IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 WP(C).No. 24297 of 2008(P) ---------------------------------------- PETITIONER(S): ------------------------ 1. T.K. BIJU, S/O.T.G. KUNJUMON, AGED 32 YEARS, RESIDING AT THEKKIRICKKAL HOUSE, PAINAVU, IDUKKI DISTRICT – 685 603. 2. GANGAPRASAD.S, RESIDING AT VALIYAPURACKAL HOUSE, ETTEAKKAR PUTHUVAL, CHENKARA.P.O, VIA VANDIPERIYAR, IDUKKI-685 539. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, PROJECT TOWERS, VAZHUTHACAUD, TRIVANDRUM. R1 BY GOVT. PLEADER MR.SANDESH RAJA. R2 BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE, ADV. SRI.S.SUJIN, SC, IHRD, SRI.M.K.CHANDRAMOHAN DAS,SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/08/2010, ALONG WITH WPC NO. 33635 OF 2009 AND CONNECTED CASES, THE COURT ON 09/09/2010 DELIVERED THE FOLLOWING: rs. C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)Nos.24297 of 2008, 33635, 34223, 34505, 35597, 36231, 36748 of 2009, 35, 43, 964, 2486, 2580, 3702, 3959, 10380, 19339 & 21602 of 2010. ---------------------------- Dated 9th September, 2010 JUDGMENT Whether the written test held on 23.8.2009 for selection to Last Grade Service under the Institute of Human Resources Development (for short `IHRD' only) pursuant to notification No.RECT/03/09/HRD dated 21.1.2009 is void and whether the short listing of candidates by prescribing cut off marks higher than cut off marks prescribed under the Recruitment Rules would make the short list drawn and published as per notification No.3/09/HRD dated 23.10.2009 viz. the main list of the short list and its supplementary lists inoperative and such other allied questions crop up for consideration in this batch of writ petitions. In some of the writ petitions, claim for regularisation of service has also been raised. Except W.P.(C)No.19339 of 2010 filed by candidates included in the aforesaid short list published on 23.10.2009 for declaration that they are entitled to be appointed against the vacancies based on their ranks in the respective lists and for consequential direction for appointment, all the other writ petitions carry either challenge against the aforesaid WP(C).No.24297/2008 & connected cases 2 written test and also the subsequently drawn short list or claim for regularisation. Essentially, in most of the writ petitions the prayers for revising the aforesaid short list and to include the petitioners also in the respective lists based on the cut off marks fixed for different categories namely, open category, OBC and SC/ST, after granting them grade marks in terms of the weightage provided under the recruitment rules have also been made. Some other writ petitions carry the prayer to cancel the aforesaid short list and to conduct fresh selection process in terms of the recruitment rules after rejecting all applications of graduates and post-graduates, as well. In short, common facts and common issues involved in these writ petitions though prayers are molded differently. The common contentions also raise another question as to what should be the stage at which weightage marks as provided under the recruitment rules be awarded in view of the fact that the selection process constituted written test and interview. For the sake of convenience, W.P.(C)No.34505 of 2009 is taken as the leading case and documents are being referred to in this judgment in the order they are set out in the said writ petition unless otherwise specifically mentioned. WP(C).No.24297/2008 & connected cases 3 2. A brief narration of common facts is required for consideration of the aforesaid contentious questions. Most of the petitioners in these writ petitions have earlier approached this Court through various writ petitions such as W.P.(C) Nos.29063, 29858, 29915, 30440, 30517, 30688, 31044, 33762 of 2006 and 2135, 4371 and 14768 of 2007 mainly claiming regularisation of their services in the last grade service of IHRD based on their provisional service on daily wage basis. Obviously, the claim for regularisation was not granted and the said batch of writ petitions was disposed of by Ext.P4 common judgment dated 13.7.2007. A perusal of Ext.P4 judgment would reveal that those writ petitions were disposed of based on the resolution of the governing body of the IHRD to approve the recruitment policy for regular appointment of last grade servants and part-time employees under IHRD taken at its meeting held on 9.7.2007. The said resolution reads thus: “The regular appointment of last grade servants and part-time employees under IHRD shall be after notifying the vacancies through print media and conducting interview. The ad-hoc employees