1. Applicants challenged the introduction of a forty percent minimum cut-off mark for in-service appointment to the post of Legal Assistants Grade II, arguing lack of statutory authority. (Para 1 , 8 , 9 )
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2026 Supreme(Online)(Ker) 68173
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Anil K. Narendran, Muralee Krishna S., JJ
SAJEENA U. W/O. AMJATH B. COMPUTER – Appellant
Versus
STATE OF KERALA – Respondent
OP(KAT) 569/2023
Important Points
High Court's supervisory jurisdiction under Article 227 is limited to correcting patent perversity or manifest errors. Administrative instructions may validly supplement statutory rules when they are silent, allowing authorities to set recruitment benchmarks provided they are announced before the selection process begins.
Subject
Service Law - Recruitment and Selection
Act Referred
Headnote
(A) Constitution of India - Article 227 - Supervisory jurisdiction of High Court over tribunals - Scope of interference - High Court cannot sit as an appellate court over findings recorded by a tribunal - Jurisdiction is supervisory and limited to cases of patent perversity, manifest error, or gross failure of justice (Paras 20-25).
(B) Administrative Law - Selection process and statutory rules - Where statutory rules are silent on a particular aspect, the gap can be filled by administrative instructions supplementing the rules, provided such instructions are not ultra vires the rules, statute, or Constitution (Paras 35, 39).
(C) Public Employment - Setting selection benchmarks - The recruiting authority, in the absence of rules to the contrary, can devise procedures and set benchmarks for different stages of recruitment to ensure the most suitable candidate is selected, provided such benchmarks are stipulated before the commencement of the recruitment process (Para 38).
Facts of the case:
Employees of a subordinate service challenged the prescription of a 40% cut-off mark for by-transfer appointment to a responsible post. They contended that since the statutory rules did not specify minimum qualifying marks, such criteria could not be introduced via executive orders without amending the rules. The Administrative Tribunal dismissed the original application, upholding the validity of the cut-off marks. The petitioners subsequently approached the High Court under its supervisory jurisdiction.
Findings of Court:
The court found that the executive orders fixing the cut-off marks were intended to ensure that efficient candidates were appointed to a responsible post and did not encroach upon or amend the statutory rules but supplemented them. The candidates were aware of the requirement before submitting their applications, and the decision of the Administrative Tribunal was neither perverse nor patently illegal.
Issues: (1) Whether minimum qualifying marks for by-transfer appointment can be prescribed via executive orders when the statutory rules are silent on the matter. (2) Whether the High Court should exercise its supervisory jurisdiction under Article 227 to interfere with the order of the Administrative Tribunal.
Ratio Decidendi: Administrative instructions can supplement statutory rules where there is a gap and no repugnancy. The setting of benchmarks to maintain efficiency in public service is permissible if done before the recruitment process begins. Interference under Article 227 is only warranted if the lower tribunal has committed a manifest error or the reasoning is palpably perverse.
Result: Original petition fails, and the same is accordingly dismissed.
(B) Administrative Law - Selection process and statutory rules - Where statutory rules are silent on a particular aspect, the gap can be filled by administrative instructions supplementing the rules, provided such instructions are not ultra vires the rules, statute, or Constitution (Paras 35, 39).
(C) Public Employment - Setting selection benchmarks - The recruiting authority, in the absence of rules to the contrary, can devise procedures and set benchmarks for different stages of recruitment to ensure the most suitable candidate is selected, provided such benchmarks are stipulated before the commencement of the recruitment process (Para 38).
Facts of the case:
Employees of a subordinate service challenged the prescription of a 40% cut-off mark for by-transfer appointment to a responsible post. They contended that since the statutory rules did not specify minimum qualifying marks, such criteria could not be introduced via executive orders without amending the rules. The Administrative Tribunal dismissed the original application, upholding the validity of the cut-off marks. The petitioners subsequently approached the High Court under its supervisory jurisdiction.
Findings of Court:
The court found that the executive orders fixing the cut-off marks were intended to ensure that efficient candidates were appointed to a responsible post and did not encroach upon or amend the statutory rules but supplemented them. The candidates were aware of the requirement before submitting their applications, and the decision of the Administrative Tribunal was neither perverse nor patently illegal.
Issues: (1) Whether minimum qualifying marks for by-transfer appointment can be prescribed via executive orders when the statutory rules are silent on the matter. (2) Whether the High Court should exercise its supervisory jurisdiction under Article 227 to interfere with the order of the Administrative Tribunal.
Ratio Decidendi: Administrative instructions can supplement statutory rules where there is a gap and no repugnancy. The setting of benchmarks to maintain efficiency in public service is permissible if done before the recruitment process begins. Interference under Article 227 is only warranted if the lower tribunal has committed a manifest error or the reasoning is palpably perverse.
Result: Original petition fails, and the same is accordingly dismissed.
Legal Category Hierarchy
- administrative law
- practice and procedure
- constitutional law
Advocates:
For the Appellants/Petitioners: Binesh P. Baby, Aparajith A., M.R. Hariraj (Sr.)
For the Respondents: Arun Ashok, Neena James, T.A. George Joseph, Ayyappan Sankar, P. C. Sasidharan
For the Appellants/Petitioners: Binesh P. Baby, Aparajith A., M.R. Hariraj (Sr.)
