Kerala High Court
Athul Antony A vs High Court Of Kerala on 6 February, 2024
1
WPC 21048/22
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WP(C) NO. 21048 OF 2022
PETITIONER/S:
ATHUL ANTONY A. AGED 26 YEARS SON OF JOHN SHERRY
A.A., RESIDING AT ANANDCHERRY HOUSE, A B ANTONY
MASTER LANE, MUNDAMVELI, MUNDAMVELI P.O., ERNAKULAM
- 682 507.
BY ADVS. REKHA VASUDEVAN P.PRATHYUSHA ROJIT
ZACHARIAH
RESPONDENT/S:
1 HIGH COURT OF KERALA REPRESENTED BY THE REGISTRAR
GENERAL, HIGH COURT COMPLEX, HIGH COURT P.O.,
ERNAKULAM, KERALA - 682 031.
2 THE REGISTRAR (RECRUITMENT AND COMPUTERIZATION) HIGH
COURT COMPLEX, HIGH COURT P.O., ERNAKULAM, KERALA -
682 031.
3 SARATH S.S. AGED 30 YEARS, FATHER'S NAME NOT KNOWN
TO THE PETITIONER, RESIDING AT S.S.SADANAM,
DHANUVACHAPURAM.P.O., THIRUVANANTHAPURAM-695503.
ADDL. R3 IS IMPLEADED AS PER THE ORDER DATED
19/08/2022 IN I.A.NO.1 OF 2022 IN WPC NO.21048/2022
BY ADVS. V.A.MUHAMMED P.M.SANEER SHAJIN S.HAMEED
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
WPC 21048/22
C.R
JUDGMENT
(Dated this the 6th day of February 2024)
An unsuccessful candidate for the post of Office Attendant
of this court has filed this Writ petition, challenging the
notification prescribing a minimum of 35% marks for
qualifying in the interview to be included in the rank list.
2. Brief facts of the case are as follows:
The petitioner is suffering from moderate mental
retardation with intellectual disability of 50% and having IQ of
56. Applications were invited pursuant to Ext.P3 notification
to the post of office attendant through direct recruitment. The
mode of selection as per the notification is two-fold (i) a written
test and (ii) an interview. The total mark from the written test
is 100, and for an interview, it is 10. The minimum mark
required to be included in the rank list is fixed at 35% in the
interview. Under Ext.Nos.P2 and P3, the petitioner applied to
the post under the quota reserved for persons with
disability. The petitioner attended the written test and became
successful. When the provisional list of candidates who are
eligible for interview was published as per Ext.P8, 1% of the
total vacancies reserved for persons with intellectual disability
was not included. Therefore, the petitioner filed Ext.P9
representation before the 1st respondent, and by Ext.P10
addendum notification, a supplementary list of persons with
disabilities (mentally disabled and persons with multiple
disabilities) was published. The petitioner was included in the
said list and was called for an interview. The Petitioner
appeared for the interview on 22.3.2022. After the conclusion
of the interview, Ext.P12 final rank list was published and the
petitioner was not included in the said list. The 3rd respondent
alone was included and appointed as per Ext.P18. Therefore,
the petitioner has filed this Writ Petition with the following
prayers:
"i. Declare Rule 14 of the Kerala State and Subordinate Service
Rules as unconstitutional to the extent it fails to include the
reservation for Physically Handicapped persons.
ii. Quash Exhibit P3 notification to the extent to the prescription
of 35% as the minimum mark for qualifying the interview and to
be included in Exhibit P12 ranked list by issuance of writ of
certiorari or another appropriate writ, order or direction;
iii. Quash Exhibit P12 ranked list to the extent to which it
includes Sri Sarath S.S. and excludes the petitioner in the
supplementary list of "Mentally Disabled and Persons with
Multiple Disabilities" by issuance of writ of certiorari or other
appropriate writ, order or direction;
iii.a. Quash Exhibit P18 appointment order dated 03.01.2023 by
the issuance of the writ of certiorari, or other appropriate writ,
order or direction, to the extent to which it wrongfully includes
the 3rd respondent and excludes the petitioner herein;
iv. Declare that the petitioner is fully eligible to be included in
Exhibit P12 ranked list at the appropriate rank to be assigned on
the basis of combined marks in the written test and the interview;
v. Direct the 2nd respondent to redraw Exhibit P12 ranked list
with respect to the Supplementary list of "Mentally Disabled and
Persons with Multiple Disability" on the basis of the combined
marks in the written test and the interview, by issuance of writ of
mandamus, or other writ, order or direction;
vi. Declare that there should be relaxed standard for selection of
candidates belonging to the "Intellectually Disabled" category.
