IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 27957 of 2011(T) ------------------------------------------ PETITIONER(S): ------------------------- SRIJITH M.S., AGED 28, S/O. SASI, MADATHIL HOUSE, KEDAMANGALAM, NORTH PARAVUR. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT(S): --------------------------- KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-695 004. BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.27957/2011 T APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE MARK LIST PUBLISHED IN THE WEB SITE BY THE KERALA PUBLIC SERVICE COMMISSION. EXT.P2 : TRUE COPY OF THE INTIMATION DTD.28.9.2011 GIVEN BY THE INFORMATION OFFICER. EXT.P3 : TRUE COPY OF THE NON-CREAMY LAYER CERTIFICATE DTD.11.10.2011. EXT.P4 : TRUE COPY OF THE REPRESENTATION DTD.1.10.2011 MADE BY THE PETITIONER TO THE SECRETARY OF THE K.P.S.C. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss K.SURENDRA MOHAN, J --------------------------------------------- W.P.(c)No.27957 of 2011 --------------------------------------------- Dated this the 15th day of November 2011 JUDGMENT The petitioner has filed this writ petition challenging his non-inclusion in the Unified Short List published by the Kerala Public Service Commission (PSC for short). According to the petitioner, he was one of the candidates who had applied for selection and appointment to the post of Sub Inspector of Police (General Market), Category No.315 of 2007. He had appeared for the written examination conducted by the PSC. He secured 46 marks which is the cut off marks for the reservation of persons belonging to the Hindu Ezhava Community. Since the petitioner had secured the minimum cut off marks, he claims that his name should have been included in the Unified Short List. However, according to the petitioner, his name has been excluded arbitrarily. Therefore, he seeks the issue of appropriate orders and directions for the inclusion of his name in the rank list. WPC No.27957/2011 2 He has also submitted Ext.P4 representation which according to him is pending before the PSC. The main descriptive examination for selection to the post of Sub Inspector of Police is scheduled to be conducted on 19.11.2011. Though the petitioner requested that he may be provisionally permitted to appear for the examination, no orders have been passed on his request. He has, therefore, filed this writ petition. 2. A counter affidavit has been filed on behalf of the respondent PSC. According to the PSC, the inclusion of candidates in the Unified Short List was not on the basis of the marks obtained in the preliminary written test alone. The candidates were included, taking into account the vacancies reported, the number of vacancies likely to arise and other relevant aspects. Accordingly, 2712 candidates were included in the Unified Short List, which included 183 Ezhava candidates, in the supplementary list. The last candidate included in the list has secured 46 marks. 3. It is the further case of the PSC that since there WPC No.27957/2011 3 are large number of candidates who have secured the same marks, that is 46, in order to limit the number of candidates to 183, the PSC has followed the criteria of eliminating the candidates who are younger in age. Therefore, the older among the candidates who had secured 46 marks were included in the short list whereby, the younger of such candidates have got excluded. If the petitioner is to be included in the Unified Short List, an additional number of 79 candidates would have to be included. Such a course would enlarge the list to an unwieldy proportion, according to the PSC. Inclusion of additional persons on the above basis would also defeat the very purpose of conduct of a preliminary test. Therefore, it is contended that the procedure adopted by the PSC is sound, reasonable and supported by the authority of law. 4. I have heard Mr.T.H.Abdul Azeez who appears for the petitioner as well as Sri.P.C.Sasidharan who appears for the PSC in detail. I have also considered the rival contentions anxiously. WPC No.27957/2011 4 5. The counsel for the petitioner contends that the petitioner has been eliminated by adopting age as one of the factors for short listing the candidates, which has been found to be unjust and unreasonable by a Division Bench of this Court in Asokan & others v State of Kerala & others (1987(1) KLT 44). In the said decision, the Division Bench had set aside the second proviso to rule 5(ii) of the Kerala Public Service Commission Rules of Procedure as arbitrary and violative of Article 14 of the Constitution. As per the said proviso, the PSC had been conferred with the authority to restrict the number of candidates to be called for an oral test or interview on the basis of either higher qualification or higher marks or age. This Court found that the provision conferred an unguided and arbitrary power on the PSC which is not permissible under Article 14 of the Constitution of India. Regarding age, this Court found that the rule does not state whether it is the higher or lower age, that should be the criteria for restriction. This Court took note of the fact that the provision did not restrict the PSC from fixing either the WPC No.27957/2011 5 higher or lower age for the purpose of imposing the restriction. Since the rule permitted the Commission to fix different age for different communities to restrict the number of candidates from each community, this Court found that the provision conferred arbitrary and unguided power. Therefore, the said proviso was set aside. It is contended by the counsel for the PSC that thereafter, as per the order