Kerala High Court
Vijayakumari K vs State Of Kerala on 7 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
OP(KAT).No.196 OF 2020
AGAINST THE ORDER/JUDGMENT IN OA 1482/2018 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 08.08.2018
PETITIONER/APPLICANT:
VIJAYAKUMARI K
AGED 39 YEARS
W/O.SUDHEESH KUMAR A.M,
SUNIL NIVAS, FAROOQ COLLEGE P.O,
MALAPPURAM, KERALA-673632
BY ADVS.
SRI.T.D.SUSMITH KUMAR
SRI.C.SIVADAS
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE DIRECTOR,
COLLEGIATE EDUCATION, DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM,
KERALA-695001
2 KERALA PUBIC SERVICE COMMISSION
THIRUVANANTHAPURAM-695004,
REPRESENTED BY ITS SECRETARY
SRI.P.C.SASIDHARAN,SC
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT).No.196 OF 2020
2
ALEXANDER THOMAS & T.R.RAVI, JJ.
=============================
O.P (KAT) No. 196 of 2020
[Arising out of order dated 08.08.2018 in O.A.No.1482
of 2018 of the Kerala Administrative Tribunal,
Thiruvananthapuram]
=============================
Dated this the 07th day of January, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayers in the aforecaptioned Original Petition (KAT) filed under
Articles 226 & 227 of the Constitution of India are as follows:
"i) to call for the entire records pertaining to the Exhibit P-4, the Order dated
08.08.2018 in OA No.1482 of 2018 on the file of the learned Kerala
Administrative Tribunal, Thiruvananthapuram, and set aside the same as
arbitrary, unreasonable and illegal;
ii) to call for the entire records pertaining to Exhibit P-3, Circular No.17/2013
dated 16.08.2013, issued by the 2nd Respondent and to set aside the same as
arbitrary, unreasonable, and unscientific to the limited extent of
earmarking credit marks for academic marks out of 30 as the "Basis of
marking" in the selection process for the post of Lecturer in Botany on UGC
Scale in collegiate Education Department;
iii) to declare that there is utmost disparity while treating the candidates
belongs to Semester system Post Graduate Programme and Year-wise
system Post Graduate Programme while considering the academic marks
out of 30 as the "Basis of marking" in the selection process for the post of
Lecturer in Botany on UGC Scale in collegiate Education Department and
other posts;
iv) to pass an Order directing the 2nd Respondent to promulgate the Method of
Selection and Basis of marking strictly in consonance with the letter and
spirit under Rule 3 and Rule 11(ii) of Kerala Public Service Commission
Rules and Procedures and Clause 202 of the Public Service Commission
Manual, without violating the Article 14 and Article 16 of the Constitution of
India is an illagal, irrational and arbitrary manner;
v) to grant any other reliefs that are paryed for and is deemed just and proper
to grant in order to secure ends of justice."
2. Heard Sri.T.D.Susmith Kumar, learned counsel appearing for
the petitioner in the O.P./applicant in the O.A., Sri.P.C.Sasidharan, learned
OP(KAT).No.196 OF 2020
standing counsel for the Kerala Public Service Commission appearing for
R2 and Sri.B.Vinod, learned Senior Government Pleader appearing for R1-
State of the Kerala.
3. The petitioner herein has filed the instant original application
as O.A.No.1482/2018 before the Kerala Administrative Tribunal,
Thiruvananthapuram, seeking the following reliefs:
"i) To issue an order directing the second respondent to set aside Annexure A1
rank list and thereafter prepare new rank list either on the base of marks
obtained by the candidates only in test and interview or by giving special
weightage to the applicant and similar candidates who secured highest
marks/rank in Post Graduation Examination.
ii) Issue such other directions or orders as this Honourable Tribunal deems fit
and proper in the facts and circumstances of the case, in the interest of
justice."
