K. Sudheer v. Kerala Public Service Commission and Others (O.P.(KAT) No.522 of 2023)

O.P.(KAT)No.522 of 2023 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023/1ST AGRAHAYANA, ``` ``` 1945 ``` ``` O.P.(KAT)NO.522 OF 2023 ``` ``` AGAINST THE ORDER DATED 15.06.2023 IN O.A.NO.445 OF 2022 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONER: ``` ``` K.SUDHEER, AGED 49 YEARS, S/O KARUNAKARAN, JUNIOR SUPERINTENDENT - LAND REVENUE COMMISSIONERATE, PUBLIC OFFICE BUILDING, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM, 695033. RESIDING AT MULLASSERI, WINNERS NAGAR, VAZHAYILA, PEROORKKADA P.O., THIRUVANANTHAPURAM, PIN - 695005 ``` ``` BY ADVS. ``` ``` K.R.AVINASH (KUNNATH) ABDUL RAOOF PALLIPATH E.MOHAMMED SHAFI PRAJIT RATNAKARAN ``` ## **`RESPONDENTS:`** - **`1 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, PIN - 695004`** ``` 2 THE LAND REVENUE COMMISSIONER, OFFICE OF THE COMMISSIONER OF LAND REVENUE PUBLIC OFFICE BUILDING, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN - 695033 ``` O.P.(KAT)No.522 of 2023 2 ``` 3 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 ``` ``` OTHER PRESENT: ``` ``` SRI P.C.SASIDHARAN- STANDING COUNSEL - KPSC ``` ``` SMT K.M.RASHMI- SR. GOVERNMENT PLEADER ``` ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(KAT)No.522 of 2023 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** on the file of the Kerala Administrative Tribunal, Thiruvananthapuram, which was one filed invoking the provisions under Section 19 of the Administrative Tribunals Act, 1985, seeking an order directing the 1[st] respondent Kerala Public Service Commission to revisit the text of the minutes of the information passed on to the applicant in his profile, Annexure A8, and also act upon positively on Annexure A9 representation filed by him and publish the results of the examination attended by him pursuant to Annexure A2 notification dated 18.09.2020, without any delay. The petitioner has filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, to set aside Ext.P2 order dated 15.06.2023 of the Kerala Administrative Tribunal in O.A.No.445 of 2022; and to direct the 1[st] respondent Kerala Public Service Commission that the OMR answer sheet of the petitioner pertaining to Part–III, Paper–I – Medical jurisprudence of the Departmental test shall be considered as valid and valuation should be done and marks should be published. O.P.(KAT)No.522 of 2023 4 2. Before the Tribunal, the 1[st] respondent Kerala Public Service Commission filed Ext.P3 reply statement dated 03.08.2022. The 2[nd] respondent Land Revenue Commissioner filed Ext.P4 reply statement dated 18.06.2022. The petitioner filed Ext.P5 rejoinder dated 16.08.2022. After considering the rival contentions, the Tribunal by Ext.P2 order dated 15.06.2023 O.A.No.445 of 2022 held that the petitioner-applicant is not entitled to the reliefs sought for. Paragraph 9 and also the last two paragraphs of Ext.P2 order read thus; “9. The rival submissions, pleadings and materials on records have been considered. The applicants’ main contention is that the mistakes committed by them in bubbling the answer sheets is of trivial nature which ought to be ignored by the PSC and the invalidated answer sheet should be evaluated manually. Per contra, the PSC in their reply statement have elaborated the procedure adopted in valuation of OMR sheets and also point out the detailed instructions are provided at the backside of the OMR sheets itself clearly indicating that the answer script will be processed by electronically and the same is liable to be invalidated, if candidate makes incomplete or incorrect filling of columns or bubbles regarding Register Number, paper code, usage of question booklet and OMR sheet with different Alpha code. Further, it is also mentioned that incorrect or incomplete darkening of the bubbles would lead to invalidation. The PSC in the reply statement has also cited some judicial pronouncements in O.P.