Aparna J.S Sivasree v. Kerala Public Service Commission and The Secretary, Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938** **WP(C).No. 23721 of 2016 (M)** **----------------------------** **PETITIONER(S): -------------** **APARNA .J.S SIVASREE, KKRA NO. 15, RAMACHAMVILA, ATTINGAL PO, THIRUVANANTHAPURAM-695101** **BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR SRI.ELIAS KURIAN SMT.SHYNI GEORGE SMT.P.S.SIJI** ## **RESPONDENT(S):** **--------------** ## **1. KERALA PBLIC SERVICE COMMISSION** **REPRESENTED BY ITS SECRETARY, P.S.C. OFFICE, PATTOM, THIRUVANANTHAPURAM-695004** ## **2. THE SECRETARY** **KERALA PUBLIC SERVICE COMMISSION, P.S.C OFFICE, PATTOM, THIRUVANANTHAPURAM-695004** **R1&2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-09-2016, ALONG WITH WPC. 27267/2016 AND WPC. 28073/2016, THE COURT ON 03-10-2016 DELIVERED THE FOLLOWING:** **WP(C).No. 23721 of 2016 (M)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1: TRUE COPY OF THE NOTIFICATION PUBLISED BY THE 2ND RESPONDENT IN THE GAZETTE DT. 22/3/16** **EXHIBIT P2: TRUE COPY OF THE RELEVANT PAGES OF THE PROBABILITY LIST PUBLISHED BY THE 2ND RESPONDENT IN CATEGORY NO. 042/16 DT. 26/6/16** **EXHIBIT P3: TRUE COPY OF THE ADMISSION TICKET ISSUED TO THE PETITIONER DIRECTING TO APPEAR FOR THE WRITTEN TEZST ON 24/5/16** **EXHIBIT P4: TRUE COPY OF THE QUESTION BOOKLET GIVEN TO THE PETITIONER** **EXHIBIT P5: TRUE COPY OF THE FINAL AMSWER KEY OF QUESTION PAPER CODE NO. 71/16 PUBLISED BY THE 2ND RESPONDENT** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXHIBIT R1 (A): TRUE COPY OF JUDGMENT IN OP(KAT) NO.195 OF 2015.** ## **//TRUE COPY//** **P.S. TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** ## **-------------------------------** ## **W.P.(C).NO.23721 OF 2016 (M) W.P.(C).NO.27267 OF 2016 (G) & W.P.(C).NO.28073 OF 2016 (H) ----------------------------------Dated this the 3[rd] day of October, 2016** ## **J U D G M E N T** As the issue involved in these writ petitions is the same, they are taken up together for consideration and disposed by this common judgment. 2. The petitioners in all these writ petitions are persons, who responded to a notification published by the Kerala Public Service Commission [PSC], calling for applications from candidates for appointment to the post of Assistants in the Universities in Kerala. The method of appointment was stipulated as, by direct recruitment, and candidates between the age of 18 and 36 years were asked to apply, provided, they had a Degree in any faculty from a recognised University or its equivalent. The petitioners responded to the said notification, and were called for a written test on 24.5.2016. Immediately after the written test was conducted, a provisional **W.P.(C).No.23721/2016 & con. cases** **2** answer key was published by the PSC, on 26.5.2016, and candidates were given time to submit complaints, if any, with regard to the provisional answer key. Thereafter, after considering the complaints that were received, the PSC published the final answer key on 10.6.2016. Thereafter, after preparing a probability list of 5000 candidates, on 28.6.2016, the PSC published the final rank list on 10.8.2016. In the meanwhile, the petitioners herein, immediately after the publication of the probability list of 5000 candidates, but before the publication of the final rank list, approached this Court through the present writ petitions. In the writ petitions, the petitioners would point to various questions in the question papers for the written test and the decision of the PSC to delete certain questions, on the ground that the experts that were consulted by the PSC, had opined that the said questions had to be deleted, since the choice of answers given for the questions concerned was either wrong or the questions had multiple correct answers provided under them in the question paper. It is the contention of the petitioners in the writ petitions that, the findings of the experts, which led to the deletion of the questions itself for the purposes of evaluation, is wrong, and therefore, the said questions ought not to have been deleted while **W.P.(C).No.23721/2016 & con. cases** **3** completing the evaluation process. It is the case of the petitioners that, if the questions were not deleted, and the answers shown in the provisional answer key maintained, then they would have stood a chance to be ranked higher in the rank list prepared by the PSC. 3. A counter affidavit has been filed on behalf of the PSC, wherein, after giving details of the procedure that was followed by them, while conducting the written test, it is stated that, to avoid a delay in scrutiny of the complaints regarding the provisional answer key, the PSC decided to constitute an Expert Committee to examine every question and answer, with their options, for its correctness, and later decided to consider and incorporate only the questions for which complaints were already received from the candidates, within the stipulated time, namely, 4.6.2016. It is stated that complaints received in respect of 77 questions were considered with respect to the report and recommendations of the Experts panel. It is further stated that, based on the recommendations of the Expert Committee, six questions were excluded from the answer key, and certain changes were made to the answers in respect of some questions. The exclusion of questions was in cases where either the answers had **W.P.(C).No.23721/2016 & con. cases** **4** multiple options or no correct answers in the options, or if the answer was seen as creating a general confusion, or the Experts themselves had different opinions about the answers. It was on the basis of the views of the Expert Committee that the PSC decided to modify the answers/delete the questions. The respondent PSC would rely on various decisions of this Court as also the Supreme Court, to contend that, inasmuch as the respondent PSC had taken the help of an Expert Committee to assist it in the matter of evaluation of the answer scripts, and the said Committee had recommended the modification of answers/deletion of certain questions, it was not open to this Court to go into the correctness of the views taken by the experts in these proceedings under Article 226 of the Constitution of India. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I am of the view that the writ petitions, to the extent they seek a quashing of the probability list of candidates to the post of Assistant, published by the PSC, and seek a direction to the PSC to revalue the papers of the petitioners in the written test, based on their opinion as regards the correct answers to the questions, and their contention that deletion of certain questions **W.P.