IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 28485 of 2008(N) ---------------------- PETITIONER(S): --------------------- 1. RANJITH P.R., AMIN, DISTRICT COURT, ERNAKULAM. 2. ZAKARIAH N.K., PEON, IRRIGATION DEPARTMENT, OFFICE OF THE SUPERINTENDING ENGINEER, MUVATTUPUZHA. 3. XAVIER M.O.,PEON, IRRIGATION DEPARTMENT, PERIYAR VALLEY IRRIGATION PROJECT(PVIP), SUB DIVISION NO.IV,ALUVA. 4. ROSHNI.K.P, PEON, IRRIGATION DEPARTMENT, PERIYAR VALLEY IRRIGATION DEPARTMENT (PVIP), DIVISION NO.II, ALUVA. 5. PAUL K.T., PEON, EDUCATIONAL DEPARTMENT, OFFICE OF THE HIGHER SECONDARY SCHOOL, ELAMKUNNAPUZHA P.O., ERNAKULAM. BY ADVS. SRI.P.C.SASIDHARAN SRI. E.S. ASHRAF SRI. GIREESHKUMAR RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THULASI HILLS, PATTOM, THIRUVANANTHAPURAM. R2 BY ADV. SRI. ALEXANDER THOMAS, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/08/2010, ALONG WITH WPC NO. 28787 OF 2008 & WPC NO. 18088 OF 2009 THE COURT ON 07.10.2010 DELIVERED THE FOLLOWING: ...2/- WP(C).No. 28485 of 2008(N) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION DATED 30/12/2006 BY PSC. EXT.P2: COPY OF G.O (MS) 338/81/GAD DATED 3/10/1981. EXT.P3: COPY OF THE G.O(P) 39/89/P&ARD DATED 8/12/1989. EXT.P4: COPY OF THE ADMISSION TICKET ISSUED TO THE 1ST PETITIONER. EXT.P5: COPY OF THE RELEVANT EXTRACT OF THE SHORT LIST PUBLISHED BY THE COMMISSION. RESPONDENT'S EXHIBITS: //TRUE COPY// P.S. TO JUDGE Mn ANTONY DOMINIC, J. ---------------------------------------------------------------- W.P.(C) Nos.28485/08,28787/08 & 18088/09 ---------------------------------------------------------------- Dated this the 7th day of October, 2010 J U D G M E N T The issue raised in these writ petitions are connected and therefore these cases were heard together and are disposed of by this common judgment. 2. For convenience, W.P(c).No.28787/2008 is treated as the leading case. 3. Legality of the preliminary test conducted by the Public Service Commission is the main issue that is arising for consideration in this writ petition. 4. Facts of the case are that, by Ext.P2, the notification issued by the Government of Kerala vide GO(Ms).No.338/81/GAD. dated 3rd October, 1981, it was ordered that 2% of the vacancies arising in the cadre of Assistant Grade.II in the Secretariat, Office of the PSC and Advocate General and in the cadre of Second Grade Auditor in the office of the Examiner of Local Fund Accounts shall be reserved for employees belonging to low paid posts (included in the Subordinate Service) with 4 years aggregate service in their respective category or posts and WPC.No. 28485/08 & Ors. :2 : having the prescribed qualification, for direct recruitment. It was further ordered that those who secured 40% marks in the competitive test conducted by the PSC, will be selected to the post and that the PSC shall maintain a separate ranked list for such persons and that candidates will be advised to the vacancies set apart on the basis of merit and against open competition vacancies. Subsequently Government issued Ext.P3, GO(P) No.39/89/P & ARO dated 8.12.1989, ordering that the low paid employees who secured 40% and above in the test conducted by the PSC and becoming qualified for appointment, but could not secure appointment before the expiry of the ranked list ,will be included at the top of the ranked list of low paid employees subsequently finalised, irrespective of their length of service and that they will be given appointment accordingly. 5. Petitioners are last grade servants eligible for the benefit of Exts.P1 and P2 Government Orders referred to above. While matters stood thus, PSC issued Ext.P1 notification dated 31.12.2006, inviting applications from among low paid employees to the post of Assistant/Auditor, for recruitment by transfer. It is stated that subsequently, the PSC also issued a erratum notification on 7.4.2007 stating that those who secured 40% marks will be called for an interview and on that basis ranked list WPC.No. 28485/08 & Ors. :3 : will be published. In response to the notification petitioners submitted applications. They were issued Exts.P4 and P5 admission tickets for a preliminary examination. Petitioners appeared for the preliminary examination. Subsequently, PSC published Ext.P6, a unified shortlist with the register numbers of the candidates who were found provisionally eligible to be called for the final written list. Petitioners' names were not included in the list. Accordingly, the competitive test as contemplated in Exts.P2 and P3 was scheduled to be held on 11.10.2008. It was at that stage, this writ petition was filed challenging the legality of the preliminary test conducted by the PSC and seeking a writ of mandamus compelling the Commission to call the petitioners also for the competitive test and to declare that the preliminary