(KAT)No.522 of 2023 5 support of their stand that the relief sought for by the applicants just cannot be granted. We also note that a similar issue had been considered by the Honourable Supreme Court in Civil Appeal No.6669 of 2019 arising out of SLP No.14093 of 2019 [ **State of Tamil Nadu and others v. G.Hemalathaa and another** ] wherein the ratio laid was that in an examination the mandatory instructions stipulated have to be followed and the candidates who violate the mandatory instructions are not eligible for any relief. The Honourable Supreme Court also observed in that case that any order in favour of the candidate who has violated the mandatory instructions would be laying down a bad law. We find that the mandatory instructions have been violated by the applicants while bubbling the OMR sheets. The applicants are also not in denial about this aspect. Hence, the ratio of Honourable Supreme Court order (supra) and other judgments cited in the reply statement of the Public Service Commission is squarely applicable in the case at hand. For the forgoing reasons, we are of the view that the applicants are not entitled for any relief. The Original Applications therefore fail and are accordingly dismissed.” 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for Kerala Public Service Commission for the 1[st] respondent and also the learned Senior Government Pleader for respondents 2 and 3. 4. The issue that arises for consideration in this original petition, which is one filed invoking the supervisory jurisdiction of O.P.(KAT)No.522 of 2023 6 this Court under Article 227 of the Constitution of India, is as to whether any interference is warranted in Ext.P2 order dated 15.06.2023 of the Kerala Administrative Tribunal in O.A.No.445 of 2022. 5. During the course of arguments, the learned counsel for the petitioner-applicant would address arguments with reference to the averments in paragraph 3 of the original petition. The learned counsel would submit that the petitioner had entered the correct paper code–208255– in digits in the space provided in the OMR answer sheet. However, but while darkening the bubbles below the paper code, the petitioner committed a minor omission, whereby, the bubble below the digit–8 was omitted to be darkened. Instead the corresponding bubble in the next column below digit 2 was darkened. In all other fields including the answers the darkening of the bubbles was done correctly. 6. The document marked as Annexure A12 in O.A.No.445 of 2022 is the detailed instructions given to the candidates, by the 1[st] respondent Kerala Public Service Commission, in respect of objective (OMR) examinations. The fact that the petitionerapplicant failed to darken the appropriate bubbles below the paper code in the OMR answer sheet is not in dispute. It is for that O.P.(KAT)No.522 of 2023 7 reason that his answer script was invalidated by the Kerala Public Service Commission. 7. In Ext.P3 reply statement, filed the 1[st] respondent Kerala Public Service Commission the procedure adopted in the valuation of OMR sheets has been dealt with in detail. Paragraphs 7 to 9 of that reply statement read thus; “7. In the erratum notification published it is seen that pass mark for each part in Part III Paper I-Medical Jurisprudence and Part III Paper II - Indian Evidence Act is modified as 46 instead of 48 in the result notification. The applicant is also challenging the procedure adopted in the valuation of OMR answer scripts. The process of evaluation for OMR answer sheets are as follows. Procedure adopted in the valuation of OMR sheets:- OMR Answer scripts has two parts- A Part and B Part. A-Part is the registration part and B Part is the answer bubbling part. The A-part and B-part can be separated through the perforation provided in the sheet. A-Part for departmental test contains column for marking register number of candidates and various paper code for each examination as mentioned in the above table-1. The B-Part contains Alphabets (one of the four series of question paper such as A, B, C and D), the Paper code, and answers bubbling portion. Since the alpha code in the B Part of the OMR sheet is already bubbled, candidates will have to darken only the Paper Code in the B-Part of the OMR sheet. The Candidates also separate the two parts (APart and B-Part) after the examination at the examination O.P.