SAJEENA U., W/O. AMJATH B., COMPUTER vs STATE OF KERALA,
- Court
- Kerala High Court
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OP(KAT)No.569 of 2023 1 2026:KER:84449
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
TH
THURSDAY, THE 5 DAY OF NOVEMBER 2026/14TH KARTHIKA, 1948
OP(KAT) NO.569 OF 2023
AGAINST THE ORDER DATED 24.11.2023 IN O.A.NO.1375 OF 2022
OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/APPLICANTS 2 & 3:
1 SAJEENA U., W/O. AMJATH B., AGED 36 YEARS
COMPUTER ASSISTANT (SELECTION GRADE) PRESENTLY
WORKING AT LAW DEPARTMENT GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM – 695 001, RESIDENT OF
THINAVILA PUTHENVEEDU PALLIMUKKU, PEYAD P.O.
THIRUVANANTHAPURAM, PIN - 695573
2 SARITHA S., AGED 46 YEARS
W/O. R.S. SHAJEEV, COMPUTER ASSISTANT (SENIOR
GRADE) LAW DEPARTMENT, GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM 695 001, PRESENTLY WORKING ON
OTHER DUTY IN THE OFFICIAL LANGUAGE LEGISLATURE
COMMISSION, PATTOOR P.O. THIRUVANANTHAPURAM 695
035 RESIDENT OF RAMAKRISHNA, KUNNUMPURAM VEEDU
THEKKUMKARA, NEDUMANGAD P.O.
THIRUVANANTHAPURAM -695541
BY ADVS.SHRI.BINESH P. BABY
SHRI.APARAJITH A.
SHRI.M.R.HARIRAJ (SR.)
RESPONDENTS/RESPONDENTS AND APPLICANTS 1, 4 & 5:
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1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT LAW
DEPARTMENT, GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM, PIN - 695001
2 THE SECRETARY TO GOVERNMENT,
GENERAL ADMINISTRATION DEPARTMENT GOVERNMENT
SECRETARIAT THIRUVANANTHAPURAM, PIN - 695001
3 THE SECRETARY TO GOVERNMENT,
PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT,
GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM, PIN - 695001
4 KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY THULASI HILLS,
PATTOM P.O., THIRUVANANTHAPURAM, PIN - 695004
5 ARSHA V.,
AGED 34 YEARS
D/O. VIKRAMAN, RESIDING AT HASTHINAM, ROSE NAGAR
RRA 19, SREEKARIYAM P.O.,
THIRUVANANTHAPURAM, PIN - 695017
6 VENUGOPALAN NAIR G.,
AGED 51 YEARS
S/O. GOVINDA PILLAI OFFICE ATTENDANT, PRESENTLY
WORKING AT GENERAL ADMINISTRATION DEPARTMENT,
GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001
RESIDENT OF SADGAMAYA, PIRAPPANCODE P.O.
THIRUVANANTHAPURAM, PIN - 695607
7 ANIL KUMAR C.D.,
AGED 52 YEARS
S/O. DAMODARAN G. COMPUTER ASSISTANT (SELECTION
GRADE) PRESENTLY WORKING AT LAW DEPARTMENT
GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695001
RESIDENT OF SREEKAUSTHUBHAM T.C 92/1398-I,
BHAGATH SINGH ROAD KAKKOD LANE, PETTA
THIRUVANANTHAPURAM, PIN - 695024
*8 REJANIMOL G.,
AGED 40 YEARS
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W/O. ANIL KUMAR K. CONFIDENTIAL ASSISTANT
(SELECTION GRADE) LAW DEPARTMENT GOVERNMENT
SECRETARIAT THIRUVANANTHAPURAM 695 001 PRESENTLY
WORKING ON OTHER DUTY AT KERALA STATE HUMAN
RIGHTS COMMISSION, PMG, MUSEUM P.O.
THIRUVANANTHAPURAM 695033 RESIDENT OF A3,
POURETHA APARTMENT YAMUNA COLONY, KUDAPPANAKUNNU
P.O. THIRUVANANTHAPURAM
*[RESPONDENT NO.8 IS DELETED FROM THE PARTY ARRAY
AT THE RISK OF THE PETITIONERS AS PER ORDER DATED
31/05/2024 IN IA 2/2024 IN OP(KAT)569/2023
9 ALIFYA A., AGED 40 YEARS
W/O. JEYASKHAN, ASSISTANT, PRESENTLY WORKING AS
GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT
SECRETARIAT THIRUVANANTHAPURAM 695 001, RESIDENT
OF T.C 75/709, MANICKOM VILAKOM POONTHURA P.O.
THIRUVANANTHAPURAM, PIN - 695026
BY ADVS. SRI.ARUN ASHOK
SMT.NEENA JAMES
SHRI.T.A.GEORGE JOSEPH
OTHER PRESENT:
SRI. M. R. HARIRAJ (SR. )
SRI. AYYAPPAN SANKAR, SR. GP;
SRI. P. C. SASIDHARAN, SC, KPSC
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 05.08.2026, THE COURT ON 05.11.2026
DELIVERED THE FOLLOWING:
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“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
th
the 4 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
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merit, in the selection process, and advise them against the
vacancies reported for appointment to the stream ‘Kerala
st
Secretariat Subordinate Service’; and an order directing the 1
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;
Category Method of Appointment
7. Legal Assistants,
Grade II
(i) Direct Recruitment
OR
(ii) Appointment from Assistant 'Tamil
Translators and Assistant Kannada
Translators
OR
(iii) Appointment or promotion from any
other category in Kerala Secretariat
Subordinate Service
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OR
(iv) Transfer from any category in any
Departments under the Government or in
the service of the High Court of Kerala.
Fifty per cent of the vacancies shall be
filled up by direct recruitment and
appointment from Assistant Tamil
Translators and Assistant Kannada
Translators. The other fifty per cent of the
vacancies shall be filled up by the methods
specified in items (iii) and (iv) above in the
ratio of 3:2.
The following shall be the rotation by
which appointments by the different
methods shall be made in a cycle of ten
vacancies:--
st
1 vacancy: By the method specified in
item (i) or (ii) of the method
of appointment.
nd
2 vacancy: By the method specified in
item (iii) of the method of
appointment.
rd
3 vacancy: By the method specified in
item (i) or (ii) of the method
of appointment.
th
4 vacancy: By the method specified in
item (iii) of the method of
appointment.
th
5 vacancy: By the method specified in
item (i) or (ii) of the method
of appointment.
th
6 vacancy: By the method specified in
item (iii) of the method of
appointment
th
7 vacancy: By the method specified in
item (i) or (ii) of the method
of appointment.
th
8 vacancy: By the method specified in
item (iv) of the method of
appointment.
th
9 vacancy: By the method specified in
item (i) or (ii) of the method
of appointment
th
10 vacancy: By the method specified in
item (iv) of the method of
appointment
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In the absence of qualified persons for
appointment by the method specified in
item (iii) of the method of appointment,
such vacancies shall be filled up by the
method specified in item (iv) of the
method of appointment and vice versa. If
qualified persons are not available for
appointment by the method specified in
items (iii) and (iv) of the methods of
appointment, such vacancies shall be filled
up by direct recruitment.
