IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 WP(C).No. 7194 of 2005(F) ------------------------------------- PETITIONER: ------------------- K.UNNIKRISHNAN, KRISHNAVILAS, KURUMANDAL, PARAVOOR P.O., KOLLAM-691 301. BY ADV. MR.ELVIN PETER P.J, MR.S.RAMESH, MR.P.N.SANTHOSH, MR.NAVEEN.T, MR.SUNIL T.G, MR.ANTONY BENEDICT. RESPONDENTS: ------------------------ 1. KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. ANISH P.KUMAR, PUTHENPURAKKAL HOUSE, NELLAD P.O., ERNAKULAM. R1 BY MR.ALEXANDER THOMAS,SC,KPSC, R2 BY GOVERNMENT PLEADER MR. ARAVINDAKUMAR BABU T.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.7194/2005-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE COMMUNICATION DT. 13/09/2004 ISSUED BY THE P.S.C. EXT.P.2: COPY OF THE DEGREE CERTIFICATE ISSUED BY MADURAI KAMARAJ UNIVERSITY DT. 21/10/1992. EXT.P.3: COPY OF THE MARK LIST DT. 06/08/1992 ISSUED TO THE PETITIONER. EXT.P.4: COPY OF THE ELIGIBILITY CERTIFICATE DT. 01/10/2004 ISSUED BY THE KERALA UNIVERSITY. EXT.P.5: COPY OF THE COMMUNICATION DT. 03/12/2004 ISSUED BY THE P.S.C. EXT.P.6: COPY OF THE REPLY DT. 08/12/04 SUBMITTED BY THE PETITIONER TO THE PSC. EXT.P.7: COPY OF THE AFFIDAVIT SENT ALONG WITH EXT.P.6. EXT.P.8: COPY OF THE CERTIFICATE DT. 04/10/2004 ISSUED BY MADURAI KAMARAJ UNIVERSITY. EXT.P.9: COPY OF THE CERTIFICATE DT. 10/12/2004 ISSUED BY PROFESSOR-IN- CHARGE, MEPCO ENGINEERING COLLEGE, SIVAKASI. EXT.P.10: COPY OF THE COMMUNICATION NO. S.S.-5/L/C.T/POLY/T.E.D/2004 DTD. 14/02/2005 ISSUED BY THE P.S.C. EXT.P.11: COPY OF THE RANKED LIST FOR THE POST OF LECTURER IN COMPUTER TECHNOLOGY. EXT.P.12: COPY OF THE MARK SHEET IN B.E. DEGREE EXAMINATION ISSUED BY MANONMANIAM SUNDARANAR UNIVERSITY. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. V.K.MOHANAN, J. --------------------------------------------- W.P (C).No. 7194 of 2005 --------------------------------------------- Dated this the 10th day of August, 2009 J U D G M E N T Being an aspirant for selection and appointment to the post of Lecturer in Computer Technology in the Polytechnic Wing of the Technical Education Department, Kerala, the petitioner preferred his application pursuant to notification dated 9.4.2002 issued by the first respondent, viz., the Kerala Public Service Commission. Based upon the application preferred by the petitioner, the petitioner had undergone a written test held on 3.1.2004 and subsequently, an interview was held on 29.9.2004 for which the petitioner was invited as per Ext.P1 memo. According to the petitioner, as evidenced by Ext.P2, he got degree in Bachelor of Engineering from Madurai Kamaraj University. Ext.P3 is the marklist. According to the petitioner, as evidenced by Ext.P4, the Kerala University has also declared that B.E. WP(C) NO.7194 of 2005 :-2-: (Computer Technology) of Madurai Kamaraj University is equivalent to B.Tech in Computer Science and Engineering Degree of the Kerala University. It is the claim of the petitioner, on the basis of Ext.P3 marklist, that he had got 60.3% of marks in the qualifying examination and therefore, he is eligible for consideration to get selection. But, the P.S.C. rejected his claim and in Ext.P11 rank list, his name was shown as withheld and subsequently, by Ext.P10 proceedings, the petitioner's candidature was rejected by the P.S.C. Therefore, the petitioner preferred this writ petition praying inter alia to issue a writ of certiorari to quash Ext.P10 and also to issue a writ of mandamus directing the first respondent-P.S.C. to include the name of the petitioner in Ext.P11 rank list in appropriate place on the basis of the merit shown by the petitioner in the written test and interview WP(C) NO.7194 of 2005 :-3-: based on the notification dated 9.4.2002 by the P.S.C. It is also prayed for a declaration by issuing a writ of mandamus that the petitioner has secured 60% marks in the qualifying examination conducted by the Madurai Kamaraj University and hence, he is entitled to be considered for selection and appointment to the post of Lecturer in Computer Technology notified by the P.S.C. on 9.4.2002. 