(KAT)No.522 of 2023 8 centre and the two parts are separately bundled and packed at each examination centre itself, immediately on close of the examination. Valuation: During valuation, the 'B' part answer scripts of a post are scanned first. 'B' part contains the answers bubbled by the candidate, the Alpha Code (question booklet code), Paper Code for departmental test and a Bar code. Before scanning the paper code will be set in the system for conducting valuation. During scanning, when error in the paper code is detected system will treat the script as invalid. The ‘B’ part answer scripts are scanned twice using two different scanners. During the First Scanning the Serial No. (Scan No.), Bar code and the Marks obtained by the candidate are printed along the margin of the 'B' Part answer script. During second scanning the scan number alone is printed, but all the data are stored. After the scanning of 'B' Part answer scripts of a particular post, the whole data is copied in a CD and a report in this regard is prepared. 8. The scanning/valuation of 'A' Part answer scripts of the post is done next. The 'A' Part answer scripts are scanned only once. During this scanning the scan number (Serial No.) and Bar Code are printed on the margin of the sheet. Scan No., Register No. bubbled by the candidate and bar code of each sheet are stored in the system. When the scanning of the 'A' Part scripts of a post is completed, an error list is generated. It is a list of the details of 'A' Part scripts in which register numbers were not bubbled or wrongly bubbled or two or more candidates have bubbled the same register number. After that a list of candidates who were absent for the exam is also generated and it is cross checked with the signed list of candidates. When all this work is over, the CD which O.P.(KAT)No.522 of 2023 9 contains the data relating to the 'B' Part answer scripts is brought to the OMR Section for data merging. 9. Merging:- Data merging is the process of combining the marks obtained in each 'B' Part OMR answer sheet with its corresponding 'A' Part script with the help of the same Bar Code printed in both 'A and B' part of an OMR answer sheet. The marks obtained by a candidate is identified electronically through the process of merging. Here the same bar code printed in 'A' and 'B' Parts of the OMR answer sheet used by the candidate helps to merge his register number (the one he has bubbled in the 'A' Part) with the marks he got (for the answers he bubbled in the 'B' part). The Bar Code printed in each OMR sheet is unique. The candidate gets OMR sheets having different Bar Codes Kand Timing marks for different Examinations.” 8. The learned Standing Counsel for Kerala Public Service Commission would place reliance on the judgment of a Full Bench of this Court in **Kerala Public Service Commission v. Reshmi** **K.R. and others [2019 (5) KHC 875]** . In that decision the full bench of this Court held that the instructions in the application cannot be modified to suit the convenience of the parties. In case of defects committed despite clear instructions, which are not because of technical errors, there cannot be any relaxation of instructions. There is no scope for any judicial review in such matters. Paragraphs 29 to 31 of that decision read thus; O.P.(KAT)No.522 of 2023 10 “29. Any candidate applying for a job should be careful in submitting their applications in compliance with the instructions. The ability to do so is also a means to assess the sense of responsibility of the candidate who seeks to be appointed in his service. The assessment starts from the application of the candidate. The candidates are expected to have the minimum responsibility to submit the application in tune with the instructions, except in circumstances where technical problems beyond their control create difficulties, despite taking sufficient care and caution. 