Johnson v. Public Service Commission — 1989 DIGILAW 222 (KER)

Judgment :- 1. Is the Public Service Commission competent to issue a notification confining the zone of consideration of candidates for appointment to a few out of the many eligibles is the question which arises for consideration in this Original Petition. The Rules do provide a simple affirmative as the answer. But in deference to the elaborate arguments which Shri Sankaranarayana Iyer urged on behalf of the petitioners, I feel called upon to deal with the controversy in some detail. 2. The first respondent has issued Ext.P1 notification inviting applications for appointment as Village Assistants in Pathanamthitta District. Persons who had passed SSLC Examination and Chain Survey Test alone were eligible to apply. Over 21,000 persons - to be exact 21,329-applied. There were only 65 vacancies. The Public Service Commission rejected 526 applications for various reasons. The second respondent issued Ext.P2 notification dated 7-9-1988 to the effect, that only candidates with specified percentage of marks were to be interviewed. Separate percentage of marks were specified, for open competition 53 %, scheduled castes 43 %, Muslims 48 %, Latin Competition 53 %, scheduled caste 43 %, Muslims 48%, Latin Catholics/Anglo Indians 47%, Dheevara 43%, Nadar 50% and other Christians 48%. All scheduled tribe candidates were to be interviewed. Muslims, Latin Catholics/Anglo Indians, Dheevara, Nadar and other Christians are some of the categories in "other backward classes", as provided in R.14 to 17 of the Kerala State and Subordinate Services Rules. The third petitioner is an Ezhava, second petitioner belongs to one of the other backward classes, and the first petitioner is not entitled to any reservation. Admittedly, petitioners had only far less than the specified minimum marks for open competition, viz., 53%. Their complaint was that specified minimum marks were prescribed only for some of the "other backward classes" and not for some of the others like Ezhavas. Petitioners filed this Original Petition challenging Ext.P2 mainly on two grounds: (1) that respondents 1 and 2 had no jurisdiction to issue Ext.P2 notification varying the terms of eligibility as prescribed in Ext. P1; and, (2) that prescription of lower minimum percentage of marks for some only of the "other backward classes" is discriminatory, arbitrary and violative of Art.14 of the Constitution of India. P1; and, (2) that prescription of lower minimum percentage of marks for some only of the "other backward classes" is discriminatory, arbitrary and violative of Art.14 of the Constitution of India. They therefore seek the issue of a writ of mandamus "to make the selections only on the basis of the qualifications set out in Ext.P1 notification without giving any concession or weightage not contemplated in the communal G.O. in force, or in Ext.Pl". They also seek a direction to the respondents not to make any selection on the basis of Ext.P2 notification. 3. The Public Service Commission prescribed the eligibility of candidates for applying for appointment in Ext.P1 notification. Petitioners had the necessary qualifications. Their complaint is that the eligibility criterion was altered by prescribing a higher percentage of marks for selecting candidates for interview leading to final recruitment. 4. R.5 of the Rules of Procedure, applies to cases where the Public Service Commission conducts only an oral test (interview) for recruitment to a service. It requires the commission to announce the qualification and other conditions and the number of vacancies to be filled up, invite applications, consider all applications so received and interview the candidates whose applications are found to be in order. Proviso to R.5(ii) enables the Commission to restrict the number of candidates to be called for the oral test (interview) to such extent as they may decide after conducting any examination as they deem fit. The second proviso, which is relevant for our purpose, is in the following terms: "Provided further that the Commission may also restrict the number of candidates to be called for oral test (interview) on the basis of anyone or more of the following criteria: (a) higher qualification (b) higher marks (c)age " This proviso seems to be a complete answer to the contentions of the petitioners, that the Commission had no power to restrict the number of candidates to be called for oral test on the basis of higher marks. It is beyond doubt that the Commission has such power. 5. The next submission is that respondents 1 and 2 discriminated in favour of some and against other communities belonging to the common group "other backward classes". That submission is made on the basis of Ext.P2. 6. It is beyond doubt that the Commission has such power. 5. The next submission is that respondents 1 and 2 discriminated in favour of some and against other communities belonging to the common group "other backward classes". That submission is made on the basis of Ext.P2. 6. The Public Service Commission has filed a counter affidavit, stating that the Commission had issued Ext.R1 (a) notification dated 10-2-1989 amending Ext.P2 dated 7-9-1988. In that notification, three other categories of persons belonging to "other backward classes" were also included. The percentage of marks for Ezhava for interview was specified as 51%. For other backward communities, excepting those which were named, it was prescribed as 52%. For Viswakarma also 52% was prescribed as the qualifying mark for admission to the interview. Shri.Kelu Nambiar, Standing Counsel for the Commission, submits that the complaint of the petitioners, that Ext.P2 discriminated against some of the "other backward classes" can no longer subsist in view of Ext.R1 (a) dated 10-2-1989. 7. The circumstances leading to Ext.P2 and Ext.R1(a) are stated in the counter affidavit to be the following: There were 21,329 applicants against 65 vacancies. 