K.J. Anto v. Kerala State Financial Enterprises Ltd. Corporate Office, Thrissur; Deputy General Manager (P&HR), KSFE, Corporate Office, Thrissur; Regional Director, Institute of Management in Government, Regional Centre, Kochi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **THURSDAY, THE 18TH DAY OF DECEMBER 2014/27TH AGRAHAYANA, 1936** ## **WP(C).No. 10384 of 2014 (W)** ## **----------------------------** **PETITIONER :** ## **K.J.ANTO, ASSISTANT MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD., VELLANGALLUR BRANCH, THRISSUR DISTRICT, PIN-680 662** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY** **SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.AMMU PILLAI** **RESPONDENTS :** **1. KERALA STATE FINANCIAL ENTERPRISES LTD. CORPORATE OFFICE, "BHADRATHA", THRISSUR PIN-680 020 REPRESENTED BY ITS MANAGING DIRECTOR.** **2. THE DEPUTY GENERAL MANAGER (P&HR) KERALA STATE FINANCIAL ENTERPRISES LTD., CORPORATE OFFICE, "BHADRATHA", THRISSUR PIN.680 020** **3. THE REGIONAL DIRECTOR, INSTITUTE OF MANAGEMENT IN GOVERNMENT, REGIONAL CENTRE, KAKKANAD, COCHIN-682 030.** **R1 & R2 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR** **SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS** **R3 BY ADV. SMT.M.A.VAHEEDA BABU, SC, BY SRI.P.C.CHACKO, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 10384 of 2014 (W)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** |**EXT.P1:**|**TRUE COPY OF THE QUESTION PAPER OF COMPETITIVE TEST**| |---|---| |**EXT.P2:**|**TRUE COPY OF THE ANSWER KEY PUBLISHED BY THE KSFE**| |**EXT.P3:**|**TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE KSFE**| ||**OFFICERS' UNION, THRISSUR, BEFORE THE 1ST RESPONDENT.**| |**EXT.P4:**|**TRUE COPY OF THE CIRCULAR NO.157/2004(PLG) DATED 08-11-2004**| ||**ISSUED BY THE KSFE.**| |**EXT.P5:**|**TRUE COPY OF THE RELEVANT EXTRACT OF USER MANUAL OF THE**| ||**KSFE BRANCH AUTOMATION SYSTEM.**| |**EXT.P6:**|**TRUE COPY OF THE RELEVANT EXTRACT OF THE COMPUTER**| ||**PRINTOUT DOWNLOADED FROM THE INTERNET.**| |**EXT.P7:**|**TRUE COPY OF THE PASS LIST OF THE CANDIDATES ON 07-11-2013**| ||**PUBLISHED BY KSFE.**| |**EXT.P8:**|**TRUE COPY OF THE RELEVANT EXTRACT OF THE MARK LIST**| ||**PUBLISHED BY THE KSFE.**| |**EXT.P9:**|**TRUE COPY OF THE APPLICATION DATED 16-12-2013 SUBMITTED BY**| ||**THE PETITIONER.**| |**EXT.P10:**|**TRUE COPY OF THE APPLICATION DATED 16-12-2013 SUBMITTED BY**| ||**THE PETITIONER BEFORE THE DEPUTY GENERAL MANAGER (P&H.R).**| |**EXT.P11:**|**TRUE COPY OF THE APPLICATION DATED 16-12-2013 SUBMITTED BY**| ||**THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER.**| |**EXT.P12:**|**TRUE COPY OF THE LETTER NO.4155/RIA DATED 10-01-2014 OF THE**| ||**KSFE.**| |**EXT.P13:**|**TRUE COPY OF THE ANSWER SCRIPT OF THE PETITIONER.**| |**EXT.P14:**|**TRUE COPY OF THE LETTER NO.1530/C2/2006/IMG(IV)**| ||**DATED 16-01-2014 OF THE PUBLIC INFORMATION OFFICER OF THE**| ||**IMG.**| |**EXT.P15:**|**TRUE COPY OF THE CORRECTED ANSWER KEY.**| |**EXT.P16:**|**TRUE COPY OF THE REPRESENTATION DATED 04-03-2014**| ||**SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.**| |**EXT.P17:**|**TRUE COPY OF THE REMINDER DATED 15-03-2014 SUBMITTED BY**| ||**THE PETITIONER BEFORE THE MANAGING DIRECTOR, KSFE.**| ## **WP(C).NO. 10384 OF 2014 (W)** **EXT.P18: TRUE COPY OF THE REPRESENTATION DATED 22-02-2014 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P19: TRUE COPY OF THE LETTER NO.4130/T DATED 20-03-2014. EXT.P20: COPY OF THE NOTICE NO. 4130/T DATED 23/9/2013. RESPONDENT(S)' EXHIBITS : NIL. --------------------------------------//TRUE COPY//** **P.A. TO JUDGE** **bp** ## **C.K. ABDUL REHIM, J. --------------------------W.P.(C)No.10384 of 2014 ------------------------------Dated this the 18[th] day of December, 2014** ## **JUDGMENT** The petitioner is working as Assistant Manager in the 1[st] respondent Corporation. For getting promotion to the post of Manager, the petitioner has to undergo a competitive written test, which contains two papers. One paper dealing with the subjects like, Kerala Service Rules, Chitty Act and Rules, Schemes of the Company etc. and second one dealing with subjects like, Office Administration, Financial Management, Fundamentals of Accountancy and Book Keeping, Business Correspondence and computerisation in the 1[st] respondent corporation etc. On the basis of the application submitted by the petitioner, he appeared for the written test and cleared in paper No.I, by securing the minimum pass mark of 35/100. With respect to paper No.II, Ext.P1 was the question paper supplied. The instructions given in Ext.P1 ## **W.P.