JUDGMENT

K. Vinod Chandran, J.:

The petitioner, an aspirant to the post of Deputy Collector, Land Revenue in the Kerala Civil Service(Executive), impugned the order of the Kerala Administrative Tribunal upholding the short listing adopted by the Kerala Public Service Commission(KPSC) in the preliminary examination. Ext.P1 was the notification by which applicants were called for, to the post of Deputy Collector. The number of vacancies were four, and it was prescribed in the notification itself that the method of selection comprises of a preliminary and final examination. After the preliminary examination, Ext.P2 unified short list was issued containing the names of 3584 candidates. The candidates who have obtained 62 marks and above were included in the unified short list and the cut off marks were lowered to the extent necessary in respect of candidates eligible for reservation. Primarily, the challenge was against the method of short listing adopted by the PSC in short-listing candidates, eligible for reservation, who secured marks below that of the general candidates while the latter were excluded for reason of having obtained marks below the cut off marks of 62 prescribed by PSC. The Tribunal, in the impugned order followed its decision in TA No. 1933 of 2012 dated 22.8.2012 The said order has been produced as Ext.P5 and we are called upon to decide the sustainability of the reasoning in the said order.

2. Ext.P5 order shows that the challenge was on two grounds. It was urged that the method of short listing would lead to the benefit of reservation being given at the preliminary stage, which would go against the dictum laid down by the Hon'ble Supreme Court in Andhra Pradesh Public Service Commission v. Baloji Badhavath(2009) 5 SCC 1). The lowering of marks for the purpose of short listing confining such lowering to reserved categories, according to the petitioner, is applying reservation at the threshold; which is impermissible. The other contention raised was that the cut off mark prescribed by the PSC was without any application of mind and had no nexus to the results sought to be achieved. Before us, the learned counsel for the applicant would strenuously urge that the action of the PSC is unconstitutional and is without jurisdiction since reservation in recruitment is in the exclusive domain of the Government under Article 309 of the Constitution of India.

3. The Tribunal after elaborate consideration of the issues as also the procedure followed by the PSC found that though the Hon'ble Supreme Court has declared in Baloji Badhavath (supra) that when Article 335 of the Constitution does not provide for lowering of marks at the thresh hold as, the same is permissible only for the purpose of promotion; such questions could not be gone into since the beneficiaries of such lowering of marks belonging to Scheduled Castes/Scheduled Tribes were not impleaded. Further, the Tribunal also noticed Rule 14(e) to the Kerala State and Subordinate Service Rules, 1958 (hereinafter referred to ‘KS & SSR), by virtue of which the PSC was competent to publish a supplementary list having five times the reservation quota from each or group of communities for the purpose of satisfying the reservation quota. The Note to Rule 14(e) of Part II KS&SSR also provided for lowering of minimum qualifications and marks in selection procedure to the extent necessary. Finding the challenge against the procedure followed to be untenable the same was rejected approving the system devised by the Public Service Commission for shortlisting of the candidates in the preliminary examination.

4. With respect to the finding that the affected parties are not impleaded, the learned counsel would submit that there is no such requirement since the petitioner is challenging the selection on the grounds of jurisdiction and violation of constitutional mandate which goes to the root of the matter. We are afraid that such a proposition cannot be countenanced.

5. The Hon'ble Supreme Court in The General Manager, S.C Railway v. Siddhantti [(1974) 4 SCC 335] held that since the petitioners before the High Court were impeaching the policy decisions as being violative of Article 14 and 16 of the Constitution, it was akin to assailing the constitutionality of a statutory rule. Hence some employees even if affected will be only proper parties and not necessary parties and their non-impleadment will not be fatal to the writ petition. But, in Prabodh Verma v. State of Uttar Pradesh [(1984) 4 SCC 251] it was held that in writ petitions questioning validity of recruitment; no decision adverse to the affected parties can be taken without at least some of them being before it in an administrative capacity. Govt. of Andhra Pradesh v. G. Jaya Prasad Rao [(2007) 11 SCC 528] also held that when rules are challenged all persons who are likely to be affected need not be impleaded since (i) it is not possible to identify all who are affected and (ii) if the rule is held to be valid or invalid, then, the consequence automatically flows. A. Janardhana v. Union of India [(1983) 3 SCC 601] was a case between promotees and direct recruits wherein though none were initially impleaded some of the direct recruits came to be impleaded subsequently. Noticing that the appellants did not claim seniority over any particular individual and the challenge were against the criteria adopted by Union Government; it was held that it was unnecessary to have all direct recruits to be impleaded. Hence it can only be said that in all instances all persons who are likely to be affected need not be impleaded when the challenge is based on the unconstitutionality of a statutory rule. The challenge in the instant case however is against the framing of a short list and setting aside of the same; without any of the affected persons in the party array. Public Service Commission, Uttaranchal v. Mamta Bisht [(2010) 12 SCC 204] and Vijay Kumar Kaul v. Union of India [(2012) 7 SCC 610] found the defect of non-impleadment of the selected candidates as fatal to the maintainability of the challenge.

6. The plea on the basis of unconstitutionality should also be put to the affected party and those, who have benefited from an action of the authority which is impugned as un-constitutional, should be given an opportunity to show the Court how it could be sustained on the basis of the constitutional provisions. Admittedly, none of such affected parties have been impleaded and no steps have been taken to notify such affected parties. The challenge against the selection procedure cannot be proceeded with, without they being arrayed as parties, heard and their contentions noticed and considered.

7. Despite the preliminary objection being sustained; the Tribunal having proceeded to consider the tenability of the challenge against the procedure adopted and arguments having been addressed before us too by the learned counsel for the petitioner, learned Standing counsel for the PSC as also the learned Government Pleader, we are constrained to dwell upon it too. Ext.P1 notification resulted in 260096 responses out of which 1,25,737 candidates appeared for the preliminary examination. The vacancies notified were only four. The enormity of the task, with which the PSC was faced with, cannot be ignored. Rule 14 of Part II KS&SSR provides for supplementary list for candidates in the reserved category to ensure that sufficient candidates are available for consideration as against the reserved vacancies. After the preliminary test, the PSC had decided to publish a unified list for short listing the candidates to be called for the main examination considering the minimal number of posts available, the level of marks obtained by the candidates in the general category as also the reservation category.

8. The bulwark of the submissions before the Tribunal, was anchored on Balaji Badhavath (supra). That was a case in which the candidates entitled to reservation, approached the Tribunal and the High Court, against the shortlisting based on the preliminary examination in the ratio of 1:50 to the total number of vacancies available at the material time, “irrespective of community”. The claim necessarily was that the short listing in the reserved category should be in the ratio of 1:50 that is 50 candidates eligible for reservation in a community being called for the written examination as against the one reserved vacancy in that community. Noticing that the reservation of posts for disadvantaged class is provided as laid down in Article 15 and 16 of the Constitution of India, subject to Article 335; it was held that no citizen could claim reservation as a matter of right. It was also held “Lowering of marks for the candidates belonging to the reserved categories is not a constitutional mandate at the thresh hold. It is permissible only for the purpose of promotion” (sic)(paragraph 30). The Hon'ble Supreme Court also noticed the difficulties encountered by the State with its limited resources when lakhs and lakhs of candidates appear at an examination and interview for minimal number of vacancies and recognized the right or authority to device a procedure to shortlist the candidates. On the strength of the above findings, the claims of the candidates from the reserved categories to include more number of candidates in the ratio of 1:50 with reference to the vacancies available in the reserved category was declined by the Hon'ble Supreme Court.

9. We cannot understand the said decision as laying down a proposition that in shortlisting the candidates separate standards cannot be applied to the candidates in the reserved categories; the authority of the State to do so having been recognized in the said decision itself. Especially when sufficient number of candidates are not available from among the applicants to be considered for appointment to vacancies available. Primarily, the overall marks obtained by the candidates were taken into account and the first 1000 candidates were selected which resulted in persons having 62 marks or above being included in the list. This is not a procedure by which cut off marks were assigned but was a shortlisting made to bring in a reasonable ratio between the vacancies available and the candidates called for the main examination. In the instant case, it cannot be said that the rules of the game were changed midway. It was stipulated in Ext.P1 notification itself that there would be preliminary examination and final examination and the entry to the latter would be after a short listing; as decided by PSC. The shortlisting was contemplated at the threshold. In the instant case, when 1000 candidates were called for four vacancies that resulted in a ratio of 1:250.

10. The lowering of standards for Scheduled Castes and Scheduled Tribes candidates entitled to reservation according to the PSC was only to ensure that sufficient number of candidates were available from the reserved category for appointment to the reserved posts and was as per Rule 14(e). On such lowering, the ratio rose up to 1: 300, is the finding of the Tribunal. We are afraid, there is no basis for such finding since the unified shortlist contained 3584 candidates. Hence the shortlist contains 1000 candidates from the general category and 2584 candidates from the reserved category. The PSC has also placed on record that if the lowering of marks was made applicable to the general candidates too, then, 23162 candidates would find a place in the unified shortlist, as against four vacancies.

11. We also notice the reliance placed by the KPSC on Rule 14(e) of KS&SSR which is extracted herein below:-

“Rule 14(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”.

The rule provides for a supplementary list of candidates entitled to reservation having not less than five times the reservation quota. The shortlisting done here, is not the supplementary list as such; but is resorted to, to enable the drawing up of the supplementary list of reserved category candidates. It is submitted that sufficient candidates are to be necessarily short listed. In providing for this the PSC adopted the following method. In the general category 1000 candidates were shortlisted. Half of the vacancies are set apart on reservation. Hence five times of half of the candidates shortlisted in the general category was shortlisted from the reserved category. (i.e 1000/2 × 5 = 2500). Definitely all candidates having the same marks as the last candidate in the list also had to be included making the total number 2584. In the context of the actual details with respect to the number of candidates and the number of vacancies available, it cannot at all be said that the procedure adopted by PSC is supported by Rule 14(e). From a reading of Rule 14(e), it is discernible that what is contemplated, is to fix a reasonable ratio by relaxation of marks to the reserved category, that too, to ensure sufficient number of candidates from the reserved category.

12. Rule 14(e) of the KS & SSR has also been considered by the Division Bench in Jayachandran v. High Court of Kerala (2010 (4) KLT 49). The moderation attempted by virtue of Section 14(e) and the attempt to justify the same was rejected by the Court in that case, for more than one reason. Therein, moderation was granted to all the candidates without reference to whether they belonged to the reserved category. Such moderation by way of lowering of marks to the extent necessary, even if could be granted to the candidates of the reserved category alone, then, such an exercise was held to be permissible only at the threshold and not after the process has commenced. The further reason stated was that such procedure would not be permissible after the initiation of the selection process.

13. But in the instant case, in lowering the marks for the reserved category 2584 candidates were shortlisted as against 1000 general merit candidates. Rule 14(e) provides for five times the reservation quota. Here out of four only two vacancies are set apart as reservation quota. Applying Rule 14(e) that would only lead to ten candidates being shortlisted by the exercise of lowering of marks. Even taking into account the vacancies that may arise during the currency of the list, the PSC does not have a case that it can go up to 2584.

14. We are constrained to express a word of caution to the Public Service Commission. The candidates eligible for reservation, who have been now allowed to appear for the main examination, does not compete for the reserved vacancies alone. Their candidature would be for all the four vacancies notified. In the order of merit, in the final list, if a candidate from the reserved category stands first he would have to get the post by reason of the merit and that would not entitle the next vacancy, which is reserved, to be granted to any other, than the one eligible for reservation. Though hypothetical, there can arise a situation wherein a candidate having far less than the required minimum marks of the general candidate in the preliminary examination would eventually obtain more marks in the final examination and by virtue of the marks obtained in the final examination would be eligible to be considered to an open merit seat. If two of such reserved candidates who obtained relaxation gets the first two ranks; then it would lead to a situation where all the vacancies would be filled up by reservation. We are not however going into such issues since the prospect of the reserved category candidates stealing a march over the general category candidates is a cause of concern to only the general category candidates who have been shortlisted. Only they can plead prejudice; not persons who have not been shortlisted; like the petitioner.

15. In the instant case the petitioner a general candidate is not entitled to inclusion since he is not within the 1000 shortlisted on the basis of their merit ranking. Nor is he entitled to challenge inclusion of 2500 or more reserved candidates for two reasons, (i) non impleadment of affected parties and (ii) he in any event is not entitled to be shortlisted. But, however, we feel the inclusion of so many from reserved categories does not strike a balance between general and reserved categories (refer Post Graduate Institution of Medical Education and Research v. Faculty Assn. [(1998) 4 SCC 1]). Obviously, the method adopted by the PSC is also not that provided in R14(e). However, it is trite that a more reasonable opinion of this court cannot replace or substitute an apparently reasonable exercise by the public authority and in attempting a judicial review much less is the sanctity of a reasonable hypothesis. It is for the State in consultation with the Public Service Commission to decide such measures to ensure fair selection without arbitrariness and discrimination.

Hence we leave the question regarding sustainability of the procedure adopted i.e, the reasonableness of including so many reserved candidates, open, and dismiss the O.P for absence of locus standi and non-impleadment of affected parties. No costs.