who were engaged under IHRD shall be given a weightage in the direct recruitment as mentioned above. The quantum of weightage to be given as above and other modalities of the recruitment shall be finalised by the Executive Committee.” WP(C).No.24297/2008 & connected cases 4 It was taking note of the above extracted resolution that those writ petitions were disposed of as per Ext.P4 judgment as hereunder:- “Therefore these writ petitions are disposed of with a direction to the Institute, to finalise the procedure for recruitment of last grade servants, part time employees, ad-hoc employees etc. in terms of the resolution referred to above. All such further action pursuant to the above resolution shall be taken by the Institute as expeditiously as possible, at any rate within 3 months from the date of receipt of a copy of this judgment. Till such time, the process is completed, the interim order interdicting the Institute from making any fresh appointments to the categories of posts from which the petitioners were disengaged, shall remain in force.” 3. Ext.P5 is the approved rules for recruitment of last grade servants and part-time staff under IHRD. As per the same, appointment to the regular vacancies of last grade service under IHRD shall be made after notifying the vacancies through print media and conducting interview. It is in tune with the resolution dated 9.7.2007 which was extracted in Ext.P4 judgment. The principle of communal reservation followed under the State Government service shall also be observed for making regular appointment under the said approved rules. Ext.P5 would further make it clear that the selection and appointment would be carried out on State-wise basis. The minimum qualifications and modalities for recruitment have also been prescribed therein. Rule 5.1 would reveal that an objective type written test has WP(C).No.24297/2008 & connected cases 5 also been provided as part of selection process though originally it was conspicuously absent in the resolution dated 9.7.2007. Rule 5.3 therein further provides the cut off marks for written test for different categories namely, general candidates, OBC and SC/ST. Going by rule 5.4, a rank list has to be prepared and published based on the candidates' performance in written test and interview and the validity of such rank list would be three years from the date of publication of the list or exhaustion of the list, whichever is earlier. 4. In the light of Ext.P4 judgment and in terms of Ext.P5 recruitment rules, Ext.P6 notification was issued by the IHRD inviting applications from eligible candidates for recruitment to the post of last grade servants. As part of the selection process, a written test was held on 23.8.2009 and pursuant to the same Ext.P10 short list was drawn and published on 23.10.2009 and it contained main list and supplementary lists. Essentially, the grievance of the petitioners is against the said list. It is being challenged on various grounds. Admittedly, later a rank list was drawn and published on 19.3.2010. In this context, it is to be noted that most of the writ petitions are filed prior to the publication of the said rank list and hence carried only the challenge against the short list and prayers for inclusion thereon. WP(C).No.24297/2008 & connected cases 6 Ext.P8 admission ticket was issued to the petitioner and similar admission tickets had been issued to all the petitioners and all the other applicants who responded to Ext.P6 notification. The full text of the admission ticket is produced as Ext.P9 in W.P.(C)No.33635 of 2009. Ext.P9 is the question paper based on which the examination was conducted on 23.8.2009. The contention is that though clause 8 in the admission ticket suggested that questions for 50 marks would be for General Knowledge, 10 marks for simple Arithmetics and 10 marks for English, Ext.P9 contained 67 questions carrying one mark each on General Knowledge and three questions carrying one mark each in simple Arithmetics. In the objective type written test thus held on the basis of Ext.P9, 19978 candidates had attended. Subsequently, a short list was prepared after fixing cut off marks for such inclusion as 59, on 23.10.2009. In the said short list that contained a main list and supplementary lists altogether, 1790 candidates were included. After the interview a rank list containing a main list and supplementary lists carrying names of 1630 candidates was published on 19.3.2010. Admittedly, the petitioners who failed to secure 59 marks were not awarded the weightage marks for the purpose of inclusion in the short list and they partook in the interview based only on the strength of WP(C).No.24297/2008 & connected cases 7 interim orders passed by this Court. 