SONU JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, an aspirant to the post of Deputy Collector, Land Revenue in the Kerala Civil Service(Executive), impugned the order of the Kerala Administrative Tribunal upholding the short listing adopted by the Kerala Public Service Commission (KPSC) in the preliminary examination. Ext. P1 was the notification by which applicants were called for, to the post of Deputy Collector. The number of vacancies were four, and it was prescribed in the notification itself that the method of selection comprises of a preliminary and final examination. After the preliminary examination, Ext. P2 unified short list was issued containing the names of 3584 candidates. The candidates who have obtained 62 marks and above were included in the unified short list and the cut off marks were lowered to the extent necessary in respect of candidates eligible for reservation. Primarily, the challenge was against the method of short listing adopted by the PSC in short-listing candidates, eligible for reservation, who secured marks below that of the general candidates while the latter were excluded for reason of having obtained marks below the cut off marks of 62 prescribed by PSC. The Tribunal, in the impugned order followed its decision in TA No. 1933 of 2012 dated 22.8.2012. The said order has been produced as Ext. P5 and we are called upon to decide the sustainability of the reasoning in the said order. Ext. P5 order shows that the challenge was on two grounds. It was urged that the method of short listing would lead to the benefit of reservation being given at the preliminary stage, which would go against the dictum laid down by the Hon'ble Supreme Court in Andhra Pradesh Public Service Commission v. Baloji Badhavath & others, 2009 5 SCC 1 . The lowering of marks for the purpose of short listing confining such lowering to reserved categories, according to the petitioner, is applying reservation at the threshold; which is impermissible. The other contention raised was that the cut off mark prescribed by the PSC was without any application of mind and had no nexus to the results sought to be achieved. Before us, the learned counsel for the applicant would strenuously urge that the action of the PSC is unconstitutional and is without jurisdiction since reservation in recruitment is in the exclusive domain of the Government under Article 309 of the Constitution of India.

(2.) The Tribunal after elaborate consideration of the issues as also the procedure followed by the PSC found that though the Hon'ble Supreme Court has declared in Baloji Badhavath that when Article 335 of the Constitution does not provide for lowering of marks at the thresh hold as, the same is permissible only for the purpose of promotion; such questions could not be gone into since the beneficiaries of such lowering of marks belonging to Scheduled Castes/Scheduled Tribes were not impleaded. Further, the Tribunal also noticed Rule 14(e) to the Kerala State and Subordinate Service Rules, 1958(hereinafter referred to "KS & SSR"), by virtue of which the PSC was competent to publish a supplementary list having five times the reservation quota from each or group of communities for the purpose of satisfying the reservation quota. The Note to Rule 14(e) of Part II KS & SSR also provided for lowering of minimum qualifications and marks in selection procedure to the extent necessary. Finding the challenge against the procedure followed to be untenable the same was rejected approving the system devised by the Public Service Commission for shortlisting of the candidates in the preliminary examination.

(3.) With respect to the finding that the affected parties are not impleaded, the learned counsel would submit that there is no such requirement since the petitioner is challenging the selection on the grounds of jurisdiction and violation of constitutional mandate which goes to the root of the matter. We are afraid that such a proposition cannot be countenanced.