2,728 candidates possessed both SSLC and Chain Survey Test. The others had SSLC qualification only. Since the number of fully qualified candidates were unduly large, the Commission fixed a higher percentage of marks in SSLC as the basis for preliminary elimination. It is also asserted that in prescribing different marks for different communities for purposes of interview leading to the preparation of the supplementary list, the Commission considered the question of providing adequate representation to reservation communities or group of communities eligible for reservation in appointments. He further asserts that it was to make available enough candidates to satisfy the due quota, different mark ranges had to be adopted for different communities, and this cannot be construed as violating the fundamental rights guaranteed under Art.14 of the Constitution. 8. I have seen that the Public Service Commission had the necessary competence to issue Ext.P2 and Ext.R1 (a) orders restricting the number of candidates on the basis of higher marks. It is necessary in this context to note that for all candidates in the open merit quota, 53% marks were prescribed as qualifying marks for interview. It was only for inclusion in the supplementary list that different ranges of marks were adopted. It is necessary in this context to note that for all candidates in the open merit quota, 53% marks were prescribed as qualifying marks for interview. It was only for inclusion in the supplementary list that different ranges of marks were adopted. The assertion of the Public Service Commission that it was to make available enough candidates to satisfy the quota that different marks were adopted for different communities has not been effectively controverted. 9. Counsel for the petitioners submits that it is not necessary for him to controvert that assertion. He submits that "other backward communities" being a class, prescription of different percentage of qualifying marks will itself be discriminatory. In this context, it is necessary to refer to some of the factual details to appreciate this contention. Petitioners obtained 43%, 40.33%, and 49.16% marks in the SSLC Examination. The first petitioner is a candidate in open merit quota. He was nowhere near the 53% marks which were prescribed as qualifying marks for restricting the number of candidates for interview. If the Public Service Commission had the necessary power and competence to issue Ext.P2 and Ext.R1 (a) restricting the number of candidates for interview, as I have found above, the first petitioner cannot have any legitimate complaint. As far as petitioners 2 and 3 are concerned, they too fall far too short of the qualifying marks prescribed in Ext.R2 (a). It is true that in Ext.P2 there was no qualifying marks specified in respect of Ezhavas or Backward Communities, other than those who were specified therein. That defect was rectified by issue of Ext.R1 (a). The third petitioner, who is an ezhava, could have qualified only if she had 51 % marks in SSLC. She had only 49.16% marks. The second petitioner, who belongs to "other backward classes", other than those specified, had to obtain 52% marks, whereas he obtained only 40.33% marks. The elimination of the petitioners in the absence of qualifying marks cannot ordinarily be assailed. 10. It is necessary for me to consider the argument advanced by Mr. Sankaranarayana Iyer, that prescription of different higher marks for different communities belonging to the class, "other backward classes", is discriminatory. The elimination of the petitioners in the absence of qualifying marks cannot ordinarily be assailed. 10. It is necessary for me to consider the argument advanced by Mr. Sankaranarayana Iyer, that prescription of different higher marks for different communities belonging to the class, "other backward classes", is discriminatory. The Commission has stated in its counter affidavit, that all the valid applications were scrutinised before it fixed the qualifying marks for interview in exercise of its power under R.5(ii) proviso of the Rules of Procedure of the Commission. The Commission has asserted that while inviting candidates for interview and ranking them, it has to satisfy whether enough candidates are available from the communities or group of communities eligible for appointment. To make available enough candidates to satisfy the due quota, different mark ranges had to be adopted for different communities, and this cannot be construed as violating the fundamental rights guaranteed under Art.14 of the Constitution of India. If there were larger number of candidates from some of the communities belonging to "other backward classes", who had faired reasonably well and had higher marks in the SSLC Examination, it was open to the Commission to prescribe higher percentage of marks for candidates belonging to such communities. Likewise, it was open to the Commission to prescribe different ranges of marks for candidates belonging to another community bearing in mind the extent of reservation due to the community, the number of applicants and the general pattern of marks obtained by eligible candidates. That was what exactly the Public Service Commission did. Different percentage of marks were prescribed for candidates from different communities on the basis of relevant facts. Unless the petitioners are able to make out that there was classification and such classification was unrelated to any reasonable criterion, having a nexus with the objects to be achieved, the classification cannot be considered as discriminatory or violative of Art.14 of the Constitution of India. The mere fact of classification is not enough. It is obligatory to show the further element of absence of reasonable nexus with relevant considerations or that the classification was based on irrelevant considerations. I need only refer to one out of a plethora of authorities to