IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 WP(C).No. 29899 of 2008(H) ------------------------------------- PETITIONER(S): ------------------------ C.K.SUMA DEVI, W/O.G.BALAN,AGED 45 YEARS VOCATIONAL INSTRUCTOR (BANKING ASSISTANT) GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL ALAMCODE, ATTINGAL, TRIVANDRUM DISTRICT. BY ADVS.MR.V.A.MUHAMMED MR.K.E.HAMZA RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR,DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE PRINCIPAL, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, ALAMCODE, ATTINGAL, THIRUVANANTHAPURAM. 4. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER MR.BENOY CHANDRAN R4 BY ADV. MR.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.29899/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE M.COM. CERTIFICATE DTD. 11.2.88. P2:- COPY OF THE MARK LIST DTD. 30.10.88. P3:- COPY OF THE S.E.T. CERTIFICATE DTD. 21.12.02. P4:- COPY OF THE NOTIFICATION CATEGORY BNOS. 173/04 DTD. 12.10-.04. P5:- COPY OF THE HALL TICKET TSS. NIL. P6:- COPY OF THE ORDER NO.C2/20205/07 OF THE DIRECTOR DTD. 10.11.07. P7:- COPY OF THE NOTIFICATION (SHORT LIST) NIL. P8:- COPY OF THE CIRCULAR NO.17/87 OF THE P.S.C. 4.7.87. P9:- COPY OF THE CIRCULAR NO.30/03 OF DO. DTD. 1.12.03. P10:- COPY OF THE INTERIM ORDER IN IA. 267/07 IN WPC. 33046/06. DTD. 12.1.07. P11:- COPY OF THE DO. IN WPC. 17252/06 DTD. 21.8.06. P12:- COPY OF THE RANKED LIST DTD. NIL. TRUE COPY P.A.T O JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.29899/2008-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10th day of September, 2009 J U D G M E N T Aggrieved by the non inclusion of the petitioner in the ranked list for the post of Vocational Instructor (Accounting and Auditing) in Vocational Higher Secondary Education Department under by-transfer quota of qualified ministerial staff, the petitioner has filed this writ petition. 2. The petitioner is working as Vocational Instructor (Banking Assistant) in the Government Vocational Higher Secondary School, Alamcode in Attingal. She is having the qualification of 2nd class degree in M.Com (Financial Management), Typewriting (English), H.D.C and SET (Commerce). The notification issued by the Commission is produced as Ext.P4. In it Category No.202/04 is for the post of Vocational Teacher (Accountancy and Auditing). The petitioner applied in the by-transfer category. Ext.P5 is the Hall Ticket issued to her. Going by Ext.P4, the number of vacancies against Category No.202/04 are shown as 4. In Ext.P7 only 5 candidates have been included. In Ext.P12, the rank list published by the Public Service Commission, names of five candidates have been shown. W.P.(C). No.29899/2008 -:2:- In Ext.P7 it is stated that only candidates who have secured 30 marks and above are included in by-transfer category of the short list. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the P.S.C. It is pointed out by the learned counsel for the petitioner that 10% of the posts of Vocational Teachers in Vocational Higher Secondary Schools is reserved for qualified Ministerial staff. Only 8 candidates have applied for the post and from among them only 5 have been short listed. It is averred that by imposing cut off marks, the number of candidates have been thus limited. It is submitted that they should have included at least 12 names, meaning that thrice the number of candidates advised during the previous years should have been included in the short list. It is further submitted that as sufficient number of candidates were there, the non inclusion of the petitioner is bad in law. 4. The learned Standing Counsel for the P.S.C submitted that unless a candidate qualifies in the Eligibility Test, the name of the candidate cannot be included in the short list merely on the basis of the fact that the applicant had participated in the selection process. By relying upon Note 2 to Rule 4 of the Kerala Vocational Higher Secondary Education State Service Rules, 2004 it is further submitted that even the statutory rules W.P.(C). No.29899/2008 -:3:- specify that the Ministerial Staff in the Subordinate Service of the Department shall qualify an Eligibility Test conducted by Kerala Public Service Commission. In this case, the petitioner did not qualify and therefore, the arguments that his name should have been placed automatically without reference to the qualifying marks cannot be supported. 5. The matter is governed by the specific rules namely, Kerala Vocational Higher Secondary Education State Service Rules, 2004. Note 2 to Rule 4 therein provides as follows:- “Note 2. For appointment under Rule 3(5) and 3(6)(ii) (b) the qualified persons in the Ministerial Staff in the Subordinate Service of the Department shall qualify an Eligibility Test conducted by Kerala Public Service Commission.” 6. Category specified under Rule 3(5) of the above Rules is Vocational Teacher and the modes of appointment are (i) by transfer from qualified Vocational Instructors in the subordinate service of the Department; (ii) by transfer from qualified Ministerial staff in the subordinate service in the Department; and (iii) by direct recruitment. It is W.P.(C). No.29899/2008 -:4:- therefore, clear from Note 2 itself that the qualified persons in the Ministerial Staff will have to qualify in the Eligibility Test conducted by the P.S.C. The learned Standing Counsel also relied upon the principles stated by the Apex Court in State of U.P vs. V.Rafiquddin and others [1987 Supp. SCC 401] and B.Ramakichenin Alias Balagandhi vs. Union of India and others [ (2008) 1 SCC 362] to contend for the position that the Commission is empowered under the relevant Rules itself to fix a cut off mark and therefore, the procedure adopted by the Commission cannot be termed as illegal. 