vii. Such other reliefs that the Honourable Court may deem fit
and necessary in the facts and circumstances of the case;"
3. A counter affidavit is filed on behalf of respondent
Nos.1 and 2, denying the averments in the Writ Petition. It is
averred that in the notification, clause 8 states explicitly that
selection will be based on the marks of the written test and, 10
marks is fixed for the interview and the minimum mark
required to be included in the rank list will be 35% in the
interview. The petitioner became successful in the written test,
and he was eligible to be called for interview. The shortlist was
prepared in compliance with the Rule of reservation prescribed
in part II of Kerala State and Subordinate Services Rules,
1958 (KSSR), Kerala High Court Service Rules, 2007 (for
short 'the Rules, 2007') and Kerala High Court Service
(Method of Recruitment Rules 2009) (for short
'the Recruitment Rules, 2009'). The shortlist contained the
main list and supplementary list of reservation categories,
including 3% reservation for persons with benchmark disability
in Visual impairment, hearing impairment, and locomotor
disability. Later, Ext.P10 addendum notification was issued,
including 1% for the mentally disabled and persons with
multiple disabilities, ensuring 4% reservation to those with
disabilities. The addendum notification was published,
lowering the marks of the candidates obtained in the written
test to the extent necessary, and the disability and the
percentage of disability for the above categories were
considered to be the same as mentioned in G.O.(P)
No.19/2020/SJD dated 25.8,2020. As the petitioner was
included in Ext.P10 notification, he was called for the
interview. The petitioner scored only 3 marks in the interview,
and since he did not achieve the minimum of 35% marks, he
was excluded from the rank list. Differently, abled persons are
interviewed to assess individually whether they are in a
position to discharge their duties satisfactorily. All the persons
in the supplementary list were interviewed with the same
criteria and not with the persons who do not have the disability.
4. As per Rule 16 of the Recruitment Rules, 2009, the
marks awarded in the interview shall be added to the marks
obtained in the written and/or skill tests, and the rank list shall
be prepared. As per clause 8 of the Notification, the minimum
required for an interview is 35%. The petitioner did not obtain
the minimum marks, so he was not considered for the final
rank list. The marks obtained in the written test are not only
the determining factor but also the marks for the interview.
Hence, prayed for dismissal of the Writ Petition.
5. A counter affidavit is filed by the 3rd respondent
also. The main contention raised in the counter affidavit is that
the petitioner has no locus standi to maintain this Writ
Petition, as he has participated in the whole selection process,
accepting all the conditions in the notification. After he has
been unsuccessful, he cannot challenge the rank list and the
notification. The petitioner was not qualified to be included in
the shortlist since he had not obtained the minimum 35% marks
in the interview. At the same time, this respondent has
obtained a minimum mark in the interview and, hence, is
included in the final rank list. The rank list is prepared
considering the reservation categories included as per KSSR
and the mandate of sections 2(r) and 34 of The Rights of
Persons with Disabilities Act, 2016 (for short 'the Disabilities
Act, 2016').
6. The petitioner files a reply affidavit to the counter
affidavits filed by the respondents wherein the submission was
that the interview was done keeping 35% marks minimum for
all the candidates in the main list and the supplementary list of
mentally disabled persons. When the petitioner has
intellectual disability, the same cannot tested against the person
who is of average intellect and it is against the principle of
'unequals cannot be treated equally'. Rule 16 of the
Recruitment Rules, 2009 prescribes that the marks of the
written test and interview have to be taken together while
preparing the final rank list and, ignoring the said rule, Ext.P12
Ranked List for the post of Office Attendant is issued.
7. A rejoinder is filed by the respondents, with a memo
to accept the selection scheme for the post of office attendant
in the High Court, approved by the Chief Justice is produced.
