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Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8536 OF 2015 (Arising out of Special Leave Petition (Civil) No.28428 of 2014)

Ajithkumar P. & Others ...  Appellants

Versus

Remin K.R. & Others …  Respondents

WITH

CIVIL APPEAL NO. 8537  OF 2015 (Arising out of Special Leave Petition (Civil) No.28743 of 2014)

Girilal D. ...  Appellant

Versus

Nidheesh B. & Others …  Respondents

J U D G M E N T

Chelameswar, J.

1. Aggrieved by the common judgment dated 08.08.2014 of the

High Court of Kerala in O.P.(KAT) No. 239 of 2014 and O.P.(KAT)

No. 112 of 2014, the unsuccessful petitioners therein preferred

these two special leave petitions.

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2. Leave granted.  

3. The above-mentioned Original Petitions (writ petitions) were

filed  aggrieved  by  the  order  dated  20.02.2014  passed  by  the

Kerala Administrative Tribunal (for short 'the Tribunal') by which

the  Tribunal  disposed  of  the  three  original  applications  O.A.

Nos.2395/13, 2587/13 and 58/14.

4. The background facts of the instant litigation are as follows:

The Kerala Public Service Commission (for short 'the Service

Commission')  issued  a  notification  dated  28.09.2007  inviting

applications from the qualified candidates for appointment to the

posts of Sub-Inspector (Trainee).  The notification did not specify

the number of posts sought to be filled up but mentioned that

the posts are sought to be filled up from three sources.  They are,

“(1) “Category No.315/2007 – Open market (2) Category  No.316/2007  –  Graduate  Ministerial  Staff  of  Police  and

Vigilance Department, Fingerprint Experts, Fingerprint Searchers of the Finger Print Bureau.

(3) Category  No.317/2007  –  Graduate  Police  Constables,  Head Constables  and  officers  of  the  corresponding  rank  in  the  police Department.”

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5. It is also specified in the notification that the vacancies will

be apportioned among the three categories mentioned above in

accordance with certain orders issued earlier by the Government

of Kerala, the details of which are not necessary for the purpose

of this judgment.

6. There are a set of rules known as 'The Kerala Public Service

Commission  Rules  of  Procedure'  (for  short  “Rules  of

Procedure”),  containing  the  procedure  to  be  followed  by  the

Service Commission in making selections for filling up any posts

in  the  service  of  the  State  of  Kerala.   When  the  Service

Commission  is  so  called  upon,  the  Service  Commission  is

authorised to conduct one or more of the examinations indicated

under Rule 3 of the said Rules to assess merit of candidates who

seek appointment.  The relevant portion of the Rule reads:  

“3. The Commission may conduct all or any one or more of the following examinations to assess the merits of candidates considered for recruitment to a service or post; (i) Written Examination (ii) Practical Test (iii) Physical Efficiency Test (iv) Oral Test (Interview) (v) Any other test or examination, which the Commission may deem fit to

hold.”

7. Further,  under  Rule  4  wherever  the  Service  Commission

decides to conduct either a written examination or a practical

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test or both for filling up any posts, the Service Commission is

required to announce the following information:

“(i) Announce: (a)  the qualifications required of the candidates for the examination; (b)  the conditions of admission to the examination including the fees; (c)  the subjects, Scheme or syllabus of the examination; and (d)  the number of vacancies to be filled from among the candidates for

the examination.”

8. In  response  to  the  notification,  the  Service  Commission

received about 42,000 (forty two thousand) applications.

9. For  the  recruitment  in  question,  the  Service  Commission

admittedly decided to hold a written examination followed by an

oral test (contemplated under Rule 3, hereinafter referred to as

‘Rule 3 examinations’ for the sake of convenience).  However, in

view of  the  large number  of  applications received,  the  Service

Commission thought it fit to shortlist candidates who could be

permitted to appear for the Rule 3 examinations by conducting

a preliminary examination for all the 42,000 applicants.   

