P.N. Ravindran, J.

1. These writ petitions have been referred to us to decide whether the decision of the Division Bench of this Court in Ajayan v. State of Kerala, 2006 (3) KLT 854 has been correctly decided. The main issue raised in these writ petitions is whether Rule 11 of the Kerala Public Service Commission Rules of Procedure, hereinafter referred to as the "Rules" for short, and Condition No. 9 of the General Conditions which forms part of every notification issued by the Kerala Public Service Commission, hereinafter referred to as the "Commission" for short, empower and authorize the Commission to prescribe cut-off marks to short-list the candidates to be called for interview/physical efficiency test.

Writ Petition (C) Nos. 11916 of 2005 and 23272 of 2006

2. These Writ Petitions relate to appointment to the post of Veterinary Surgeon Grade II in the Animal Husbandry Department. Writ Petition (C) No. 11916 of 2005 is treated as the main case and the documents referred to are those produced and marked therein. By Ext. P1 notification published in the Kerala Gazette dated 26/08/2003, the Commission invited applications for appointment by direct recruitment to the post of Veterinary Surgeon Grade II in the Animal Husbandry Department, The number of vacancies notified was 81 and the last date fixed for receipt of applications was 22/10/2003. A written test was conducted on 25/08/2004 and thereafter, Ext. P6 short-list of 294 candidates, consisting of 195 in the main list and 99 in the supplementary lists was published on 10/12/2004. After verification of documents, 6 candidates who were found ineligible to apply were excluded from the short-list. In Ext. P6short-list it is stated that candidates who have obtained 50 marks and above have been included in the Main List and that cut-off marks have been lowered to the extent necessary in respect of candidates included in the supplementary list. The short-listed candidates were interviewed between 22/04/2005 and 28/04/2005 and a ranked list was published on 02/07/2005. The petitioners contend that though only 81 vacancies had been notified, the vacancies had increased due to retirement/creation of additional posts, that the Commission does not have the power or authority to prescribe cut-off marks for preparing the short-list and that the Commission has not ensured that candidates corresponding to 3 to 5 times the total number of notified/anticipated vacancies are included in the short-list. The petitioners contend that by prescribing cut-off marks, eligible candidates were excluded from the short-list and that prescription of cut-off marks is illegal. They rely on the decision of the Division Bench of this Court in Ajayan v. State of Kerala (supra) in support of their contention that the Commission cannot prescribe cut-off marks and thereby exclude eligible candidates from being considered for selection.

3. The Commission has filed a counter-affidavit and an additional counter-affidavit in WP (C) No. 11916 of 2005 contending inter alia that from the ranked list published on 02/07/2005 candidates were advised against the notified vacancies and the vacancies that arose subsequently, that the main list of the ranked list was exhausted after advising 258 candidates, that a fresh notification was thereupon issued on 15/01 /2007, that 566 candidates were admitted for the written test held on 19/12/2007 and that the petitioner has also applied for the post. The Commission has also contended that they have the power to fix cut-off marks to short-list candidates. In the counter-affidavit filed in WP (C) No. 23272 of 2006, the Commission has stated that when Ext. P6 short-list was finalized, 121 vacancies of Veterinary Surgeon Grade II had been reported and were pending with them. The petitioner in WP(C)No.11916of2005has filed a reply affidavit contending that in the year 2001, about