4. The case of the petitioner in the O.P./applicant in the O.A. is to
the effect that she is a candidate duly included in Annexure A1 rank list
published by the respondent-Kerala Public Service Commission for
selection and appointment for the post of Lecturer in Botany in the
Collegiate Education Department of the Government of Kerala, notified as
Category No. 278/2016. The said rank list has come into force on
02.07.2018 and the petitioner in the O.P./applicant in the O.A. is stated to
have secured Rank No.47 in the said list. The petitioner in the
O.P./applicant in the O.A. would point out that she is a gold medalist and is
also the 1st rank holder in the M.Sc. Applied Botany course conducted by
the Kuvempu University, Karnataka. The complaint voiced by the
OP(KAT).No.196 OF 2020
petitioner/applicant in the O.A. is as against the basis of marking adopted
by the respondent-Kerala Public Service Commission, whereby 30% credit
is given for the marks obtained in the Post Graduate examination
conducted by the University concerned, which is added to the marks
obtained in the written examination and the selection process conducted by
the respondent-Kerala Public Service Commission. The petitioner/
applicant in the O.A. would contend that when the respondent-Kerala
Public Service Commission has already conducted a written examination
and also an interview for the selection process, it is not reasonable to take
into account the academic marks obtained by the candidates in their
respective M.Sc degree examinations, as various candidates who
participated in the selection process, would have secured the degrees from
various Universities across the country and that the gradation and
assessment of marking would be widely varied in many of the Universities
concerned, whereas the written examination and selection process are the
same and uniform criteria as the same is conducted only for the purpose of
abovesaid selection and that too, by none other than the respondent-Kerala
Public Service Commission and that when such a wholesome selection
criteria has already been adopted and conducted by the respondent-Public
Service Commission, it does not stand to reason or logic to have even
OP(KAT).No.196 OF 2020
placed extra reliance on the academic marks obtained by the candidates in
their respective M.Sc degrees. Further it is pointed out that the weightage
of 30% is also rather unreasonable and arbitrary and that if at all the said
criteria is otherwise acceptable, giving weightage only for the marks in the
written examination and not giving any weightage or special consideration
for the ranks obtained by the candidates concerned in the M.Sc degree
examination of the Universities concerned, is rather arbitrary and
improper. In that regard, the petitioner/applicant in the O.A. would point
out that she has secured the top rank and gold medal in the Post Graduate
examination conducted by the University from where she has secured a
degree from the State of Karnataka.
5. Per contra, Sri.P.C.Sasidharan, learned standing counsel for the
Kerala Public Service Commission appearing for the 2 nd respondent would
point out that the basis of marking and credit marks for the academic
examination is granted in accordance with Circular No.17/2013 dated
16.08.2013 issued by the respondent-Kerala Public Service Commission
and various other norms in that regard issued from time to time. That the
marks obtained in the written test plus the credit marks for the academic
examination plus the interview marks, is the relevant criteria for marking,
which forms the basis for the selection for determining the inter se merit of
OP(KAT).No.196 OF 2020
the candidates who had part taken in the selection process. That from this
objective criteria, that the Commission has prepared the impugned
Annexure A1 rank list which has come into force on 02.07.2018. Further,
Sri.P.C.Sasidharan, learned standing counsel for the respondent-Kerala
Public Service Commission would elucidate that the substantive source of
power for the Kerala Public Service Commission is traceable to the
provisions contained in Rule 11(ii) of the Kerala Public Service Commission
Rules of Procedure, which has been framed under the enabling provisions
conferred for the functioning of the Commission in terms of Article 315 of
the Constitution of India and that in that regard, the Commission has also
brought out Clause 339 of the Kerala Public Service Commission Office
Manuel, which enables the Commission to adopt a procedure of crediting,
which would minimize inequality, if any, between the qualifications
obtained by the applicants undergoing examinations conducted by various
Universities/Educational institutions across the country. Rule 11(ii) of the
Kerala Public Service Commission Rules of Procedure would enable the
respondent-Kerala Public Service Commission to decide the basis of
marking to be awarded in the selection process, etc.