30. A scanning of majority of the judgments cited by both sides would show that the consistent stand of this Court has been to the effect that applications shall be submitted as instructed. **Kerala Public Service Commission v. Roshni** **[ILR 2016 (1) Kerala 99]** can only be considered as one rendered in the peculiar facts of the said case, where it was found that the date of photographing was just a few days prior to the six months' period. Apart from that in that case it was demonstrated that the website did not provide for part II of the notification, in which the instructions for uploading of photographs were alleged to have been published. The Division Bench found that no material was produced in the Writ Appeal also so as to reverse the finding of the learned Single Judge. Therefore, the dictum in the said case has to be confined to the peculiar factual situation of that case. 31. The contention that the judgment has diluted the dicta of the earlier decisions cannot be accepted. As long as the instructions were made known to the candidates properly, without any ambiguity and with due clarity, it was incumbent on the candidates to have abided by such instructions strictly. O.P.(KAT)No.522 of 2023 11 In the case of defects committed despite clear instructions and not because of any technical errors in the server of PSC or the like, which is beyond the control of the candidates, there cannot be any relaxation of the instructions. The instructions cannot also be modified to suit the convenience of parties on the ground that the intention of stipulating the instruction could be achieved even otherwise, as in the case of the candidates who had approached the KAT, where it is held that it was possible to identify the candidate even with the given photograph though it does not conform to the size prescribed. When all candidates, except a very few have produced the photographs of the prescribed size, it cannot be said that photographs uploaded without the due care and caution, that is expected of the candidates, who are eagerly waiting for employment, are liable to be accepted. Such cases do not justify any indulgence on the ground that the candidate could be identified and that the purpose of affixing a photograph with the prescribed size was achieved.” 9. 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. ## 10. 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 O.P.(KAT)No.522 of 2023 12 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. ## 11. 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 the 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 O.P.(KAT)No.522 of 2023 13 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. 12. 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. 13. 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, O.P.(KAT)No.522 of 2023 14 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. 14. 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 a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or 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 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 or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. O.P.(KAT)No.522 of 2023 15 15. Viewed in the light of the law laid down in the decision of the Full Bench of this Court in **Kerala Public Service Commission v. Resmi K.R. [2019 (5) KHC 875]** we find no irregularity in the reasoning of the Tribunal in Ext.P2 order dated 15.06.2023 in O.A.No.445 of 2022, whereby, interference was declined. The reasoning of the Tribunal in that order is neither perverse nor patently illegal and it cannot also be said that the Tribunal has committed a manifest error while passing Ext.P2 order. Viewed in the light of the law laid down in the decisions referred to supra, no interference of this Court is warranted, on Ext.P2 order of the Tribunal, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India In the result, this original petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** MIN O.P.