test conducted was illegal and without the authority of law. 6. The case of the petitioners is that the Public Service Commission being an agency entrusted with the task of conducting recruitment, has to confine itself to the recruitment rules. It is stated that the recruitment rule only contemplates a competitive examination followed by an interview. Therefore, according to the petitioners, the PSC could not have eliminated any of the candidates by conducting a preliminary test. It was further contended that the purpose of conducting a preliminary WPC.No. 28485/08 & Ors. :4 : test or an elimination test is to weed out candidates in a situation where numerous candidates respond to a notification and the notified vacancies are few. It was contended that the said concept of either shortlisting or weeding out candidates has no place in a recruitment from low paid employees for the reason that the list prepared is to remain valid for ever. It was further contended that by conducting preliminary test, the public service commission has modified the recruitment rules which it could not have done. 7. On behalf of respondents 2 to 4, a counter affidavit and an additional counter affidavit has been filed. In the affidavits filed, the PSC do not dispute the prescriptions in Exts.P2 and P3 notifications referred to above. It is stated that a ranked list for recruitment by transfer was published by the PSC on 31.12.2005, which contained 35 candidates and that out of them only 21 were advised for appointment. It is further submitted that the total number of vacancies reported to the PSC for the present selection was only 23 anticipated vacancies without apportioning the vacancies for direct recruitment or for by transfer appointment. It is stated that in response to the notification that was issued, the PSC received 298709 applications for appointment in the direct recruitment category and 4828 applications for appointment in WPC.No. 28485/08 & Ors. :5 : the by transfer appointment category. It is stated that considering the fact that only 2% of the vacancies are set apart for by transfer category and taking into account the fact that only 23 anticipated vacancies and that too without any apportionment, alone were reported, was decided to short list candidates. PSC submits that accordingly, it was decided to conduct a preliminary test and to prepare a unified list both for the direct recruitment category and by transfer category. Accordingly, a preliminary test was conducted and for the direct recruitment category, a list of 11135 candidates who had secured 43 marks and above in the preliminary test was published and that for by transfer category, a list of 505 candidates who had secured 40 marks and above was published. The PSC relied on the provisions of the KPSC Rules of Procedure and various judgments of this Court and Apex Court to assert its competence to shortlist the candidates. It was also contended that the petitioners having appeared in the preliminary test, are estopped from challenging the validity of the test. On this basis PSC sought to justify the preliminary test conducted by them. 8. I have considered the submissions made. 9. Before I consider the respective contentions of the parties, one of the issues that was raised by the respondents WPC.No. 28485/08 & Ors. :6 : which has to be dealt with at the outset is that in the absence of affected parties impleaded in the writ petition, the writ petition is liable to be dismissed. It cannot be disputed that in a matter like this, any order upsetting the ranking or selection or a short list will have its consequences on the persons who are included in the ranked list, select list or short list as the case may be. Such an order cannot be passed, unless the affected parties are impleaded in the writ petition. This position has been reiterated in several cases, one of which is Siraj V. High Court of Kerala (2006(2) KLT 923). In this writ petition, such affected parties are not impleaded and in my view having regard to the principles laid down in the judgment referred to above, such defect is a fatal one and should result in the dismissal of the writ petition. 