2. The first respondent as well as second respondent have filed separate counter affidavits. The contentions raised in both the counter affidavits are more or less the same. According to respondents 1 and 2, the qualification prescribed for the post of Lecturer in Computer Technology is “A degree in appropriate branch of Engineering or Technology with not less than 60% marks in qualifying examination”. The said notification was issued in terms of Special Rules governing the service. It is admitted that WP(C) NO.7194 of 2005 :-4-: after the written test, the petitioner's name was included in the shortlist with register No.344. According to the respondents, during the interview, it was noticed that the petitioner had not produced the marklists of all semesters (I to VIII) of B.E.Degree Examination. Subsequently, he produced Ext.P3 marklist. Thus, according to the respondents, on a detailed scrutiny, it was detected that the petitioner obtained only 59.78% of marks for all the eight semesters (3467 out of 5800) which is below 60%. As the petitioner has not got the prescribed marks, his result was withheld from the rank list. Thus, finally his candidature was rejected as he was found not eligible to apply for the post in terms of notification, since he is not in possession of 60% marks for all 8 semesters of B.E.Degree Examination-the qualifying examination as required in the notification. WP(C) NO.7194 of 2005 :-5-: 3. The P.S.C., in paragraph 6 of their counter affidavit, stated that in an identical case, a Division Bench of this Court in W.A.No.586 of 2002 has held that no interference of this Court is warranted since the P.S.C. has adopted a uniform method, which cannot be said to be unreasonable or arbitrary. According to the respondents, the stand taken by the P.S.C. as well as the Government is legal and valid and no interference of this Court is warranted. 4. I have heard learned counsel for the petitioner and also Sri.Alexander Thomas, Standing Counsel for the P.S.C and also the learned Government Pleader. 5. It is beyond dispute that the educational qualification prescribed by the P.S.C. in their notification, as per the Special Rules for the Kerala Technical Education Service(Amendment) Rules,1989 is “A degree in appropriate branch of WP(C) NO.7194 of 2005 :-6-: Engineering or Technology with not less than 60% marks in qualifying examination” (emphasis supplied). It is also not disputed that the B.E.(Computer Technology) of Madurai Kamaraj University is equivalent to B.Tech in Computer Science and Engineering Degree of the Kerala University. In Ext.P10, which is under challenge, the reason stated by the P.S.C. is that the petitioner has not secured 60% marks in the qualifying Examination as prescribed in the notification. On the strength of Ext.P3, learned counsel for the petitioner submits that the University, who issued the qualifying Degree Certificate, had awarded him more than 60% marks, more particularly 60.3% marks whereas in the notification, what required is only 60%. On the basis of Ext.P3, learned counsel pointed out that the University, which issued the qualifying Degree Certificate, has got absolute authority in awarding WP(C) NO.7194 of 2005 :-7-: the marks also and if that be so, the P.S.C. cannot go behind the marks so awarded by such university. In support of the above submission, learned counsel pointed out that in Kerala, it is the usual practice that lateral entry candidates can join the third Semester directly, for which they need attend two papers and the same will be treated as equivalent to the first and second Semesters and therefore, the stand adopted by the P.S.C. as well as the Government in insisting the petitioner to have 60% marks for the entire semesters is arbitrary and illegal. 6. As pointed out earlier, the qualification prescribed for the post in terms of the Special Rules is 60% marks in the qualifying Examination. It is pertinent to note that in the notification, what the appointing authority as well as the selection agency prescribed was not only the passing of the WP(C) NO.7194 of 2005 :-8-: qualifying degree examination but also acquiring of 60% marks for the qualifying examination, fixed as a requisite qualification. Therefore, in order to consider the merit of the candidature, not only the degree certificate, but the marks obtained in such qualifying examination have also to be considered. On examination of such requirement, it can be seen that total marks of the qualifying examination for 8 semesters would come to 5800. Out of 5800 marks, the petitioner has got only 3467 marks, that means he had got only 59.78 %. The University awarded to the petitioner the first class mark taking into consideration of the marks obtained by the petitioner for the 3rd semester to the 8th semester only. The marks that he had obtained in the First and Second Semesters were excluded. Considering the mode of calculation adopted by Madurai Kamaraj University in awarding mark and fixing WP(C) NO.7194 of 2005 :-9-: percentage, it cannot be said that the marks obtained by the petitioner is not for the entire qualifying Degree Examination. 