5. Before examining the questions with respect to the validity of the written test held on 23.8.2009 and the sustainability of Ext.P10 short list and other related questions, it is only apt to consider the tenability of the claim for regularisation. As already noticed hereinbefore, most of the writ petitioners had, earlier, approached this Court claiming regularisation. Ext.P4 judgment would reveal that the said claim was not granted whereas all the writ petitions were disposed of virtually directing the respondents to conduct selection process in terms of the resolution passed by the governing body of the IHRD for effecting regular appointment into its last grade service. Admittedly, all the petitioners had worked/have been working only on daily wage basis and all those persons including the petitioners participated in the selection process initiated as per Ext.P6 notification after Ext.P4 judgment and admittedly, no appeals were preferred against it. Evidently, all of them appeared for the written examination held on 23.8.2009. Even those persons who could secure the minimum cut off marks provided under Rule 5.3 of Ext.P5 could not find a place in Ext.P10 short list on account of their failure to secure 59 or more marks in the written test held on 23.8.2009. As already stated, the WP(C).No.24297/2008 & connected cases 8 question whether those persons who secured the cut off marks provided under Rule 5.3 but, failed to secure 59 marks, were entitled to get included in Ext.P10 short list would be considered later. But, the question is, after having participated in the selection process initiated as per Ext.P6 notification and especially in the light of Ext.P4 common judgment can they claim for regularisation any more. That apart, the question is whether they can succeed in that claim in the light of the decisions of the Hon'ble Apex Court in Secretary, State of Karnataka v. Umadevi (3) ((2006) 4 SCC 1) and Satya Prakash and others v. State of Bihar and others ((2010) 4 SCC 179). It is evident from Ext.P4 judgment that the petitioners who claim for regularisation were fully aware of the fact that their right to claim regularisation was not reserved under Ext.P4 common judgment and without making any such reservation the said writ petitions were disposed of with direction to the IHRD to initiate regular selection process. There is no case for the petitioners that Ext.P4 judgment was taken in appeal and they got the right to claim for regularisation reserved. In fact, it was based on Ext.P4 and in terms of the recruitment rules that IHRD issued Ext.P6 notification for effecting regular appointments into its last grade service. The rights assured to WP(C).No.24297/2008 & connected cases 9 such candidates who had put in a minimum of one year ad hoc service as last grade servants and part-time servants were permission to compete in the regular selection and granting of weightage marks in the interview. The petitioners have participated in the selection process initiated as per Ext.P6 with full knowledge about the said situation. In such circumstances, the claim of the petitioners for regularisation deserves no consideration. In fact, it cannot be considered in the light of the aforesaid decisions of the Apex Court as well. Admittedly, the petitioners had worked or have been working under IHRD as daily wage earners. After adverting to the contentions and various decisions the Hon'ble Apex Court in paragraph 53, in Umadevi (3) case (supra) held as follows: “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V.Narayanappa (AIR 1967 SC 1071), R.N.Nanjundappa v. T.Thimmiah ((1972) 1 SCC 409) and B.N.Nagarajan v. State of Karnataka ((1979) 4 SCC 507) and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant WP(C).No.24297/2008 & connected cases 10 sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” The same was subsequently clarified by the Hon'ble Apex Court in Satya Prakash and others v. State of Bihar and others ((2010) 4 SCC 179). In paragraph 18 therein it was held:- “18. In Umadevi (3) case in para 55 of the judgment, the Constitution Bench has also permitted such persons to participate in selection process waiving the age relaxation and giving the weightage for having been engaged or worked in the Department for a significant period of time.” Thus, it is clear that in the light of the said decisions of the Hon'ble Apex Court and also Ext.P4 judgment of this Court the claim of the petitioners who are/were daily wage earners for regularisation as last grade servants under IHRD is liable to be repelled and accordingly, rejected. It is made clear that those petitioners, if any, who had not earlier approached this Court also cannot succeed in their claim for regularisation as they cannot claim any better right than the others similarly circumstanced in all other respects. 