10. In spite of the above ground warranting dismissal of this writ petition, I shall proceed to examine the validity of the preliminary test that was conducted by the Public Service Commission. While according to the PSC, they adopted this test as a method for shortlisting the candidates, according to the petitioners in the light of the provisions of the Special Rules, such elimination was impermissible. While dealing with this contention, it should be remembered that in the instant case, there were only 23 anticipated vacancies and the vacancies to be WPC.No. 28485/08 & Ors. :7 : filled up from among low paid employees were not even apportioned. In response to the notification issued, while the PSC received 298709 applications, to the vacancies in the direct recruitment category, 4828 applications were received from among the low paid employees. PSC also had with it a list of 14 candidates from the ranked list that was published by it on 31.12.2005 and as per the special rules these 14 candidates were to be included on top of the list to be prepared by the PSC. 11. Now coming to the question regarding the competence of the PSC to shortlist the candidate is concerned, PSC seeks to draw its power from the provisions contained in the Kerala Public Service Commission Rules of Procedure. Rule 3 enables the PSC to conduct all or any one or more of the examinations specified in the rule, such as written test, practical test, physical efficiency test, oral test or any other test or examination which the PSC may deem fit to hold, to assess the merit of the candidates considered for recruitment to a service or post. Rule 11 obliges the PSC to take a decision about the manner in which practical examination, physical efficiency test or any other test or examination is to be conducted. Thus it is entirely within the domain of the PSC to decide the manner in which the test is to be conducted and it is free to adopt any one or more of the methods to assess the WPC.No. 28485/08 & Ors. :8 : merit of the candidates. 12. The competence of the PSC to shortlist the candidates is no more res integra. In the decision reported in M.P.Public Service Commission V. Nanvir Kumar Potdar (1994(6) SCC 293), the Apex Court upheld the power of the PSC to shortlist candidates adopting a rational and reasonable basis. In that case, the basis for shortlisting adopted by the PSC was longer period of experience than the minimum prescribed. Again in Government of A.P V. P. Dilip Kumar (1993(2) SCC 310), the Apex Court held that it was always open to the recruiting agencies to screen candidates due for consideration at the threshold of the process of selection by prescribing higher eligibility qualification so that field of selection can be narrowed down with the ultimate objective of permitting candidates with higher qualifications to enter a zone of consideration. Following the aforesaid judgments, shortlisting of candidates adopting longer experience that what was prescribed in the rules, was upheld by the Apex Court in Union of Indian & Anorther V. T. Sundararama & Ors. (1997 (4)SCC 664) in which it was held that where number of applications received in response to advertisement is large and it will not be convenient or possible to interview all the candidates, the commission may restrict the number of WPC.No. 28485/08 & Ors. :9 : candidates to a reasonable limit on the basis of higher qualification than what was prescribed in the advertisement or by holding a screening test. (emphasis supplied). Again in Muhammed Riazul Usman Gani and Ors. V. District & Sessions Judge, Nagpur & Ors. (2000(2) SCC 606) it was held that when large number of candidates are available, it was permissible to shortlist candidates adopting a uniform criteria but that criteria must be reasonable and not arbitrary, having regard to the post to which recruitment is to be made. Subsequently in B. Ramakichenin alias Balagandhi V. Union of India & Ors. (2008(1) SCC 362), it was held that even if there is no rule providing for shortlisting nor no mention of it is made in the advertisement calling for application, the selection body can resort to a shortlisting procedure, if there are number of eligible candidates who apply and it is not possible for the authority to interview all of them. Proceeding further, it was held that shortlisting has to be done adopting a rational and objective basis and that if a method of shortlisting has been mentioned in the rule or advertisement, then that method alone shall be followed. 13. In the light of the principles thus laid down in the judgments referred to above, the competence of the PSC to short list candidates, adopting a rational method cannot be disputed. WPC.No. 28485/08 & Ors. :10 : Then the question is whether the method adopted by the PSC, viz. the preliminary test, was a rational one. It also needs to be examined, whether on facts, having regard to the number of vacancies and the candidates available, shortlisting was justified. In the light of principles laid down in the judgments cited, shortlisting of candidates, by conducting a qualifying examination or a preliminary examination, cannot be said to be an arbitrary method nor can it be said that this was not a rational or objective one. Competence of PSC to shortlist candidates also cannot be doubted. Petitioner also has no case that the recruitment rules or the advertisement specified any particular method of shortlisting. In such a factual situation, shortlisting adopting the method of preliminary test deserves to be upheld in principle. 