10. The Commission initially opined that 2000, out of the total

42000,  applicants  could  be  short-listed  through  such

examination process.  After the examination was conducted, on

examining the list of 2000 successful candidates (who stood at

the top of the list), the Service Commission reached a tentative 4

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conclusion that  subjecting only those 2000 candidates for  the

Rule 3 examinations may not yield enough candidates to fill up

vacancies belonging to various reserved categories (SC, ST and

OBC).   Therefore,  the  Service  Commission  decided  to  permit

some more candidates belonging to various reserved categories.

The  last  of  the  abovementioned  2000  candidates  secured  49

marks out of a total of 100 marks for which the examination was

conducted.   The  Service  Commission,  therefore,  decided  to

permit various reserved category candidates, who secured marks

above the cut-off marks specified in that behalf by the Service

Commission.  The cut-off marks so specified with respect to each

of the reserved categories are as follows:-

“Ezhava 46 S.C. 45 S.T. 32 Muslim 45 IC/AI 45 OBC 47 Viswakarma 46 SIUC Nadar 46 OX 42 Dheevara 46 Hindu Nadar 44”

11. Pursuant to such exercise, another 657 candidates became

eligible to appear in the Rule 3 examinations.   

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12. The  decision  of  the  Service  Commission  to  relax  cut-off

marks with respect to reserved category candidates came to be

challenged initially before the Kerala Administrative Tribunal.  In

view of the Tribunal’s decision dated 13.09.2012 dismissing the

applications,  the  matter  was  further  carried  by  way  of  writ

petition to the Kerala High Court unsuccessfully.  Eventually, the

matter  reached  this  Court  in  SLP....(CC)  No.  14564  of  2013,

which stood dismissed by an order dated 26.08.2013.

13. The  Service  Commission  conducted  the  Rule  3

examinations, selected 838 candidates and published a “ranked

list”1 on 07.09.2015.  

14. Thereafter, candidates were sent for training.  Those who

successfully  completed  the  training  were  appointed  and  given

posting.    The appellants are among candidates so appointed,

belonging to various reserved categories.  They were appointed

against open category vacancies.   However, they were not among

the top 2000 candidates identified in the preliminary screening

test, but appeared for the Rule 3 examinations by virtue of the

1  A defined expression Rule 2(g) of the Kerala Public Service Commission Rules of Procedure, which is reproduced below:  “'Ranked List' means the list of candidates arranged in the order of merit either on the basis of the  

interview     or examination or by both;

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relaxation  granted  in  favour  of  the  candidates  belonging  to

various reserved classes.

15. Meanwhile, various original applications, out of which the

instant appeals arise, came to be filed before the Tribunal.  The

relief sought in one of the applications is:

“(a) declare that the inclusion of the candidate, who secured less than 49 marks in the preliminary examination, in the main list of Annexure A6 is illegal.  

(b) direct the 3rd respondent to remove the candidates who secured less than 49 marks in the preliminary examination from the main list of Annexure A6.  

(c) direct the 3rd respondent not to advise and respondents 1 and 2 not to appoint  any  candidate  who  secured  less  than  49  marks  in  the preliminary  examination  against  the  vacancies  available  for  open competition candidates”.

16. Prayers in the other two original applications are similar.     

17. By  its  order  dated  20.02.2014,  the  Tribunal  allowed  the

said original applications.   

18. The  Service  Commission  challenged  the  said  order  in

Original Petition i.e. O.P. (KAT) No. 136 of 2014.  The appellants

in SLP (C) No.28428/2014 sought a review of the order dated

20.02.2014 of  the Tribunal on the ground that the said order

would adversely affect their interest though they were not parties

to the said proceedings.  However, by an order dated 04.04.2014, 7

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the review petition was rejected by the Tribunal.  Therefore, the

unsuccessful review petitioners preferred Original Petition (KAT)

No.239  of  2014  challenging  the  order  of  the  Tribunal  dated

20.02.2014.  The petitioner in SLP (C) No. 28743 of 2014 was the

2nd petitioner  in  Original  Petition  (KAT)  No.112/2014  filed

challenging  the  order  dated  20.02.2014  of  the  Kerala

Administrative Tribunal.  Both the Original Petitions along with

other similar petitions were heard together and dismissed by a

common judgment and order, impugned in the instant appeals.

