OP(KAT) Nos. 1666 of 2013 (Z) and 3162 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY, THE 3RD DAY OF JULY 2014/12TH ASHADHA, 1936** ## **OP(KAT).No. 1666 of 2013 (Z)** **-----------------------------** ## **PETITIONER(S):** **--------------------------** **1. H.NOWFAL, AGED 27 YEARS,S/O. HASSAN KUNJU, THAYYIL HOUSE, KEERIKKADU SOUTH, KAYAMKULAM POST, ALAPPUZHA DISTRICT-690 502.** **2. UNNIKRISHNAN R.,AGED 32 YEARS,** - **S/O. P.RADHAKRISHNAN, VIJINNIVAWS, ULLALA, THALAYAZHAM POST, VAIKOM, KOTTAYAM DISTRICT-686 607.** **3. K.A.FAISAL, AGED 31 YEARS, S/O. ABDUL ASSIZ, KOLLAMPARAMBIL HOUSE, PUTHUSSERY ROAD, THRIPPUNITHURA POST, ERNAKULAM DISTRICT-682 301.** **BY ADVS.SRI.T.B.HOOD SMT.M.ISHA** **RESPONDENT(S):** - **----------------------------** **1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTAM PALACE POST, THIRUVANANTHAPURAM-695 004.** **2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **R1 BY SRI.P.C.SASIDHARAN, SC, KPSC R2 BY SR GOVERNMENT PLEADER SRI.SYAMKUMAR** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 03-07-2014, ALONG WITH OPKAT. NO.3162 OF 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **OP(KAT).No. 1666 of 2013 (Z) -------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **P1 : COPY OF OA NO.526/2013, ALONG WITH ANNEXURES.** - **P2 : COPY OF THE REPLY STATEMENT FILED BY THE PSC IN OA NO.338/2013.** - **P3 : COPY OF THE ORDER DTD. 11.4.2013 PASSED BY THE HON'BLE TRIBUNAL IN OA NO.338/2013 AND CONNECTED CASES.** - **P4 : COPY OF THE RELEVANT PAGE OF THE PSC BULLETIN DTD.1.10.2007.** - **P5: COPY OF THE CERTIFICATE DATED 13/05/2013 ISSUED BY DR.NANDAKUMAR D., ASSOCIATE PROFESSOR AND HEAD, DEPARTMENT OF GEOGRAPHY, UNIVERSITY COLLEGE, THIRUVANANTHAPURAM** - **P6: COPY OF THE CERTIFICATE ISSUED BY DR.P.MOHANACHANDRAN NAIR, HEAD DEPARTMENT OF DEMOGRAPHY, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM** - **P7: COPY OF THE CERTIFICATE DATED 10/05/2013 ISSUED BY G.JAYAPRAKASH, ASSOCIATE PROFESSOR, DEPARTMENT OF MALAYALAM UNIVERSITY COLLEGE, THIRUVANANTHAPURAM** - **P8: COPY OF THE RELEVANT PAGE OF SHRI.T.RAMLINGAM PILLAI'S DICTIONARY OF MALAYALAM PHRASES AND IDIOMS** - **P9: COPY OF THE CERTIFICATE DATED 16/05/2013 ISSUED BY MADHU S. NAIR, ASSISTANT PROFESSOR, DEPARTMENT OF COMPUTER SCIENCE, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM** - **P10: COPY OF THE CERTIFICATE DATED 13/05/2013 ISSUED BY DR.P.F.GOPAKUMAR, ASSOCIATE PROFESSOR, DEPARTMENT OF HISTORY, UNIVERSITY COLLEGE, THIRUVANANTHAPURAM** - **P11: COPY OF THE CERTIFICATE DATED 13/05/2013 ISSUED BY DR.S.BABU, ASSOCIATE PROFESSOR, DEPARTMENT OF MATHEMATICS, UNIVERSITY COLLEGE, THIRUVANANTHAPURAM** **RESPONDENT(S)' EXHIBITS -----------------------------------------** **R1(A) COPY OF THE DETAILS DOWN LOADED FROM THE WIKIPEDIA** **R1(B) COPY OF THE RELEVANT EXTRACT OF THE MALAYALAM LEXICON** **sts** **2/-** **-2-** ## **OP(KAT).NO.1666/2013** **R1(C) COPY OF THE DETAILS DOWN LOADED FROM THE WEBSITE** **R1(D) COPY OF THE DETAILS FURNISHED BY THE AGRICULTURE DEPARTMENT EVIDENCING THAT WEST BENGAL IS THE LARGEST PRODUCED OF RICE IN INDIA.** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **C.R.** ## **K.M.JOSEPH** ## **&** ## **A.K.JAYASANKARAN NAMBIAR, JJ.** **............................................................** O.P.(KAT).No.1666 of 2013 & O.P.(KAT).No.3162 of 2013 **............................................................** Dated this the 3[rd] day of July, 2014 ## **J U D G M E N T** ## **K.M.JOSEPH, J.** O.P.(KAT).Nos.1666 of 2013 is a leading case from among the two cases. 2. The petitioners in these cases were the applicants before the Kerala Administrative Tribunal. They are aggrieved by the final order passed by the Tribunal rejecting their applications which were filed feeling aggrieved by the action of the Public Service Commission deleting certain questions and also aggrieved by the incorrect nature of certain answers published in the answer key. The Public Service Commission conducted a test in connection with selection for the post of Assistant/Auditor in Government Secretariat/Kerala Public Service Commission/Advocate General's Office(Ernakulam)/ Local Fund Audit Department/Office of the Vigilance Tribunal (Thiruvananthapuram)/Special Judges and Enquiry Commissioner Office (Thrissur/Thiruvananthapuram). The 2 O.P.(KAT).Nos.1666 & 3162 of 2013 Tribunal took the view that it is only when the invalidity of a decision is apparent on its forehead or perverse that the court may interfere. It was found that in this case plausible answers have been selected and that too based on the opinion of the experts. The Tribunal did not find merit in the contention of the petitioners. The contention of the petitioners is that the Commission should not have deleted a few questions or modified the answers in respect of a few others. Their applications were accordingly dismissed. Feeling aggrieved the petitioners are before us. 3. The learned counsel for the petitioners would contend that the Tribunal has not properly appreciated the extent of jurisdiction of the Tribunal. According to the learned counsel for the petitioners, the Tribunal is endowed with the authority in matters of this nature to ascertain whether the answers given in the answer key by the Public Service Commission is demonstrably wrong. It was well within the power of judicial review for the Tribunal to have gone into the said question but the Tribunal has not done so on a misconception that its jurisdiction is limited. He relied on the following case law in 3 O.P.