(C)No.10384 of 2014 2** ## question paper was as follows: Choose the best answer from among the options given under each question. All questions carry equal marks. There are four alternative answers for every question. For each wrong answer one fourth (0.25) of the marks assigned to that question will be deducted as penalty. If a candidate gives more than one answer, it will be treated as wrong even if one of the given answers happened to be correct; there will be same penalty of a wrong answer. If a question is left blank, there will be no penalty for that question. Candidates may please indicate their answers by darkening the bubbles against the question numbers in the OMR sheet provided, with black ink ball point pen. Please read the instructions in the OMR sheet carefully to understand the correct method of marking answers. 2. According to the petitioner, Ext.P2 is the 'Answer Key' published by the 1[st] respondent in the official web site. But it was found that the Answer Key is wrong with respect to Question numbers 14,24,33,35 and 36. A representation was submitted by the Officers' Union concerned noticing the above matter, as evidenced from Ext.P3. Grievance of the petitioner is that Question Nos.24 and 33 were answered by him correctly and those answers were tallying with Ext.P4 circular and Ext.P5 User Manual of the 'Automation System' introduced by the 1[st] respondent Corporation. But when Ext.P7 pass ## **W.P.(C)No.10384 of 2014 3** list with respect to paper No.II was published, the petitioner's name was not included. Ext.P8 is the relevant extract of mark list of paper No.II, which would indicate that petitioner had secured only 34.67 marks. When the petitioner applied under the Right to Information Act, Ext.P15 'Answer Key' was furnished, which according to him, is not tallying with Ext.P2 'Answer Key' published earlier. The petitioner is challenging Ext.P15 'Answer Key' published by the 1[st] respondent Corporation to the extent it deals with Question Nos. 24 and 33. The petitioner had submitted Exts.P17 and P18 representation seeking to delete Question Nos.24, 33, and 36, which was rejected through Ext.P19. Hence the petitioner is also challenging Ext.P19. 3. Contention of the petitioner is that Question Nos.24 and 33 were answered by him correctly. The extract of the said two questions contained in Ext.P1 are re-produced below. _“24. The following is not true with CSDT in KSFE Branch Automation System (BAS)_ - _A. CSDT Register should be created before_ ## **W.P.(C)No.10384 of 2014 4** _starting the Chitty payment._ - _B. In the CSDT, Only the liability amount of the Chitty can be deposited._ - _C. The period of CSDT should be below the completed months of transmission date._ - _D. CSDT can be opened through General Transfer or any other mode.”_ - _“33. What is the commonly used unit for measuring the speed of data transmission?_ - _A. Bytes per second B. Baud C. Bits per Second D. Either (B) or (C)”_ It is pointed out that as per Ext.P2 'Answer Key' the correct choice for Question No.24 is answer D. But this is totally incorrect. According to the petitioner, the correct answer for the said question is option No.C, if the word 'Transmission' is substituted by the word 'Termination'. It is stated that no other option can be the correct answer for Question No.24. But the correction of the spelling mistake is not possible. Therefore question No.24 ought to have been deleted by giving mark to all the candidates, is the contention. 4. Similarly, it is contended that correct answer for Question No.33 is option 'C'. But in Ext.P2 'Answer Key' the option given is B. According to the petitioner the answer to Question No.33 is available from Exts.P4 and ## **W.P.