8. As directed by this court, through a memo, respondent
Nos.1 and 2 have produced the disability certificate submitted
by the 3rd respondent along with the application.
9. Heard counsel Smt.Rekha Vasudevan for the
petitioner, Shri.V. A Muhammed for respondents Nos.1 and 2,
and Shri.P. M. Saneer for the 3rd respondent.
10. Through this Writ Petition, the petitioner challenges
Ext.P3 notification to the extent of fixing 35% marks as
minimum marks for inclusion in the final rank list. Ext.P3
notification is issued on 19.12.2019 to the post of office
attendant in the High Court of Kerala. Clause 8 of the said
notification, deals with the mode of selection, which reads as
follows:
8. Mode of Selection: i) Selection will be based on
Written Test and Interview. The written test will be of
Objective Type. The Objective Test with 75 minutes
duration to be answered in OMR Answer Sheet will have
4 topics (Total 100 marks) as follows: (a) General
Knowledge & Current affairs 50 marks, (b) Numerical
ability - 20 marks, (c) Mental ability - 15 marks and (d)
General English - 15 marks. Each question will carry 1
mark. For every Incorrect answer, ¼ mark will be
deducted. The medium of the test will be bilingual in
English & Malayalam.
ii) Interview: The interview is for 10 marks. The
minimum marks for being included in the ranked list will
be 35% in the interview.
iii) The number of candidates to be included in the
Short List of candidates to be called for the interview will
be decided by the High Court having regard to the number
of vacancies notified, the number of candidates appointed
from the previous list and chances of occurrence of
vacancies.
11. The petitioner's application was accepted, and he was
issued with an admission ticket for written examination. He
participated in the written exam and became
successful. Therefore, he was included in the supplementary
list for persons with disabilities (Mentally Disabled and
Persons with Multiple Disabilities). He was called for the
interview, and he attended it. However, he did not find a place
in the Ext.P12 rank list as he did not have a minimum 35 %
mark in the interview. The 3rd respondent had marks above the
minimum percentage of marks in the interview, and hence, he
was included in the Ext.P12 rank list under the head of
Mentally Disabled Persons with Multiple Disabilities.
12. One of the questions that arise for consideration in this
Writ Petition is whether the prescription in Ext.P3, fixing the
minimum mark of 35 % for the interview to be included in the
final rank list, is justifiable or not. The Recruitment Rules,
2009, clauses Nos.6 and 7 read as follows:
"6. The Registrar General or any other Officer of the
High Court, as may be directed by the Chief Justice, shall be
in charge of the selection process.
7. The syllabus of the examination, the maximum marks
for the written test, skill test, and interview, and the minimum
marks required to be secured by a candidate to make him
eligible for inclusion in the ranked list shall be as prescribed
in the scheme approved by the Chief Justice from time to
time."
Rule 7 deals with the syllabus of the examination, maximum
marks for the written test, skill test and interview, and the
minimum marks required to become eligible for inclusion in
the rank list. For this, a scheme is to be approved by the
Hon'ble Chief Justice. Along with the rejoinder of respondents
Nos.1 and 2, the selection scheme for the post of office
attendant as approved by the Hon'ble the Chief Justice is
produced.
13. The Selection Scheme for the Post of Office
Attendant in the High Court is extracted below:
1. The selection will be based on written test and
Interview.
2. The written test will be an Objective Test to be
answered in the OMR Answer Sheet.
(1) Objective Test: The Objective Test with 75 minutes
duration consists of 4 Sections with marks shown against each
(Total 100 marks) as follows:
(a) General Knowledge & Current affairs - 50 marks,
(b) Numerical ability -20 marks,
(c) Mental ability-15 marks
(d) General English - 15 marks.
(ii) The number of questions will be 100. Each question
will carry 1 mark. For every incorrect answer, ¼ mark will be
deducted. The question paper will be in four series (A, B, C &
D)
3. The interview is for 10 Marks. The minimum
marks for being included in the ranked list will be 35%
in the interview.
*[Approved by the Chief Justice in File No. REC3-
95662/2019 dated 19.12.2019.]