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;
Category Method of
appointment
Qualification
(1) (2) (3)
Category 7
Direct
Recruitment
(i) Degree in Law of any
recognised University.
(ii) Pass in the Bar Council
Legal
Assistants
Grade II
Examination or enrolment
as an Advocate.
Note: 1 A pass in the
Apprentices Examination of
the Madras High Court or
the possession of the
Enrolment Certificate of the
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Appointment from
Assistant Tamil
Translators and
Assistant Kannada
Translators
Mysore High Court will be
considered as equivalent to
a pass in the Bar Council
Examination.
2. Candidates belonging to the
Scheduled Castes or
Scheduled Tribes (in the
absence of qualified
persons from among
them) shall not be required
to possess the qualification
prescribed in (i) above.
Degree in Law of any
recognised University.
(i) Degree in Law of any
Appointment or
promotion from any
other category in
Kerala Secretariat
Subordinate
Service;
recognised University.
(ii) A minimum service of three
OR
Transfer from any
category in any
Department under
the Government or
in the service of the
High Court of
Kerala.
years
(iii) Must be below 35 years of
age.
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
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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
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words shall be inserted, namely:-
‘On the advice of the Kerala Public Service Commission from
the candidates under items (iii) and (iv)’."
6. By the said amendment, the selection of the
department candidates under Items (iii) and (iv) of category 7 was
entrusted to the Kerala Public Service Commission. The
amendment was given retrospective operation with effect from
01.03.1997. In view of the retrospective operation of the amended
rules, disputes arose over the validity of Annexures A2 and A3
rank lists published in 2008, even though the selection process
started before publication of the amended rules. Accordingly, the
Government, vide the Kerala Secretariat Subordinate Service
(Amendment) Rules, 2014, which was notified vide Annexure A5
Gazette notification No.1778 dated 15.10.2016, made an
amendment to sub-rule (2) of Rule 1 of the Kerala Secretariat
Subordinate Service (Amendment) Rules, 2004, as follows;
“2. Amendment of the rules.- In the Special Rules for the
Kerala Secretariat Subordinate Service (Amendment) Rules,
2004, in sub-rule (2) of rule 1, after the words ‘first day of
March 1997’ the words ‘clause (d) of sub-rule (2) of rule 2
st
shall come into force on the 1 day of April, 2011’ shall be
inserted.”
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7. Annexure A6 marked in the original application is a
copy of the notification dated 15.05.2013 issued by the Public
Service Commission for by transfer appointment to the post of
Legal Assistants Gr.II in the Law Department - Government
Secretariat (Category No.123/2013). The said notification did not
prescribe any cut-off mark for inclusion in the ranked list.
Annexure A7 is a copy of the ranked list published by the Public
Service Commission for the post of Legal Assistants Gr.II in the
Law Department - Government Secretariat, for by transfer
appointment, which was brought into force with effect from
25.09.2017. Altogether 23 candidates were included in Annexure
A7 ranked list, who secured marks from 58.67 to 8.67 in the
written test. According to the applicants, all the candidates
included in Annexure A7 ranked list were appointed as Legal
Assistants Gr.II. Similar notifications were issued for the other two
streams as well, and appointments were made.
8. In the year 2020, the Public Service Commission issued
Annexures A8 (category Nos.479/2020) and A8(a) (Category
No.480/2020) notifications dated 31.12.2020 respectively for by
transfer appointment to the post of Legal Assistants Gr.II,
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reserved for appointment from any category in the Kerala
Secretariat Subordinate Service and reserved for by transfer
appointment from any category in any Department under the
Government or in the service of the High Court of Kerala,
respectively. The Public Service Commission has also issued
Annexure A8(b) notification dated 31.12.2020 (Category
No.478/2020) for direct recruitment to the post of Legal Assistants
Gr.II. In Note:(a)(2) of Annexure A8 and A8(a) notifications, it is
specified that those who secure not less than 40% marks in the
examination conducted by the Public Service Commission for
selection to the post of Legal Assistants Gr.II shall only be eligible
for by transfer appointment. If the cut-off marks for the general
category for direct recruitment drop below 40%, that yardstick will
also apply to by transfer appointment. The applicants are
aggrieved by the prescription of cut-off marks as above in
Note:(a)(2) of the notification issued by the Public Service
Commission for by transfer appointment.
9. For by transfer appointment to the post of Legal
Assistants Gr.II in the Law Department - Government Secretariat,
reserved for appointment from any category in the Kerala
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Secretariat Subordinate Service, the applicants submitted online
applications, pursuant to Annexure A8 notification dated
31.12.2020 issued by the Public Service Commission, with the last
date for submission of applications as 03.02.2021. They appeared
for the written test conducted on 03.06.2022 based on Annexures
A9 and A9(a) to A9(d) hall tickets. The stipulation regarding 40%
cut-off mark was introduced in Annexures A8 and A8(a)
notifications for by transfer appointment, in view of Annexure A10
Government order, i.e., G.O.(Ms.)No.9/2019/P&ARD dated
16.08.2019, whereby the Government has decided to fix a cut-off
mark criterion of 40% marks for all by transfer appointments to
the post of Legal Assistants Gr.II, from the very next notification
onwards. Such a cut-off mark has been fixed based on the
remarks made by a Division Bench of this Court in Annexure A13
decision in Neelakandakurup and another v. State of Kerala
and others [ILR 1997 (2) Ker 247] that, in future, while calling
for applications for preparing a list, the Government should fix a
minimum mark or qualifying mark and only those who obtain more
than the minimum mark need to be included in the merit list.
10. Annexure A10 Government order dated 16.08.2019
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was modified vide Annexure A11 Government order, i.e.,
G.O.(Ms.)No.11/2020/P&ARD dated 19.10.2020, whereby it was
ordered that if the cut-off marks of the general category drop
below 40% in the examination for the post conducted by the Public
Service Commission, that yardstick will be applicable to the
candidates for by transfer appointment also. Otherwise, the cut-
off mark of 40% is necessary.
11. The applicants contended that appointment of
incumbents in the Kerala Secretariat Subordinate Service to the
post of Legal Assistants Gr.II is not by transfer appointment, but
by promotion; therefore, the cut-off marks prescribed in
Annexures A10 and A11 Government orders need not be applied
to the selection of the applicants and other similarly placed
persons in the Kerala Secretariat Subordinate Service. The
document marked as Annexure A12 is a copy of the Government
order, i.e., G.O.(Ms.)No.73/2011/GAD dated 01.03.2011,
whereby the Government constituted an Administrative Vigilance
Cell under the Personnel and Administrative Reforms Department.
The applicants contended that Annexures A10 and A11
Government orders were issued by the Administrative Vigilance
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Cell of the Personnel and Administrative Reforms Department on
the basis of an enquiry conducted about the non-reporting of the
vacancies of Legal Assistants Gr.II to the Public Service
Commission. The Administrative Vigilance Cell has no role in
prescribing qualifications for a post in Government service.
Annexure A14 is a copy of the press release dated 25.07.2022 of
the Public Service Commission, wherein it is stated that in the
meeting of the Commission held on 25.07.2022 it was decided to
publish shortlist pursuant to Annexures A8, A8(a) and A8(b)
notifications for the post of Legal Assistants Gr.II.