(KAT).Nos.1666 & 3162 of 2013 support of his contentions: **Kanpur University Through Vice Chancellor and Others v. Samir Gupta and Others** [(1983) 4 SCC 309] **Abhijit Sen and Others v. State of U.P and Others** [(1984) 2 SCC 319], **Manish Ujwal and Others v. Maharishi Dayanand Saraswati University and Others** [(2005) 13 SCC 744], **Guru Nanak Dev University v. Saumil Garg and Others** [(2005) 13 SCC 749]. He further draws support from the judgement in the Apex Court in **Rajesh Kumar and Others v. State of Bihar and Others** [(2013) 4 SCC 690). 4. Before we embark on a consideration of the contentions, it is necessary to appreciate the method followed by the Public Service Commission. Pursuant to the direction of this Court, the procedure which is followed is as follows: After the examination is held a provisional answer key is published. Objections are invited to the answers as given in the provisional answer key. Once the objections are received, the objections are subjected to scrutiny by the experts to whom the matter is referred. Thereafter on the basis of opinion of the experts a final decision is taken and a final 4 O.P.(KAT).Nos.1666 & 3162 of 2013 answer key published. In this case, acting on the basis of the experts, six questions were deleted and further the answers in regard to seven questions were modified. 5. What is called in question before the Tribunal by the petitioners however was the deletion of four questions and the changing of three answers. Questions which were deleted are as follows: I. (Alpha Code 'c') The marshy and forested land in northern part of Uther Pradesh? According to the petitioners, the correct answer to the said question is Terai. II. Which region of India has a larger female population than the male population? According to the petitioners, the answer is Puducherry. III. What is the meaning of Malayalam phrase “Akkippor ValichuKoottuka?” Petitioners answer is option No.A, which roughly translates as“creating problems”. IV. An optical device that interprets pencil marks on paper media is? 5 O.P.(KAT).Nos.1666 & 3162 of 2013 The petitioners answer is option No.A O.M.R. 6. Regarding the questions for which the answer was modified, to which objections were taken by the petitioners, they are as follows: I. Who was the first propounder of the doctrine of “Passive Resistance”? According to the petitioners, the answer is Aurobindo Ghosh. But in the final answer key, the answer is shown as M.K.Gandhi. ## II. The first Dam in Kerala? The petitioners have given the answer as Mullaperiyar. But in the final answer key, the answer was shown as Peechi. III. A student multiplied a number by 4/5 instead of 5/4. The percentage error is? Petitioners have given the answer as 36% but in the final answer key it was shown as 45%. 7. The petitioners have relied on certain documents which consists of text books and also certificates given by 6 O.P.(KAT).Nos.1666 & 3162 of 2013 persons who are described as experts by the petitioners. On the basis of the same according to them applying the principle laid down in **Kanpur case** (supra) as followed by Supreme Court in subsequent decisions, the Tribunal ought to have interfered with the matter and found out whether there is a case for the petitioner that there is a palpable error in the acts of the Commission. 8. Per contra, the learned counsel for the Commission would submit that what the Tribunal has done was well within its jurisdiction. Having regard to the nature of the system which has been evolved by the Commission, the decisions of the Supreme Court were distinguishable. The learned counsel drew our attention to the judgments of this Court in Writ petition No.18896 of 2005, besides **State of Kerala v. Fathima Seethi** (2002 (3) KLT 871). 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 7 O.P.(KAT).Nos.1666 & 3162 of 2013 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 Alahabad 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 8 O.P.(KAT).Nos.1666 & 3162 of 2013 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 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 9 O.P.(KAT).Nos.1666 & 3162 of 2013 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 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 10 O.P.(KAT).Nos.1666 & 3162 of 2013 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 bonafide. 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 11 O.P.(KAT).Nos.1666 & 3162 of 2013 exercise of its discretion which would still be in exercise of its jurisdiction keeping it within the four walls of its jurisdiction. 12. No doubt in a given case where the parties are able to establish that the action of the Commission is afflicted with a palpable error, it cannot be the law, that the Tribunal or this Court will not interfere. We have noticed the questions which have been deleted and the questions for which answers were modified. At least we are not convinced that the petitioners have, in this case, demonstrated that there is a palpable error in the answers or the decision to delete. In such circumstances, we decline jurisdiction. These Original Petitions are dismissed. **K.M.JOSEPH JUDGE** **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/