Thus, it can be seen that the prescription for the minimum of
35% of the marks for the interview is approved by the Hon'ble
the Chief Justice as per the approved scheme and it is based on
this scheme, that the cut of mark of 35% is included in Ext.P3
notification. With open eyes, the petitioner submitted the
application for the post of office attendant. He was well aware
when he submitted his application, as per Ext.P4, that there is
a need for a minimum of 35% marks to be included in the final
rank list if he is successful in the written examination.
14. It is to be noted that as per Rule 15 of the Recruitment
Rules, 2009, the interview shall be conducted by a Judge or an
Officer or Officers of the High Court or any other qualified
person nominated by the Chief Justice for assessing the
suitability of the candidate for the category to which the
selection is made. The interviewer has complete discretion to
grant marks, taking into consideration the ability of the person
if he is appointed to the said post. The minimum marks given
to the candidates in the supplementary list of mentally disabled
and persons with disabilities cannot be said to be on par with
the minimum marks awarded for the general and the other
reservation categories. For the persons who are included in this
list, the 1% disability category is separately considered.
15. Rule 16 of the Recruitment Rules, 2009 only says that
marks awarded at the interview shall be added to the marks
awarded to the candidates in the written examination and skill
test, and the ranked list shall be prepared of all eligible
candidates based on the total marks awarded. This Rule has to
be read along with clause 8 of Ext.P3 notification and cannot
be in isolation. If a particular candidate obtains 35% of marks
in the interview, then only he qualifies to be included in the
rank list after adding the marks of both the written examination
and the interview. The cut-off mark of 35% is fixed by the
Hon'ble the Chief Justice based on the scheme approved and
in tune with Rule 7 of the Recruitment Rules 2009. It is the
prerogative of the Hon'ble Chief Justice to fix the minimum
marks required for inclusion in the rank list. Therefore, there
is no illegality in fixing 35% as the minimum mark for
inclusion in the final rank list.
16. The counsel for the petitioner relied on judgments of
the Apex court in Sree Durgacharan Misra v. State of Orissa
and Others (1987 KHC 1120), Shivanandan T.C v. High
Court of Kerala (2023 (5) KHC 347), Ramesh Kumar v.
High Court of Delhi and another (2010 KHC
4072), Bishnu Biswas v. Union of India and others (2014
KHC 4218), Razia K.I v. University of Kerala, Tvm and
others [2022 (2) KHC 623], Union of India v. Uzair Imran
[2023 KHC Online 6908] and Smitha Chacko (Dr.) v. State
of Kerala and others [2022 (6) KHC 1] and contended that
the prescription of minimum marks to be secured at the
interview is illegal and without authority.
17. The counsel for respondent Nos.1 and 2 relied on the
judgment of the Apex Court in Siraj K.H. v. High Court of
Kerala and others (2006 KHC 595). The counsel for the 3rd
respondent relied on the Taniya Malik v. Registrar General
of High Court of Delhi (2018 KHC 2874) and also Saji
K.A. v. Sree Sankaracharya University of Sanskrit, Kalady
and others (2013 KHC 783).
18. The issue that was raised in Sivanandan's case cited
(supra) was whether the decision taken by the Administrative
Committee of the High Court to prescribe cut-off marks for
viva voce examination after the conduct of viva voce is proper
or not. The Apex Court held that the decision of the
Administrative Committee prescribing cut-off marks for the
viva voce examination after the conduct of the viva voce
examination is improper and that the Administrative
Committee cannot depart from the expected course of
preparing the merit list contrary to the Rules.
Main Paragraphs of the above decision are extracted below:
"51. Under the unamended 1961 Rules, the High Court
was expected to draw up the merit list of selected candidates
based on the aggregate marks secured by the candidates in the
written examination and the viva voce, without requiring a
minimum cut - off for the viva voce. Thus, the decision of the
Administrative Committee to depart from the expected course
of preparing the merit list of the selected candidates is
contrary to the unamended 1961 Rules. It is also important to
highlight that the requirement of a minimum cutoff for the
viva voce was introduced after the viva voce was conducted.
It is manifest that the petitioners had no notice that such a
requirement would be introduced for the viva voce
examination. We are of the opinion that the decision of High
Court is unfair to the petitioners and amounts to an arbitrary
exercise of power.