12. During the pendency of O.A.No.1375 of 2022, the
Public Service Commission published Annexures A15 to A17
shortlist pursuant to Annexures A8, A8(a) and A8(b) notifications.
The applicants produced Annexures A15 to A17 shortlists, along
with M.A.No.628 of 2023. The document marked as Annexure A18
in that Miscellaneous Application is a copy of interim order dated
12.10.2022 of the Tribunal in O.A.No.1752 of 2022, whereby it
was ordered that publication of the ranked list pursuant to
Annexure A8(a) notification dated 31.12.2020 (Category
No.480/2020), which was marked as Annexure A8 in that original
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application, would be subject to the result of that original
application. Along with M.A.No.1031 of 2023, the applicants
produced Annexures A19 to A21 ranked list brought into force by
the Public Service Commission, with effect from 17.05.2023,
pursuant to Annexures A8, A8(a) and A8(b) notifications.
13. In O.A.No.1375 of 2022, respondents 1 to 3 filed
Ext.P4 reply statement dated 17.10.2022, opposing the reliefs
sought for. The learned Standing Counsel for Public Service
th
Commission has filed Ext.P5 reply statement. The additional 5
respondent filed Ext.P6 reply statement dated 14.10.2022,
producing therewith Annexures R5(a) to R5(c) Government
orders.
14. After considering the pleadings and materials on record
and also the arguments advanced at the Bar, the Tribunal, by
Ext.P7 order dated 24.11.2023, dismissed O.A.No.1375 of 2022.
Paragraphs 19 to 21 and also the last paragraph of that order read
thus;
“19. The fact that the selection was being conducted by the
Law Department itself and the only process involved in
selection cannot also stand in the way of fixing minimum
marks for qualifying examination; the contention of the
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applicants that there is no reason for fixing the minimum
marks on the basis of the judgment rendered in the year
1992, at this stage also cannot be accepted as the
respondents have stated that the purpose of fixing the
marks is to see that efficient candidates are appointed in the
Law Department which is a very important post.
20. The contention of the applicants that orders are issued
by the Vigilance Cell and that Cell does not have any
authority to fix qualifications is also irrelevant, as the
respondents have stated that they have taken a policy
decision to insist on minimum qualifying marks. In the
circumstances, we do not find it necessary to interfere with
the process of selection.
21. In the order dated 16.09.2020 in O.A.No.2202 of 2020,
while considering the validity of selection to the post of Chief
(Social Services) in the State Planning Board, this Tribunal
had accepted the contention of the PSC and the party
respondents and held that the applicants cannot
successfully challenge the selection after they appeared in
the selection process without raising any objection at any
stage. In that case, the applicants alleged that marks set
apart for interview were excessive, while challenging the
selection on the ground of extraneous considerations, bias,
etc. Relying on the judgment in Madanlal v. State of
Jammu and Kashmir [(1995) 3 SCC 486] , this Tribunal
held that the results in an interview cannot be successfully
challenged by a candidate who takes a chance to appear in
the interview and thereafter finds himself unsuccessful. The
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judgment in Om Prakash Shukla v. Akhilesh Kumar
Shukla [(1986) Suppl SCC 285] was also followed, where
it was held that when a candidate who appeared at the
examination without protest and challenged that
examination, when he found that he would not succeed in
it, the High Court should not have granted any relief to such
a petitioner. In the present case also, the applicants applied
for and appeared in the test, without any protest against the
prescription given in Note a) to the respective notifications
Annexure A8/A8(a). Though the learned Counsel for the
applicants argued that the said note and the executive
orders can be challenged at any time, when a selection was
made contrary to rules, when we have upheld those
executive orders, the said contention of the applicants
cannot be accepted. At the same time, it is relevant to note
that the applicants waited till the publication of the answer
key and it was only thereafter, on being aware of their
probable chances in the selection that they chose to file
these Original Applications. On that ground also, applicants
do not deserve any relief in these Original Applications.
The Original Applications are accordingly dismissed.”
15. Challenging Ext.P7 order dated 24.11.2023 of the
Tribunal in O.A.No.1375 of 2022, the petitioners-applicants 2 and
3 are before this Court in this original petition, invoking the
supervisory jurisdiction under Article 227 of the Constitution of
India.
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16. On 04.01.2024, when this original petition came up for
admission, it was admitted on file. The learned Government
Pleader took notice for respondents 1 to 3 and the learned
th
Standing Counsel for the Public Service Commission for the 4
respondent. Notice was ordered to respondents 5 to 9. By the
order dated 31.05.2024 of a Division Bench of this Court in
I.A.No.1 of 2024, service of notice was declared as complete on
respondents 7 and 9, at the risk of the petitioners. By the order
th
dated 31.05.2024 in I.A.No.2 of 2024, the 8 respondent was
deleted from the party array at the risk of the petitioners.
17. Heard arguments of the learned Senior Counsel for the
petitioners-applicants 2 and 3, the learned Senior Government
Pleader for respondents 1 to 3 and also the learned Standing
th
Counsel for Kerala Public Service Commission for the 4
respondent.
18. The learned Senior Counsel for the petitioners-
applicants 2 and 3 contended that the reasoning of the Tribunal in
Ext.P7 order dated 24.11.2023 in O.A.No.1375 of 2022 is per se
arbitrary and illegal, warranting interference of this Court in
exercise of the supervisory jurisdiction under Article 227 of the
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Constitution of India. The legal and factual contentions raised by
the applicants as to the illegality of the prescription of a cut-off
mark of 40% in the case of by transfer appointment as Legal
Assistants Gr.II in the Law Department - Government Secretariat,
without prescribing such a cut-off mark for recruitment from other
sources, including direct recruitment, were not properly
appreciated by the Tribunal before declining the reliefs sought for
in O.A.No.1375 of 2022. In the absence of any specific provision
in the Special Rules regarding minimum qualifying marks, such a
condition cannot be introduced in Annexures A8 and A8(a)
notifications, based on Annexures A10 and A11 Government
orders. The observation made by a Division Bench of this Court in
Neelakandakurup [ILR 1997 (2) Ker. 247] cannot be the
basis for introducing a minimum qualifying marks for by transfer
appointment. On account of 40% cut-off mark only three
candidates are included in Annexure A15 shortlist prepared
pursuant to Annexure A8 notification for by transfer appointment.
Therefore, the Tribunal ought to have granted the reliefs sought
for in O.A.No.1375 of 2022.
19. On the other hand, the learned Senior Government
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Pleader and also the learned Standing Counsel for Public Service
Commission contended that the reasoning of the Tribunal in Ext.P7
order, which is neither perverse nor patently illegal, warrants no
interference in this original petition. After taking note of the
remarks made by a Division Bench of this Court in
Neelakandakurup [ILR 1997 (2) Ker 247] , the Government
by Annexure A10 Government order dated 16.08.2019 decided to
fix a cut-off mark criterion of 40% marks for all by transfer
appointments to the post of Legal Assistants Gr.II in the Law
Department - Government Secretariat. The circumstances leading
to the issuance of Annexure A10 order have been stated in that
order, which was taken note of by the Tribunal in Ext.P7 order
dated 24.11.2023. Annexure A10 order was later modified vide
Annexure A11 Government order dated 19.10.2020, whereby it
was ordered that if the cut-off marks of the general category drop
below 40% in the examination for the post conducted by the Public
Service Commission, that yardstick will be applicable to the
candidates for by transfer appointment also. Otherwise, the cut-
off mark of 40% is necessary. It is well settled that, when the
Special Rules are silent on a particular aspect, the gap can be filled
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by administrative instructions, supplementing the rules. The fact
that the number of the candidates included in Annexure A15
shortlist prepared pursuant to Annexure A8 notification, for by
transfer appointment, is on the lower side, in view of the cut-off
mark of 40%, is not a ground on which the prescription of cut-off
mark can be said to be arbitrary and illegal.