7. In the former case, in paragraph (12), the question whether candidates should have been given any notice before taking steps for holding competitive examinations about the cut off marks was examined. It was held in para (12) thus:- “12. The Division Bench of the High Court observed that the Commission had no authority to fix any minimum marks for the viva voce test and even if it had such a power it could not prescribe the minimum marks without giving notice to the candidates. The Bench further observed that if the Commission had given notice to the candidates before the steps for holding the competitive examination were taken the candidates may or may not have appeared at the examination. In our opinion the W.P.(C). No.29899/2008 -:5:- High Court committed a serious error in applying the principles of natural justice to a competitive examination. There is basic difference between an examination held by a college or university or examining body to award degree to candidates appearing at the examination and a competitive examination. The examining body or the authority prescribes minimum pass marks. If a person obtains the minimum marks as prescribed by the authority he is declared successful and placed in the respective grade according to the number of marks obtained by him. In such a case it would be obligatory on the examining authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. A person may obtain sufficiently high marks and yet he may not be selected on account of the limited number of posts and availability of persons of higher quality. Having regard to the nature and characteristics of a competitive examination it is not possible nor necessary to give notice to the candidates about the minimum marks which the Commission may determine for purposes of eliminating the unsuitable candidates. The rule of natural justice does not apply to a competitive examination.” W.P.(C). No.29899/2008 -:6:- 8. The learned counsel for the petitioner submitted that the candidates were not put to notice of any cut off marks fixed by the Commission in the Eligibility Test either in the notification or while issuing the Hall Ticket. It is pointed out that in Note (i) of Ext.P4 what is specified is that only if sufficient number of suitable candidates are not available from the Ministerial Staff, the vacancies reserved for them will be filled up from the Open Market (Direct Recruitment). It is submitted that the same does not satisfy the prescriptions of the statutory rules and, therefore, the contents of Ext.P7 does not satisfy the requirement of law. 9. The statement of law made by the Apex Court in the above decision is a clear answer to the above contention. Therefore, I reject the same. 10. In B.Ramakichenin Alias Balagandhi vs. Union of India and others [(2008) 1 SCC 362 ] their Lordships held at paragraph (17) thus:- “However, for valid shortlisting there have to be two requirements -- (i) it has to be on some rational and objective basis. For instance, if selection has to be done on some post for which the minimum essential requirement is a B.Sc degree, and W.P.(C). No.29899/2008 -:7:- if there are a large number of eligible applicants, the selection body can resort to shortlisting by prescribing certain minimum marks in B.Sc and only those who have got such marks may be called for the interview. This can be done even if the rule or advertisement does not mention that only those who have the aforementioned minimum marks, will be considered or appointed on the post. Thus the procedure of shortlisting is only a practical via media which has been followed by the courts in various decisions since otherwise there may be great difficulties for the selecting and appointing authorities as they may not be able to interview hundreds and thousands of eligible candidates; (ii) if a prescribed method of shortlisting has been mentioned in the rule or advertisement then that method alone has to be followed.” 11. The question is whether the method adopted herein by the Commission suffers from any infirmity in the light of the above legal position. As noticed already, the statutory rule itself specifies that the persons from the Ministerial category will have to “qualify” in the Eligibility Test. Therefore, there is sufficient empowerment in the Statutory W.P.(C). No.29899/2008 -:8:- Rule itself enabling the P.S.C to prescribe a particular qualifying mark while conducting the Eligibility Test. Herein, evidently, the marks prescribed are only 30, going by Ext.P7. It cannot be said that the same is so arbitrary or will not satisfy the requirement of eligibility. In that view of the matter also the Commission cannot be said to have breached the principle of law in adopting the marks in this particular case. 12. The learned counsel for the petitioner further submitted that only 4 vacancies have been notified and the number of applicants were only 8, and if thrice the number of candidates have been included then there was no necessity to conduct an Eligibility Test itself. That argument cannot be accepted plainly in the light of Note 2 to the Statutory Rule itself. When the Rule envisages the conduct of the Eligibility Test, it cannot be said that the P.S.C should have dispensed with the test itself. Therefore, that argument cannot also be sustained. 13. Even though the learned counsel for the petitioner submitted that the test conducted herein is not an Eligibility Test, I am not impressed by the said argument also. Reliance is placed on the Full Bench decision of this Court in {Ravidas v. Public Service Commission [2009 (2) KLT 295 (F.B)]} wherein it was held that a cut off mark cannot be adopted by the W.P.(C). No.29899/2008 -:9:- Commission in the absence of any Rules or any specifications in the notification. The said dictum may not apply herein in the light of the express provision in the note itself. In that view of the matter, the writ petition fails and the same is dismissed. (T.R. Ramachandran Nair, Judge.) ms