Back
2013 Supreme(Ker) 250
High Court of Kerala
DR. (MRS) MANJULA CHELLUR & K. VINOD CHANDRAN, JJ.
Sabareenath Hariharan & Others
Versus
State of Kerala, rep. by Secretary To Government & Others
O.P.(KAT).No. 3540 of 2012 (Z)
Decided on : 10-04-2013
For the Petitioners:P. Santhalingam, Senior Advocate, S. Sharan, Mrs. Jessy S. Salim, Vishnu Sunil, Advocates.
For the Respondents: R1 & R3, Mrs. Girija Gopal, Special Government Pleader, P.C. Sasidharan, Standing Counsel.
Headnote:
Constitution of India,1950 - Article 226 - Service Matter - Appointment - Selection - Eligibility - Unsuccessful candidate challenging conduct of selection - Malpractice committed by few candidates in two centres and selection process need not be scrapped and re-examination conducted - Short-listing of candidates in view of the fact there were a large number of eligible candidates and selection procedure consisted of interview and efficiency test - Whether valid - Challenged - The candidates having willingly appeared for the objective test, cannot later, on being found unsuccessful, turn around and challenge the conduct of the same. Exhibit P1 does not lay down specifically the mode by which the candidates will be selected, though there are indications that there would be an interview and a physical efficiency test - finger is pointed at any of the officers of the Commission. Nor is any lapse of the Commission raised as a source of the above malpractice. Without for a moment discounting the gravity of the malpractice, we cannot but notice that it does not cut at the root of the conduct of the examination and though many paper reports are produced, the records would reveal solitary instances not warranting the cancellation of the entire selection process as such - it is also of considerable moment that the petitioners, without protest, subjected themselves to the test and having failed, challenged the same. The descriptive test also would ensure that any candidate who had appeared in the written test and had been short-listed by reason of any malpractice would be weeded out at the second stage, or rather would be pushed down in the rank list to be prepared by the Commission on the basis of the marks obtained at the written test, interview and physical efficiency test. We also record the submission of Commission that none found to be involved in malpractice would be retained in the final list. The short-listing, hence, was proper and justified in the facts and circumstances of the case.
K. Vinod Chandran, J.
1. These Original Petitions are filed against the common order of the Kerala Administrative Tribunal (hereinafter referred to as "the Tribunal") in a batch of Transferred Applications. The petitioners herein were aspirants to the post of Sub Inspector of Police (Trainee) in the Police Department (General Executive Branch) called for by Exhibit P1 notification. All the petitioners except one of them in O.P. (KAT).No.3540 of 2012 are general candidates. The 3rd petitioner in the said Original Petition is a candidate belonging to the Latin Catholic community. The petitioners having applied for the selection notified as per Exhibit P1 were called for an objective test. The petitioners without demur, appeared in the said test which was held on 12.10.2010. While the test was going on, two instances of malpractice were detected at two different centres in Kollam District, wherein two candidates were found to carry mobile phones inside the examination hall, through which answers to the questions in the test were received by them.
2. The two candidates were caught red handed and the Public Service Commission (hereinafter referred to as "the Commission") referred the matter to its Vigilance Wing. Meanwhile, the police too took up the matter and started investigation, since there were allegations of a group operating behind the scenes to aid such malpractices in return for illegal gratification. The Commission short-listed the candidates allegedly on the basis of marks and proposed a descriptive type test for such short-listed candidates. It was at that point the petitioners approached this Court invoking the remedy under Article 226 of the Constitution; they having not been short-listed.
3. Initially when the writ petitions were moved, an interim order dated 4.1.2011 was passed as follows:-
"Any advice made by the PSC would be subject to the result of the writ petition. But this shall not be construed as a permission to the PSC to continue proceedings if otherwise not possible".
When the short-listed candidates were called for a descriptive test to be held on 19.11.2011, the petitioners moved the writ petition to enable the petitioners also to appear for the descriptive test. A learned Single Judge of this Court by an elaborate order dated 17.11.2011 in all the writ petitions, produced as Exhibit P2, declined the relief. However, noticing the interim order passed on 4.1.2011, it was also observed that if eventually the petitioners' claims were found to be sustainable, this Court could direct initiation of remedial measures. Subsequently, the matters were transferred to the Tribunal, which, renumbered the same, heard the petitioners/ applicants and disposed of the same by the impugned order.
4. The Tribunal formulated three issues as under:-
"(1) In the absence of any stipulation in the notification, holding of the preliminary test by the P.S.C. is unauthorised and therefore liable to be set aside.
(2) Publication of the unified short list is not authorised by any of the provisions of the Kerala State and Subordinate Service Rules or the Rules of the Procedure of the P.S.C. The fixation of cut off marks as 49 and its lowering only for the purpose of including candidates belonging to communities eligible for reservation are illegal. The preliminary test is conducted as an eligibility test. Therefore, there cannot be any relaxation of standards for candidates belonging to candidates eligible for reservation. Alternatively it is submitted that if there is lowering of the cut off marks, the same should be extended to all candidates including Open Competition candidates.
(3) The next point canvassed before us is the alleged illegalities and irregularities that took place in the conduct of the test which has the effect of vitiating the selection process. Therefore to maintain transparency and purity in selection, the present test should be cancelled and a fresh test should be held".
5. With respect to the 1st