20. Article 227 of the Constitution of India deals with power
of superintendence over all courts by the High Court. Under clause
(1) of Article 227 of the Constitution, every High Court shall have
superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction.
21. In Shalini Shyam Shetty v. Rajendra Shankar Patil
[(2010) 8 SCC 329] , the Apex Court, while analysing the scope
and ambit of the power of superintendence under Article 227 of
the Constitution, held that the object of superintendence, both
administrative and judicial, is to maintain efficiency, smooth and
orderly functioning of the entire machinery of justice in such a way
as it does not bring it into any disrepute. The power of interference
under Article 227 is to be kept to the minimum to ensure that the
wheel of justice does not come to a halt and the fountain of justice
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remains pure and unpolluted in order to maintain public
confidence in the functioning of the tribunals and courts
subordinate to the High Court.
22. In Jai Singh v. Municipal Corporation of Delhi
[(2010) 9 SCC 385] , while considering the nature and scope of
the powers under Article 227 of the Constitution of India, the Apex
Court held that, undoubtedly the High Court, under Article 227 of
the Constitution, has the jurisdiction to ensure that all subordinate
courts, as well as statutory or quasi-judicial tribunals exercise the
powers vested in them within the bounds of their authority. The
High Court has the power and jurisdiction to ensure that they act
in accordance with the well-established principles of law. The
exercise of jurisdiction must be within the well-recognised
constraints. It cannot be exercised like a 'bull in a China shop', to
correct all errors of the judgment of a court or tribunal, acting
within the limits of its jurisdiction. This correctional jurisdiction can
be exercised in cases where orders have been passed in grave
dereliction of duty or in flagrant abuse of fundamental principles
of law or justice.
23. In K.V.S. Ram v. Bangalore Metropolitan
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Transport Corporation [(2015) 12 SCC 39] , the Apex Court
held that, in exercise of the power of superintendence under
Article 227 of the Constitution of India, the High Court can
interfere with the order of the court or tribunal only when there
has been a patent perversity in the orders of the tribunal and
courts subordinate to it or where there has been gross and
manifest failure of justice or the basic principles of natural justice
have been flouted.
24. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1)
KHC 1] , a Division Bench of this Court held that the law is well
settled by a catena of decisions of the Apex Court that in
proceedings under Article 227 of the Constitution of India, this
Court cannot sit in appeal over the findings recorded by the lower
court or tribunal and the jurisdiction of this Court is only
supervisory in nature and not that of an appellate court.
Therefore, no interference under Article 227 of the Constitution is
called for, unless this Court finds that the lower court or tribunal
has committed manifest error, or the reasoning is palpably
perverse or patently unreasonable, or the decision of the lower
court or tribunal is in direct conflict with settled principles of law.
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25. In view of the law laid down in the decisions referred
to supra, the High Court, in exercise of its supervisory jurisdiction
under Article 227 of the Constitution of India, cannot sit in appeal
over the findings recorded by the Administrative Tribunal. The
supervisory jurisdiction cannot be exercised to correct all errors in
the order of the Administrative Tribunal, acting within the limits of
its jurisdiction. The correctional jurisdiction under Article 227 can
be exercised only in a case where the order of the Administrative
Tribunal has been passed in grave dereliction of duty or in flagrant
abuse of fundamental principles of law or justice. Therefore, no
interference under Article 227 is called for, unless the High Court
finds that the Administrative Tribunal has committed a manifest
error, or the reasoning is palpably perverse or patently
unreasonable, or the decision of the Tribunal is in direct conflict
with settled principles of law, or where there has been gross and
manifest failure of justice or the basic principles of natural justice
have been flouted.
26. 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, applied for by transfer
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appointment to the post of Legal Assistants Gr.II in the Law
Department - Government Secretariat, reserved for appointment
from any category in the Kerala Secretariat Subordinate Service,
pursuant to Annexure A8 notification dated 31.12.2020 issued by
the Public Service Commission, with the last date for submission
of online applications being 03.02.2021. They appeared for the
written test conducted on 03.06.2022, as per Annexures A9 and
A9(a) to A9(d) hall tickets.
27. The petitioners-applicants 2 and 3 along with 3 others,
namely, respondents 7 to 9 herein, filed O.A.No.1375 of 2022
before the Tribunal on 01.08.2022, after appearing for the written
test conducted by the Public Service Commission on 03.06.2022,
seeking a declaration that the prescription of 40% cut-off mark
contained under Note:(a)(2) to clause 7 of Annexure A8
notification dated 31.12.2020 issued by the 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 for other
consequential reliefs.
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28. By Annexure A10 Government order, i.e., G.O.(Ms.)No.
9/2019/P&ARD dated 16.08.2019, the Government decided to fix
a cut-off mark criterion of 40% marks for all by transfer
appointments to the post of Legal Assistants Gr.II, from the very
next notification onwards. The Government fixed this cut-off mark
based on the remarks of a Division Bench of this Court in Annexure
A13 decision in Neelakandakurup [ILR 1997 (2) Ker 247] . In
the said decision, the Division Bench observed that the post of
Legal Assistants Gr.II is a responsible post, and meritorious
candidates should be appointed. Therefore, it would have been
more fair if qualifying marks or cut-off marks were fixed. The
Division Bench left the matter to the Government to fix a
qualifying mark so that more efficient persons can be appointed
to this post. It is always advisable for the Government to fix a cut-
off mark. Therefore, in future, while calling for applications to
prepare a list, the Government should fix a minimum mark or
qualifying mark and only those who obtain more than the
minimum marks need be included in the merit list. Paragraph 34
of the said decision reads thus;
“34. The learned Advocate appearing in O.P.No.16737 of
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1995 again pointed out that non-fixation of any qualifying
marks or cut-off marks while the merit list was published is
incorrect. It was pointed out by him that Sl.No.11, the last
person in the merit list for item (iii) - Secretariat
Subordinate Service, has got only 192 marks (16%),
whereas Sl.No.11 in the merit list for item (iv) -other
departments - has got 489 marks, and the last person (Sl.
No.41) has got 420 marks in the same examination. It is
their contention that cut-off marks or qualifying marks
should be fixed. It is true that the examination was
conducted by the Commissioner for Entrance Examinations
as directed by the Government so that meritorious
candidates could be appointed. The post of Legal Assistants
Grade II is a responsible post, and meritorious candidates
should be appointed. Therefore, it would have been more
fair if qualifying marks or cut-off marks were fixed. We leave
the matter to the Government to fix a qualifying mark so
that more efficient persons can be appointed to this post.
