Sajeena U. & Anr. vs State Of Kerala & Ors.

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 the 4^th 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 merit, in the selection process, and advise them against the vacancies reported for appointment to the stream ‘Kerala Secretariat Subordinate Service’; and an order directing the 1^st 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.

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;

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;

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 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.

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.

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;

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.

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, 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.

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 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.

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.

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 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.

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 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.

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 Commission has filed Ext.P5 reply statement. The additional 5^th respondent filed Ext.P6 reply statement dated 14.10.2022, producing therewith Annexures R5(a) to R5(c) Government orders.

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

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.

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 Standing Counsel for the Public Service Commission for the 4^th 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 dated 31.05.2024 in I.A.No.2 of 2024, the 8^th respondent was deleted from the party array at the risk of the petitioners.

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 Counsel for Kerala Public Service Commission for the 4^th respondent.

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 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.

On the other hand, the learned Senior Government 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 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.

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.

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 remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

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.

In K.V.S. Ram v. Bangalore Metropolitan 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.

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.

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.

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 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.

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.

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;

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;

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.

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 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.

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 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.

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 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;

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 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.

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].

In Tej Prakash Pathak v. High Court of Rajasthan [(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.

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 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 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 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.

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.

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 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.

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 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 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.

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.