For the Respondents: Arun Ashok, Neena James, T.A. George Joseph, Ayyappan Sankar, P. C. Sasidharan
Table of Contents
2. Applicants contended that minimum marks require special rule amendments; respondents argued administrative instructions may supplement silent rules and executive discretion allows setting efficiency benchmarks for sensitive posts. (Para 11 , 18 , 19 , 31 )
3. The court found that executive orders prescribing minimum qualifying marks to ensure merit in appointment are supplemental to silent special rules and do not constitute illegal rule amendments. (Para 32 , 33 , 34 , 35 , 37 )
4. Administrative instructions can fill gaps in silent special rules to prescribe minimum qualifying standards for public service recruitment, provided they align with constitutional principles and competitive merit assessment. (Para 38 , 39 , 41 )
5. The original petition challenging the administrative tribunal's dismissal of the application is dismissed, upholding the validity of the cut-off mark prescription. (Para 42 )
6. Can executive orders prescribe minimum qualifying marks for recruitment when the relevant Special Rules are silent?
Yes. When governing rules are silent, administrative instructions may supplement the rules to fill gaps, provided they do not conflict with the existing statutory framework or constitutional mandates of equality and merit-based selection. (Para 33 , 35 , 39 , 41 )
7. Is the post of Legal Assistant Grade II considered a sensitive post justifying higher merit standards?
Yes. The court recognized that Legal Assistant positions involve significant accountability and require high cognitive acumen in juridical matters, thereby justifying government policy decisions to ensure meritorious recruitment through minimum mark benchmarks. (Para 32 , 37 , 41 )
8. Can a candidate challenge the validity of a selection process after appearing for the test without protest?
No. A candidate who participates in a selection process without raising objections to the notified conditions, and who only challenges them after becoming aware of a poor performance, is not entitled to relief. (Para 14 , 40 )
“C.R”
JUDGMENT
Anil K. Narendran, J.
The petitioners-applicants 2 and 3, along with 3 others, namely, respondents 7 to 9 herein, who are employees working in the Kerala Secretariat Subordinate Service, filed O.A.No.1375 of 2022 on the file of the Kerala Administrative Tribunal at Thiruvananthapuram, invoking the provisions under Section 19 of the Administrative Tribunals Act, 1985, seeking a declaration that the prescription of cut-off marks contained under Note:(a)(2) to clause 7 of Annexure A8 notification dated 31.12.2020 issued by the 4th respondent Kerala Public Service Commission for by transfer appointment to the post of Legal Assistants Gr.II in the Law Department - Government Secretariat (Category No.479/2020), from any category in Kerala Secretariat Subordinate Service, is without any authority of law and, therefore, illegal and consequentially direct the Public Service Commission to complete the selection process to that post based on Annexure A8 notification, without prescribing any cut-off mark, and by including the names of all qualified hands in the order of merit, in the selection process, and advise them against the vacancies reported for appointment to the stream ‘Kerala Secretariat Subordinate Service’; and an order directing the 1st respondent State to appoint candidates from the ranked list to be published pursuant to Annexure A8 notification, in their order in the advice list to be forwarded by the Public Service Commission. Along with the original application, the applicants have produced Annexures A1 to A14.
2. The document marked as Annexure A1 in O.A.No.1375 of 2022 is a copy of the Special Rules for the Kerala Secretariat Subordinate Service, notified in Kerala Gazette No.27 dated 11.07.1967. The post of Legal Assistants Gr.II falls under category 7 in the Special Rules. Rule 4 of the Special Rules deals with the method of appointment. The method of appointment prescribed in the Special Rules for the post of Legal Assistants Gr.II reads thus;
3. Rule 8 of the Special Rules deals with qualifications regarding age and Rule 9 deals with other qualifications. As per Rule 9, no person shall be eligible for appointment to any category or post specified in column (1) of the table below by the method specified against it in column (2) thereof of the table below, unless he possesses the qualification specified in the corresponding entry in column (3) of the said table. Other qualifications prescribed under Rule 9 of the Special Rules for the category Legal Assistants Gr.II read thus;
4. In the original application, the applicants have stated that until 2007, appointment to the post of Legal Assistants Gr.II, reserved for departmental candidates, was being carried out from a rank list prepared by the Law Department after conducting a competitive written examination through the Commissioner for Entrance Examinations or through the LBS Centre. Annexure A2 marked in O.A.No.1375 of 2022 is a copy of the rank list containing the names of candidates under Item (iii) category 7 of Rule 9 of the Special Rules, found suitable on the basis of the written test conducted on 27.01.2008 for appointment as Legal Assistants Gr.II in the Law Department - Government Secretariat. Annexure A3 is another rank list containing the names of candidates under Item (iv) category 7 of Rule 9 of the Special Rules, found suitable on the basis of the written test conducted on 27.01.2008 for appointment as Legal Assistants Gr.II in the Law Department - Government Secretariat.
5. In the year 2007, the Special Rules were amended by the Special Rules for the Kerala Secretariat Subordinate Service (Amendment) Rules, 2004, which were notified vide Annexure A4 Gazette notification No.18 dated 02.01.2008. As per the Amendment Rules of 2004, the following amendments were made with respect to category 7 - Legal Assistants Gr.II.
“(d) In the note under category ‘7 Legal Assistants Grade II’ after the words ‘above in the ratio of 3:2’, the following words shal