The Government has directed that the test should be
conducted by the Commissioner for Entrance Examinations
so that merit can be assessed properly. We are not
considering non-fixation of cut-off mark as a ground for
setting aside the rank list as appointments are to be made
only in the order of merit and vacancies are few. What is
prepared is only a merit list or rank list and not a select list.
As far as item (iii) Secretariat candidates, it is a source of
promotion also. There is also no prayer to interfere in the
list on that ground. But it is argued that favouritism is shown
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to Secretariat candidates. But it is always advisable for the
Government to fix a cut-off mark. Therefore, in future, while
calling for applications for preparing a list, the Government
should fix a minimum mark or qualifying mark and only
those who obtain more than the minimum marks need be
included in the merit list. However, such a list also will not
give the selected candidates an indefeasible right. Only if
there are vacancies and appointments are made during the
currency of the list, those persons will get a right of
appointment.” (underline supplied)
29. The stipulation regarding 40% cut-off mark was
introduced in Annexures A8 and A8(a) notifications for by transfer
appointment, in view of Annexure A10 Government order dated
16.08.2019. The circumstances leading to the issuance of
Annexure A10 Government order are stated in that order.
Annexure A10 Government order reads thus;
‘A bunch of rank holders of Legal Assistants Grade-II lodged
a petition to Government urging to report the hoarded
vacancies of Legal Assistants Grade-II, if any, to PSC.
Government have delved into the issue and unearthed, inter
alia, that no cut-off mark criterion has so far been fixed for
appointment of Legal Assistants Grade-II through ‘by
transfer mode’. Candidates who manage to secure
disgracefully low marks in qualifying examinations for ‘by
transfer quota’ get august appointment whereas their
counterparts in direct recruitment stream flounder to get
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appointments even after grabbing meritorious marks. This
is a jeopardous clerical scenario. It is indisputable that the
Legal Assistant is an accountable post which requires higher
cognitive acumen regarding juridical matters. It is the entry
cadre post in the Law Department and has to play a pivotal
role in giving pieces of counsel and pointers to the
Government with regard to court cases and other
paramount legal matters. Hence, a recruit to such a post
should possess adequate knowledge in this aspect. As such,
newbies having comparatively low marks in the qualifying
examination may deteriorate and erode the quality of work
in the legal gamut, and it shall be against the best interest
of the State.
It is a verity that the provision of cut-off marks for a
qualifying examination is decided in order to cull the cream
of the crop from the plethora of job aspirants. The
appointment of Legal Assistants with lower marks becomes
unjustifiable every inch when candidates with higher marks
in the direct stream cool their heels. This queue jumping is
an outright case of denial of natural justice to the talented
aspirants who are deprived of their chances.
The Hon’ble High Court in O.P.No.13328 of 1992 filed by
Neelakanda Kurup and another v. State of Kerala and others
[ILR 1997 (2) Ker. 247] has remarked as follows:
“We leave the matter to the Government to fix a
qualifying mark so that more efficient persons can
be appointed to this post. But, it is always advisable
for the Government to fix a cut-off mark. Therefore,
in future, while calling for applications for preparing
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a list, Government should fix a minimum mark or
qualifying mark and only those who obtain more
than the minimum mark need be included in merit
list.”
Government has sifted the subject and has decided to fix a
cut-off mark criterion of 40% for all ‘by transfer’,
appointments to the post of Legal Assistants Grade-II
hereafter. Government orders to make necessary steps to
fix 40% cut-off mark criterion for all ‘by transfer’
appointments to the post of Legal Assistants Grade-II
adhering to the cited condition from the very next
notification onwards.’ (underline supplied)
30. Annexure A10 Government order dated 16.08.2019
was modified vide Annexure A11 Government order, i.e.,
G.O.(Ms.)No.11/2020/P&ARD dated 19.10.2020, whereby it was
ordered that if the cut-off marks of the general category drop
below 40% in the examination for the post conducted by the Public
Service Commission, that yardstick will be applicable to the
candidates for by transfer appointment also. Otherwise, the cut-
off mark of 40% is necessary.
31. Before the Tribunal, the applicants contended that cut-
off marks cannot be fixed until and unless the Special Rules are
amended. Relying on the judgments in State of Punjab v. Manjit
Singh [(2003) 11 SCC 559] and the judgment of the Full Bench
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of this Court in Sugathan v. Shahul Hameed [2006 (4) KLT
54] , it was argued that the action of the Government as well as
the Public Service Commission is contrary to law. It was also
contended that the Public Service Commission had advised the
Government to amend the Special Rules, indicating that the
amendment was required to insist on or prescribe the minimum
qualifying marks. On the other hand, the learned Standing
Counsel for the Public Service Commission relied on the decision
of the Apex Court in Pankajakshan Nair v. Jayaraj [(2002) 10
SCC 396] and the order of the Tribunal dated 16.09.2020 in
O.A.No.2202 of 2020 to support his contention that executive
orders can be issued when the Special Rules are silent on a
particular contingency. It was also contended that the applicants,
who appeared in the examination and chose to challenge the
notification only after they came to know that their chances were
bleak, are liable to be non-suited.
32. In Ext.P7 order dated 24.11.2023 in O.A.No.1375 of
2022, after considering the rival contentions, the Tribunal
observed that the Public Service Commission fixed the cut-off
marks on the basis of Annexure A10 Government order dated
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16.08.2019 of the Personnel and Administrative Reforms
Department. The Government considered it and found that no cut-
off mark criteria is so far fixed for appointment to the post through
the by-transfer method. The circumstances leading to fixation of
cut-off marks are stated in Annexure A10 Government order. The
Tribunal noted that the importance and the responsibility attached
to the post of Legal Assistants Gr.II in the Law Department cannot
be a matter of dispute. The intention behind fixing the cut-off
marks is made clear in Annexure A10 Government order itself.