(KAT)No.522 of 2023 16 ``` APPENDIX OF OP(KAT) 522/2023 ``` ## **`PETITIONER ANNEXURES`** |**`ANNEXURE A1`**|**`TRUE COPY OF THE KERALA REVENUE`**| |---|---| ||**`SUBORDINATE SERVICE SPECIAL RULES, 1980`**| ||**`ALONG WITH TYPED COPY`**| |**`ANNEXURE A2`**|**`TRUE COPY OF THE NOTIFICATION NO. DE III`**| ||**`(1) 306939/2020/EW DATED 18.09.2020 OF`**| ||**`THE SECRETARY, KERALA PUBLIC SERVICE`**| ||**`COMMISSION, TRIVANDRUM`**| |**`ANNEXURE A3`**|**`TRUE COPY OF THE ADMISSION TICKET ISSUED`**| ||**`BY THE SECRETARY, KERALA PUBLIC SERVICE`**| ||**`COMMISSION, TRIVANDRUM WITH THE REGN.`**| ||**`NO. 100499 DATED 05.11.2021`**| |**`ANNEXURE A4`**|**`TRUE COPY OF THE NOTIFICATION NO. DE III`**| ||**`(1) 306939/2020/EW DATED 21.02.2022 OF`**| ||**`THE SECRETARY, KERALA PUBLIC SERVICE`**| ||**`COMMISSION, TRIVANDRUM ALONG WITH TYPED`**| ||**`COPY`**| |**`ANNEXURE A5`**|**`TRUE COPY OF THE NOTIFICATION NO. DE`**| ||**`III(1) 306939/2020/EW DATED 24.02.2022`**| ||**`OF THE SECRETARY, KERALA PUBLIC SERVICE`**| ||**`COMMISSION, TRIVANDRUM ALONG WITH TYPED`**| ||**`COPY`**| |**`ANNEXURE A6`**|**`TRUE COPY OF THE FINAL ANSWER KEY ON`**| ||**`PART-III, PAPER-I- MEDICAL JURISPRUDENCE`**| ||**`(WITH BOOKS) HELD ON 16.11.2021 WITH`**| ||**`PAPER CODE 208255 PUBLISHED BY KERALA`**| ||**`PUBLIC SERVICE COMMISSION, TRIVANDRUM`**| |**`ANNEXURE A7`**|**`TRUE COPY OF THE BOOK LET ALPHA CODE`**| ||**`ST/III-5/2021/CJT WITH SERIAL NO.`**| ||**`1000053 IN RESPECT OF THE DEPARTMENT`**| ||**`TEST-SEPTEMBER, 2020`**| |**`ANNEXURE A8`**|**`TRUE COPY OF THE INFORMATION SENT BY THE`**| ||**`KERALA PUBLIC SERVICE COMMISSION TO THE`**| ||**`PROFILE OF THE APPLICANT WITH REGARD TO`**| ||**`THE MARKS RECEIVED BY THE APPLICANT IN`**| O.P.(KAT)No.522 of 2023 17 ## **`THE DEPARTMENTAL SPECIAL TEST.`** ``` ANNEXURE A9 TRUE COPY OF THE REPRESENTATION DATED 23.02.2022 FILED BY THE APPLICANT BEFORE THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, TRIVANDRUM ``` - **`ANNEXURE A10 TRUE COPY OF GRADATION`** - **`ANNEXURE A11 TRUE COPY OF THE UN OFFICIAL NOTE`** - **`ANNEXURE A12 TRUE COPY OF THE SPECIAL INSTRUCION GIVEN TO THE CANDIDATE WITH REGARD TO THE OBJECTION (OMR) EXAMINATION`** - **`ANNEXURE A13 A TRUE COPY OF THE EXAMINATION RESULT OF THE APPLICANT PUBLISHED BY THE 1ST RESPONDENT WITH REGN. NO. 100499`** - **`ANNEXURE A14 TRUE COPY OF THE G.O (RT) NO. 2026/2622/RD DATED 04.05.2022 ISSUED BY THE JOINT SECRETARY TO GOVERNMENT REVENUE (C) DEPARTMENT, GOVERNMENT OF KERALA`** - **`ANNEXURE A 14 IN TRUE COPY OF THE NOTIFICATION VIDE NO DE MA 582/23 III(1) 618482/22/EW DATED 28.02.2023 OF THE KERALA PUBLIC SERVICE COMMISSION ISSUED BY SRI.SAJU GEORGE, SECRETARY`** ``` ANNEXURE A15 IN MA TRUE COPY OF THE LETTER NO. 1019/23 LR/12168/2022-LR(E2) DATED 09.05.2023 OF THE ASSISTANT COMMISSIONER (RE),OFFICE OF THE LAND REVENUE COMMISSIONER, REVENUE COMPLEX, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM DATED 09.05.2023 ``` - **`EXHIBIT P1 A TRUE COPY OF OA 445/2022 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL, TRIVANDRUM`** ``` EXHIBIT P2 TRUE COPY OF THE ORDER DATED 15.06.2023 IN OA- 445/2022 OF THE KERALA ``` O.P.(KAT)No.522 of 2023 18 ## **`ADMINISTRATIVE TRIBUNAL`** ## **`EXHIBIT P3`** ``` EXHIBIT P4 ``` ``` EXHIBIT P5 ``` ``` EXHIBIT P6 ``` ``` EXHIBIT P7 ``` ``` TRUE COPY OF THE REPLY STATEMENT DATED 03.08.2022 FILED BY 1ST RESPONDENT KERALA PUBLIC SERVICE COMMISSION IN O.A 445/2022 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL THIRUVANANTHAPURAM ``` ``` TRUE COPY OF THE REPLY STATEMENT DATED 18.06.2022 FILED ON BEHALF OF THE 2ND RESPONDENT LAND REVENUE COMMISSIONER IN OA NO. 445/2022 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL ``` - **`A TRUE COPY OF THE REJOINDER DATED 16.08.2022 IN OA - 445/2022 TO THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT`** ``` TRUE COPY OF M.A. NO: 582/2023 IN OA - 445/2022 DATED 18.03.2023 ``` ``` TRUE COPY OF M.A. NO: 1019/2023 IN OA - 445/2022 DATED 02.06.2023 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL ```