Gopan G. (Gopanivas) and Others v. Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933** **WP(C).No. 23918 of 2009(H)** **----------------------------------------** **PETITIONER(S):** **------------------------** **1. GOPAN.G,'GOPANIVAS',PULIYARA, EZHUKONE.P.O,KOLLAM-691 505.** **2. LEKHA S. BABU,KARIYARA,ELIPPAKKULAM.P.O,ALAPPUZHA.** **3. LEKHA.R,KOYIKKALETH,MALAMEL BHAGOM, KAREELAKULANGARA.P.O,KAYAMKULAM,ALAPPUZHA DISTRICT.** **4. ARUN J.G,'VRINDAVANAM',PALLIMON.P.O, KOLLAM DISTRICT.** **5. SUJA.S,SUJA BHAVAN,KADUVANKAL, VALLIKUNNAM.P.O,ALAPPUZHA DISTRICT.** **BY ADVS. SRI.N.RAGHURAJ, SMT.K.AMMINIKUTTY.** **RESPONDENT(S):** **---------------------------** **1. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM,PALACE.P.O,THIRUVANANTHAPURAM,REPRESENTED BY ITS SECRETARY.** **2. THE SECRETARY,THE KERALA PUBLIC SERVICE COMMISSION,PATTOM,PALACE.P.O,THIRUVANANTHAPURAM.** **3. THE JOINT SECRETARY & STATE PUBLIC INFORMATION OFFICE,THE KERALA PUBLIC SERVICE COMMISSION,PATTOM.PALACE.P.O,THIRUVANANTHAPURAM.** **4. THE STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT,DEPARTMENT OF COLLEGIATE EDUCATION,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **R1,R2 & R3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R4 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON 18/07/2011 DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.23918/2009 H** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF NOTIFICATION PUBLISHED IN THE PSC BULLETIN DTD. 15/12/2007.** - **P2: COPY OF THE HALL TICKET ISSUED TO THE 1ST PETITIONER.** - **P3: COPY OF THE QUESTION PAPER.** - **P4: COPY OF THE COVERING PAGE OF THE BOOK 'CHUVANNA CHINNANGAL'.** - **P5: COPY OF THE RELEVANT PAGES OF BHASHABHOOSHANAM.** - **P6: COPY OF THE SHORT LIST.** - **P7: COPY OF THE PETITION SUBMITTED BY THE 5TH PETITIONER.** - **P8: COPY OF THE COMMUNICATION DTD. 27/07/2009.** - **P9: COPY OF THE COMMUNICATION DTD. 28/07/2009.** - **P10: COPY OF THE COMMUNICATION ISSUED BY THE APPELLATE AUTHORITY OF THE KERALA PUBLIC SERVICE COMMISSION BEARING NO.IDS.II(1) 2276/09 GD DTD.11/08/2009.** - **P11: COPY OF THE NOTIFICATION BEARING NO.491/09/SSVI PUBLISHED BY THE PSC.** - **P12: COPY OF THE NOTIFICATION DTD. 5/01/2010 PUBLISHEDBY THE PSC.** - **P13: COPY OF THE APPLICATION DTD.21/12/2009 FOR RECHECKING OF ANSWER SCRIPT.** **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **C.T.RAVIKUMAR, J.** ---------------------------- W.P.(C)No.23918 of 2009 ---------------------------Dated 18[th] July, 2011 ## **JUDGMENT** The Kerala Public Service Commission (for short `the KPSC') invited applications for appointments as Lecturers in Malayalam under the Kerala Collegiate Education Department through Ext.P1 notification. The petitioners who responded to the same were issued with Ext.P2 and similar Hall Tickets. Going by the hall tickets a written test of descriptive type was to be conducted. On 8.11.2008 a written test was conducted with Ext.P3 question paper that contained two parts viz., Section A consisted of 60 questions of objective type with multiple answers and Section B consisted of eight questions carrying five marks each, requiring descriptive answers. According to the petitioners, Section A of Ext.P3 contained five questions viz., question Nos.3, 9, 45, 52 and 58 the answers of which given in multiple choice, were either wrong or vague. Thereupon, the first and fifth petitioners submitted representations before the first and second respondents pointing out the said aspects and it evoked no response from them. Therefore, they were under the bona fide belief that valuation of the answer scripts would be made without reckoning the said questions and their answers, it is further contended. Later, Ext.P6 short list was published by the WP(C).No.23918/2009 2 KPSC whereon, the 5[th] petitioner's name figured in its supplementary list and the others failed to find a place. In Ext.P6 it was stated thus:- _“The candidates who have secured 67 (sixty seven) marks and above are included in the Main List of this Short List. The requisite marks have been lowered to the extent necessary in respect of the Supplementary Lists.”