(C)No.10384 of 2014 5** P5. He seeks support for such contention relying on Ext.P6 which is an information downloaded from Internet. Therefore, it is contended that the petitioner ought to have been awarded with marks with respect to Question No.33 also. 5. Learned counsel for the petitioner argued that, Question No.33 relating to the unit for measuring speed of data transmission is 'bits per second' and the petitioner had answered it correctly. But the respondent had taken option D as correct. ie. either B or C. Option B is 'Baud' and option C is 'bits per second'. The examination in question was conducted by the 3[rd] respondent which is an autonomous institution run under the Government. In the counter affidavit filed by the 3[rd] respondent it is contended that, both 'Baud' and 'Bits per second' are units for measuring the speed of data transmission and the examiner in this case was trying to measure the prudence of the candidate with respect to selecting the best answer. Therefore both options B and C were not wrong choices. But the best answer among ## **W.P.(C)No.10384 of 2014 6** the choices was 'D' which says that either it be 'Baud' or 'Bits per Second'. Since the instruction is specific that the candidates have to choose the best answer, it cannot be contended that the choice 'C' answered by the petitioner was the best answer. 6. With respect to Question No.24 the petitioner's contention is that, the best choice was 'C', provided the word 'transmission' is corrected as 'termination'. But in the counter affidavit of the 3[rd] respondent it is contended that, the examiner had used the word 'transmission' deliberately. It cannot be said that there is a change in the structure, idea and essence of the sentence. The candidate is expected to choose the best option which was option 'D' available among the answers. It is further contended that, reliance placed by the petitioner on Exts.P5 and P6 cannot be considered, because the question pertains to basic awareness required for an Officer in the KSFE, with respect to the 'Automation System'. According to the 3[rd] respondent, if the exact word is reproduced in the question paper, the examiner ## **W.P.(C)No.10384 of 2014 7** may not be able to test the cognitive skills of the candidates, which is very much required for a supervisory post in the organisation. 7. Question to be considered is as to whether it is possible for this court to have an adjudication on the disputes with respect to correctness of the options in the answer choice or as to which is the best answer available. Learned counsel for the petitioner had placed heavy reliance on a decision of a Division Bench of this Court in **Madhumohan V. State of Kerala [2000(2) KLT 669].** It is a case dealing with the 'Common Entrance Examinations' conducted by the Commissioner of Entrance Examinations, Kerala for admission to the professional degree courses. While analysing correctness of the questions put forth in the multiple choice objective test, this court observed that the answer to the questions indicated should not carry two correct answers. Referring to a decision of the Honourable Apex Court, it is found that, in a system of multiple choice objective type tests, care must be taken to see that the questions ## **W.P.(C)No.10384 of 2014 8** having ambiguous import are not set in the papers and the questions have to be clear. Observation is made to the effect that, if there are more than one correct answer, the candidate would be confused as to which would be the most appropriate answer and that he may get negative mark, if the question is attempted. On the facts of that case the setters of the question paper themselves have admitted that, certain questions are carrying more than one answer, which was affirmed by a panel appointed by this Court. The court observed that, going by the prospectus there shall not be more than one most appropriate response to a question. Therefore this court directed to delete those questions which carried more than one most appropriate responses or correct answers. 8. Per contra, learned Standing Counsel appearing for the 3[rd] respondent contended that, there were not more than one most appropriate answers both in Question Nos.24 and 33. It is pointed out that, the instruction itself was to choose the best answer from among the options given under each questions. It is re-iterated that, ## **W.P.(C)No.10384 of 2014 9** with respect to both the above said questions there was only one choice of 'best answer' in each of them. Hence on the facts it is contended that the petitioner cannot challenge those questions based on the contention that more than one best answer was available. 9. Learned Standing Counsel contended that, there was no malafides or malpractices alleged against conduct of the examination and this court is not supposed to review the propriety in conducting the examinations by the authority concerned. She had placed reliance on a decision of the Honourable Supreme Court in **Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University, Sirsa And Another [(2008) 9 SCC 284]** . It is held therein that, it is not appropriate for the court to sit in appeal over the opinions of experts who have taken specific view in the matter of correctness of the questions or answers. It is further pointed out that, out of 452 candidates appeared for the examination in paper II, only 118 have secured marks of 35 and above. It is contended that no other candidates who have qualified the minimum ## **W.P.(C)No.10384 of 2014 10** required marks had challenged the examination or validity of any of the questions contained in Ext.P1. 10. While considering the rival contentions, this court is of the opinion that, it is not wise or safe to have an adjudication and to decide the academic matters, which has to be left to the opinion of the experts who are more familiar with the problems. On the facts, basic contention raised by the petitioner is that, Question No.33 has to be deleted since it contained more than one correct options of answers. On the contrary, contention of the 3[rd] respondent is that the question contains two correct answers which were given as B and C and therefore the most appropriate answer or the best answer which ought to have been selected by the candidate is option D which says that it can either be B or C. The situation cannot be equated with the decision in **Madhu mohan's case (cited supra)** , because what was held by this court is that the case is that the question indicated was not carrying correct answer. Here, the contention is that there are two alternatives for measuring the speed of ## **W.P.(C)No.10384 of 2014 11** data transmission and the correct answer which a candidate should say is that it can be either one of the set of unit of measurement. So also in the case of Question No.24 the petitioner is relying that one of the options given as 'C' is the most appropriate, subject to correction of the spelling mistake. But according to the 3[rd] respondent it is not a spelling mistake and on the other hand the most appropriate/best answer is option 'D'. This court exercising powers under Article 226 of the Constitution of India is not supposed to venture upon an adjudication with respect to the above said disputed aspects, unless it is established that the question put forth is totally erroneous or that there occurred total arbitrariness or unreasonableness in setting forth such questions. Or that the examiners have acted in any malafide manner or had committed any malpractice. This court is of the considered opinion that the disputed issue raised in this writ petition can not be taken as a ground to direct deletion of Question Nos.24 or 33 or to direct in any manner to include the petitioner in the select list by ## **W.P.(C)No.10384 of 2014 12** directing/ awarding of mark for any of the above said two questions. 11. Learned Standing Counsel appearing for the 1[st] respondent Corporation had pointed out that, every year the test is being conducted for the purpose of selecting candidates for promotion. It is further pointed out that the petitioner need not appear for paper I again, since he stands already qualified. According to the 1[st] respondent the petitioner will get an opportunity to appear for paper II again, within one year itself. Under the above mentioned circumstances, this court is not inclined to grant any of the reliefs sought for in this writ petition. Consequently the writ petition fails and the same is hereby dismissed. Sd/- **C.K. ABDUL REHIM JUDGE** MJL