add assurance to this finding. The mere fact of classification is not enough. It is obligatory to show the further element of absence of reasonable nexus with relevant considerations or that the classification was based on irrelevant considerations. I need only refer to one out of a plethora of authorities to add assurance to this finding. Chandrachaud J., observed in State of J & K v. T.N. Khosa, AIR 1974 S.C.1, a.p.9, that "In order to establish that the protection of the equal opportunity clause has been denied to them, it is not enough for the respondents to say that they have been treated differently from others, not even enough that a differential treatment has been accorded to them in comparison with others similarly circumstanced. Discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis." Petitioners have not succeeded in urging or proving these additional factors. That being the case, it is not possible to accept the second ground urged by counsel for the petitioners. 11. Mr. Sankaranarayan Iyer referred me to a number of decisions, including D.S. Nakara v. Union of India, (1983) 1 SCC 305, Rajamma v. State of Kerala, 1983 KLT 457, and Jesilet v. State of Kerala, 1987 (2) KLT 984. The principle settled in Nakara above is that the State is not entitled to discriminate against persons who were similarly placed even in the matter of retirement benefits. Rajamma v. State of Kerala, 1983 KLT 457, dealt with a case of discrimination against women for appointment in Class IV service. This court struck down a note to R.5 of the Special Rules discriminating against women for appointment in some posts in Class IV Service. In Jesilet v. State of Kerala, 1987 (2) KLT 984, the question which came up for consideration related to the issue of an executive instruction adding to statutory qualifications prescribed under Chapter XXXI of the Kerala Education Rules. Apart from the oft quoted principle that the State is bound to treat citizens alike in matters of public employment, I do not find any assistance for resolving the controversy involved in this Original Petition in any of those decisions. 12. Apart from the oft quoted principle that the State is bound to treat citizens alike in matters of public employment, I do not find any assistance for resolving the controversy involved in this Original Petition in any of those decisions. 12. The question whether the employment agency may restrict the field of choice among eligible applicants on the basis of higher qualifications, higher marks and like considerations had come up for consideration before this court and the Supreme Court. In Prathapan v. Registrar, High Court of Kerala, 1984 KLT 625, a somewhat similar situation arose for consideration. The qualification prescribed for eligibility for appointment as Assistant Grade I in the High Court Service was graduation. The Registrar issued notification inviting applications only from First and Second Class Graduates/Post Graduates/ Law Graduates. The question which was posed was whether the statutory rules were violated by issue of the notification prescribing the higher qualifications. This was what the Division Bench observed: "What the 1st respondent did was not to modify or re-write the statutory rules but only to adopt a course of narrowing the field of choice by eliminating third class graduates from scrutiny to minimise the difficulties if screening and to secure the better level of talent for the High Court Service. We do not find it possible to strike down Ext.P1 as illegal or unauthorised." 13. In S.B. Mathur v. Chief Justice, Delhi High Court, AIR 1988 SC 2073, the same question came up for consideration viz., whether eligible candidates could be eliminated by prescribing higher marks for inclusion. Dealing with almost the same contentions as counsel for petitioners urged before me, the Supreme Court held that the minimum eligibility qualification has to be kept distinct from the zone of consideration and even if there is a large number of candidates who satisfy the minimum eligibility requirement, it is not always required that they should be included in the zone of consideration, it being open to the authority concerned to restrict the zone of consideration amongst the eligible candidates in any reasonable manner. The Supreme Court further observed: "So long as the zone of consideration is limited by the competent authority in a manner not inconsistent with the Rules or in a manner which is not arbitrary or capricious or mala fide, the validity of the decision to limit the zone of consideration cannot be successfully called in question on the ground that the manner in which the zone of consideration was limited was not uniform. The zone might have been limited on each occasion keeping in view the relevant circumstances including the number of posts vacant and on a basis having a nexus to the purpose of selection." 14. In State of UP v. Rafiquiddin, AIR 1988 SC 162, the Supreme Court had again to consider the question whether it was competent for the Public Service. Commission to prescribe minimum marks in viva voce test. The Supreme Court observed, that it was within the competence of the Commission to prescribe minimum marks. The court also held, that it was not necessary or possible to give notice to the candidates about the minimum marks which the Commission may determine for the purpose of eliminating unsuitable candidates. 15. These decisions seem to me to answer all the points of law urged by the petitioners in the negative. In that view, petitioners are not entitled to any relief in this original petition. They were rightly eliminated because they did not have the marks prescribed validly under the proviso to R.5 of the Rules of Procedure of the Commission for restricting the number of candidates to be called for interview. The Original Petition, therefore, fails and the same is hereby dismissed. The parties will suffer their respective costs.