52. The High Court's decision also fails to satisfy the
test of consistency and predictability as it contravenes the
established practice. The High Court did not impose the
requirement of a minimum cut - off for the viva voce for the
selections to the post of District and Sessions Judges for 2013
and 2014. Although the High Court's justification, when
analyzed on its own terms, is compelling, it is not grounded
in legality. The High Court's decision to apply a minimum
cut - off for the viva voce frustrated the substantive legitimate
expectation of the petitioners. Since the decision of the High
Court is legally untenable and fails on the touchstone of
fairness, consistency, and predictability, we hold that such a
course of action is arbitrary and violative of Art.14."
19. In Shri Durgacharan Misra's case cited (supra), the
rules did not prescribe minimum qualifying marks for the viva
voce test. A prescription of minimum marks cannot be done
during the viva voce test. Therefore, it was held that the
decision to prescribe minimum marks was bad.
The relevant paragraph thereof is quoted herein below:
"16.xxxx xxxxx xxxxxxx xxxxxx xxxx
xxx xxxx. It cannot prescribe additional
requirements for selection either as to eligibility
or as to suitability. The decision of the
Commission to prescribe the minimum marks to
be secured at the viva voce test would,
therefore, be illegal and without authority."
20. In Ramesh Kumar's case (supra), the court taking
into consideration of Durgacharan Misra's case cited (supra)
has held that, in the absence of any enabling provision for
fixation of minimum marks in the interview would amount to
amending the Rule 3, and held that, in the absence of any
contrary provision in the relevant Rules, competent authorities
can fix the minimum mark in the written test as well as in the
interview but held on the facts and circumstance of that case,
the Delhi High Court should not have prescribed the minimum
qualifying marks for the interview.
The relevant paragraph Nos.11 and 17 thereof, are extracted
below:
11. In Shri Durgacharan Misra v. State of Orissa and
Others, AIR 1987 SC 2267, this Court considered the
Orissa Judicial Service Rules which did not provide for
prescribing the minimum cut - off marks in interview for
the purpose of selection. This Court held that in absence
of the enabling provision for fixation of minimum marks
in interview would amount to amending the rules itself.
While deciding the said case, the court placed reliance
upon its earlier judgments in B. S. Yadav and Others v.
State of Haryana and Others, AIR 1981 SC 561; P. K.
Ramachandra Iyer and Others v Union of India and
Others, AIR 1984 SC 541; and Umesh Chandra Shukla v.
Union of India and Others, AIR 1985 SC 1351, wherein it
had been held that there was no "inherent jurisdiction" of
the Selection Committee / Authority to lay down such
norms for selection in addition to the procedure prescribed
by the Rules. Selection is to be made giving strict
adherence to the statutory provisions and if such power
i.e. "inherent jurisdiction" is claimed, it has to be explicit
and cannot be read by necessary implication for the
obvious reason that such deviation from the rules is likely
to cause irreparable and irreversible harm.
12. xxxxx xxxxxx
13. xxxxx xxxxxx
14. xxxxx xxxxxx
15. xxxxx xxxxxx
16. xxxxx xxxxxx
17. In pursuance of those directions, the Delhi High
Court offered the appointment to such candidates.
Selection to the post involved herein has not been
completed in any subsequent years to the selection process
under challenge. Therefore, in the instant case, in absence
of any statutory requirement of securing minimum marks
in interview, the High Court ought to have followed the
same principle. In such a fact - situation, the question of
acquiescence would not arise."
21. In Uzair Imran's case cited (supra), the Apex Court
held that the qualifications mentioned in the advertisement
inviting applications are at variance with statutorily prescribed
qualifications, then it is settled law that the latter would
prevail. It reads as follows:
11. xxx xxxxxx xxxxx
xxxx xxxxxx. Law is well - settled that if
qualifications mentioned in an advertisement inviting
applications are at variance with statutorily
prescribed qualifications, it is the latter that would
prevail. Profitable reference in this connection may
be made to the decisions of this Court in Malik
Mazhar Sultan v. U.P. Public Service Commission,
2006 (9) SCC 507 and Ashish Kumar v. State of Uttar
Pradesh, 2018 (3) SCC 55.