_ In the light of the said statement in Ext.P6 they entertained the view that loss of even one mark was vital for inclusion in the main list or supplementary list in Ext.P6 and in that view of the matter the aforementioned mistakes in Section A of Ext.P3 would be decisive as regards the eligibility and entitlement to get included in Ext.P6. Thereupon, the first and the fifth petitioners submitted applications requesting for answer keys in respect of Ext.P3 under the Right to Information Act, 2005. The 5[th] petitioner's request was refused as per Ext.P8 whilst the first petitioner was served with Ext.P9 whereby she was intimated the joint decision of the examiners to give marks to the most suitable answers to the aforementioned questions in Section A of Ext.P3. This writ petition has been filed in the said circumstances mainly challenging Exts.P6, P8 and P9 and seeking issuance of a writ of mandamus commanding the respondents to cancel Ext.P6 short list and to conduct a written test afresh for selection to the post of Lecturer in Malayalam and also for declaring that the written test conducted by WP(C).No.23918/2009 3 KPSC for selection to the said post pursuant to Ext.P1 notification as illegal and vitiated. 2. On 24.8.2009 this Court issued a direction to allow the petitioners to participate provisionally in the interview but, directed to withhold the result. Admittedly, the petitioners were provisionally interviewed pursuant to the said interim order. As per order in I.A.No.11895 of 2009 the publication of the ranked list for appointment to the post of Lecturer in Malayalam pursuant to the written test on 8.11.2008 was made subject to further orders to be passed in this writ petition. Later, considering the contentions of the petitioners this Court directed KPSC to furnish the marks obtained by the petitioners in a sealed cover as per order dated 22.12.2009. That apart, the order to withhold the result was vacated in respect of the 5[th] petitioner and her result was ordered to be declared. Thereafter, the Commission was directed to re-check the marks of the petitioners and to file a statement. Subsequently, the petitioners have filed I.A.No.2100 of 2010 seeking a direction to the first and second respondents to re-value their answer scripts. On 15.2.2010 this Court directed the learned Standing Counsel to get instruction on I.A.No.2100 of 2010. Thereafter, this Court passed an order on 23.2.2010 as hereunder:- _“The learned Standing Counsel for the PSC submits that the rechecking of the marks of the_ WP(C).No.23918/2009 4 _petitioners is complete and there is no variation in the marks. Regarding revaluation, the Standing Counsel submits that there is no provision for revaluation in the rules applicable to the PSC. He further points out that against a decision of the Division Bench of this Court directing revaluation, the PSC has filed Civil Appeal No.461/2008, in which, the stand of the PSC has been upheld by the Supreme Court._ _The counsel for the petitioners seeks time. Post after a week.”_ Thereafter, the case now stands posted for hearing. In the meanwhile, respondents 1 to 3 have filed counter affidavit and additional affidavit in this writ petition. 3. Evidently, the petitioners partook at the interview provisionally on the strength of the interim order in this writ petition. Paragraph 2 of the additional affidavit filed on behalf of respondents 1 to 3 assumes relevance in the context of the contentions and it, in so far as relevant, reads thus:- _“ This Hon'ble Court had earlier directed to furnish the marks secured by the petitioners in the written test and also to publish the results of the 5[th] petitioner as she was even otherwise eligible to be called for the interview in view of her inclusion in the supplementary list of the short list for the selection in question. Accordingly, in compliance with the above said order, the result of the 5[th] petitioner Smt.Suja S, was released vide addendum notification published on 5.1.2010 and she has been assigned rank No.5A in the Ezhava supplementary list of the ranked list published on 5.12.2009. Further, it is submitted that the petitioners herein, viz., Arun J.G, Lekha R, Lekha S. Babu, Gopan G and Suja S have secured 43, 58, 57, 42 & 59 marks respectively in the written test for the above selection._ WP(C).No.23918/2009 5 _The marks of the last candidate included in the main list of the short list is 67 marks. Hence even if it is assumed (not admitted) that the 5 questions are deleted, the petitioners do not have sufficient marks for inclusion in the main list of the short list.”