in the short list for the post of Higher Secondary School Teacher (Junior) in Geography. In fact, most of them are included in both the short lists. As regards the 8th petitioner in the latter writ petition she was not included in any of the said short lists. The prayers in these writ petitions are, in essence, for enlargement of the short lists and rank lists drawn for the purpose of appointment to the aforesaid posts. For the sake of convenience, the documents are being referred to in this judgment in the order they are set out in W.P.(C)No.24430 of 2010 unless otherwise specifically mentioned. 2. The Commission have issued Exts.P1 & P2 notifications, dated 14.11.2005, respectively for effecting direct recruitment to the post of Higher Secondary School Teacher in Geography (for short `HSST') and Higher Secondary School Teacher (junior) in Geography (for short 'HSST (Jr.)), WP(C).No.23559 & 24430/2008 2 under the Higher Secondary Education Department. Exts.P1 and P1 (a) would reveal that through direct recruitment only anticipated vacancies were sought to be filled up. Though a single test was conducted by the Commission for selection to both the categories, separate short lists and consequently separate rank lists were drawn. Ext.P4 short list was drawn in respect of HSST on 3.4.2008 consisting of 70 candidates and on 24.4.2008 Ext.P5 short list was drawn in respect of HSST (Jr.) containing names of 94 candidates. Admittedly, in respect of both the categories separate rank lists were also drawn subsequently. In respect of HSST category Ext.P9 rank list was published on 19.8.2008 and in respect of HSST (Jr.) Ext.P13 rank list was published on 5.4.2010. The main list of Ext.P4 contained names of only 25 candidates and in the main list of Ext.P5 names of 39 candidates were included. As already noticed, except the 8th petitioner in W.P.(C)No.24430 of 2008 all the others figure either in Ext.P4 or Ext.P5 and some of them figure in both the lists. According to the petitioners, while preparing short lists, a cut off mark of 52 was fixed for the purpose of inclusion in Ext.P4 and a cut off mark of 45 was fixed for the purpose of inclusion in Ext.P5 list. All the rank holders in the main list of Ext.P4 short list hold ranks in the main list of Ext.P5 short list. The petitioners' main grievance is that the fixation of cut off mark for the purpose of preparing Exts.P4 and P5 lists caused considerable prejudice to them inasmuch as some of them could WP(C).No.23559 & 24430/2008 3 not find a place in the main list of Ext.P4 and resultantly, some of them could find place only in the supplementary lists of Ext.P4 or P5 and as already noticed, the 8th petitioner in W.P.(C).No.24430/2008 could not find a place at all in either of these lists. The core contention is that it is illegal and without jurisdiction. According to them, if the existing or anticipating vacancies were correctly assessed or ascertained in the categories of HSST and HSST (Jr.) in the short lists sufficient number of candidates would have been included and in which event, they would have been larger than Exts.P4 and P5. According to the petitioners, on account of fixation of 52 as the cut-off mark petitioners 3 and 4 in the former writ petition were excluded from the main list in Ext.P4 and included only in its supplementary lists and petitioners 1, 2 and 5 therein were not at all included in Ext.P4 short list. Likewise, according to the petitioners, in the latter writ petition such fixation of cut-off marks resulted in exclusion of petitioners 1,2,5,6,7 & 9 to 13 in the main list of Ext.P4 and inclusion only in its supplementary lists and non-inclusion of petitioners 3,4 and 8 in Ext.P4. The further contention is that similarly fixation of cut-off marks as 45 for inclusion in Ext.P5 resulted in non- inclusion of the 8th petitioner in the latter writ petition in Ext.P5 as well. In short, according to the petitioners, solely on account of fixation of 52 marks for inclusion in Ext.P4 list resulted in non-inclusion of those among them who got included in the main list of Ext.P5, in the main list of WP(C).No.23559 & 24430/2008 4 Ext.P4 short list. If they were included in the main list of Ext.P4 that would have definitely resulted in inclusion of other petitioners who figured in the supplementary lists of Ext.P5, in the main list of Ext.P5. In which event, the 8th petitioner in the latter writ petition also would have been included in either of the short lists or in both. This is the sum and substance of their contentions besides the challenge against the very competency to fix such cut-off marks in the light of the decision of this Court in Ajayan v. State of Kerala reported in 2006 (3) KLT 854. To drive home the point that while preparing Exts.P4 and P5 the respondents have not properly assessed or ascertained the existing or anticipated vacancies they sought to rely on certain documents showing regularisation/upgradation of certain posts belonging to the cadre of HSST (Jr.) and creation of posts. Ext.P10 is the Government order dated 15.9.2008 ordering upgradation of 655 posts of HSST (Junior) and creation of posts of HSST and HSST(Jr.) and Ext.P11 is the list of schools sanctioned with additional batches with combination of Georgraphy as also upgraded with such combination. In the first category 29 schools were sanctioned one batch each and in the latter category 8 schools were given one batch each. Cumulatively, altogether, 37 vacancies become available. Originally, 866 posts have been created in the category of HSST and 1093 posts were created in the category of HSST (Jr.). Later, 655 posts of HSST (Jr.) were WP(C).No.23559 & 24430/2008 5 upgraded as HSST. The said contention was raised with reference to Ext.P10. Based on the aforesaid facts and figures it is further contended that in the absence of qualified High School Assistants the vacancies set apart for them also should have been filled up by resorting to direct recruitment. According to the petitioners, on account of such creation and availability of vacancies altogether 83 vacancies became available. It was without reference to the said aspects or without properly giving consideration of such facts that such reduced size of short lists viz., Exts.P4 and P5 were prepared, it is contended. To buttress the contention regarding the existence of 46 vacancies, i.e., in addition to the 37 vacancies mentioned earlier, the petitioners placed reliance on Exts.P7 and P7(a). Ext.P7 is the information sought under the Right to Information Act and Ext.P7(a) is the information furnished in respect of HSST. In respect of HSST (Jr.) Ext.P8 is the application under the Right to Information Act and Ext.P8(a) is the information furnished. A perusal of Exts.P8 and P8(a) would show some apparent incongruity. The petitioners contend that the aforesaid informations furnished under the Right to Information Act would reveal the existence of 46 vacancies in the category of HSST and 25 vacancies in the category of HSST (Jr.). The writ petitions were filed after the publication of the short lists. Admittedly, the rank list drawn in respect of HSST has already been exhausted whilst the rank list in respect of HSST (Jr.) is still in force. WP(C).No.23559 & 24430/2008 6 However, it contained only names of nine candidates. As already noticed, the grievance and objection of the petitioners are with respect to the reduced size of the short lists on account of failure to properly assess or ascertain the existing or anticipated vacancies and consequently the rank lists published for appointment to the aforesaid posts. According to them, the respondents should have taken into account the decision of this Court in Ajayan v. State of Kerala (2006 (3) KLT 854) and should not have fixed cut off marks to shortlist the candidates and as such Exts.P4 and P5 short lists and consequently, Exts.P9 and P13 rank lists require revision and enlargement. 3. Separate counter affidavits and additional affidavits have been filed in these writ petitions by the Commission and by the Director of Higher Secondary Education. The Commission contended that there is absolutely no basis for the contention of the petitioners that short lists were prepared after fixing a cut off mark of 52 in the case of HSST and 45 in the case of HSST (Jr.). It is contended that the short lists were prepared not based on fixation of any cut off mark as contended by the petitioners. It is also contended that criteria adopted by the Commission for preparation of Exts.P4 and P5 short lists and consequently, Exts.P9 and P13 rank lists are liable to be sustained in the light of the Full Bench decision of this Court in Ravidas v. Public Service Commission (2009(2) KLT 295 (FB)). In the short lists WP(C).No.23559 & 24430/2008 7 prepared in terms of the said decision with respect to their size, the last candidate in the list pertaining to HSST happened to be a candidate who secured 52 marks whereas the last candidate in the list drawn for HSST (Jr.) it was a candidate who secured 45 marks, it is further submitted. In short, according to the Commission, the contention that the short lists were prepared based on fixation of cut off marks is absolutely bereft of any basis and not true to the facts. In fact, the size of the list was firstly decided. In the case of HSST, no vacancies were reported, whereas in the category of HSST (Jr.) eight vacancies were reported prior to the finalisation of the short lists. The learned standing counsel appearing for the Commission supports the decision of the Commission and also the lists drawn in the light of the decision of the Hon'ble Apex Court reported in A.K.Yadav v. State of Haryana ((1985) 4 SCC 417) and Ravidas' case (supra). It is submitted that the decision of the Apex Court in A.K.Yadav's case was relied on by the Full Bench of this Court in Ravidas v. Public Service Commission (supra). In the counter affidavit filed on behalf of the 2nd respondent the contention of the petitioners regarding the existence of 46 vacancies of HSST in the department available for direct recruitment has been refuted. So also, in the additional affidavit filed on behalf of the 2nd respondent the petitioners' contention regarding the availability of vacancies in the post of HSST (Jr.) was denied. After denying the petitioners' contentions the WP(C).No.23559 & 24430/2008 8 vacancy position and the details regarding the reporting of vacancies have been detailed thereunder. The petitioners have filed reply affidavits to the counter affidavit and the additional affidavit of the 2nd respondent and also, to the counter affidavit filed by the first respondent. 