ANIL K.NARENDRAN , J.
The petitioners in O.P.(KAT)No.149/2014 are the applicants in T.A.No.4339/2012, before the Kerala Administrative Tribunal, Thiruvananthapuram. Similarly, the petitioners in O.P.(KAT)Nos. 150/2014, 151/2014, 152/2014 and 153/2014 are the applicants in T.A.Nos.5267/2012, 4350/2012, 3395/2012 and 5231/2012, respectively, before the Kerala Administrative Tribunal. The petitioner in O.P.(KAT)No.242/2014 is the applicant in O.A.(Ekm) No.177/2014, before the Kerala Administrative Tribunal.
O.P.(KAT)Nos. 149, 150, 151, 152 & 153 of 2014:-
2. The petitioners in O.P.(KAT)Nos.149/2014, 150/2014, 151/2014, 152/2014 and 153/2014 are candidates who applied for direct recruitment to the post of Driver Grade II (LDV) in various departments, pursuant to a notification dated 14/2/2007 issued by the Kerala Public Service Commission (Category No.32/2007). The petitioners in O.P.(KAT)Nos.149/2014 and 151/2014 applied for selection in Kozhikode district and those in O.P.(KAT)Nos.150/2014, 152/2014 and 153/2014 applied for selection in Ernakulam district. The petitioners who appeared for OMR type test were included in the unified short list published by the Public Service Commission of the candidates found eligible for practical test. As they failed in Road Test, they were not included in the ranked list. Challenging the ranked list for direct recruitment to the post of Driver Grade II (LDV) for Kozhikode district/Ernakulam district and seeking inclusion in the said ranked list on the basis of the total marks obtained in the OMR type test and Road Test, the petitioners moved this Court in W.P.(C) No.3859/2011 and connected cases. On the formation of the Kerala Administrative Tribunal, those Writ Petitions were transferred to the Tribunal and re-numbered as T.A.No.4339/2012 and connected cases. The Tribunal by a common order dated 21/2/2014 dismissed those Transfer Applications and it is aggrieved by the said order, the petitioners are before us in these Original Petitions.
3. We heard the arguments of the learned Senior Counsel for the petitioners in these Original Petitions and the learned Standing Counsel for the Kerala Public Service Commission. Since common issues are raised in all these Original Petitions, we are proceeding to dispose of all of them by this common judgment. For the sake of convenience, the exhibits are referred to as obtaining in O.P.(KAT) No.149/2014, arising out of T.A.No.4339/2012.
4. The Kerala Public Service Commission issued Exhibit P1 notification dated 14.2.2007 for direct recruitment to the post of Driver Grade II (LDV) in various departments. The qualifications prescribed for the post are as follows;
(i) a pass in VII Standard,
(ii) must possess a valid Driving License of 3 years standing to drive Light Duty Vehicles (LDV) with Driver’s Badge,
(iii) proficiency in driving Light Motor Vehicles. This has to be proved in the practical test conducted by the Public Service Commission, and
(iv) medical fitness, as prescribed for Category Nos.30/2007 and 31/2007.
5. The petitioners appeared for the OMR type test held on 17/1/2009. The Public Service Commission published Exhibit P2 unified short list of the candidates found eligible for practical test, consisting the register number of 509 candidates for direct recruitment. The register numbers of the petitioners are also included in Exhibit P2 list. The Public Service Commission issued Exhibit P3 memos to the petitioners in connection with practical test and certificate verification held on 8/6/2010 to 11/6/2010 and 14/6/2010 to 16/6/2010 and they were also called for a practical test, which consisted of H-Test and Road Test. Only those who passed H-Test were permitted to participate for Road Test. Accordingly, 220 candidates who passed H-Test were permitted to participate for Road Test. After H-Test, 185 candidates in the short list were found eligible to be included in the ranked list and the Public Service Commission finalised Exhibit P4 ranked list on 11.1.2011. The petitioners in these Original Petitions are among the 35 candidates who failed in Road Test and they were not included in Exhibit P4 ranked list.