6. After hearing both sides, it appears that the matter in issue is no
longer res integra and is covered against the petitioner and in favour of the
OP(KAT).No.196 OF 2020
respondent-Kerala Public Service Commission, as per the dictum laid down
by Division Bench of this Court in a series of cases as in Sajan N. Menon
V. State of Kerala [2007 (4) KLT 126 (DB)], judgment dated 04.09.2019
of the Division Bench of this Court in O.P.(KAT) No.442/2017 (Kerala
Public Service Commission V. Vineetha M.C. & Ors. [I.L.R. 2020
(1) Kerala 86]), judgment dated 21.12.2020 of the Division Bench in O.P.
(KAT) No.111/2020, etc., It would be profitable to refer paragraphs 10 & 11
of the decision rendered by the Division Bench of this Court in Sajan N.
Menon's case supra [2007 (4) KLT 126 (DB)] which reads as follows:
"10. Counsel appearing for the petitioner mainly relied upon the decision of the
apex court in Dr. Dinesh Kumar's case (supra) and contended that the procedure
adopted by the PSC is against the principle laid down by the apex court in the above-
mentioned decision wherein the apex court held that admission on the basis of marks
obtained at the qualifying examinations held by different Universities/States is violative
of Article 14 of the Constitution of India. We are in this case concerned with a selection
conducted by the PSC, a constitutional body, entrusted with the task of conducting a
proper and fair selection to civil services and not with regard to the admission to various
educational institutions on the basis of the marks obtained by candidates. In Dr. Dinesh
Kumar's case apex court was dealing with the admission to the Professional Courses. In
our view, the same yardstick cannot be adopted in a selection conducted by the PSC for
recruitment to civil post and to that of admission to professional courses. Even in the
case of admission to Medical Colleges the Apex Court in T.P.Roshana's case (supra) held
as follows:
"The vagarious element in marking and moderation of marks may be a fact of life, but
too marginal to qualify for substantial difference unless otherwise made out. Indeed,
there may be differences among the colleges under the same University, among the
examiners in the same University. Such fleeting factors or ephemeral differences cannot
he the solid foundation for a substantial differentiation which is the necessary pre-
condition for quashing an executive or legislative act as too discriminatory to satisfy the
egalitarian essence of Art. 14. The functional validation of the writ jurisdiction is an
appropriate examination of the sustainability of the alleged disparity............... We are
persuaded to make these observations for future guidance, so that academic schemes
may not be struck down as arbitrary or irrational save where some sound basis has been
laid."
The Division Bench o f this Court in Mohan's case after referring to the judgment of this
court in State of Kerala v. Rafia Rahim 1979 K.L.T. 369 and Dr. Dinesh Kumar's case, felt
OP(KAT).No.196 OF 2020
that the approach of the court exercising its extraordinary jurisdiction in the matter of
selection and appointment effected by a body like PSC would he different from that of
admission to the Professional Courses. The Division Bench felt that the principles
governing aspects of admissions to Medical Colleges and public employment have been
distinct and separate. The apex court in Anzar Ahamed v. State of Bihar A.I.R. 1994 S.C.
141 upheld the selection made by the PSC to the post of Unani Medical Officers on the
basis of interview and also the academic performance. Commission in that case gave
weightage of 50% marks for academic performance and 50% marks for interview. The
apex court held by giving equal weightage to academic performance, the Commission
had rather reduced the possibility of arbitrariness. State of Tamil Nadu, it may be
pointed out, have done away with Common Entrance Examination even for admission to
the professional courses and have decided to accept the marks in the qualifying
examination as the criteria for admission. The procedure was challenged before the
Madras High Court in Minor S. Aswin Kumar v. State of Tamil Nadu (2007 (2) C.T.C.