22. In Bishnu Biswas case cited (supra) also, the Apex
Court has considered various decisions and observed thus:
"15. The appropriate allocation of marks for
interview, where selection is to be made by written test
as well as by interview, would depend upon the nature
of post and no straight - jacket formula can be laid
down. Further there is a distinction while considering
the case of employment and of admission for an
academic course. The Courts have repeatedly
emphasised that for the purpose of admission in an
education institution, the allocation of interview marks
would not be very high but for the purpose of
employment, allocation of marks for interview would
depend upon the nature of post."
23. In Razia's as well as Smitha's case cited (supra), the
Division Bench of this Court has held that a candidate is not
precluded from challenging the selection for the reason that
he/she has participated in the interview and failed in it when the
challenge is against the selection is on the ground of procedure
adopted was illegal, the candidate is not precluded.
24. In Taniya Malik's case cited (supra), the Apex Court
has relied on several judgments, including Siraj K.H.'s
(supra) case, and considered the issue when a particular
aggregate is prescribed for eligibility; a person must meet the
criteria without relaxation. It was also held that when
petitioners have undertaken the examination with the
stipulation of minimum cut-off marks in written and oral
examination and have failed, they cannot turn around and are
estopped to contend to the contrary.
The relevant portion of Taniya Malik's (supra) is
extracted hereunder:
19. Even otherwise, the petitioners have undertaken
the exam with the stipulation of minimum cut-off marks
in written and oral examination, and then, having failed,
they cannot turn around and are estopped to contend to the
contrary. This Court in K. Siraj, AIR 2006 SC 2339, paras
73, 75 and 76 (supra) has observed that when the
candidates participated in the interview with the
knowledge that for selection they have to clear the
prescribed minimum pass marks, on being unsuccessful in
interview, could not turn around and challenge that the
prescription of minimum marks was improper.
xxxxxxxx
20. With regard to question as to rounding off of the
marks, in our opinion, when a particular aggregate is
prescribed for eligibility, a person must meet the criteria
without relaxation. It is not permissible to enhance the
marks by rounding off method to make up the minimum
aggregate."
25. In the decision reported in Tajvir Singh Sodhi v.
State (UT of J&K), (2023 SCC online SC 344) the Supreme
Court has considered the issue of whether having participated
in the interview process with no demur or protest, the same
cannot be challenged subsequently simply because the
candidate's personal evaluation or his performance was higher
than the marks award by the panel.
The Apex Court has held as follows:
"66. Thus, the inexorable conclusion that can be drawn
is that it is not within the domain of the Courts, exercising
the power of judicial review, to enter into the merits of a
selection process, a task which is the prerogative of and is
within the expert domain of a Selection Committee, subject
of course to a caveat that if there are proven allegations of
malfeasance or violations of statutory rules, only in such
cases of inherent arbitrariness, can the Courts intervene.
67. Thus, Courts while exercising the power of judicial
review cannot step into the shoes of the Selection
Committee or assume an appellate role to examine whether
the marks awarded by the Selection Committee in the viva-
voce are excessive and not corresponding to their
performance in such test. xxxxx xxxxxx
68. xxxxx xxxxxx
69. It is therefore trite that candidates, having taken part
in the selection process without any demur or protest,
cannot challenge the same after having been declared
unsuccessful. The candidates cannot approbate and
reprobate at the same time. In other words, simply
because the result of the selection process is not
palatable to a candidate, he cannot allege that the
process of interview was unfair or that there was some
lacuna in the process. Therefore, we find that the writ
petitioners in these cases, could not have questioned
before a Court of law, the rationale behind recasting
the selection criteria, as they willingly took part in the
selection process even after the criteria had been so
recast. Their candidature was not withdrawn in light
of the amended criteria. A challenge was thrown
against the same only after they had been declared
unsuccessful in the selection process, at which stage,
the challenge ought not to have been entertained in
light of the principle of waiver and acquiescence.
xxxxxxxx
xxxxxxxx
xxxxxxxx
86. This Court has upheld the legitimacy of conducting
interviews as a part of a selection process, even where
marks earmarked for the same has been found to be prima-
facie excessive, vide Minor A. Peeriakaruppan v. State of
Tamil Nadu, (1971) 1 SCC 38; Miss Nishi Maghu v. State
of J & K, (1980) 4 SCC 95.
