Praveen Raj v The State of Kerala and Kerala Public Service Commission and Secretary, Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY ,THE 04TH DAY OF DECEMBER 2018 / 13TH AGRAHAYANA, 1940** ## **OP(KAT).No. 187 of 2015** **ORDER IN OA (EKM) 212/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 13-02-2015** ## **PETITIONER:** **PRAVEEN RAJ AGED 39 YEARS S/O.PRABHAKARAN, PASSERY HOUSE, KRISHNANJALI, MUKKATTUKARA.** **BY ADV. SRI.O.D.SIVADAS** ## **RESPONDENT/S:** **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY 695 004. 3 THE SECRETARY KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM 695 004.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC OTHER PRESENT: SR GP- SRI T.RAJASEKHARAN NAIR.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 04.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** OP(KAT).No. 187 of 2015 -2- ## **JUDGMENT** ## **C.T.Ravikumar, J.** The unsuccessful applicant in O.A.(EKM) No.212 of 2015 on the files of the Kerala Administrative Tribunal, Thiruvananthapuram is the petitioner herein. He was a candidate for selection to the post of Junior Inspector of Cooperative Societies, initiated by the Kerala Public Service Commission (for short “KPSC”). He moved the said original application with the following prayers:- “i) issue appropriate direction to the 2[nd] and 3[rd] respondents to consider Annexure A6 representation submitted by the applicant after scrutiny of the question paper, answer key and also the answer sheets and also the publications of Sri.K. Manoharan Nair vis. Basics of Co-operation' and 'Co-operative Management and Administration' and take necessary action in the matter of selection to the post of Junior Inspector of Co-operative Societies. ii) Declare that the selection process conducted by the OP(KAT).No. 187 of 2015 -3- Kerala Public Service Commission to the post of Junior Inspector of Co-operative Societies on the basis of Anx. A2 question paper is unjust, illegal and also declares that the selection process conducted by the KPSC is without maintaining secrecy in preparation of the question paper and cancel the written test held on 28/09/2013 and further direct the KPSC to conduct fresh written test after complying the relevant norms and also by maintaining the secrecy in the question paper. iii) issue appropriate direction to the 1[st] respondent to conduct an enquiry in the matter of illegality and irregularity made in the process selection made by the KPSC to the post of Junior Inspector of Co-operative Societies.” 2. Evidently, the Tribunal dismissed the Original Application as per Ext.P1 order dated 13.02.2015 holding that the points raised by the applicant therein are covered against him by the order of the Tribunal in O.A.No.1709 of 2014 as also the common order in O.A.Nos.202 of 2014 and 2990 of 2013. The Tribunal went on to hold that the order in O.A.No.1709 of 2014 was confirmed by this Court as per OP(KAT).No. 187 of 2015 **==> picture [16 x 8] intentionally omitted <==** the judgment in O.P.(KAT) No.345 of 2014 dated 9.10.2014. It is in the said circumstances that the original application was dismissed. 3. The petitioner assails the said order raising various contentions. The core contention is that the Tribunal was not justified in holding that the points raised in the original application were covered against the petitioner. A perusal of the pleadings of the petitioner in the original application as also in this original petition would reveal that according to him, the answer key in respect of question Nos.21, 28, 72, 73, 96 and 45 contained incorrect answers. In the said circumstances, it is contended that the KPSC had given mark to wrong answers and the petitioner who answered them correctly was not given marks. Yet another ground raised is regarding the fairness in the examination OP(KAT).No. 187 of 2015 **==> picture [16 x 8] intentionally omitted <==** conducted by the KPSC. According to the petitioner, a free and fair written examination was not conducted by the KPSC for selection to the post of Junior Inspector of Co-operative Societies. The foundation for such contention is that, according to him, a good number of questions were from a book titled 'Co-operative Management and Administration' written by K.Manoharan Nair. In paragraph 11 of the original petition, the petitioner made it clear that he did not doubt the competence of the said K.Manoharan Nair to prepare question papers. According to him, the question contained which are but paper questions nothing reproduction of questions from the private publication of Sri.K.Manoharan Nair. It is raising such grounds that the petitioner challenged the order passed by the Tribunal and also the fairness in the matter of conduct of the examination OP(KAT).No. 187 of 2015 -6- by the KPSC. 4. We have heard Sri.O.D.Sivadas, the learned counsel for the petitioner, Sri.P.C.Sasidharan, the learned Standing Counsel appearing for respondents 2 and 3 and also the learned Government Pleader. 5. We will consider firstly the challenge against the selection raising allegations against the aforesaid K.Manoharan Nair. The said contention cannot be upheld for more than one reason. It is a fact that even after raising such allegations against the said K.Manoharan Nair, he was not made a party in the Original Application and also in the Original Petition. The other fact is that in W.P.