4. In the light of the rival contentions the issue to be decided is whether the reliefs sought for based on the contentions already noticed above with respect to size of the lists and the alleged failure to properly assess or ascertain the existing or anticipated vacancies in the concerned categories, are allowable and whether based on such contentions enlargement of the lists in question is warranted. If the contentions of the petitioners that 83 vacancies viz., 46 in the category of HSST and 37 in the category of HSST (Jr.) are taken as the basis for drawing the short lists, necessarily the short lists have to be held as too short of the required size. But, the facts and figures are strongly refuted by the 2nd respondent and the 2nd respondent has given the details regarding the vacancy position and the reporting in the counter affidavit and in the additional affidavit. Evidently, they are disputatious facts. That apart, I do not think it necessary to consider such details as the real issue involved in these cases, in fact, whether the action on the part of the Commission in preparing Exts.P4 and P5 short lists and Exts.P9 and P13 rank lists is legal and sustainable and whether it calls for judicial review. This is because, Exts.P1 and P1(a) notifications were issued on WP(C).No.23559 & 24430/2008 9 14.11.2005 and Exts.P4 and P5 short lists were published respectively on 3.4.2008 and 24.4.2008. The question posed, in the light of the decision in Ravidas's case (supra) is whether the first respondent has taken into consideration the facts and figures which were available before the 2nd respondent for the purpose of preparing Exts.P4 and P5 strictly in terms of the practice of the Commission. I will deal with this question later. 5. Relying on the decision of this Court in Ajayan v. State of Kerala (supra) the petitioners contend that the respondents are bound to revise and recast Exts.P4 and P5 lists and consequently Exts.P9 and P13 rank lists as Exts.P4 and P5 were drawn based on fixation of cut off marks as cut off marks were not published in the notification or prescribed governing the selection to the post of HSST and HSST (Jr.). It is further contended that they are bound to enlarge the size of the lists taking into account the number of available vacancies. In that context, the contention is that even as per Exts.P1 and P1(a) the selection processes in respect of the aforesaid categories have been initiated to fill up anticipated vacancies. In the circumstances, according to them, the vacancies that occurred as also anticipated vacancies subsequent to the publication of the short lists also should have been taken into account and accordingly, the respondents are duty bound to enlarge the size of the short lists and consequently the rank lists. 6. As already noticed, the Commission candidly contended that cut off marks was not the criterion followed for the purpose of WP(C).No.23559 & 24430/2008 10 drawing Exts.P4 and P5 short lists. The Hon'ble Apex Court in the decision reported in (1985) 4 SCC 417 (supra) held that in a composite test consisting of a written examination followed by a viva voce test the number of candidates to be called for should not exceed twice or at the highest thrice the number of vacancies to be filled up. A perusal of the counter affidavit filed on behalf of the Commission would reveal that evidently, they have only followed the practice that was being followed in the matter of preparation of short lists. The number of vacancies reported prior to the finalisation of the short list is the basis for deciding the size of a short list. In case where no such vacancies were reported prior to finalisation of the short list, the anticipated vacancies shall form the basis for such decision. It is therefore contended that Exts.P4 and P5 short lists and consequently Exts.P9 and P13 rank lists call for no interference, inasmuch as the short lists were duly prepared following the said practice. The action on the part of the Commission in deciding the size of the short lists cannot be said to be arbitrary or unreasonable in the light of the decision of the Hon'ble Apex Court reported in (1985) 4 SCC 417 (supra). That apart, it is contended that the practice of the Commission in taking the number of vacancies reported prior to the finalisation of the short list in respect of a particular post in the matter of selection to that post and in case of no such reporting the number of anticipated vacancies in relation to the said WP(C).No.23559 & 24430/2008 11 concerned post have been virtually given a seal of recognition by this Court in the decision in Ravidas's case (supra). In fact, the said decision was rendered relying on the decision of the Hon'ble Apex Court reported in (1985) 4 SCC 417 (supra). As held by the Division Bench in the decision in Ravidas's case (supra) for the purpose of shortlisting it would not be necessary at all to provide cut off marks. True that the view taken by the Division Bench of this Court in Ajayan's case (supra) that the Commission cannot prescribe cut off marks to shortlist the candidates to be called for interview though Commission can shortlist candidates where the number of candidates is very large the criteria for shortlisting cannot be cut off marks unless it is published in the notification or prescribed in the rules governing the selection to the post or service was affirmed by the Full Bench in Ravidas's case (supra). In this case, as noticed earlier, the candid contention of the Commission is that cut off marks was never fixed for the purpose of shortlisting. In fact, the size of the short list was firstly decided. For deciding the size the relevant aspects which were already mentioned above were taken into consideration. In this case, no vacancy was reported prior to the finalisation of the short list in regard to the post of HSST. Whereas in the case of HSST (Jr.) eight vacancies (NJD) were reported prior to the finalisation of the short list and one more vacancy (NJD) was reported after its finalisation. Admittedly, in this case, Ext.P4 short list contained names of 70 candidates with a break up of 25 candidates in the main list WP(C).No.23559 & 24430/2008 12 and a total of 45 candidates in its supplementary lists. Considering the eight NJD vacancies and then expecting that the number of vacancies reported would be very few on account of the fact that earlier a selection was conducted based on the notification dated 14.11.2005 the size of the short list was decided in respect of the post of HSST (Jr.) and Ext.P5 short list was published with 94 candidates. In view of the facts thus obtained, it is submitted that a scrutiny of Exts.P4 and P5 in the light of the decision of this Court in Ravidas's case (supra) and the decision of the Hon'ble Apex Court reported in (1985) 4 SCC 417 (supra) would reveal absolute absence of an element of arbitrariness and also would reveal that the said lists were having sufficient size and were made following the practice that was being followed by the Commission in the matter of preparation of shortlist. Indisputably, number of vacancies were not notified in Exts.P1 and P1(a) notifications and selection processes were initiated to fill up anticipated vacancies. The petitioners did not have a case that in the case of HSST a particular number of vacancies were reported prior to the finalisation of short list and more than eight vacancies (NJD) were available in the category of HSST (Jr.) prior to the finalisation of the short list. Admittedly, after the finalisation one more vacancy (NJD) was reported thereby, number of vacancies reported was only 9 going by the additional affidavit filed on behalf of the Commission. In the absence of any such contentions, even if the contention of the petitioners that several vacancies are now available WP(C).No.23559 & 24430/2008 13 cannot be taken as a ground to hold the action on the part of the Commission in preparing Exts.P4 and P5 short lists and consequently Exts.P9 and P13 rank lists as illegal. No material is available before this Court to accept the contention of the petitioners that Exts.P4 and P5 short lists were prepared based on cut-off marks viz., 52 and 45 respectively. At the same time, the facts and figures available and their scanning in the light of the above mentioned decisions compel me to come to the conclusion that they were prepared not based on fixation of cut-off marks as alleged by the petitioners but, on the decision of the size of the short lists. When once it is so found, the only question that survives for consideration is whether the action on the part of the Commission in deciding the size of Exts.P4 and P5 requires judicial review. Admittedly, though no vacancies of HSST were reported prior to the finalisation of Exts.P4 short list, it contained names of 70 candidates. In the case of Ext.P5 short list, only 8 vacancies (NJD) were reported prior to its finalisation and the said list contained names of 39 candidates in the main list and 55 candidates in its supplementary lists. 7. I may, now revert to the earlier question. The specific contention of the Commission is that no vacancies of HSST were reported prior to the finalisation of Ext.P4 short list and only 8 NJD vacancies of HSST(Jr.) were reported prior to the finalisation of Ext.P5 short list. In the counter affidavit filed by the 2nd respondent it has been stated that as on 14.9.2008 three vacancies of HSST were reported WP(C).No.23559 & 24430/2008 14 (date of requisition is not mentioned), to the Commission and 16 vacancies were available for direct recruitment. As per the additional affidavit of the 2nd respondent 20 vacancies have been reported to the Commission for direct recruitment. Here, again, the date of requisition is not mentioned. Even if it is taken that the said vacancies were reported to the Commission prior to the finalisation of the said lists I am of the considered view that the practice that was being followed by the Commission in the light of the decision in Ravidas's case (supra) would justify the size of the said short