19. The  selection  and  appointment  of  the  appellants  is

challenged  on  the  ground  that  they  are  not  among  the  2000

candidates who secured 49 marks and above in the preliminary

screening test and therefore, they would not have been eligible to

appear  for  the  Rule  3  examinations but  for  the  relaxation

granted subsequent to the preliminary examination.   Therefore,

they cannot be appointed to open category posts.   According to

the  contesting  respondents,  relaxation  was  granted  only  to

ensure that there are sufficient number of candidates to fill up

reserved category posts.   By allowing the appellants to compete

for  the  open category  posts,  the  Service  Commission acted in

violation of Articles 14 and 16 of the Constitution of India. 8

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20. The posts in question are governed by the Kerala State and

Subordinate Services Rules 1958 (for short “Kerala S&S Rules”),

made  in  exercise  of  the  power  under  Article  309  of  the

Constitution of India.   Rule 14 enables the State to reserve some

of  the  posts  in  question  in  favour  of  the  Scheduled  Caste,

Scheduled  Tribes  and  other  backward  classes.   Indisputably,

some of the posts in question are so reserved.  

21. This  Court  in  R.K.  Sabharwal  &  Others v. State  of

Punjab & Others,  (1995) 2 SCC 745, held that where certain

number of posts are reserved in favour of candidates belonging to

socially  and  economically  backward  classes,  meritorious

candidates belonging to those classes should not be appointed to

such reserved posts but shall be appointed to posts falling in the

open category.

22. The said principle is reiterated in Ritesh R. Sah v. Dr. Y.L.

Yamul  &  Others,  (1996)  3  SCC  253,  in  the  context  of

admissions  to  the  educational  institutions  (medical  colleges)

where  seats  are  reserved  in  favour  of  students  belonging  to

socially  and  economically  backward  classes.   This  Court  on

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examination  of  various  judgments  including  R.K.  Sabharwal

(supra) held;

“17. …. In view of the legal position enunciated by this Court in the afore- said cases the conclusion is irresistible that a student who is entitled to be ad- mitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. ..”  

23. It is application of the above principle which is the subject

matter  of  dispute  in  the  instant  appeal.   As  already  noticed,

appellants  secured  good  marks  in  the  Rule  3  examinations,

therefore they should be entitled for appointment against open

category posts by operation of the principle of law laid down in

the  above-mentioned  judgments.   The  contesting  respondents

however disputed application of the above-mentioned principle of

law on the ground that appellants could appear for the  Rule 3

examinations only  pursuant  to  a  concession  granted  by  the

Service  Commission,  and cannot  therefore  be treated as more

meritorious candidates who are entitled to be appointed to open

category posts.

24. This  submission  found  favour  with  the  Administrative

Tribunal and the High Court.   In substance, both the fora held

that but for the concession the appellants would not have been

able  to  participate  in  the  Rule  3  examinations at  all, 10

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consequently whatever be the performance of the appellants in

the  examination,  their  chance  appearance  in  the  Rule  3

examinations does not confer any right on them to claim open

category posts and they are entitled to compete only for those

posts  which  are  reserved  in  favour  of  the  respective  class  to

which each of  the  appellants  belongs.    For  reaching  such a

conclusion, the High Court relied upon Rule 14(e)2 of the Kerala

S&S Rules and Rule 43 of the  Rules of Procedure.  The High

Court held:- 2  Rule 14 (d). Notwithstanding anything contained in this rule, posts to which, appointments are made by di- rect recruitment from a common ranked list prepared on the basis of a common test or interview or both, shall be grouped together for the purposes of observance of the rules relating to reservation of appoints.

(e)   A supplementary list of sufficient number of suitable candidates, not less than five times the reservation quota, if available, from each community or group of communities for the purpose of satisfying the reservation quota, shall be prepared and published.

Note. ‘Suitable candidates’ for the purpose of this rule shall mean candidates with notified minimum qualifications and marks in selection procedure lowered to the extent necessary.”

 3  Rule 4.  Where a written examination and/or a practical test is conducted by the Commission for recruitment to a service or post, the Commission shall –  

(i) Announce: (a) the qualifications required of the candidates for the examination; (b) the conditions of admission to the examination including the fees; (c) the subjects, Scheme or syllabus of the examination; and (d) the number of vacancies to be filled from among the candidates for the examination.