6. Now, I may examine the issues whether the written test held on 23.8.2009 is void and whether the short list drawn based on WP(C).No.24297/2008 & connected cases 11 the written test including the main list of the short list and its supplementary lists is inoperative and other allied questions. 7. While examining the first issue, Rule 5.1 of Ext.P5 recruitment rules assumes relevance and the same reads thus: “5.1 An objective type written test for a total marks of 70 shall be conducted by IHRD and candidates who obtain the minimum cut off mark will be called for interview. The total marks for interview will be 30.” Clause 8 in the hall ticket, viz., Ext.P9 in W.P.(C)No.33635 of 2009, was mainly relied on by the petitioners to contend that the written test held was bad. The said clause reads thus: y]smôV 8–LU WæLôV j]svLq¾]sOç RkLfO v]³LjU 50 oL¡¨V, sZOYOe]fU 10 oL¡¨V, CUYVt}xV 10 oL¡¨V, BRW 70 oL¡¨V. The sustainability of the contentions have to be examined in the light of the above extracted provisions. As per Ext.P5 recruitment rules, the total marks for the examination was to be 70. There is no prescription in Ext.P5 to the effect that out of the 70 marks, questions in General Knowledge should carry 50 marks, questions in simple Arithmetics should carry 10 marks and questions in English should carry 10 marks. But for clause 8 in the hall ticket issued to the candidates, there is absolute absence of any such prescription in that matter. Admittedly, WP(C).No.24297/2008 & connected cases 12 an objective type test was held on 23.8.2009 for 70 marks. In that view of the matter, one cannot canvass the position that the examination was conducted in a manner opposed to the modalities for recruitment prescribed under Rule 5 of Ext.P5. Therefore, the question is whether failure to adhere to clause 8 in the hall ticket (Ext.P9 in W.P.(C)No.33635 of 2009) would render the written test void and the consequential lists drawn based on the written test inoperative. Admittedly, in Ext.P9 question paper out of the 70 marks, 67 questions carrying one mark each were relating to General Knowledge and three questions carrying one mark each were relating to simple Arithmetics. The contention of the petitioners is that inasmuch as questions in excess of 50 marks were included in the question paper and only three questions pertaining to simple Arithmetics were included therein, the examination held based on such a question paper would vitiate the selection process and would render the written test void and the consequentially drawn lists as inoperative. In other words, according to them, the action on the part of the respondents in not limiting the questions on General Knowledge to a maximum of 50 marks and failure to include questions to test knowledge in English and limiting the questions of simple Arithmetics to three marks instead of 10 marks WP(C).No.24297/2008 & connected cases 13 vitiated the selection process and made the written test void and the consequential lists inoperative. As noticed hereinbefore, no such prescription suggesting the subjects and splitting up marks for each subject has been given in the recruitment rules. So long as there is no violation of the recruitment rules, I am unable to uphold the contentions of the petitioners. Clause 8 in the hall ticket cannot be treated as anything more than an inconsequential indicator incorporated solely to let know the candidates the probable nature of the questions. At the most, it can be taken as a clause incorporated to convey an idea to the candidates regarding the subjects for the examination. Admittedly, questions were asked only to test General Knowledge and knowledge in simple Arithmetics and undoubtedly, sufficient indications have been given regarding inclusion of such subjects in clause 8. Merely because questions have been asked in excess, on General Knowledge and in short, on simple Arithmetics and absence of questions to test knowledge in English cannot, therefore, be a reason to hold the written test as void and the consequently drawn lists as inoperative. In none of these writ petitions contentions have been raised to explain the prejudice caused to the candidates on account of such a deviation. I am of the view that no prejudice has