87. This Court in Lila Dhar v. State of Rajasthan,
(1981) 4 SCC 159 : AIR 1981 SC 1777 made the
following pertinent observations as to the importance of a
viva-voce or interview in a selection process:
"It is now well recognised that while a
written examination assesses a candidate's
knowledge and intellectual ability, an
interview test is valuable to assess a
candidate's overall intellectual and personal
qualities. While a written examination has
certain distinct advantage over the interview
test there are yet no written tests which can
evaluate a candidate's initiative, alertness,
resourcefulness, dependableness,
cooperativeness, capacity for clear and logical
presentation, effectiveness, in discussion,
effectiveness in meeting and dealing with
others, adaptability, judgment, ability to make
decision, ability to lead, intellectual and moral
integrity. Some of these qualities may be
evaluated, perhaps with some degree of error,
by an interview test, much depending on the
Constitution of the interview Board."
88. The criteria for evaluation of a candidate's
performance in an interview may be diverse and some
of it may be subjective. However, having submitted to
the interview process with no demur or protest, the
same cannot be challenged subsequently simply
because the candidate's personal evaluation of his
performance was higher than the marks awarded by the
panel. xxxxxxxxxxx
26. The petitioner has also a case that the disability
certificate produced by the 3rd respondent is not in conformity
with the prescription as in Ext.P3. The petitioner relied on
Ext.P22, the notification issued by the Ministry of Social
Justice and Empowerment, which prescribes more for
disability calculation. As per Ext.P2, the person applying
under the disability quota who has mental illness and
intellectual disability, disability should be 50% with an IQ
between 55 and 69. As directed by this Court, the
3rd respondent produced the disability certificate at the time
of submitting the application, which shows the IQ is stated
as 65, which is in tune with Ext.P2; therefore, on that score
also, the contention of the petitioner is to be
rejected. Therefore, taking into consideration the facts and
circumstances of the case, it cannot be held that the
prescription of 35% of minimum marks, included in Ext.P3
notification as per the scheme approved by the Hon'ble Chief
Justice as per Rule 7 of the High Court Recruitment Rules, is
illegal. Moreover, relying on the judgment of the Apex Court
in Tajvir Singh (Supra), the petitioner, who with open eyes,
submitted the application with the precision of a minimum of
35% marks to be obtained in the interview to be included in
the final rank list and be unsuccessful in the interview without
obtaining the minimum marks, cannot now challenge the
prescription in the notification prescribing the minimum cut-
off mark. Therefore, I am of the considered opinion that the
challenge in the notification to the extent of prescription of
35% of minimum marks for the interview is to be
repelled. Therefore, the Writ Petition is dismissed.
Sd/-
BASANT BALAJI, JUDGE.
dl/
APPENDIX OF WP(C) 21048/2022
PETITIONER EXHIBITS
Exhibit P1 TRUC COPY OF THE CERTIFICATE OF DISABILITY
BEARING NO. GMHC/146/2022 DATED 18.03.2022 ISSUED
TO THE PETITIONER BY THE CHAIRMAN, MEDICAL BOARD,
GOVT. MEDICAL COLLEGE HOSPITAL, ERNAKULAM.
Exhibit P1A TRUE COPY OF THE DISABILITY CERTIFICATE BEARING
NO. 4014 DATED 19.03.2022 ISSUED BY THE CIVIL
SURGCON, COMMUNITY HEALTH CENTRE, PANDAPPILLY.
Exhibit P2 TRUE COPY OF THE RELEVANT PORTION OF THE NOTICE
NO. D312792/18 DATED 18.05.2019 ISSUED BY THE
DIRECTORATE OF SOCIAL JUSTICE.
Exhibit P3 TRUE COPY OF THE NOTIFICATION BEARING NO.
REC395662/2019 DATED 19.12.2019 FOR SELECTION AND
APPOINTMENT TO THE POST OF OFFICE ATTENDANT
(RECRUITMENT NO. 14/2019).
Exhibit P4 TRUE COPY OF THE APPLICATION BEARING NO.
14120890.
Exhibit P5 TRUE COPY OF THE SCREENSHOT OF THE E-MAIL DATED
23.04.2021 SENT TO THE PETITIONER BY THE
RECRUITMENT AND EXAMINATION CELL.