33. On the question as to whether minimum marks could
be fixed by an executive order, without amending the Special
Rules, the Tribunal considered the rival contentions and the law
on the point, and arrived at a conclusion that the contention of the
applicants that minimum marks can be fixed only by amendment
of Rules cannot be accepted. The Tribunal found that the
Government issued the impugned orders, i.e., Annexures A10 and
A11, which prescribed the minimum qualifying marks. Therefore,
the PSC cannot be faulted for issuing a notification prescribing
40% marks for the qualifying examination. The Government found
it necessary to fix the minimum qualifying marks, taking note of
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the importance of the posts and in the light of the observations
made by this Court in Neelakandakurup [ILR 1997 (2) Ker
247] . Moreover, the qualifying marks were prescribed before
commencement of the selection process itself. The fact that the
ratio is prescribed between different sources of recruitment will
not stand in the way of fixing minimum qualifying marks, if the
Government finds it necessary. Such an executive order cannot be
said to encroach on the Special Rules or amend them. It would
only supplement the rules already in force, and there would be no
repugnancy to the Special Rules if the minimum marks are
prescribed for selection. Paragraphs 13 to 16 of the said decision
read thus;
“13. In the judgment in State of Punjab v. Manjit Singh
[(2003) 11 SCC 559] , the issue which arose for
consideration was whether the Punjab Public Service
Commission could resort to a screening test in order to bring
down the number of candidates to see that a ratio of 3 to 5
candidates per vacancy can be maintained and also whether
a written test fixing the minimum cut-off marks could be
held when the process of selection was only by interview of
eligible candidates belonging to reserved category. In that
case, the prescribed mode of selection for recruitment of
Medical Officers in the Punjab State was only by way of
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interview of the qualified candidates. It is also relevant to
note that the Government of Punjab had already informed
the PSC that the candidates belonging to reserved
communities shall not be put to any test that may deprive
them of the posts reserved for them. It was informed that
the eligibility of the candidates needs to be considered with
reference to their educational qualifications alone. But the
PSC conducted a screening test in order to limit the number
of candidates for interview. It also wanted to ensure the
minimum norms of efficiency and standards in public
administration and decided that only those candidates who
secure 44% in the screening test shall be called for an
interview. In paragraph 9 of the judgment, the Apex Court
found that though it is for the Commission to ensure
minimum standards of efficiency and the Commission is an
independent constitutional body, it has to see that the State
Government is competent to lay down the qualifications for
different posts and frame rules for the purpose or take policy
decisions. Mandates under Article 16(4) and Article 335 of
the Constitution of India, for reservation in favour of
Backward Class citizens and the requirement to consider the
claims of the Scheduled Caste and Scheduled Tribe
members, are to be observed, consistent with the
maintenance of efficiency of administration. In order to
provide reservation under those provisions, the State
Government has prescribed the eligibility criteria. In such
cases, it would not be for the Commission to impose any
extra qualifications or standard for maintaining minimum
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efficiency. It was also held that for the purpose of
shortlisting, it would not be necessary to provide for cut-off
marks. Any number of candidates could be taken out from
the top of the list up to the number of candidates required
in the order of merit. The Commission has to conform to the
provisions of the law and has also to abide by the rules and
regulations on the subject.
14. In the present case, it is the Government which has
issued the impugned orders, Annexures A10 and A11,
prescribing the minimum qualifying marks. Therefore, the
PSC cannot be found fault with in issuing a notification
prescribing 40% marks for qualifying examination. It is also
relevant to note that the contentions of the PSC are that
even in the absence of any orders like Annexures A10 and
A11, the PSC is competent to fix the minimum marks for the
selection as provided under Rules 4, 11, etc. of PSC Rules
of Procedure. In the present case, the Government found it
necessary to fix the minimum qualifying marks, taking note
of the importance of the posts and also in the light of the
observations made by the Hon’ble High Court of Kerala in
the judgment in Neelakandakurup [ILR 1997 (2) Ker 247].
The qualifying marks were already published in the
notification itself. In other words, the qualifying marks were
prescribed before commencement of the selection process
itself. Therefore, the applicants were very well aware of the
requirement well in advance, even before they submitted
their applications. It cannot be said that there is any
illegality in fixing the cut-off marks for qualifying an
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examination before the commencement of the process of
selection and hence in notifying the same in Annexure A8
and A8(a) notifications. The contention that the applicants
should be included in the select list without insisting on the
qualifying marks, on the ground that no such cut-off marks
were insisted on in the previous selection, is untenable.
15. In Sugathan [2006 (4) KLT 54] , the challenge was
against the executive order which provides that a Junior
non-SSLC holder shall not be granted promotion when there
is a senior SSLC holder. As per the Special Rules for the
Kerala Excise and Prohibition Subordinate Service,
promotion to the category of Preventive Officer from the
post of Excise Guard is held in the ratio of 1:1 between the
SSLC holders and the non-SSLC holders. The Full Bench
found that in the event that a number of SSLC holders who
are seniors are available, there will be a condition that junior
non-SSLC holders have to wait for a long time, which will,
in effect, upset the ratio of 1:1 between SSLC holders and
non-SSLC holders. The Full Bench had noticed that the last
sentence in the executive order that Special Rules will be
amended shortly. In the present case, there would not be
any contingency of upsetting the ratio between different
sources on appointment by prescribing minimum qualifying
marks. Just because the PSC advised the Government that
Rules have to be amended, it cannot be said that the
minimum marks can be insisted only by amendment of the
Rules. Therefore, the reliance placed on the Full Bench
judgment of the Hon’ble High Court in Sugathan [2006 (4)
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KLT 54] cannot also be accepted.
16. In the judgment in Pankajakshan Nair [(2002) 10
SCC 396] , the Apex Court was considering the claim raised
by an Assistant Commandant based on an executive order
issued in the year 1962, which provided that at least one
out of eight vacancies of Deputy Superintendent of Police
shall be filled up by transfer from among Assistant
Commandants of the District Armed Reserve and Armed
Police Battalion. In that case, the appointments to the post
of Dy.SPs. were originally governed by an executive order
issued in 1962. The Special Rules for Kerala Police Service
were issued in the year 1966 in supersession of the
executive orders. There was no provision with respect to any
ratio or percentage between the different sources of
appointments. As per the Rules, appointment of Dy.SP was
to be made (a) by direct recruitment or (b) by promotion
from amongst Circle Inspectors or (c) by appointment from
amongst Second Commandants, Adjutants and Assistant
Commandants, M.S.P. and Special Armed Police Battalions
and Assistant District Armed Reserve. The appellant claimed
promotion/appointment by transfer relying on the executive
order of 1962. After going through the Special Rules, the
Apex Court found that there was no provision in the Special
Rules which can be said to be repugnant to the earlier
executive order. It was found that, though the executive
order was issued in 1962, that clause was not touched when
the statutory Rules were issued in 1966, though it was
issued in supersession of the Rules and orders on the
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subject. It was also held that if the statutory Rules provide
any provision corresponding to clause (d) of the executive
instructions, then the executive instructions must give way.
But, if the statutory Rules are silent on the same, and there
is no provision which can be held to be contrary to the
executive instructions, then the executive instructions will
continue to operate in the field for which there is no
provision in the statutory Rules. The executive instructions
must be held to be supplemental to the statutory Rules. In
the present case, the Special Rules provide for different
sources of recruitment. A ratio is also prescribed. The
minimum qualifying marks is not fixed as eligibility
condition. However, the fact that the ratio is prescribed
between different sources of recruitment will not stand in
the way of fixing minimum qualifying marks, in case the
Government found it necessary. Such an executive order
cannot be said to be an encroachment on the Special Rules
or an amendment. It would only supplement the rules which
are already in force, and there would not be any repugnancy
to the Special Rules if the minimum marks are prescribed
for selection. Therefore, the contention that the minimum
marks can be fixed only by amendment of Rules cannot be
accepted.”
34. In Ext.P7 order dated 24.11.2023 in O.A.No.1375 of
2022, the Tribunal noted that the candidates were made aware of
the requirement of the minimum marks before they submitted
their applications. The stipulation in Annexures A10 and A11
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Government orders introducing the minimum qualifying marks
was incorporated as Note:(a)(2) to Annexures A8 and A8(a)
notifications for by-transfer appointment as Legal Assistant Gr.II
in the Law Department - Government Secretariat, from different
categories. Therefore, the applicants cannot contend that
selection has to be made without insisting on minimum qualifying
marks.
35. On the question as to whether, when the Special Rules
are silent on a particular aspect, the gap can be filled up by
administrative instructions, the Tribunal noted the decision in
Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC
1910] , wherein a Constitution Bench of the Apex Court held that
when the rules are silent on a particular aspect, the gap can be
filled by administrative instructions, supplementing the rules. A
Three-Judge Bench of the Apex Court reiterated this proposition
in Union of India v. K.P. Joseph [(1973) 1 SCC 194] . The
said proposition was followed in State of Jharkhand v. Jitendra
Kumar Srivastava [(2013) 12 SCC 210] and Sk. Nausad
Rahaman v. Union of India [(2022) 12 SCC 1] .
36. In Tej Prakash Pathak v. High Court of Rajasthan
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[(2025) 2 SCC 1] , a Constitution Bench of the Apex Court
observed that the ultimate object of any process of selection for
entry into a public service is to secure the best and the most
suitable person for the job, avoiding patronage and favouritism.
Selection based on merit, tested impartially and objectively, is the
essential foundation of any useful and efficient public service. So,
open competitive examination has come to be accepted almost
universally as the gateway to public services. It is now well settled
that while a written examination assesses a candidate's
knowledge and intellectual ability, an interview test is valuable to
assess a candidate's overall intellectual and personal qualities.
37. As already noted, the circumstances leading to the
issuance of Annexure A10 Government order, for introducing 40%
cut-off mark, are that candidates who secured disgracefully low
marks in qualifying examinations for ‘by transfer quota’ get
august appointment whereas their counterparts in direct
recruitment stream flounder to get appointments even after
grabbing meritorious marks. This is a jeopardous clerical scenario.
It is indisputable that the Legal Assistant is an accountable post
which requires higher cognitive acumen regarding juridical
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matters. Hence, a recruit to such a post should possess adequate
knowledge in this aspect. As such, a newcomer having
comparatively low marks in the qualifying examination may
deteriorate and erode the quality of work in the legal gamut, and
it shall be against the best interest of the State.
38. In Tej Prakash Pathak [(2025) 2 SCC 1] , the
Constitution Bench observed that the object of any selection
process for entry into a public service is to ensure that a person
most suitable for the post is selected. What is suitable for one post
may not be for the other. Thus, a degree of discretion is necessary
to be left to the employer to devise its method/procedure to select
a candidate most suitable for the post, albeit subject to the
overarching principles enshrined in Articles 14 and 16 of the
Constitution of India, as well as the rules/statute governing
service and reservation. The appointing authority/recruiting
authority/competent authority, in the absence of rules to the
contrary, can devise a procedure for selecting a candidate suitable
for the post and, in doing so, may also set benchmarks for
different stages of the recruitment process, including written
examination and interview. However, if any such benchmark is
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set, the same should be stipulated before the commencement of
the recruitment process. But if the extant Rules or the
advertisement inviting applications empower the competent
authority to set benchmarks at different stages of the recruitment
process, then such benchmarks may be set any time before that
stage is reached so that neither the candidate nor the
evaluator/examiner/interviewer is taken by surprise.
39. In Tej Prakash Pathak [(2025) 2 SCC 1] , the
Constitution Bench further observed that where there are no
rules, or the rules are silent on the subject, administrative
instructions may be issued to supplement and fill the gaps in the
rules. In that event, administrative instructions would govern the
field provided they are not ultra vires the provisions of the rules,
the statute or the Constitution. But where the rules expressly or
impliedly cover the field, the recruiting body would have to abide
by the rules.
40. In Ext.P7 order dated 24.11.2023 in O.A.No.1375 of
2022, the Tribunal observed that, as the respondents have stated
that the purpose of fixing the minimum marks is to see that
efficient candidates are appointed as Legal Assistant Gr.II in the
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Law Department - Government Secretariat, which is a very
important post, the applicants' contention that there is no reason
to fix the minimum marks by Annexure A10 Government order of
the year 2019, on the basis of the judgment rendered by a
Division Bench in 1992, cannot be accepted. As the respondents
have stated that they have taken a policy decision to insist on
minimum qualifying marks, the applicants' contention that orders
are issued by the Vigilance Cell, which does not have authority to
fix qualifications, is also irrelevant. The Tribunal noted that the
applicants applied for and appeared in the test without any protest
against the prescription given in the Note:(a)(2) to Annexure A8
notification. The applicants waited until the publication of the
answer key and only on becoming aware of their probable chances
of selection chose to file the original application. In the above
circumstances, the Tribunal found no grounds to interfere with the
selection process.
41. As stated in Annexure A10 Government order, the
circumstances leading to the issuance of the said order for
introducing 40% cut-off mark are that candidates who secured
disgracefully low marks in qualifying examinations for ‘by transfer
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quota’ get august appointment whereas their counterparts in
direct recruitment stream flounder to get appointments even after
grabbing meritorious marks. The post of Legal Assistants Gr.II in
the Law Department – Government Secretariat is an accountable
post which requires higher cognitive acumen regarding juridical
matters. Hence, a recruit to such a post should possess adequate
knowledge in this aspect. As such, a newcomer having
comparatively low marks in the qualifying examination may
deteriorate and erode the quality of work in the legal gamut, and
it shall be against the best interest of the State. In
Neelakandakurup [ILR 1997 (2) Ker 247] , the Division Bench
observed that the post of Legal Assistants Gr.II is a responsible
post, and meritorious candidates should be appointed. As
observed by a Constitution Bench of the Apex Court in Tej
Prakash Pathak [(2025) 2 SCC 1] , the object of any selection
process for entry into a public service is to ensure that a person
most suitable for the post is selected. Therefore, the fact that in
Annexure A15 shortlist published pursuant to Annexure A8
notification for by-transfer appointment to the post of Legal
Assistants Gr.II contains only a smaller number of candidates
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OP(KAT)No.569 of 2023 46 2026:KER:84449
because of the minimum cut-off mark of 40%, is not a valid
ground on which the prescription of such a cut-off mark by
Annexure A10 Government order, as modified by Annexure A11
Government order, can be interfered with as arbitrary or illegal.
42. In the above circumstances, the reasoning of the
Tribunal in Ext.P7 order dated 24.11.2023 in O.A.No.1375 of 2022
is neither perverse nor patently illegal, warranting no interference
in this original petition, in exercise of the supervisory jurisdiction
of this Court under Article 227 of the Constitution of India.
In the result, this original petition fails, and the same is
accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
AV
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OP(KAT)No.569 of 2023 47 2026:KER:84449
APPENDIX OF OP(KAT) NO. 569 OF 2023
PETITIONER ANNEXURES
ANNEXURE A1 THE TRUE COPY OF THE SPECIAL RULES
PUBLISHED AS PER GO(P) 208 DATED
05.07.1967 OF GOVERNMENT OF KERALA
ANNEXURE A2 THE TRUE COPY OF THE RANKED LIST
PUBLISHED AS PER NOTIFICATION NO
16910/ADMN.II(2)/2006/LAW DATED
03.04.2008 OF THE 1ST RESPONDENT
ANNEXURE A3 THE TRUE COPY OF THE RANKED LIST
PUBLISHED AS PER NOTIFICATION NO
24448/ADMN-II(2)/06/LAW DATED 03.04.2008
OF THE 1ST RESPONDENT
ANNEXURE A4 THE TRUE COPY OF THE GO(P) NO
531/2007/GAD DATED 13.12.2007 UNDER SRO
NO 11/2008 OF GOVERNMENT OF KERALA
ANNEXURE A5 THE TRUE COPY OF GO(P) NO 26/2016/GAD
DATED 05.10.2016 OF GOVERNMENT OF KERALA
ANNEXURE A6 THE TRUE COPY OF THE GAZETTE NOTIFICATION
DATED 15.05.2013 UNDER CATEGORY NO.
123/2013 OF THE KPSC
ANNEXURE A7 THE TRUE COPY OF THE RANKED LIST NO.
907/2017/SSVII, WHICH WAS BROUGHT INTO
FORCE W.E.F. 25.09.2017 PUBLISHED BY THE
KPSC
ANNEXURE A8 THE TRUE COPY OF THE GAZETTE NOTIFICATION
DATED 03.02.2021 UNDER CATEGORY NO
479/2020 OF THE KPSC
ANNEXURE A8(a) THE TRUE COPY OF THE GAZETTE NOTIFICATION
DATED 03.02.2021 UNDER CATEGORY NO
480/2020 OF THE KPSC
ANNEXURE A8(b) THE TRUE COPY OF THE GAZETTE NOTIFICATION
DATED 03.02.2021 UNDER CATEGORY NO.
478/2020 OF THE KPSC
ANNEXURE A9 THE TRUE COPY OF THE HALL TICKET BEARING
REGISTRATION NO Z 100985 OF THE 1ST
APPLICANT
ANNEXURE A9(a) THE TRUE COPY OF THE HALL TICKET BEARING
REGISTRATION NO Z 100157 OF THE 2ND
APPLICANT
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ANNEXURE A9(b) THE TRUE COPY OF THE HALL TICKET BEARING
REGISTRATION NO Z 100533 OF THE 3RD
APPLICANT
ANNEXURE A9(c) THE TRUE COPY OF THE HALL TICKET BEARING
REGISTRATION NO Z 101479 OF THE 4TH
APPLICANT
ANNEXURE A9(d) THE TRUE COPY OF THE HALL TICKET BEARING
REGISTRATION NO Z 100100 OF THE 5TH
APPLICANT
ANNEXURE A10 THE TRUE COPY OF THE GO(MS) NO
09/2019/P&ARD DATED 16.08.2019 OF
GOVERNMENT OF KERALA
ANNEXURE A11 THE TRUE COPY OF THE GO(MS) NO
11/20/P&ARD DATED 19.10.2020 OF
GOVERNMENT OF KERALA
ANNEXURE A12 THE TRUE COPY OF THE GO(MS) NO
73/2011/GAD DATED 01.03.2011 OF
GOVERNMENT OF KERALA
ANNEXURE A13 THE TRUE COPY OF THE JUDGMENT IN
NEELAKANDA KURUP AND ANOTHER VS. STATE OF
KERALA AND OTHERS DATED 22.11.1996 OF THE
HONOURABLE HIGH COURT OF KERALA
ANNEXURE A14 THE TRUE COPY OF THE PRESS RELEASE NO
PR(1) 20/2022/25 DATED 25.07.2022 OF THE
KPSC
ANNEXURE A15 THE TRUE COPY OF THE SHORT LIST NUMBER
SL.NO 06/2023/ERIII UNDER CATEGORY NO
479/2020 PUBLISHED BY THE KPSC
ANNEXURE A16 THE TRUE COPY OF THE SHORT LIST NUMBER
SL.NO 07/2023/ERIII UNDER CATEGORY NO
480/2020 PUBLISHED BY THE KPSC
ANNEXURE A17 THE TRUE COPY OF THE SHORT LIST NUMBER
SL.NO 08/2023/ERIII UNDER CATEGORY NO
478/2020 PUBLISHED BY THE KPSC
ANNEXURE A18 THE TRUE COPY OF THE INTERIM ORDER DATED
12.10.2022 IN O.A.NO 1752 OF 2022 OF THE
HONOURABLE KERALA ADMINISTRATIVE
TRIBUNAL
ANNEXURE A19 THE TRUE COPY OF THE RANKED LIST NO
328/2023/SSVI UNDER CATEGORY NO 478/2020
WHICH WAS BROUGHT INTO FORCE W.E.F.
17.05.2023 PUBLISHED BY THE KPSC
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OP(KAT)No.569 of 2023 49 2026:KER:84449
ANNEXURE A20 THE TRUE COPY OF THE RANKED LIST NO
329/2023/SSVI UNDER CATEGORY NO 479/2020
WHICH WAS BROUGHT INTO FORCE W.E.F.
17.05.2023 PUBLISHED BY THE KPSC
ANNEXURE A21 THE TRUE COPY OF THE RANKED LIST NO
330/2023/SSVI UNDER CATEGORY NO 480/2020
WHICH WAS BROUGHT INTO FORCE W.E.F.
17.05.2023 PUBLISHED BY THE KPSC
ANNEXURE R5(a) THE TRUE COPY OF THE GO(MS) NO
09/2019/P&ARD DATED 16.08.2019
ANNEXURE R5(b) THE TRUE COPY OF THE GO(MS) NO
11/2020/P&ARD DATED 19.10.2020
ANNEXURE R5(c) THE TRUE COPY OF THE GO(P) NO 27/2021/FIN
DATED 10.02.2021
EXHIBIT P1 THE TRUE COPY OF THE O.A.NO 1375 OF 2022
FILED BY THE PETITIONERS ALONG WITH
RESPONDENTS 7 TO 9 BEFORE THE HONOURABLE
KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM DATED 01.08.2022
EXHIBIT P2 THE TRUE COPY OF THE M.A.NO 628 OF 2023
IN O.A.NO 1375 OF 2022 FILED BY THE
PETITIONERS ALONG WITH RESPONDENTS 7 TO
9 BEFORE THE HONOURABLE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM DATED 27.03.2023
EXHIBIT P3 THE TRUE COPY OF THE M.A.NO 1031 OF 2023
IN O.A.NO 1375 OF 2022 FILED BY THE
PETITIONERS ALONG WITH RESPONDENTS 7 TO
9 BEFORE THE HONOURABLE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM DATED 06.06.2023
EXHIBIT P4 THE TRUE COPY OF THE REPLY STATEMENT IN
O.A.NO 1375 OF 2022 FILED ON BEHALF OF
RESPONDENTS 1 TO 3 BEFORE THE HONOURABLE
KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM DATED 17.10.2022
EXHIBIT P5 THE TRUE COPY OF THE REPLY STATEMENT IN
O.A.NO 1375 OF 2022 FILED ON BEHALF OF
4TH RESPONDENT BEFORE THE HONOURABLE
KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM
EXHIBIT P6 THE TRUE COPY OF THE REPLY STATEMENT IN
O.A.NO 1375 OF 2022 FILED BY THE 5TH
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RESPONDENT BEFORE THE HONOURABLE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM DATED 14.10.2022
EXHIBIT P7 THE TRUE COPY OF THE ORDER IN O.A.NO 1375
OF 2022 PASSED BY THE HONOURABLE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM DATED 24.11.2023