_ In view of the aforesaid statement and also based on the contentions relying on the judgment dated 5.2.2010 in W.P.(C)No.3886 of 2010 it is contended by respondents 1 to 3 that this writ petition is liable to be dismissed. I will deal with the contention a little later. 4. As already noticed, I.A.No.2100 of 2010 was filed by the petitioners seeking for a direction to the first and second respondents to revalue their answer scripts. The learned Standing Counsel for respondents 1 to 3 submitted that earlier, against a direction of a Division Bench of this Court for revaluation the KPSC had filed Civil Appeal No.461 of 2008 and the stand of the KPSC was upheld by the Hon'ble Apex Court. The learned Standing Counsel made available a copy of the order of the Hon'ble Apex Court dated 16.1.2008 in Civil Appeal No.461 of 2008. It is obvious from the order dated 16.1.2008 that the said appeal was preferred by the KPSC challenging the order of a Division Bench of this Court for revaluation of the answer scripts passed in an appeal filed against order dated 30.8.2005 of the learned Single Judge in W.P.(C)No.9459 of 2005. The prayers in the said writ petition were to direct the KPSC to produce original answer sheet of the WP(C).No.23918/2009 6 petitioner therein and further to get it examined by any Professor of English of one of the Universities in Kerala. Relying on the decision in _**Pramod Kumar Srivastava**_ v. _**Chairman, Bihar Public Service Commission**_ (( **2004** ) **6 SCC 714** ) it was held that in the absence of any rule providing for revaluation of the answer book no direction could be issued for revaluation and the High Court would not be justified in issuing a writ for revaluation of the answer book of a candidate. Accordingly, the appeal was allowed and the judgment dated 20.12.2005 of the Division Bench of the High Court and the order dated 30.8.2005 of the learned Single Judge were set aside. Consequently, W.P.(C)No.9459 of 2005 was also dismissed. Later, a batch of writ petitions viz., W.P.(C)Nos.20353, 20481 and 20482 of 2009 seeking revaluation of the answer scripts of the petitioners who were applicants for appointment to the post of Assistant / Auditor in Government Secretariat / Kerala Public Service Commission / Local Fund Audit Department, by an independent agency came up before this Court. As per judgment dated 24.7.2009 this Court dismissed the said writ petitions in the light of the decisions of the Hon'ble Apex Court in _**Pramod Kumar Srivastava's**_ case (Supra) and in Civil Appeal No.461 of 2008. A careful scanning of the case on hand in the light of the aforesaid decisions would undoubtedly reveal that the aforesaid WP(C).No.23918/2009 7 decisions squarely apply to the facts of this case. In the said circumstances, in the light of the decisions of the Hon'ble Apex Court and also of this Court referred above, I have no hesitation to hold that the petitioners are not entitled to seek revaluation of their answer scripts. The further questions to be decided is whether the written test conducted by the PSC on 8.11.2008 pursuant to Ext.P1 notification is liable to be declared as illegal and vitiated and whether a direction to cancel Ext.P6 short list and to conduct a written test afresh to the post of Lecturer in Malayalam pursuant to Ext.P1 notification are called for, in the facts and circumstances of the case. 5. I have already adverted to the facts of this case. Admittedly, the written test pursuant to Ext.P1 notification