677) but without success. The court held as follows:
"Abolition of Common Entrance Test does not have the ipso facto effect of lowering the
standard. The only effect is that selection is not based on a common platform and
therefore vulnerable to the attack based on the Principle of Equality. This vulnerability
has been overcome by equalization. As a matter of fact, the basic conclusion in both the
Division Bench decisions is that without Common Entrance Test the Principle of
Equality would be offended. Even the object of Common Entrance Test (without even a
minimum pass. mark) is only to ensure equality and not minimum merit. If equality can
he achieved up to a reasonable level by any another method, no objection can be
sustained. Absolute equality is a myth, even when Common Entrance Test is held
because of the inherent possibility of ticking some answers more by guess as in KBC.
T.V. programme rather than by any conscious selection of the right answer."
In this case we may also refer to the decision of the Division Bench in Kerala Self
Financing Engineering College Managements Association v. The Admission Supervisory
Committee for Professional Colleges and another 2007 (2) K.H.C. 916 wherein the
Bench held that adopting a method of equalization, marks awarded in the qualifying
examination can also be reckoned.
11. Common Written Test and Qualifying Examination.
Written test is only a method of selection, primarily intended to provide a common
platform to ensure equality between, the candidates. But it cannot he said that it is the
only sure and safe method to find out the best of the lot. Independent of that or added to
that - any other method which would still help the appointing authority or even the
Entrance Examiner for admission to professional colleges, to find out the best should he
welcomed, provided the method is fair and reasonable. Marks obtained by candidates in
the qualifying examinations cannot be said to he not a yardstick to measure merit, even
if the candidates qualify themselves in various examinations conducted by different
educational institutions, of course the inequality between the qualifying examinations
should be reduced by adopting a system of equalization of marks through normalization
process. To ignore the marks obtained by a candidate in the qualifying examination as a
whole maybe suicidal, after all, students take a qualifying examination after undergoing
a system of education, which develops their overall personality. If we ignore the
qualifying examination completely that would affect the very standard of education in
the State because the students would be concentrating more on the Entrance
Examination rather than the qualifying examination."
OP(KAT).No.196 OF 2020
7. The Division Bench of this Court in the aforementioned
judgment rendered in O.P.(KAT) No.442/2017 has also elaborately
considered the dictum laid down by the Division Bench of this Court in
Sajan N. Menon's case supra [2007 (4) KLT 126 (DB)] and has relied on
the said dictum, as can be seen from a reading of the said judgment. So
also, the judgment of the Division Bench of this Court in O.P.(KAT)
No.111/2020 is also on the same line. It is on this basis that the Kerala
Administrative Tribunal has repelled the above said contentions of the
petitioner and has dismissed the abovesaid original application as per the
impugned Ext.P4 final order dated 08.08.2018 rendered by the Kerala
Administrative Tribunal, Thiruvananthapuram in O.A.No. 1482/2018 filed
by the petitioner herein.
8. As already held by the Division Bench of this Court in the
aforecited judgments, the respondent-Public Service Commission being a
constitutional body created and established in terms of Article 315 of the
Constitution of India to discharge the duties and functions envisaged in
terms of Article 320 of the Constitution of India, is a constitutional entity
and as a constitutional entity, it can regulate its own procedure. Rule 11(ii)
of the Kerala Public Service Commission Rules of Procedure would
explicitly manifest in the said aspect. It is in the light of these powers
OP(KAT).No.196 OF 2020
conferred on the Kerala Public Service Commission that the said body has
framed the above said criteria in question. The Tribunal in the impugned
judgment has also taken note of the fact that the respondent-Kerala Public
Service Commission after conducting detailed study has modified the
earlier Circular No.12/1995 dated 19.12.1995 and subsequent Circular
No.3/2011 dated 18.01.2011 and has issued Circular No.17/2013 dated
16.08.2013 for arriving at the present basis of marking and decided to grant
credit marks up to 30 for the marks obtained in the academic
examinations. It is also pointed out that credit for the academic marks is
granted by reducing the percentage of marks secured to a unit of 30
employing a normalisation method. These are all matters, which would
come not only within the jurisdictional competence of the Kerala Public
Service Commission but also within their selection policy prerogatives, as it
is not only constitutional body but is also authority to conduct and finalize
selection to various posts in Public Services. Any such criteria of marking
adopted by a selection body like Kerala Public Service Commission, may
not find equal favour with all the candidates concerned and it may be well-
neigh impossible for any selection authority to devise a perfect formula,
which would be acceptable to all or majority of the candidates who part
take in the selection process. Based on the jurisdictional competence and
OP(KAT).No.196 OF 2020
the policy prerogative as well as their consistent long experience, it is for
the selection body like Public Service Commission to devise a method,
which should be free from arbitrariness or unreasonableness. The
impugned method of marking cannot be said to be arbitrary or
unreasonable and certainly cannot be found fault with as beyond the
jurisdictional competence of the respondents. As noted hereinabove, the
matter in issue is no longer res integra and is covered against the
petitioner by the aforementioned judgments of the Division Bench of this
Court.
9. After hearing both sides and after giving anxious consideration
to the pleadings and materials on record in this case, we are in respectful
concurrence with the above said considered views rendered by the Division
Bench of this Court in the aforementioned judgments. The Tribunal cannot
be found fault with for having arrived at the impugned conclusions in the
impugned order.
10. Further it was also to be noted that Annexure A1 rank list has
come into force as early as on 02.07.2018 and the petitioner has not
impleaded any of the affected parties. This the Court would say so, as
inevitably, if the main plea of the petitioner is acceded to, then it would
inevitably lead to the recasting of the rank list. As a matter of fact, one of
OP(KAT).No.196 OF 2020
the prayers in the O.A. is for recasting of the impugned rank list. If that be
so, the candidates included in the rank list are directly affected by the said
pleas and therefore, the petitioner indisputably has not impleaded any of
the affected parties concerned. Hence this Original Petition (KAT) should
also fail on the ground of non impleadement of the affected parties.
The upshot of the above discussion is that the Original Petition fails
and the same will stand dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R.RAVI, JUDGE
Pn
OP(KAT).No.196 OF 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE ORIGINAL APPLICATION
DATED 01.08.2018 ALONG WITH ANNEXURES A-1
TO A4 PERTAINING TO OA NO.1482 OF 2018
BEFORE THE HON'BLE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
ANNEXURE A1 THE TRUE COPY OF THE RANKED LIST BEARING
NO.471/18/OLE PUBLISHED BY THE 2ND
RESPONDENT WAS ANNEXED ALONG WITH AFORESAID
OA NO.1482/2018 ON THE FILE OF HON'BLE
KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM
ANNEXURE A2 THE TRUE COPY OF THE RANK CERTIFICATE
BEARING NO.02642, DATED 28.12.2004 ISSUED
TO THE PETITIONER FROM KUVEMPU UNIVERSITY
ANNEXURE A3 THE GOLD MEDAL CERTIFICATE BEARING NO.01352
PERTAINING TO LATE P.C.THAMMAIAH'S MEMORIAL
DATED 28.12.2004, ISSUED TO THE PETITIONER
FROM KUVEMPU UNIVERSITY
ANNEXURE A4 THE GOLD MEDAL CERTIFICATES BEARING
NO.01353 PERTAINING TO LATE SMT.CHENNAMMA
AND NADEPPA KUMBAR DATED 28.12.2004, ISSUED
TO THE PETITIONER FROM KUVEMPU UNIVERSITY
EXHIBIT P2 THE TRUE COPY OF GAZETTE NOTIFICATION DATED
29.09.2016 ISSUED BY THE KERALA PUBLIC
SERVICE COMMISSION, PERTAINING TO THE
CATEGORY NO.278/2016 OF APPLICATION IN
FREQUENCY WITH POSTS OF LECTURER IN BOTANY.
EXHIBIT P3 THE TRUE COPY OF THE CIRCULAR NO.17/2013
DATED 16.08.2013 ISSUED BY THE KERALA
PUBLIC SERVICE COMMISSION
EXHIBIT P4 THE CERTIFICATE COPY ORDER DATED 08.08.2018
IN OA NO.1482/2018 ON THE FILE OF HON'BLE
KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