14. Now, the question whether having regard to the number of vacancies and number of applicants, shortlisting of candidates was necessary or justified needs to be examined. The details of the vacancies and number of applications received have already been explained in the earlier part of this judgment. Out of the 23 anticipated vacancies, maximum that was available to the low paid employees was only 2% of the posts. Thus very few vacancies are available and 14 candidates from the ranked list published in 2005 and who are entitled to be included on top WPC.No. 28485/08 & Ors. :11 : of the ranked list to be prepared are available. In such a case, when 4828 applications were received, by no stretch of imagination can it be said that the PSC was at fault when they decided to shortlist the candidates by conducting a preliminary test. 15. The further question is since the select list is to remain valid till those included gets appointment, whether the PSC could have shortlisted the candidates. Once the competence of the PSC to adopt the method of shortlisting is upheld, and on facts it is held that the PSC was justified in adopting such a course, in my view, the question whether the life of the select list is limited or not is inconsequential. This is for the reason that purpose of shortlisting is to reduce the number applicants, having regard to the vacancies and the number of candidates available, practicability of conducting test for all of them etc. If that be the purpose, the fact that there is no period of validity for the ranked list is irrelevant and therefore the contentions of the petitioners that since the ranked list is to remain valid till all included gets appointed, there is no justification for shortlisting the candidates is only to be rejected and I do so. 16. The further issue is when the preliminary test is not specified either in recruitment rule or in the notification issued by WPC.No. 28485/08 & Ors. :12 : the PSC, the preliminary test conducted has the effect of modifying the recruitment rule. In the judgment in B. Ramakichenin alias Balagandhi V. Union of India & Ors. (2008(1)SCC 362, the Apex Court having already upheld the competence of the PSC to conduct the preliminary test even in the absence of a prescription to that effect either in the recruitment rule or in the notification, in my view this contention does not merit any detailed consideration and is only to be rejected. 17. Though the aforesaid contentions have been raised in all these writ petitions, in so far as the petitioner in WP(c). No.18088/2009 is concerned, she has an additional contention. According to her after passing in the preliminary examination, she had appeared in the main examination conducted by the PSC. However, when the PSC published shortlist of candidates who were found eligible to be called for interview, her name was not included. According to the petitioner recruitment rule only provides for 40% marks for inclusion in the ranked list. It was contended that therefore all candidates who have appeared in the main examination and entitled to be called for interview irrespective of the marks they obtained in the written examination and that their eligibility for inclusion in the final ranked list should WPC.No. 28485/08 & Ors. :13 : be reckoned based on the total marks awarded in the written test and interview. The stand taken by the PSC is that the petitioner did not secure sufficient marks in the written examination, ie 40%, enabling her to participate in the interview. Rule 3 and 11 of the PSC Procedure Rules empower the PSC to conduct any one of the tests specified in the rule or any other test or examination which the PSC deems it appropriate to hold. It is in exercise of that freedom which the PSC has decided to hold interview for the candidates who have come out successful in the written test. So long as the rule enables PSC to conduct interview, if the PSC has decided to interview only those who have secured the minimum prescribed marks in the written test, there is nothing illegal in such a decision. By its erratum notification published on 7.4.2007, the PSC had announced its decision to call for interview only those candidates who have secured 40% marks in the written test. This erratum notification is also not under challenge. That apart, the petitioner applied for the post and appeared in the examinations fully being aware of this prescription of the PSC. Therefore, she is also estopped from raising this contention. Therefore I am not persuaded to invalidate the selection process on this ground. WPC.No. 28485/08 & Ors. :14 : In the result these writ petitions are only to be dismissed and I do so. (ANTONY DOMINIC) JUDGE vi/