Candidates who come up in the state competition by virtue of an appellate order are entitled to be treated similarly and if they secured equal marks, they are also entitled for A Grade.

Ashok Bhushan, J.

These two writ appeals have been filed against common judgment dated 8th April, 2015 by which judgment, learned Single Judge dismissed the writ petitions filed by the appellants. The facts in both the writ appeals are almost similar and it shall be sufficient to refer to the facts in WA No.1161/2015 for deciding both the appeals.

2. WA No.1161/2015 arises out of the judgment of the learned Single Judge in W.P (C) No. 3672/15. Petitioners appeared from Malappuram District in item Oppana. The appellants were not selected at the District level. An appeal was filed in which an order was passed permitting the appellants also to participate in the State level competition. The appellants thereafter participated in the State level competition but since the appellants were not given the A grade certificate and grace marks, the appellants filed the writ petition where the following prayers were made;

"(a) To declare that Clause 11 of Chapter XII of Exhibit P4, Kerala School Kalolsavam Manual, to the extent of denying grace marks to the students who participated in the state level competition, is unconstitutional.

(b) to declare that the petitioners' team, who participated in the state level competition in the event Oppana, is eligible and entitled to get grace marks based on their performance in the 55th State Level School Kalolsavam, held at Kozhikode."

3. The appellants claim that they are also entitled to get grace marks based on performance in the 55th State Level School Kalolsavam held at Kozhikode. The learned Single Judge decided bunch of the writ petitions and following the Division Bench judgment of this Court in WA No.1843/2014 held that the candidates securing equal marks who came to perform in the State level competition are entitled to the grace marks and A grade. Learned Single Judge observed that petitioners had failed to prove their equivalence as of the regularly selected candidate and they could perform only at a lesser level. Hence, they were not entitled for grace mark and A Grade. Writ petitions were dismissed. Writ appeals have been filed by the petitioners whose petitions were dismissed.

4. Adv. Dr. George Abraham, learned counsel appearing for the appellants submitted that in view of the order passed by the appellate authority, they became equal and the principle of merger will apply. He has placed reliance on the judgment of the Apex Court in Kunhayammed v. State of Kerala (2000 (3) KLT 354). He further submits that there was no material on record to indicate that petitioners received lesser mark than those who were given A Grade in the same District. He further submitted that the petitioners in fact had secured more marks than teams of other Districts but those teams from other Districts having lesser marks were awarded A grade. He submits that learned Government Pleader did not bring anything on record in the writ petitions to indicate that the petitioners had received lesser marks than the team who has been granted A Grade.

5. Learned senior Government Pleader Sri.P.I.Davis refuting the submission of the appellants contended that the petitioners did not receive equal marks to those who were granted A grade from each District. He submits that in view of the order of the appellate authority, the appellants were treated equally to those who have already been selected at the District level but A grade has been granted on the basis of performance in the State level competition. He has produced the results of the State level competition 2014-2015 held from 15th January, 2015 to 21st January, 2015. He submits that in so far as WA No.1162/2015 is concerned. Sri.Nishad P. and his group secured only 234 marks, who represented Malappuram, whereas the team which were granted grace marks with A grade from Malappuram secured 241 marks. Hence, the appellants were not entitled.

6. In so far as WA No.1161/2015 is concerned, it is submitted that appellants' group received 226 marks and they represented Mala