6. According to the petitioners, the candidates who are already included in Exhibit P2 short list cannot be excluded from Exhibit P4 ranked list solely on the basis of their marks in the Road Test. The Public Service Commission has to include all the candidates who have passed H Test in the ranked list and the lower marks secured in the Road Test can at the most have an impact on the relative position of the candidate in the ranked list, keeping in view the aggregate marks obtained by such candidates. Petitioners contended further that, the action of the Public Service Commission in excluding the petitioners from Exhibit P4 ranked list is vitiated by arbitrariness and nepotism. The exclusion of the shortlisted candidates who have passed H-Test from Exhibit P4 ranked list is made absolutely without any authority of law. Therefore, the petitioners sought various reliefs including a writ of certiorari to quash the ranked list for the post of Driver Grade II (LDV) for Kozhikode district/Ernakulam district; writ of mandamus seeking inclusion in the said ranked list on the basis of the total marks obtained in the OMR type test and Road Test; etc.
7. According to the Public Service Commission, the practical test was conducted following the procedure prescribed in Exhibit R1 (a) Circular No.1/93 dated 4/2/1993. For the conduct of Road Test, the Commission constituted a Board consisting of Senior Officer of the Motor Vehicles Department, Mechanical Engineer of the Kerala State Road Transport Corporation and Deputy Secretary/District Officer of the Commission. The Commission issued individual memos to the candidates included in the unified short list, a specimen copy of which is marked as Exhibit R1(b), requesting them to appear for the practical test. In the said memo, it was specifically mentioned that only those candidates who have passed H Test will be admitted for Road Test. In Road Test, the suitability and proficiency of the candidate in driving was tested on different parameters, as enumerated in paragraph 7 of the counter affidavit filed by the Commission. The overall performance of the candidates in driving with reference to the above aspects of driving skill were assessed by the Board and the Driving Skill Appraisal Form of the petitioners obtained after the test is produced as Exhibit R1(c) series. On 8/11/2010 the Commission, vide Decision No.10, decided in relation to the selection in question that, only those candidates who have obtained 50% marks or above in steering steadiness and control and secured A+ grading in at least 5 items, out of the items with Sl.Nos. 3 to 11 in Exhibit R1(c) Driving Skill Appraisal Form need be included in the ranked list. The basis of ranking was fixed as the marks for the objective type test plus grade marks for the practical test. The Commission’s decision in this regard was communicated to its District Officers for further action, vide Exhibit R1(d) communication dated 10/11/2010. When Exhibit P1 notification itself stipulates that the proficiency in driving will be tested by the Commission, the assessment made by the Board to assess the driving skills of the candidates following the definite criteria evolved by the Commission cannot be found fault with. Rules 3 and 11 of the Kerala Public Service Commission Rules of Procedure empowers the Commission to conduct any test for assessing suitability of the candidates. The Commission contended further that, the case of the petitioners that they are being victimized by unfair selection is contrary to facts and untenable. The contention of the petitioners that the Commission has to conduct a retest is based on vague and incorrect allegations. Exhibit P4 ranked list came into force on 11/1/2011 and advice is being made against the vacancies reported to the Commission.
8. The petitioners in all these Original Petitions applied for direct recruitment to the post of Driver Grade II (LDV) in various departments, pursuant to Exhibit P1 notification issued by the Public Service Commission. Going by Exhibit P1 notification, the candidate must have a pass in VII Standard, possess a valid Driving License of 3 years standing to drive Light Duty Vehicles (LDV) with Driver’s Badge, proficiency in driving Light Motor Vehicles and medical fitness as prescribed in the notification. Exhibit P1 notification specifically provides that the proficiency in driving Light Motor Vehicles has to be proved in the practical test conducted by the Public Service Commission. Note (1) to the para prescribing ‘qualifications’ provides further that the candidates called for interview based on their marks secured in the practical test has to produce a Medical Certificate in the prescribed format. Therefore, going by Exhibit P1 notification, mere acquisition of the qualifications prescribed in the said notification and participation in the practical test, based on his inclusion in Exhibit P2 unified short list, would not entitle the candidate to be included in the ranked list, taking into account the aggregate marks obtained in the OMR type test and also the Road Test, which forms part of the practical test. When Exhibit P1 notification specifically provides that a candidate has to prove his proficiency in driving Light Motor Vehicles in the practical test conducted by the Public Service Commission, the petitioners cannot now contend that, the Commission should have included all the candidates who have passed H Test in the ranked list and that the lower marks secured in the Road Test can at the most have an impact on the relative position of the candidate in the ranked list keeping in view the aggregate marks obtained by such candidates.