7. In the counter affidavit filed by the P.S.C., it is specifically stated that considering the post in question which is a teaching post, a uniform method was adopted for selection of candidate and that was on the basis of the decision taken by the P.S.C. According to Sri.Alexander Thomas, Standing Counsel for the P.S.C., the above stand of the P.S.C. has been judicially approved by this Court on various occasions. Learned Standing Counsel invited my attention to the judgment dated 14.2.2008 of this Court in W.P(C) No.796 of 2008. In that case also, the facts are identical. The learned Single Judge of this Court has held that the P.S.C. has taken a uniform criterion in adopting the correct marks in all examinations of the course and WP(C) NO.7194 of 2005 :-10-: the same cannot be faulted and the petitioner alone cannot be considered for selection on the ground that his degree certificate states that he had passed in first class although the petitioner has not scored average 60% marks in the examination for all the years/semesters of the qualifying examination. Against the above judgment, though the matter was taken in appeal, a Division Bench of this Court by judgment dated 11.6.2008 upheld the decision of the learned Single Judge. Considering the particular facts involved in that case, the Division Bench has re-captioned the qualification of successful candidates which, I am quoting herein below for convenience:- “6. Classification of Successful Candidates For purpose of award of B.E.Degree at Convocation, the classification of the successful candidate shall be based on the performance of last year of the course.” (emphasis supplied) WP(C) NO.7194 of 2005 :-11-: From the above, it is crystal clear that for awarding the marks and also for fixing the percentage, the criteria adopted by the University was based on the performance of the candidates/students only during the last year of the course. Whereas in the present case, Madurai Kamaraj University adopted a criteria of taking the marks of the petitioner like students, that they obtained for the semesters 3 to 8. In fact, they excluded the marks obtained by the candidates or students, for the first and second semesters. The above facts itself are sufficient to show that students or candidates, who are obtaining degree from various universities, are awarded marks and fixed the percentage of marks, based upon the criteria adopted by each such University. It is also relevant to note that in our State, for fixing the percentage of the marks obtained for the qualifying examination, the marks obtained by the WP(C) NO.7194 of 2005 :-12-: students/candidates for the whole semesters or the marks obtained for every examination are being considered. On such approach and adopting such criteria, only those students, who could succeed in obtaining high marks on all semesters or examinations, can be placed in merit. 8. From the facts involved in the present case and the facts involved in the case referred above, it can be seen that various universities, in awarding marks and fixing percentage of the qualifying examination, are adopting different criteria. When the private agencies stepped into the academic field with profit motive, academic abilities and performance are got least consideration and undervalued, during their unhealthy competition to attract students to their Universities or colleges. Under such situation, a studious and meritorious student or candidate cannot be selected for appointment, unless his entire performance was subjected to close scrutiny and evaluation. Therefore, it WP(C) NO.7194 of 2005 :-13-: is within the jurisdiction of the P.S.C. to adopt its own criteria, which is applicable to all candidates irrespective of the college or Universities, he studied, for selecting better candidates. 9. From the above discussion, it can be seen that the P.S.C, the selection agency has adopted a uniform method or criteria which is within its competence, in selecting better candidates for advice to the post notified for selection and appointment. If that be so, I find no illegality with Ext.P10 order of the P.S.C., especially in the light of the above decision of the Division Bench as well as the Single Bench of this Court. In the light of the facts, I find no merit in the writ petition and accordingly, the same is dismissed. V.K.Mohanan, Judge MBS/ WP(C) NO.7194 of 2005 :-14-: V.K.MOHANAN, J. ----------------------------------------- --- WP(C) NO.7194 of 2005 :-15-: Crl.R.P.NO. OF 200 -------------------------------------- ------ J U D G M E N T DATED: -2-2008 WP(C) NO.7194 of 2005 :-16-: