K.A. Jacob v. Marine Products Export Development Authority (MPEDA)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **MONDAY, THE 8TH DAY OF JULY 2013/17TH ASHADHA, 1935** ## **WP(C).No. 20135 of 2012 (N)** **----------------------------------------** ## **PETITIONER(S):** **-----------------------** **K.A.JACOB, SENIOR ACCOUNTANT, AGED 49 YEARS, MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY, PB NO 4272, MPEDA HOUSE, PANAMPILLY AVENUE, PANAMPILLY NAGAR, KOCHI - 682036.** **BY ADV. SRI.T.V.AJAYAKUMAR** **RESPONDENT(S):** **--------------------------** ## **1. MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY,** - **PB NO 4272, MPEDA HOUSE, PANAMPILLY AVENUE, PANAMPILLY NAGAR, KOCHI - 682036. REPRESENTED BY ITS CHAIRMAN.** ## **2. SECRETARY,** - **MARINE PRODUCTS EXPORT DEVELOPMDENT AUTHORITY, PB NO 4272, MPEDA HOUSE, PANAMPILLY AVENUE, PANAMPILLY NAGAR, KOCHI 682036.** ## **3. S. SASIDHARAN PILLAI,** - **RETIRED JOINT DIRECTOR (MARKETING) AND CONSULTANT FOR RESTRUCTURING OF MPEDA OFFICES, MARINE PRODUCTS EXPORTS DEVELOPMENT AUTHORITY, PB NO 4272, MPEDA HOUSE, PANAMPILLY AVENUE, PANAMPILLY NAGAR, KOCHI 682036.** ## **4. V.V. SURESH KUMAR,** **ASSISTANT DIRECTOR (PERSONNEL). MARINE PRODUCTS EXPORTS DEVELOPMENT AUTHORITY, PB NO 4272, MPEDA HOUSE, PANAMPILLY AVENUE, PANAMPILLY NAGAR, KOCHI 682036.** **R1,R2 BY ADV. SRI.K.JAJU BABU R1,R2 BY ADV. SMT.M.U.VIJAYALAKSHMI R3 & 4 BY ADV. SRI.BRIJESH MOHAN R BY SRI.MATHEWS K.UTHUPPACHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 20135 of 2012 (N) ----------------------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT. P1TRUE COPY OF THE OFFICE ORDER NO 645 OF THE 2ND RESPONDENT.** - **EXT. P2TRUE COPY OF THE RECRUITMENT RULES FOR THE POST OF ASISTANT DIRECTOR (PERS/ REGN) (RECORD NO 18) IN MPEDA.** - **EXT. P3TRUE COPY OF THE RELEVANT EXTRACT OF STANDING INSTRUCTIONS ISSUED BY THE MPEDA.** - **EXT. P4TRUE COPY OF THE MUNUTES OF THE EXECUTIVE committee MEETING HELD ON 17-11-2011 ALONG WITH LETTER DATED 04-01-2012 ISSUED BY THE CHAIRMKAN, MPEDA TO A MEMBER OF PARLIAMENT.** - **EXT. P4(A)TURE COPY OF THE LETTER DATED 04-01-2012 OF THE CHAIRMAN, MPEDA ADDRESSED TO M.P.** - **EXT. P5TRUE COPY OF THE CIRCULAR DATED 04-1-2011 ISSUED BY THE 1ST RESPONDENT.** - **EXT. P6TRUE COPY OF THE LETTER DATED 04-03-201 OF THE DY. DIRECTOR (ADMN), MPEDA TO THE PETITIONER AND OTHERS.** - **EXT. P7TREU COPY OF THE SCHEDULE OF DEPARTMENTAL TEST ISSUED BY THE DEPUTY DIRECTOR(ADMN) MPEDA.** - **EXT. P8TRUE COPY OF THE CIRCULAR DATED 26-05-2011 ISSUED BY THE 2ND RESPONDENT.** - **EXT. P9TRUE COPY OF THE NOTE DATED 26-05-2011 ISSUED BY THE 2ND RESPONDENT.** - **EXT. P10TRUE COPY OF THE LETTER DATED 27-05-2011 OF THE PETITIONER TO THE 2ND RESPONDENT.** - **EXT. P11TRUE COPY OF THE APPLICATION DATED 29-10-2007 SUBMITED BY THE GENERAL SECRETARY OFD THE PETITIONER'S ASSOCIATION TO THE CHIEF PRINCIPAL INFORMATION OFIFCER MPEDA.** - **EXT. P12TRUE COPY OF THE LETTER DATED 07-06-2011 OF THE PETITIONER TO THE 2ND RESPONDENT.** - **EXT. P13TRUE COPY OF THE LETTER DATED 20-06-201 OF THE DY. DIRECTOR (ADMN) MPEDA TOGETHER WITH THE REPLY DATED 24-06-2011 OF THE CENTRAL PUBLIC INFORMATION OFICER, MPEDA TO THE PETITIONER.** - **EXT. P14TRUE COPY OF THE ANSWER SHEET OF PAPER II OF THE DEPARTMENTAL TEST OF THE PETITIONER.** - **EXT. P15TRUE COPY OF THE REPRESENTATION DATED 30-09-2011 SUBMITTED BY THE PETITIONER TO THE CHAIRMAN MPEDA.** ## **PJ** **...2/-** **..2..** **WP(C).No. 20135 of 2012 (N)** **----------------------------------------** ## **EXT. P16TRUE COPY OF THE REPRESENTATION DATED 11-1-2011 SUBMITTED BY THE PETITIONER TO THE CHAIRMAN MPEDA.** - **EXT. P17TRUE COPY OF THE REPRESENTATION DATED 17-11-2011 SUBMITTED BY THE PETITIONER TO THE CHAIRMAN MPEDA.** - **EXT. P18TRUE COPY OF THE CIRCULAR DATED 08-07-2011 ISSUED BY THE SECRETARY, MPEDA.** - **EXT. P19TRUE COPY OF THE RECRUITMENT RULES FOR THE ASSISTANT DIRECTOR (PERS) IN MPEDA (RECORD NO 17).** - **EXT. P20TRUE COPY OF THE LETTER DATED 30-1-2012 OF THE 2ND RESPONDENT TO THE PETITIONER.** - **EXT. P21TRUE COPY OF THE REPLY DATED 24-11-2012 OF THE CPIO OF MPEDA TO THE PETITIONER.** - **EXT. P22TRUE COPY OF THE REPLY DATED05-03-2012 OF THE CPIO OF MPEDA TO THE PETITIONER.** - **EXT. P23TRUE COPY OF THE REVALUED ANSWER SHEET OF PAPER II OF THE PETITIONER.** - **EXT. P24TRUE COPY OF THE REPORT ON REVALUATION OF MPEDA.** - **EXT. P25TRUE COPY OF THE REPRESENTATION DATED 21-03-2012 OF THE PETITIONER TO THE CPIO OF MPEDA.** - **EXT.P26 TRUE COPY OF THE CIRCULAR DATED 15/2/2012 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P27 TRUE COPY OF THE CIRCULAR DATED 6/8/2012 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P28 TRUE COPY OF THE CIRCULAR DATED 14/5/2012 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P29 TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE MEETRING OF MPEDA OFFICERS' ASSOCIATION WITH THE CHAIRMAN HELD ON 4/5/2012.** - **EXT.P30 TRUE COPY OF THE GUIDELINES FOR CONDUCTING DEPARTMENTAL TESTS PUBLISHED IN THE WEBSITE OF MPEDA.** - **EXT.P31 TRUE COPY OF THE CIRCULAR DATESD 21/12/2012 ISSUED BY THE 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS** **EXHIBIT R1(A): COPY OF THE LETTER NO.14/8/PERS/2010 DATED 22/11/2011 ISSUED BY THE CHAIRMAN OF THE MINISTRY OF COMMERCE.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.No.20135 of 2012 ---------------------------------------Dated this the 8[th] day of July 2013 ## **J U D G M E N T** The petitioner while working as Senior Accountant in Marine Products Export Development Authority (for short 'MPEDA') was a candidate for selection to the post of Accounts Officer and Assistant Director (Administration/ Personnel). He challenges the valuation made by MPEDA in the departmental test conducted alleging malafides and bias and seeks a declaration that he has passed the departmental examination and make him eligible for promotion. 2. The facts involved in the writ petition would disclose that as per the method of recruitment to the post of Assistant Director (Administration/Personnel) and Accounts Officer, 100% of appointment is by way of promotion from among the Section Officer/Senior Accountants of MPEDA and subject to passing the departmental test. By Circular dated W.P.C..No.20135/2012 2 04/01/2011 the competent authority ordered to conduct departmental test to the post Assistant Director (Administration) and Accounts Officer. The test consisted of two Papers. Paper I is a common test for Assistant Director (Administration) and Accounts Officer carrying 100 marks. Paper II carries 200 marks. The petitioner appeared for the test and the result was published on 26/5/2011. Petitioner passed in the test held for promotion to the post of Accounts Officer but failed in one test meant for the post of Assistant Director. Petitioner alleges malafides by contending that he failed in one paper at the instance of one committee member Sri.K.Muralidharan, who, according to the petitioner, was not qualified for being part of the departmental valuation committee. It is further contended that Paper II consisted of three subjects that is Central Government Rules, Registration Procedures under MPEDA Act and MPEDA Act & Rules. 100 marks were set apart for Central Government Rules in which the petitioner obtained W.P.C..No.20135/2012 3 60 marks and 100 marks were set apart for the other subjects out of which 60 marks for Registration Procedures and 40 marks for MPEDA Act & Rules. The valuation was done separately. The valuation of the section dealing with MPEDA Act & Rules was done by one Sri.T.T.Jayan and the petitioner got 27 marks out of 40. In regard to the Registration Procedures under MPEDA Act the petitioner was given only 4 marks out of 60 which according to the petitioner is unsustainable. He alleges that the said answer sheet was valued by Sri.K.Muralidharan who has no competence in the matter. Ultimately it was seen that he was short of 9 marks for passing the second paper. He submitted Ext.P10 representation dated 27/05/2011 complaining about the manner in which the valuation was done and indicating that the 3[rd] respondent was always taking a hostile attitude against him. Hence a request was made to revalue and tabulate Paper II. He also made a specific request that the revaluation has to be entrusted to W.P.C..No.20135/2012 4 the Joint Directors other than the 3[rd] respondent who, according to him, has a hostile attitude as the petitioner is the Vice President of MPEDA Staff Association which was the only recognised employees union. According to the petitioner he later came to know that his answer papers were revalued by a committee including the 3[rd] respondent. In the meantime appointments were made to the post of Assistant Director by way of deputation. Subsequently the petitioner received letter dated 05/03/2012 enclosing copy of the revalued answer sheet and a report on the revaluation dated 19/12/2011 stating that the marks granted on revaluation is 100. Thus, according to him, he has passed in the examination. However, in Ext.P24 report on revaluation submitted by the Secretary, Director (Marketing) and another Director on 19/11/2011 it is stated that the Committee revalued the answer papers of the petitioner and another person and the marks obtained by the petitioner for Paper II is 93. According to the petitioner he never asked for W.P.C..No.20135/2012 5 a further revaluation as for the first time when the revaluation was done he got 100 marks for Paper II, which was enough for the eligibility for promotion and there was no necessity to conduct another revaluation. Hence on the ground that there is malafides in conducting a further valuation, this writ petition is filed. 3. The main contention urged by the petitioner is that despite his request to exclude the 3[rd] respondent from being part of the revaluation committee MPEDA permitted the 3[rd] respondent to become part of that Committee. Still further, since as per the said revaluation he got the requisite 100 marks for Paper II he did not seek a further revaluation and there was no necessity for the same. But MPEDA conducted second revaluation by which he did not pass for Paper II. 4. Counter affidavit is filed by respondents 1 and 2 inter alia denying the allegations raised by the petitioner in regard to the allegation of bias or mala fides. According to W.P.C..No.20135/2012 6 them, they have conducted the valuation in a proper manner and though there was no procedure for revaluation taking into consideration the request of the petitioner revaluation was done. But two members in the said revaluation committee expressed doubt regarding the marks given to the petitioner. They have also expressed the same in a dissenting note stating that higher marks were given for certain question numbers. Such a dissenting note have been given by two members of the three member valuation committee, Dr.Ram Mohan and the 3[rd] respondent. On the basis of the said dissenting note, the Chairman of the MPEDA observed that even if the note of the 3[rd] respondent is rejected, on the basis of the objection raised by the petitioner the result is 1:1. Hence the Chairman directed the valuation to be rejected and declared it null and void and issued orders to engage a new examiner to revalue the paper. Further it was decided to appoint a three member committee to revalue the answer sheets. On such W.P.C..No.20135/2012 7 revaluation the petitioner got only 93 marks for Paper II and he was declared as failed in the said paper. Therefore according to the respondents 1 and 2 no declaration as prayed for can be granted by this Court as the petitioner had failed in the said paper and the first revaluation done was treated as void on account of the difference of opinion between the valuers with reference to the marks given for certain answers. 5. During the pendency of the above writ petition, the petitioner filed I.A.No.8254 of 2013 inter alia seeking a direction to the first respondent to conduct another revaluation of Paper II by the Kerala State Productivity Council, Kalamassery or any other outside agency pending the decision of the above writ petition. 6. Petitioner has filed an additional reply affidavit and respondent 1 and 2 has filed an additional counter affidavit. W.P.C..No.20135/2012 8 7. Heard the learned counsel for the petitioner Sri.T.V.Ajayakumar and Sri.Jaju Babu, learned counsel appearing for MPEDA. 8. Learned counsel for the petitioner relied upon the judgment of the Supreme Court in **Dev Dutt v. Union of India and others** _[2008(8) SCC 725]_ to highlight the principles of natural justice and further indicating that the concept of natural justice includes the maxims of n _emo debet esse judex propria causa_ that is no one shall be a judge in his own cause, _audi alteram partem_ meaning thereby no decision shall be given against a party without affording him a reasonable hearing, and a third rule, that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. 9. Reliance is also placed on a constitution Bench of the Supreme Court in **Ashok Kumar Yadav and others v. State of Haryana and others** _[1985 (4) SCC 417]_ in order W.P.C..No.20135/2012 9 to contend that in a case where bias is alleged it was not necessary to establish bias but it was sufficient to invalidate a selection process if it could be shown that there was reasonable likelihood of bias, which may arise on account of various factors like personal reasons, hostility to one party, personal friendship, family relationship etc. 10. The learned counsel for the petitioner also relied upon the judgment of the Supreme Court in **Kalabharati Advertising v. Hemant Vimalanath Narichania** _[2010(3) KLT 986 (SC)_ ] in order to contend that the State is under obligation to act fairly without ill will or malice. Supreme Court considered the question as to what is legal malice or malice in law. It is opined that something done without lawful excuse is a legal malice. There need not be any ill feeling or spite. It is enough that the action be a deliberate act in disregard to the rights of others. 11. Another judgment relied upon is **Sahiti v. Dr.N.T.R.University of Health Sciences** _[(2009) 1 SCC_ W.P.C..No.20135/2012 10 _599]_ in which it is held that revaluation of answer papers even in the absence of specific provisions is perfectly legal and permissible. 12. On the other hand the learned counsel for respondents 1 and 2 relied upon a division bench judgment of this Court in **Georgy K.Joseph v. State of Kerala** _[2004_ _(1) KLT 950]_ in which this Court had occasion to hold that normally Court will not and should not interfere with the marks awarded to a student on the basis of valuation and revaluation conducted in accordance with rules relating to the same. Whether proper marks have been awarded to a particular answer or not is not a matter that can be enquired into by this Court under Article 226 of the Constitution of India. 13. Another judgment relied upon is **Amrita Reji v. Union of India** _[2010(4) KLT 571]_ , in which case a learned Single Judge of this Court held that in the absence of any provision for revaluation no candidate can claim revaluation W.P.C..No.20135/2012 11 of answer papers as of right. 14. The contention of the petitioner based on the aforesaid judgment is that though there is no provision for revaluation when respondents 1 and 2 decided to revalue the answer papers it is purely a legal act as held by the Supreme court in **Sahiti** 's case (Supra). In fact there cannot be any dispute regarding the above proposition. 15. Then the only question is whether there was any bias or malice in law with reference to the action taken by respondents 1 and 2. The principles laid down by the Supreme court in **Ashok Kumar Yadav** 's case (Supra) **Dev Dutt** 's case (Supra) and **Kalabharati Advertising** case (Supra) are indisputable propositions. 16. The question would be whether the facts of this case involve a malice in law or whether the answer sheets of the petitioner was valued with bias or was there any opportunity for likelihood of bias. The facts of this case would disclose that when the departmental test was W.P.C..No.20135/2012 12 conducted initially the petitioner had not raised any objection regarding the members of the valuation committee. However he refers to the involvement of one Sri.K.Muralidharan who was included in the valuation committee. According to the petitioner it was under the influence of the 3[rd] respondent that the said Muralidharan had given him lesser marks. Since he failed in the examination with reference to paper II he requested for revaluation. But while making a request for revaluation he had requested respondents 1 and 2 to avoid the 3[rd] respondent from being a member of the valuation committee. Petitioner points out that the 3[rd] respondent had some hostility against him on account of the petitioner being the Vice president of a recognised staff association. But it is relevant to note that the valuation was entrusted to a committee of which the petitioner has no allegation against two other members. The committee valued the answer sheets and the petitioner got 100 marks which was required W.P.C..No.20135/2012 13 for a pass. But two of the members of the revaluation committee namely Dr.Ram Mohan and the 3[rd] respondent put a dissenting note stating that the marks given for certain answers were not correct. The original file in this connection has been produced by the Learned counsel for the respondents 1 and 2. The report on the valuation and the dissenting note reads as under: ## _**“REPORT ON THE REVALUATION**_ _Ref:- MPEDA letter No.9/25/Admn/2011/HO dated 8[th] August 2011 regarding the Committee constituted to revalue the answer papers pertaining to the 2[nd] paper of both Assistant Director (Admn) and Accounts officer._ _The Committee constituted to revalue the answer paper met on 11[th] , 12[th] , 30[th] August , 6[th] September and 17[th] October 2011. The question papers and answer sheets were handed over to the Committee on 11[th] August 2011. There were no answer keys. As the classes were handled by different officials from MPEDA and outside, our first attempt was to find out correct answer and important points as answer for various questions._ W.P.C..No.20135/2012 14 _The Committee looked into the answers (one word/true or false) and awarded/adjusted marks which ever were valued incorrectly. In respect of those answers for which no marks were awarded the Committee considered the same for granting marks based on points covered in answers. For the above marks awarded to each are as follows:-_ _Shri.K.S.Unnikrishnan, Accounts Officer Part II - 78 marks._ _Shri.K.S.Unnikrishnan, Assistant Director (Admn) Part II - 851/2 marks_ _Shri K.A.Jacob, Assistant Director (Admn) Part II - 100 marks._ _The Committee decided to submit its report with the following disssenting notes from S.Sasidharan Pillai and Dr.Ram Mohan._ (sd/-) (sd/-) (sd/-) (Dr.Ram Mohan) (S.Sasidharan Pillai) (Joy Ipe Kurian) ## _**Dissenting Note**_ _The question of revaluing the short notes and long answers where marks appears to have been awarded liberally were discussed in the committee and the undersigned felt to indicate the same while_ W.P.C..No.20135/2012 15 _submitting its report. The answers to question Nos. (d) 1,3,5,6 and 7 and (e) 2 for Assistant Director Part II were subjected to revaluation and the marks awarded earlier appear to be on the higher side. The marks awarded above is exclusive of this fact._ _(sd/-) (sd/-) (Dr.Ram Mohan) S.Sasidharan Pillai)_ _Encl:- Answer papers 4 and 9 question papers.”_ It could also be seen that on the reverse side of the report on the valuation and the dissenting note the Chairman noted as under: _“In view of the fact that there are two dissenting notes, and even on rejecting the note of Shri.S.Sasidharan Pillai - due to the objections raised by Mr.Jacob it stands as 1:1. Hence the revaluation is rejected and declared null and void. We may identify a new examiner. Wait till new Secy is appointed._ _(sd/-)_ Leena Nair W.P.C..No.20135/2012 16 Secy has been appointed on 28[th] Oct and joined duty on 16[th] Nov. A Committee comprising of D, D (M) and Secy to revaluate the paper by second week of Dec. _(sd/-)_ Leena Nair” 17. Therefore it could be seen that even assuming that the 3[rd] respondent had some hostility against the petitioner as alleged by him there is no allegation against Dr.Ram Mohan who also signed the dissenting note. The Chairman of MPEDA was therefore faced with a situation whether there was a complaint from the petitioner regarding the ill will or bias from the 3[rd] respondent and the valuation done with a dissenting note. The Chairman decided to constitute another committee for valuing the said paper of the petitioner. On valuation with another committee also the petitioner failed for Paper II and had only 93 marks. W.P.C..No.20135/2012 17 There is no allegation of bias against the said committee members. As such it could be seen that the respondents 1 and 2 had taken all necessary steps to see that a transparent method of valuation could be adopted in the matter relating to the petitioner, despite the fact that there was no such procedure. Therefore I do not think that the petitioner was entitled to treat the marks given in the first revaluation as valid marks and to get the declaration that he has passed. 18. The petitioner also points out certain other circumstances in order to indicate that the respondents 1 and 2 should not have again valued his answer sheets when he was awarded 100 marks in the revaluation. It is pointed out that he has never made such a request and that when he had requested for information he was told that the revaluation process is going on, at a time when the revaluation was already done by the committee. But it is relevant to note that the first revaluation marks were not W.P.C..No.20135/2012 18 published because of the dissenting note and the Chairman had declared it to be void. Therefore there was no reason for the respondents 1 and 2 to intimate the said marks to the petitioner. When a revaluation was done as per the note of the Chairman there was no necessity to inform the petitioner about the marks obtained by him and objected by two of the members. 19. Another contention urged by the petitioner is that despite the fact that the final valuation committee did not include the 3[rd] respondent, he being appointed as a Consultant in MPEDA, was entitled to influence the said members. This allegation is not supported by any materials. Even though there is some allegation about the hostility of the 3[rd] respondent against the petitioner, it is not supported by any material. 20. In I.A.No.8254 of 2013 the petitioner had sought for a valuation by an outside agency. I do not think that such a permission can be granted as this Court has come to W.P.C..No.20135/2012 19 a finding that it is the discretion of respondents 1 and 2 to revalue the answer sheets of the petitioner in a departmental test. That apart, I do not think that the valuation done by respondents 1 and 2 is in anyway actuated by mala fides or bias. Hence the said application is dismissed. No other question arises for consideration in the above writ petition. In the result, the petitioner is not entitled for the relief as prayed for. Hence the writ petition is dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C..No.20135/2012 20 W.P.C..No.20135/2012 21