9. Rule 3 of the Kerala Public Service Commission Rules of Procedure empowers the Commission to conduct all or any one or more of the examinations enumerated in Clauses (i) to (iv) or any other test or examination, which the Commission may deem fit to hold to assess the merits of candidates considered for recruitment to a service or post. Rule 3 of the PSC Rules of Procedure reads thus;
“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.”
Further, Rule 11 empowers the Commission to take a decision as to the matters enumerated in Clauses (i) to (iv) or any other matter incidental to the selection made by the Commission. Rule 11 of the PSC Rules of Procedure reads thus;
“11. A decision as to the following shall be taken by the Commission in respect of all selections made by them:
(i) Whether any candidate possesses the prescribed qualifications for the post;
(ii) the basis on which the marks should be awarded;
(iii) the minimum or minima of marks for inclusion in the ranked list;
(iv) the manner in which the practical examination, physical efficiency test or any other test or examination is to be conducted;
(v) any other matter incidental to the selection.”
Therefore, Rule 11 empowers the Commission to take a decision, among other things, on the basis on which the marks should be awarded to the candidates; the minimum or minima of marks for inclusion in the ranked list; and the manner in which the practical examination, physical efficiency test or any other test or examination is to be conducted.
10. Evidently, going by Exhibit P1 notification, what is required is proficiency in driving Light Motor Vehicle, which the candidate has to prove in the practical test conducted by the Public Service Commission. The Commission, in exercise of its powers under the PSC Rules of Procedure, has issued Exhibit R1(a) Circular dated 4/2/1993 prescribing the procedure in the matter of recruitment to the post of Driver, which envisages, among other things, obtaining of the prescribed minimum marks in the practical test for inclusion in the ranked list. Further, as borne out from Exhibit R1(d), the Commission on 8/11/2010 decided in relation to the selection in question that, only those candidates who have obtained 50% marks or above in steering steadiness and control and secured A+ grading in at least 5 items, out of the items with Sl.Nos. 3 to 11 in Exhibit R1(c) Driving Skill Appraisal Form need be included in the ranked list. In addition to this, the basis of ranking was fixed as the marks for the objective type test plus grade marks for the practical test. When Rules 3 and 11 of the PSC Rules of Procedure empower the Commission to take decision on the basis on which the marks should be awarded, the minimum marks for inclusion in the ranked list, the manner in which the practical test should be conducted, etc., such prescription of the minimum marks or the manner of conducting the practical test would not amount to any alteration of the criteria for selection in the midstream.
11. In Maharashtra SRTC v. Rajendra Bhimrao Mandve (2001 (10) SCC 51) the Apex Court held that, the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. A Division Bench of this Court in Jayachandran C. and another v. High Court of Kerala and others (2010 (4) KLT 49) held that, in matters of recruitment into the services of the State, the rules could not be changed 'midstream', as permitting such a change in the rules has the potential to give scope for arbitrary action in the process of recruitment. But, in Arunachal Pradesh Public Service Commission v. Tage Habung and others (2013 (7) SCC 737) the Apex Court held that, fixing some qualifying criteria in order to shortlist the candidates for participating in the interview is justified. Later, in Yogesh Yadav v. Union of India (2013 (14) SCC 623) the Apex Court held that, a decision taken to give appointment to only those who fulfilled the benchmark prescribed is permissible under the law and it is not a case of changing the rules of game. It is the shortlisting which is done by fixing the benchmark, to recruit best candidates on rational and reasonable basis. That is clearly permissible under the law. In Tej Prakash Pathak v. Rajasthan High Court (2013 (4) SCC 540) the Apex Court observed as follows; “No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the 'rules of the game' insofar as the prescription of eligibility criteria is concerned as was done in the case of C. Channabasavaiah v. State of Mysore, AIR 1965 SC 1293 etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the 'rules of the game' stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger Bench of this Court.”
12. In the cases on hand, Rules 3 and 11 of the PSC Rules of Procedure empower the Commission to take decision on the basis on which the marks should be awarded, the minimum marks for inclusion in the ranked list, the manner in which the practical test should be conducted, etc., The Commission, in exercise of its powers under the aforesaid Rules, has issued Exhibit R1(a) Circular dated 4/2/1993 prescribing the procedure in the matter of recruitment to the post of Driver, which envisages, among other things, obtaining of the prescribed minimum marks in the practical test for inclusion in the ranked list. Further, as borne out from Exhibit R1(d), the Commission fixed the benchmark for inclusion in the ranked list and also the basis of ranking. At any rate, such prescription of the benchmark for inclusion in the ranked list or the manner of conducting the practical test would not amount to alteration of the criteria for selection in the middle or after the process of selection has commenced. Moreover, as rightly noticed by the Tribunal in its order dated 21.2.2014, the petitioners have not chosen to challenge the selection norms prescribed by the Public Service Commission in Exhibits R1(a) and R1(d). Therefore, the contention raised on behalf of the petitioners that, there was midstream change in the criteria for selection and Exhibit P1 notification was given a complete go-by can only be rejected and we do so.
13. The learned Senior Counsel for the petitioners contended that, the exclusion of the petitioners from Exhibit P4 ranked list on the ground that they failed in the Road Test is patently illegal and vitiated by malfides. Notwithstanding successful performance in the OMR type test and pass in the H Test, the petitioners were excluded from the ranked list, due to mala fide action on the part of those included in Board which conducted the Road Test. The learned Senior Counsel also pointed out that some among the petitioners are experienced KSRTC drivers. It is trite law that the allegations of malafides shall be specifically pleaded and the person or the authority against whom malafides is alleged shall be told of such specific instances, after impleading the said person or such authority in personal capacity. In the cases on hand, though in two of the Original Petitions, i.e., in O.P.(KAT) Nos.149/2014 and 153/2014 some of those persons are impleaded in their personal capacity, the petitioners in those Original Petitions have not chosen to take steps to complete service of notice on those party respondents. Moreover, though some of these Original Petitions contain allegations of malafides, those allegations are neither specific nor supported by any reliable material whatsoever. In such circumstances, the contention raised regarding malafides in the exclusion of the petitioners from the ranked list was rightly rejected by the Tribunal.
14. It is aggrieved by non-inclusion in the ranked list for the post of Driver Grade II (LDV), the petitioners in these Original Petitions initially moved this Court in W.P.(C)No.3859/2011 and connected cases. Later, those Writ Petitions were transferred to the Kerala Administrative Tribunal and re-numbered as T.A.No.4339/2012 and connected cases. All the Writ Petitions were filed after the publication of the ranked list, which came into force on 11/1/2011. The main relief sought for in T.A.Nos.4339/2012, 5267/2012 and 3395/2012 are, to issue a writ of certiorari to quash Exhibit P4 ranked list and a writ of mandamus directing the respondents to conduct fresh road test for those who are included in Exhibit P2 short list passed H Test. In T.A.Nos.4350/2012 and 5231/2012 the main relief sought for is a writ of mandamus directing the Public Service Commission to include the petitioners in the ranked list for the post of Driver Grade II (LDV) on the basis of the marks obtained by them in the OMR test and driving test and publish a revised ranked list. In T.A.Nos.4350/2012 and 5231/2012 the ranked list published by the Public Service Commission is not under challenge. Though the reliefs sought for in all these Transfer Applications if granted would adversely affect the rights of the candidates included in the ranked list published by the Commission and also those candidates who have already been advised to the reported vacancies, the petitioners have not chosen to make any such candidates parties to these Transfer Applications. Therefore, T.A.Nos.4339/2012, 5267/2012 3395/2012, 4350/2012 and 5231/2012 are bad for non-joinder of necessary parties.
15. The learned Senior Counsel for the petitioners contended that, when the very validity of the selection process is under challenge and the relief sought for is against the Public Service Commission the petitioners cannot be non-suited on the ground of non-joinder of necessary parties, especially when the plea of non- joinder was not raised before the Tribunal or in the counter affidavit filed by the Public Service Commission. In Sonu John v. State of Kerala and others (2013 (1) KLT 888) a Division Bench of this Court held that, 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 unconstitutional, should be given an opportunity to show the Court how it could be sustained on the basis of the constitutional provisions. The challenge against the selection procedure cannot be proceeded with, without they being arrayed as parties, heard and their contentions noticed and considered. Paragraphs 5 and 6 of the judgment read thus;
“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 Art.14 and Art.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.”