was held on 8.11.2008 and Ext.P6 short list was published on 30.6.2009. The averments in the writ petition would reveal that Ext.P7 petition was submitted by the fifth petitioner only on 14.7.2009 and the first petitioner requested for the answer keys of Ext.P3 only on 6.7.2009. Thus, it is obvious that even after coming to know about the nature of Ext.P3 question paper on 8.11.2008 even after entertaining the view that the question Nos.3, 9, 45, 52 and 58 were either wrong or vague the petitioners did not care to take recourse to lawful remedies to raise the grievance and challenge against the same, immediately. Ext.P6 WP(C).No.23918/2009 8 short list pursuant to the written test held on 8.11.2008 was published on 30.6.2009 and it is only thereafter they woke up to throw challenge against Ext.P3 question paper and consequently to challenge Ext.P6. Evidently, the petitioners were sitting on the fence till the publication of Ext.P6 short list. On that sole ground it is liable to be dismissed as contended by respondents 1 to 3 relying on the decision of this Court in W.P.(C)No.3886 of 2010. Except the 5[th] petitioner who figured in the supplementary list of Ext.P6 short list the others could not get any place in Ext.P6 short list. Despite the said position this Court directed the respondents to re-check the marks scored by the petitioners and it is now revealed that the petitioners have secured 42, 57, 58, 43 and 59 marks respectively. In this context, it is apposite to note that the last candidate included in the main list of Ext.P6 short list secured 67 marks. The petitioners rely on the decision of the Hon'ble Apex Court in _**Kanpur University**_ v. _**Samir Gupta**_ reported in **(1983) 4 SCC 309** to contend that the suspected questions should have been excluded from the paper and no marks could have been assigned to the candidates. Even then, considering the fact that the last candidate included in the main list secured 67 marks, deletion of the aforesaid five questions and consequent reduction of marks from the marks scored by each of the rank holders would not earn a place for the petitioners in the short list. WP(C).No.23918/2009 9 As regards the 5[th] petitioner, she was included in the supplementary list of the short list and she would have been called for the interview even in the absence of the interim direction of this Court to provisionally interview the petitioners. The petitioners who were sitting on the fence cannot be heard to raise grievances against Ext.P3 question paper and the selection process that led to the issuance of Ext.P6 short list and the consequential publication of Ext.P11 ranked list dated 5.12.2009. The enormity of labour and time involved in a selection process undertaken by the KPSC also persuades me to hold that it cannot be permitted to be challenged lightly and, at any rate, by persons who were sitting on the fence. Thus, in law and on facts the challenge of the petitioners against Ext.P6 and consequential prayers for its cancellation and direction to conduct fresh written test pursuant to Ext.P1 are liable to fail. The petitioners who have participated in the selection process remained silent without raising any grievances till the publication of Ext.P6 short list, are not entitled to raise grievances either against Ext.P3 question paper and consequently, against Ext.P6 short list drawn pursuant to the written test held with Ext.P3 question paper. In view of the said position the challenge of the petitioners against Exts.P8 and P9 also must fade out into insignificance. The upshot of the discussion is that there is no merit in the claims and contentions of the petitioners WP(C).No.23918/2009 10 and accordingly, this writ petition is dismissed. It is made clear that the dismissal of this writ petition will not stand in the way of the 5th petitioner who is included in the supplementary list for Ezhava in Ext.P11 ranked list, for getting advice and appointment if she is otherwise eligible to get advised and appointed by virtue of her rank in the said list. Sd/C.T.RAVIKUMAR Judge TKS