in a special leave petition filed by the PSC challenging the said judgment, the proviso was sustained, upon deleting the criteria regarding age. 6. According to the counsel for the PSC, rule-5 does not apply to the facts of the present case for the reason that the Unified Short List prepared in the present case is not for restricting the number of candidates to be called for an interview after the conduct of a main examination. In the present case, only a preliminary examination was conducted and the main examination is yet to be held. It is for determining the eligibility to appear for the main examination that a Unified Short List has been prepared. Therefore, this is a case in which rule-4 of the PSC Rules WPC No.27957/2011 6 of Procedure applies. The rule empowers the Board to prepare a separate rank list in the order of merit, of the candidates coming under separate groups, in accordance with the qualifications or other conditions that are stipulated in the notification. It is, accordingly, that the list of Ezhava candidates has been prepared. Therefore, the dictum in the decision reported in Asokan & others v State of Kerala & others (1987(1) KLT 44) is not applicable to the facts of the present case. It is the case of the PSC in the counter affidavit that in the present case it is not on the basis of age that the candidates have been restricted by preparing a Unified Short List, but, taking into account the vacancies reported, the vacancies that are likely to arise and other relevant aspects. No reply affidavit has been filed by the petitioner disputing the correctness of the above assertions in the counter affidavit. Since Rule - 4 permits preparation of such a Unified Short List, I do not find any infirmity in the said action of the PSC. 7. The counsel for the petitioner next contends WPC No.27957/2011 7 that the number of Ezhava candidates in the supplementary list has been limited to 183 without any rhyme or reason. The counsel for the PSC counters the above argument by explaining that the number has been arrived at in accordance with the mandate of rule 14(e), Part II, Kerala State and Subordinate Service Rules. As per rule 14(e) the number of candidates in the supplementary list has to be five times the reservation quota. A reading of rule 14(e) shows that the list has to be not less than five times the reservation quota. Since no material or evidence is available in this case to controvert the above, I accept the explanation that the number of candidates has been restricted 183, following the mandate of rule 14(e). 8. It is not in dispute that the petitioner has secured 46 marks in the preliminary examination and that 46 marks is the marks obtained by the last candidate in the Unified Short List. According to the counsel for the PSC, since a large number of candidates had secured 46 marks, some criteria had to be adopted for restricting the WPC No.27957/2011 8 number of candidates in the supplementary list of Ezhava candidates to 183. For the above purpose, the PSC has followed the procedure prescribed in paragraph-206 of the PSC Manual. The relevant paragraph reads as follows: “206. In cases where more than one candidate secures equal marks, the relative position among them is to be fixed on the basis of the order of their dates of birth i.e. the elder should be given preference over the younger. When the marks secured by more than one candidate are the same and their date of birth falls on the same date, they will be ranked in the alphabetical order of the names as written in English. If the first alphabets of the names of candidates are also same, the name should be arranged in the Dictionary Order. If the name of the candidates also happens to be same, then the initials of the candidates will be considered and arranged in the Dictionary Order (English). If two candidates one with initials to his name and other without initials to his name secure same marks and their dates of birth and names are also the same then the candidate without initials to his name shall be ranked above the candidate with initials. If the initials are also same, the full expansion of the initials will be taken into consideration for the purpose of ranking. Note:- (i) In such cases the expansion should also be noted in the original WPC No.27957/2011 9 Ranked Lists for the purpose of record (not to be published). (ii) The Dictionary Order shall be based on the name as shown in SSLC/Copy of School Admission Register.” 9. The above paragraph prescribes the procedure to be adopted, where the same marks are obtained by a large number of candidates. In such cases, reference is to be given to the older candidates. The above provision clearly provides for the manner in which the older candidate is to be preferred from the other candidates and the cases in which each criteria is to be adopted. Since detailed procedure has been prescribed by the above provision for restricting the number of candidates, it cannot be said that the Unified Short List prepared by following the above procedure is unreasonable or arbitrary. I find that the exclusion of the petitioner has been done on the basis of a well formulated procedure that has been adopted by the PSC and that the same does not suffer from any infirmity or illegality that requires to WPC No.27957/2011 10 be corrected in exercise of the jurisdiction under Article 226 of the Constitution of India. 10. For the above reasons, I do not find any ground to interfere with the impugned action of the PSC. The Writ Petition fails and is accordingly dismissed. Sd/- K.SURENDRA MOHAN, JUDGE css/ true copy P.S.TO JUDGE