16. The judgment of the Division Bench in Sonu John’s case (supra) was rendered after analysing the principles laid down by the Apex Court in General Manager, South Central Railway, Secunderabad and another v. A.V.R. Siddhantti and others (1974 (4) SCC 335), A. Janardhana v. Union of India and others (1983 (3) SCC 601), Government of Andhra Pradesh and another v. G. Jaya Prasad Rao and others (2007 (11) SCC 528), the decisions relied on by the learned Senior Counsel for the petitioners, in order to buttress his contention that the petitioners cannot be non-suited on the ground of non-joinder of necessary parties. In State of U.P. v. Ram Swarup Saroj (2000 (3) SCC 699) the Apex Court held that, a plea of non-joinder of a party cannot be permitted to be raised for the first time before the Supreme Court if the same was not taken before the High Court and has not occasioned a failure of justice. But, that was a case in which the writ petitioner, an aspirant for a judicial appointment filed writ petition before the Allahabad High Court against the State of U.P. and Public Service Commission. The Allahabad High Court was omitted to be impleaded as a party in the writ petition. Before the Apex Court a plea was raised on behalf of the State of U.P. that the writ petitioner omitted to implead the Allahabad High Court as a party in the writ petition, as such no binding direction could be issued as in the matter of judicial appointments the State Government is not free to act of its own unless and until the High Court recommends an appointment or concurs in any proposal made by the State Government. As the appellant State of U.P. has not placed any material on record to show how an inference as to failure of justice can be drawn because of non-joinder of the High Court as party in the writ petition the Apex Court repelled the plea of non- joinder raised by the appellant State of U.P. The principle laid down in the above judgment of the Apex Court, which is on entirely different factual matrix, cannot be made applicable to the facts of the present case.
17. If the reliefs sought for in the Transfer Applications are granted, it would adversely affect the rights of the candidates included in Exhibit P4 ranked list published by the Public Service Commission and also those candidates who have already been advised to the reported vacancies. But, the petitioners have not chosen to make any such candidates parties to the Writ Petitions, which were later transferred to the Kerala Administrative Tribunal and re-numbered as Transfer Applications. Admittedly, none of such affected candidates have been impleaded and no steps have been taken to notify such affected candidates. The challenge against the selection procedure cannot be proceeded with, without such candidates being arrayed as parties, heard and their contentions noticed and considered. In such circumstances, the Transfer Applications are liable to be dismissed on the ground of non-joinder of parties as well.
18. We find absolutely no grounds to interfere with the order dated 21.2.2014 of the Kerala Administrative Tribunal dismissing T.A.Nos.5267/2012, 4350/2012, 3395/2012 and 5231/2012. In the result, O.P.(KAT)Nos. 150/2014, 151/2014, 152/2014 and 153/2014 are dismissed.
O.P.(KAT)No.242/2014:-
19. The petitioner in O.P.(KAT)No.242/2014 applied for selection to the post of Driver Grade II (LDV) in Municipal Common Service and various Development Authorities pursuant to Annexure A1(a) notification dated 30/6/2009. The OMR type test was conducted on 2/4/2011 and the Public Service Commission published Annexure A1 unified short list consisting of 674 candidates who were found eligible for practical test. On 2/3/2011 the petitioner participated in the practical test. Since the petitioner failed in the Road Test his name was not included in Annexure A2 ranked list. The reason for non-inclusion, as evident from Annexure A3, is that in the practical test the petitioner did not clear the required number of items with the required percentage of marks. The petitioner approached the Kerala Administrative Tribunal in O.A.(EKm) No.177/2014 seeking inclusion in Annexure A2 ranked list based on the marks obtained in the OMR test and for other consequential reliefs. He contended that the Public Service Commission adopted unscientific methods for assessing the efficiency in the practical test. Further, certain persons who scored less than 63 marks in the OMR test have been included in Annexure A2 ranked list. The Tribunal by order dated 14/3/2014 dismissed O.A.(EKm)No.177/2014 holding that the petitioner who is a failed candidate has no locus standi to challenge Annexure A2 ranked list. Further, the affected persons are not impleaded in the Original Application. It is aggrieved by the said order passed by the Tribunal, the petitioner is before us in this Original Petition.
20. We heard the arguments of the learned Senior Counsel for the petitioner in this Original Petition and the learned Standing Counsel for the Kerala Public Service Commission.
21. In view of our findings in O.P.(KAT)Nos. 150/2014, 151/2014, 152/2014 and 153/2014, we find absolutely no grounds to interfere with the reasoning of the Tribunal in dismissing O.A. (EKm)No.177/2014.
In the result, O.P.(KAT)No.242/2014 is also dismissed.
Sd/-
ANTONY DOMINIC, JUDGE dsn Sd/-
ANIL K.NARENDRAN, JUDGE