Exhibit P6 TRUE COPY OF THE ADMISSION TICKET PERTAINING TO
THE PETITIONER BEARING ROLL NUMBER 31010306.
Exhibit P7 TRUE COPY OF THE CARBON COPY OMR ANSWER SHEET.
Exhibit P8 TRUE COPY OF THE SHORT LIST BEARING NO.
REC95662/2019 DATED 23.12.2019 FOR SELECTION AND
APPOINTMENT TO THE POST OF OFFICE ATTENDANT
(RECRUITMENT NO. 14/2019).
Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 27.12.2021
SUBMITTED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT.
Exhibit P10 TRUE COPY OF THE ADDENDUM NOTIFICATION BEARING
NO. REC 3-95662/2019 DATED 03.02.2022 ISSUED BY
THE 2ND RESPONDENT.
Exhibit P11 TRUE COPY OF THE LETTER DATED 16.02.2022 ISSUED
BY THE 2ND RESPONDENT.
Exhibit P12 TRUE COPY OF THE RANKED LIST FOR THE POST OF
OFFICE ATTENDANT (RECRUITMENT NO. 14/2019) DATED
17.06.2022 ISSUED BY THE 2ND RESPONDENT.
Exhibit P13 TRUE COPY OF THE JUDGMENT DATED 13.06.2022 IN
WP(C) NO. 25001/2021 PASSED BY THIS HONOURABLE
COURT.
Exhibit P14 TRUE COPY OF THE OFFICE MEMORANDUM F.NO.29-
6/2019-DD-III DATED 10/08/2022 ISSUED BY THE
DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA,
DEPARTMENT OF EMPOWERMENT OF PERSONS WITH
DISABILITIES (DIVYANGJAN), MINISTRY OF SOCIAL
JUSTICE AND EMPOWERMENT, GOVERNMENT OF INDIA.
Exhibit P15 TRUE COPY OF THE GUIDELINES FOR THE GRANT OF
SCRIBE FACILITY FOR PSC EXAMS ISSUED BY THE
KERALA PUBLIC SERVICE COMMISSION.
Exhibit P16 TRUE COPY OF THE RTI QUERY DATED 20/06/2022
SUBMITTED BEFORE THE PUBLIC INFORMATION OFFICER,,
HIGH COURT OF KERALA.
Exhibit P17 TRUE COPY OF THE RTI REPLY NO.PIO 244/2022 DATED
18/07/2022 ISSUED BY THE PUBLIC INFORMATION
OFFICER ATTACHED TO THE 1ST RESPONDENT.
Exhibit P18 TRUE COPY OF THE ORDER NO. A3-113793/2022 DATED
03.01.2023 ISSUED BY THE 1S T RESPONDENT.
Exhibit P19 TRUE COPY OF THE CASE STATUS DETAILS AS
DOWNLOADED FROM THE WEBSITE OF THE HONOURABLE
HIGH COURT
Exhibit P20 TRUE COPY OF THE PROCEEDINGS DATED 11.08.2022 AS
DOWNLOADED FROM THE WEBSITE OF THE HONOURABLE
HIGH COURT
Exhibit P21 TRUE COPY OF THE RELEVANT PAGES OF G.O.(P) NO.
19/2020/SJD DATED 25.08.2020 ISSUED BY THE SOCIAL
JUSTICE DEPARTMENT, GOVERNMENT OF KERALA
Exhibit P22 TRUE COPY OF THE RELEVANT PORTION OF
EXTRAORDINARY GAZETTE NOTIFICATION NO. S.O. 76(E)
DATED 04.01.2018 ISSUED BY THE DEPARTMENT OF
EMPOWERMENT OF PERSONS WITH DISABILITIES
(DIVYANGJAN), MINISTRY OF SOCIAL JUSTICE AND
EMPOWERMENT, GOVERNMENT OF INDIA
RESPONDENT ANNEXURES
Annexure SELECTION SCHEME AS DIRECTED BY THIS HON'BLE
COURT
Exhibit A TRUE COPY OF THE CERTIFICATE OF DISABILITY
R3(A) ISSUED TO THE PETITIONER NO A3/4939/2020/DMHD DTD
20-1-2021 ISSUED BY DISTRICT MEDICAL HOSPITAL
PEROORKADA, THIRUVANANTHAPURAM