WP(C).No.24297/2008 & connected cases 14 been caused to the candidates on account of the said action and in the absence of specific contention and proof of prejudice one can only arrive at a presumption that as regards candidates with the minimum qualification of pass in VIIIth standard, it virtually served their turn. Absence of questions to test knowledge in English and Mathematics can usually be regarded only as something non-prejudicial to them. In short, as held earlier, the mere deviation from or failure for strict adherence to, clause 8 in the hall ticket had not vitiated the selection process and therefore, there is no reason to hold the written test held on 23.8.2009 as void and the consequentially drawn short lists, viz., the main list of the short list and its supplementary lists as inoperative. 8. With respect to the prayer of the petitioners for revising the short list, that is its main list and supplementary lists, by including candidates who secured cut off marks prescribed for different categories under Rule 5.3 in Ext.P5 the point to be decided is whether the short listing, viz., weeding out of candidates ignoring Rule 5.3 in Ext.P5 was illegal or impermissible in law. It is true that Rule 5.3 of Ext.P5 prescribed cut-off marks for written test for various categories as hereunder:- WP(C).No.24297/2008 & connected cases 15 “5.3 The cut off marks for written test will be as follows: For general candidates : 20 out of 70 For OBCs : 15 out of 70 For SC/STs : 10 out of 70” In the context of the rival contentions, it is relevant to refer to the statements made in the affidavit filed on behalf of the respondents. In paragraph 12 therein it is specifically stated that the number of vacancies available for filling up is only 149 and that out of the said 149 vacancies, 4 are reserved for physically handicapped persons. The essence of the contentions is that the volume of applications received in response to the notification dated 31.1.2009 and the number of candidates appeared in the written test constrained the IHRD to shortlist the candidates. Even after fixing 59 as cut off mark, the short list of candidates prepared for the purpose of holding interview contained 1790 candidates. After conducting an interview a rank list was published on 19.3.2010 and it contains names of 1630 candidates. Thus, the position is that as against the 149 vacancies available for filling up, even after shortlisting, the list contained 1790 candidates. Merely because cut off marks for different categories have been prescribed in Rule 5.3 of Ext.P5 whether the petitioners could contend that it would curtail the power of the respondents to short list WP(C).No.24297/2008 & connected cases 16 candidates with a view to conduct a fair selection ? Shortlisting of candidates by weeding out with a view to conduct a fair selection taking into account the number of vacancies and sizing the list by about 3 to 4 times of the available number of vacancies has been acknowledged by the Apex Court. In the light of the decisions of the Hon'ble Apex Court in Asok Kumar Yadav and others v. State of Haryana and others (AIR 1987 SC 454) and State of Punjab and others v. Manjit Singh and others ((2003) 11 SCC 559) the petitioners cannot legally contend that merely because of the provisions under Rule 5.3 of Ext.P5 recruitment rules all the candidates who secured cut off marks as prescribed under the said rule should have been called for interview and the first respondent was having such an obligation and the failure to do so by shortlisting of candidates invites interference. The very fact that as against the 149 available vacancies a short list containing names of 1790 candidates, viz., more than 12 times of the available number of vacancies, was prepared itself would suggest absence of arbitrariness and existence of legal awareness casting duty to conduct a fair selection and for that matter, a fair and meaningful interview. I am of the view that it reflects the sense of responsibility on the part of the official respondents. In that WP(C).No.24297/2008 & connected cases 17 view of the matter, especially in the light of the decisions of the Apex Court referred above, I am of the considered view that the petitioners cannot succeed in their challenge against the shortlisting of candidates and claim for revision of the short list after including all candidates who secured cut off marks prescribed for their respective categories under Rule 5.3 of Ext.P5. 9. In this selection, based on the aforementioned short list published on 23.10.2009, an interview was conducted and a rank list was published