Koshy, J.

Common question to be considered in these cases is whether Public Service Commission can prescribe cut off marks and shortlist the candidates in the absence of such a provision in the Rule and notification. The learned single Judge noticed that in view of the decision of the Supreme Court in State of Punjab and others v. Manjit Singh and Others (AIR 2003 SC 4580), it is not open for the PSC to prescribe any cut off mark. The learned Judge also noticed that Division Bench of this Court in Indulekha v. State of Kerala (2001 (1) KLT 651) has approved the stand of the PSC that it has power to fix cut off marks. The learned Judge was of the view that after the decision of the Supreme court in Manjit Singh’s case, earlier decision of this Court may not be good law. Hence, the matter was referred to the Division Bench.

2. Before answering the question, we may refer to the facts in W.P.(C).No.10751 of 2004. Petitioners, two in number, applied in pursuance of the notification issued by the Public Service commission for the post of Medical Officers in Homeopathy Department. They fully possessed educational qualification and other criteria as per the notification. Therefore, they were called for written test and after the written test, they were called for an interview. Ext.P2 dated 30-5-2003 is the interview card issued to the first petitioner. It is stated that they were interviewed in June, 2003 and they were waiting for the advice of the PSC. While so, a show cause notice dated 15-12-2003 was issued to the petitioners by the respondent informing the petitioners that on rechecking of the answer scripts, they found that inaccuracies had crept in while counting marks and they scored only 64 marks whereas cut off mark was 65 and, therefore, their names will be deleted from the shortlist of candidates being called for interview as can be seen from Ext.P3. Petitioners replied the show cause notice by Ext.P4. Petitioners also approached this Court by filing W.P.(C).No.76 of 2004 and Ext.P5 interim order was passed directing that select list should not be finalized till disposal of Ext.P4. Personal hearing was conducted on 11-3-2004 as directed in the writ petition as per the direction of this Court. Final rank list (Ext.P9) was published on 15-3-2004 before passing orders on Ext.P4 as directed by this Court. Petitioners were informed by Exts.P10 (a) and P10 (b) dated 14-5-2004 that their representations were rejected. It is contended by the petitioners that fixation of cut of marks at 65 is highly illegal and, in any event, publication of the list before rejecting the representation is not only illegal, but also, in violation of the order of this Court. Ext.P9 rank lost is effective from 15-3-2004 and is valid for three years. So, it is effective till 15-3-2007. Rank list is prepared not only on the basis of the existing vacancies reported at the time of preparation of the rank list, but also, considering the fact that rank list will be valid for a particular period and anticipated vacancies are also to be taken into account. Circular of the Commission dated 1-12-2003 reads as follows:

“1. The number of candidates to be included in the short lists and ranked lists should not be decided mechanically. Commission will decide the number to be included in each case considering the number of vacancies reported, number of candidates advised from the previous list, nature of the post and chances of occurrence of vacancies.”

3. Rule 14 of the Kerala Public Service Commission Rules of Procedure (hereinafter referred to as ‘the Rules’) reads as follows:

“41. The Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive in the order of priority, if any, and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable:

Provided that the advice of candidates by