(C).No.23721/2016 & con. cases** **5** was unnecessary, must necessarily fail. It is apparent from a reading of the counter affidavit of the PSC that the PSC had, for the purposes of scrutinizing the objections received from candidates, to the answer key published by them, constituted an Expert panel, whose decision with regard to the objections raised by the candidates was to be deemed final and binding on the PSC. In judicial review proceedings, this Court is concerned with the manner in which the PSC, which is another constitutional body, goes about the process of evaluation of answer scripts of the candidates, and completes the selection procedure that is entrusted to it. In that exercise, if this Court finds that the PSC has taken the required steps to ensure the correctness of the answers, and the legality of the selection procedure generally, then, this Court must defer to the views of the experts in academic matters and the decision of the PSC to accept the views of the said experts. In a decision of a Division Bench of this Court in **Nowfal H. and others v. Kerala Public Service Commission and others - [2014 (3) ILR (Kerala) 517],** when examining the issue of judicial review over the actions of the PSC in almost similar circumstances, this Court observed as follows in paragraphs 9, 10 and 11:- **W.P.(C).No.23721/2016 & con. cases** **6** “ **9** . We are of the view that there cannot be merit in the contention of the petitioners. The issue involved in this case is selection to public service by the Public Service Commission, which is no doubt a constitutional body. We are not considering the conduct of examination by an university. It is true that in the judgment of the Supreme Court in **Kanpur University Through Vice Chancellor and Others v. Samir Gupta and Others ((1983) 4 SCC 309)** Supreme Court affirmed the judgment of the Allahabad High Court, which emanated from complaints by the students about the wrong answers which were used against the students by the University. The Allahabad High Court proceeded to rely on the views of experts produced before it on the merits of the contentions of the students and granted relief. This judgment was up held by the Supreme Court. The Apex court has inter alia held in paragraph 16 and 17 as follows: " 16.Shri.Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged text books, which are commonly read by students in U.P. Those textbooks leave no room for doubt that the answer given by the students is correct and the key answer is incorrect. 17. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance Test for admission to the Medial Colleges in U.P. Certain books are prescribed for the intermediate Board Examination and such **W.P.(C).No.23721/2016 & con. cases** **7** knowledge of the subjects as the students have is derived from what is contained in those textbooks. Those text-books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong.” **10** . On similar lines would appear to be the other decisions which are relied on by the learned counsel for the petitioners. No doubt out of the same, we find that only **Rajesh Kumar and Others v. State of Bihar and Others ((2013) 4 SCC 690)** pertained to a service matter. **11** . What is a feature in the present case, which appears to us to distinguish it from the cases which are decided, is the procedure which is already put in place by the Public Service Commission. The judgments of the Supreme Court relied on by the learned counsel for the petitioner were rendered in a situation where the university and in one case the employer, conducted the examinations. There were complaints against the same which reached the courts. The courts took the views of the experts. It is relying on the decision of the experts, which were found convincing to the courts, that the courts granted relief. On the other hand, in these cases, as we have already noticed, the procedure evolved by the Commission pursuant to the direction of this Court was to publish provisional key, invite objections, get them scrutinised with the help of experts and act on the decision of the experts. Therefore this is precisely what the courts have done in the decisions which were relied on by the learned counsel for the petitioners. What the petitioners would seek is a review of even the decision of experts to whom the matter is referred by the Commission under a procedure which is evolved. That, we think, may involve **W.P.(C).No.23721/2016 & con. cases** **8** the court, which exercises judicial review, to sit in judgment over the experts and, more importantly, attract criticism that it is doing a review as an appellate court will do. At this juncture, it is very apposite to note that the petitioners do not have any case that the persons to whom the matter was referred by the Commission, seeking their opinion as experts, are not experts or they were in any manner actuated by malice. This means that the Commission took care by first publishing the provisional key, inviting objections, getting the objections scrutinised by the body of experts who must be treated as having acted bona fide. Further the result of that exercise, if it is sought to be subjected to further scrutiny, for the purpose of the exercise of judicial review, we would think that it may invite the criticism that the said exercise would be an appellate power exercised in disguise as judicial review. It is true that the Tribunal took the view that the Commission already having followed a procedure which is fair and which involved the scrutiny of the objections by the Commission with reference to experts, the matter did not require interference. The Court or Tribunal doing judicial review should not reduce the exercise of judicial review power to that of appellate review and enter findings on facts for which it may not possess the expertise. If a view from among two views of the matter is taken then if it defers to one of the views this Court does not shun its jurisdiction. On the other hand it would be a restrained exercise of its discretion which would still be in exercise of its jurisdiction keeping it within the four walls of its jurisdiction.” Taking cue from the said decision, and finding that in the instant cases also, the petitioners have not been able to clearly demonstrate that the views of the experts are, in any way wrong, I am of the view **W.P.(C).No.23721/2016 & con. cases** **9** that the reliefs prayed for in the writ petitions cannot be granted. Resultantly, the writ petitions fail, and are accordingly dismissed. **A.K.JAYASANKARAN NAMBIAR JUDGE** prp/