Provided that where the exact number of vacancies to be filled is not ascertainable, the Commission may either announce the approximate number of vacancies to be filled or state that the number of vacancies has not been estimated.

[

(ii) invite applications and consider all the applications so received, (iii) make all arrangements for the conduct of the examination for the candidates whose applications

are found to be in order, and (iv)   prepare  a  list  in  the  order  of  merit  of  such  number  of  candidates  as  the  Commission  may

determine from time to time.

Provided that the Commission may also prepare separate ranked lists in the order of merit of candidates coming under separate groups in accordance with the qualifications or other conditions as stipulated in the notification.

Provided further that for the purpose of satisfying the rules of reservation of appointment to Scheduled Castes, Scheduled Tribes and Other Backward Classes also the Commission may prepare such supplementary lists as found necessary from time to time in the order of merit of the candidates belonging to such classes.

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“32. Reading of these judgments would show that in none of these cases, Supreme Court had occasion to consider a rule similar to Rule 14(e) or the third proviso to Rule 4 of the Rules of Procedure.  On the other hand, the Apex Court had generally dealt with the legal position that when relaxation or concession is given at the preliminary stage, which has no impact on the final ranking, the relaxation so given cannot have any relevance in so far as the final ranking is concerned.  While we respectfully follow these principles, in our view, having regard to the fact that Rule 14(e) of the 3rd proviso to rule 4 of the Rules of Procedure govern the selection in question, the general principles laid down by the  Apex  Court  in  the  judgments  relied  on  by  the  learned  counsel  for  the petitioners cannot be applied to the facts of these cases.”

and distinguished three earlier judgments of this Court Chattar

Singh & Others  v.  State of Rajasthan & Others, (1996) 11

SCC  742,  Andhra  Pradesh  Public  Service  Commission  v.

Baloji  Badhavath & Others, (2009)  5  SCC 1  and  Jitendra

Kumar Singh & Another v. State of Uttar Pradesh & Others,

(2010) 3 SCC 119.  

25. In our opinion, the conclusion reached by the High Court is

erroneous.   The  preliminary  examination  for  shortlisting

candidates  who  would  be  eligible  to  take  the  Rule  3

examinations has no statutory basis.  Neither the Kerala S&S

Rules nor the Rules of Procedure contemplate such preliminary

examination.  However, this Court recognized4 existence of a legal

authority  to  conduct  a  preliminary  examination  wherever  an

unmanageably  large  number  of  applications  are  received  for

filling up a limited number of posts.  Rule 14(e) of the  Kerala 4  Andhra Pradesh Public Service Commission  v.  Baloji Badhavath & Others, (2009) 5 SCC 1;  Duddilla Srinivasa Sharma & Others v. V. Chrysolite, (2013) 16 SCC 702

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S&S Rules and Rule 4 of the Rules of Procedure relied upon by

the High Court refer to ‘ranked list’ - a defined expression under

Rule  2(g)  of  the  Rules  of  Procedure.   Such  ‘ranked-list’  is

prepared  only  pursuant  to  the  Rule  3  examinations.   A

preliminary screening test is outside the purview of the  Rule 3

examinations.   Therefore,  irrespective  of  the  content  of  Rule

14(e) of the Kerala S&S Rules or the 3rd proviso to Rule 4 of the

Rules of Procedure relied upon by the High Court, these Rules

can  have  no  application  in  the  context  of  preparation  of  a

‘shortlist’ pursuant to a preliminary examination.

26. Therefore,  the  basic  premise  on  which  the  High  Court

sought  to  distinguish the  three  judgments relied  upon by  the

appellants (referred to supra) is legally untenable.  The impugned

judgment rightly understood the 3 judgments relied upon by the

appellants herein as laying down a principle that a relaxation or

concession  given  at  the  preliminary  stage  cannot  have  any

relevance in determining the merit of the candidate.

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27. In  the  circumstances,  we  are  of  the  opinion  that  the

impugned  judgment  is  unsustainable  and  is  accordingly

set-aside.  The appeals are allowed with no order as to costs.   

….………………………….J.                                                           (J. Chelameswar)

….………………………….J.                      (Abhay Manohar Sapre)  

New Delhi; October 13, 2015

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