IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 WP(C).No. 25803 of 2006(V) ------------------------------------- PETITIONER(S): ------------------------- INDU N.NAIR, W/O. SAJI KUMAR, AGED 34, VIJAYABHAVAN, THEKKETHUKAVALA P.O., KOTTAYAM, PONKUNAM VIA., PIN-686 519, L.D. CLERK, GOVT. V.H.S.S., THODUPUZHA. BY ADVS. DR.V.N.SANKARJEE MR.V.N.MADHUSUDANAN SMT.R.UDAYA JYOTHI RESPONDENT(S): ------------------------- 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY TE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. ADV. MR.ALEXANDER THOMAS,SC,KPSC R2 & R3 BY GOVT. PLEADER MR.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/10/2009, ALONG WITH WPC NO. 27153 OF 2006 WPC NO. 26758 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.25803/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.E2-14550/97 DTD. 31.10.2002 OF THE 3RD RESPONDENT. P2:- COPY OF THE DEGREE CERTIFICATE DTD. 23.5.03 OF MASTERS DEGREE IN PHYSICS. P3:- COPY OF THE MARKLIST DTD. 29.1.01. P4:- COPY OF THE DEGREE CERTIFICATE DTD. 21.7.97 OF B.ED. DEGREE, PHYSICAL SCIENCE. P5:- COPY OF THE CERTIFICATE DTD. 21.12.02 FOR STATE ELIGIBILITY TEST. DEC. 2002. P6:- COPY OF THE RELEVANT PAGE OF S.S.C. BOOK OF THE PETITIONER. P7:- COPY OF THE NOTIFICATION PUBLISHED IN THE EXTRA ORDINARY GAZETTE DTD. 2.11.04. P8:- COPY OF THE ADMISSION TICKET FOR APPEARING IN THE WRITTEN TEST HELD ON 18.2.06 ISSUED TO THE PETITIONER. P9:- COPY OF THE NOTIFICATION NO.S/L.NO.2/06/ROQ/NVT PHYSICS DTD. 18.7.06. P10:- COPY OF THE SHORT LIST PREPARED FOR INTERVIEW OF THE NON- VOCATIONAL TEACHER (MATHEMATICS) P11:- COPY OF THE RANKED LIST FOR THE POST OF NON-VOCATIONAL TEACHER IN MATHEMATICS. P12:- COPIES OF THE RESULTS INCLUDING MARKS AS PUBLISHED IN THE WEBSITE OF KERALA PUBLIC SERVICE COMMISSION. P13:- COPY OF THE SORT LIST PREPARED BY IST RESPONDENT. P14:- COPY OF THE RANK LIST PREPARED BY IST RESPONDENT. P15:- COPIES OF THE RESULTS OF SIX CANDIDATES INCLUDED IN EXT.P13 & P14 (SUPPL. LIST-SC) AS PUBLISHED IN THE WEBSITE OF LIST RESPONDENT. ANNEXURE-I:- COPY OF THE AFFIDAVIT SWORN BY THE ADVOCATE CLERK. P16:- COPY OF THE NOTIFICATION DTD. 16.7.08 CONTAINING SHORT LIST FOR WAYANAD DISTRICT. W.P.(C) NO.25803/2006 P17:- COPY OF THE NOTIFICATION DTD. 24.7.08 CONTAINING SHORT LIST FOR PALAKKAD DISTRICT. P18:- COPY OF THE NOTIFICATION DTD. 7.8.08 CONTAINING SHORT LIST FOR MALAPPURAM DISTRICT. P19:- COPY OF THE NOTIFICATION DTD. 18.7.08 CONTAINING SHORT LIST FOR KASARAGODE DISTRICT. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) Nos.25803, 26758 & 27153 OF 2006 --------------------------------------- Dated this the 26th day of October, 2009. J U D G M E N T These writ petitions raise common question and therefore, they are disposed of by this common judgment. 2. In W.P.(C) Nos.25803 and 26758 of 2006, the petitioners are seeking for appointment as Non-Vocational Teacher (Physics) and in W.P.(C)No.27153 of 2006, the petitioner seeks appointment as Non-Vocational Teacher (Biology). In these cases, the petitioners are working as L.D.Clerks in the Vocational Higher Secondary Department. The petitioners acquired necessary qualification also for competing for selection. 3. Going by the Kerala Vocational Higher Secondary Education Subordinate Service, 10% of the total posts of Non- Vocational Teacher in each discipline is reserved for appointment from ministerial staff. As far as the discipline of Physics is W.P.(C) No.25803/2006 & conn. cases 2 concerned, the total number of vacancies is 55, shown in the notification. Accordingly, 10% (that is 5.5) will be reserved for appointment by transfer from qualified ministerial staff. As far as the discipline of Biology is concerned, the total number of vacancies notified is 32 and out of which 3.2 will be reserved for appointment by transfer from qualified ministerial staff. 4. The petitioners in W.P.(C) Nos.25803 and 26758 of 2006 are aggrieved by the short list published by the Public Service Commission. Only two register numbers were shown in Exhibit P9 against category II-216/2004 that is in respect of appointment by transfer. The petitioners have raised various allegations in the manner of fixing of cut off mark. Pursuant to the interim orders passed by this Court, the petitioners have participated in the interview. 5. In W.P.(C) No.27153/2006, it is stated that there were only seven candidates who appeared in the written test, and the number of vacancies will be increased in future. Since there are only seven candidates, all of them should have been included in the short list. It is contended that the Commission cannot fix a W.P.(C) No.25803/2006 & conn. cases 3 cut off mark. Reliance is placed on the decision of a Full Bench of this Court in Ravidas vs. Public Service Commission (2009 (2) KLT 295). 6. As regards the discipline of Physics, it is revealed from the counter affidavit filed by the 1st respondent that the petitioners did not get sufficient marks in the OMR test. The same stand is taken in the counter affidavit filed in other case also. It is explained in the additional affidavit filed by the 1st respondent that the candidates included in the short list have secured 20 marks and above and the petitioners could not get the same. As far as W.P.(C) No.27153/2006 is concerned, the candidates who have secured 52 marks and above are included in Category II List I of the Short List for By Transfer appointment. 7. Mainly it is contended that in the light of the decision of the Full Bench referred to above, the cut off mark fixed by the Public Service Commission cannot be justified. It is also contended that in the light of the fact that the number of vacancies were only a few and as the applicants were also few, all of them should have been included in the short list irrespective W.P.(C) No.25803/2006 & conn. cases 4 of the marks they have obtained. It is further contended that fixing of cut off mark has not been notified to the candidates at any point of time. 8. Learned standing counsel for the Public Service Commission submitted that under Note 2 to Rule 4 of the Kerala Vocational Higher Secondary Education State Service Rules, 2004, the candidates will have to qualify in the Eligibility Test and therefore, the situation herein is not identical to the one considered by the Full Bench in Ravidas vs. Public Service Commission (2009(2) KLT 295). Note 2 to Rule 4 reads thus: “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”. 9. I have considered the very same question in W.P.(C) No.29899/2008 wherein in paragraph 11, it was held thus: “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 W.P.(C) No.25803/2006 & conn. cases 5 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 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”. It was also held that the decision of the Full Bench may not apply therein in the light of the express provision in the note itself. 10. It is also submitted that as far as the discipline of Mathematics is concerned, the persons who have obtained only 11 marks were included in the short list and therefore, as far as the persons like the petitioners are concerned, the Commission is not justified in arbitrarily fixing a higher mark as a qualifying one. 11. It is explained by the learned standing counsel for the Public Service Commission that fixing of cut off mark may depend on various factors like number of questions, subject etc. and that W.P.(C) No.25803/2006 & conn. cases 6 may vary from subject to subject. It is therefore, submitted that the marks fixed by the Public Service Commission cannot stated to be unreasonably high. I find force in the said submission also. In that view of the matter, the petitioners are not entitled for any relief. Therefore, these writ petitions are dismissed. T.R. RAMACHANDRAN NAIR JUDGE smp