(C) No.1465 of 2014, which is a public interest litigation, filed in connection with the very same written examination held on 28.9.2013 by the PSC, the aforementioned OP(KAT).No. 187 of 2015 -7- K.Manoharan Nair was a party and in fact, he was the second respondent therein. A perusal of paragraph 3 of the judgment in the said writ petition dated 23.6.2015 would reveal that virtually contentions akin to the contentions referred hereinbefore were raised therein. It is evident from paragraph 3 therein that the main contention was that questions for the written examination was from guide books of his private publications. Paragraph 4 of the judgment would reveal that Sri.K.Manoharan Nair who was arrayed as the second respondent in the said writ petition, entered appearance and filed a counter affidavit stoutly denying the allegation that he had set the question papers as also the answer keys. That apart, he had specifically stated that he was only asked to prepare the syllabus and he had never set either the question paper or the answer keys. This Court OP(KAT).No. 187 of 2015 -8- accepted the contention and also the fact of rejection of the complaint filed earlier against him before the Lok Adalath. After considering all such situations and facts, this Court dismissed the writ petition. In the said circumstances as also especially taking note of the fact that the aforesaid K.Manoharan Nair was not joined as a party to the Original Application as also in this Original Petition. The aforesaid allegation levelled against him cannot be looked into while considering the allegation of lack of fairness in the conduct of the examination on 28.9.2013. In the said circumstances, the challenge made by the petitioner against the examination held on 28.9.2013 in of the pursuance notification, on the aforesaid ground has to fail. 6. Before considering the correctness or the tenability of the contentions that the answer given in the OP(KAT).No. 187 of 2015 -9- answer keys in respect of the questions referred hereinbefore, are absolutely incorrect, it is only proper to refer to certain decisions on the subject. In Kanpur University, through Vice Chancellor and others v. Samir Gupta and others [(1983) 4 SCC 309], the Apex Court held thus:- “Where it is proved that the answer given by the students is correct and the answer key is demonstrably incorrect, the students are entitled to the relief as for. In case of doubt, unquestionably the answer key has to be withdrawn.”. 7. In Nowfal H. and others v. KPSC, Tvm and others [2014 (4) KHC 349 (DB)], this Court held that where the parties are able to establish that the action of the Commission (KPSC) is afflicted with a palpable error, it could not be the law that the Tribunal or the Court could not interfere. The corollary is that when the parties would be able to establish that the action of the Commission (KPSC) is OP(KAT).No. 187 of 2015 -10- infected with palpable error, it should be interfered with. After considering almost all the decisions on the point, the Honourable Apex Court held in Ran Vijay Singh and others v. State of Uttar Pradesh and others [(2018) 2 SCC 357] thus:- “30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are: 30.1. If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it. 30.2. If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed; 30.3. The court should not at all re-evaluate or scrutinize the answer sheets of a candidate-it has no OP(KAT).No. 187 of 2015 -11- expertise in the matter and academic matters are best left to academics; 30.4. The court should presume the correctness of the key answers and proceed on that assumption; and 30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.” 31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse - exclude the suspect or offending question.” Thus, the position of law is that there is no absolute impediment or impossibility for interference with such matters, but it is possible only when it is demonstrated that the Commission (KPSC) had gone palpably wrong. OP(KAT).No. 187 of 2015 -12- 8. Bearing in mind the said position of law settled in those decisions, we will consider whether the petitioner herein had succeeded in establishing that the answers given in the answer keys to the aforesaid questions are palpably wrong. In this context, it is relevant to extract the following recitals from paragraph 4 of the original petition, which is nothing but reiteration of the pleadings of the petitioner in the above original application:- “Q- 21, The first co-operative housing society was established in the year...at... Answers are : (A) 1950, Bombay (B) 1940 Madras, (C). 1960 Agra (D) 1965 Allahabad. Correct answer as per answer key is A. The above answer is not correct and the correct answer is not available in the filed of choice supplied in the question paper. Q- 28. Vaikuntu Metha National Institute for Co-operative Management was constituted in:- Answers are (A) 1964, (B) 1965, (C).1966 (D) 1967. Correct answer as per answer key is C. The above answer is not OP(KAT).No. 187 of 2015 -13- correct and the correct answer is (D) 1967. Q-72. The key stone of Co-operative Movement in Kerala is:- Answers are: (A) UCB. (B). ARDB, (C).DCB (D) SCB. Correct answer as per answer key is D. The above answer is not correct and the correct answer is (A) UCB. Q- 73. The Employees Credit Societies have got a......Structure.:- Answers are : (A) Unitary. (B). quasi, ## (C).Federal (D) Quasi Federal. Correct answer as per answer key is A. The above answer is not correct and the correct answer is (C) Federal. (Evident from Co-operative Management and Administrative Studies Page 50, 75) Q- 96. All Societies in Kerala are:- Answers are (A) Single Functional (B). Double Functional. (C) Multi Functional (D) None of the above. Correct answer as per answer key is D. The above answer is not correct and the correct answer is (C) Multy functional. (Evident from Co-operative management and administrative studies Page No.61 paragraph No. 11) Q-45. FAO was formed in the year:Answers are : (A) 1940 (B) 1943 (C) 1945 (D) 1947. Correct answer as per answer key is B. The above answer is not correct and the correct answer is (C) 1945.” OP(KAT).No. 187 of 2015 -14- 9. To establish that the answers given in the answer keys pertaining to the aforesaid questions are wrong, the petitioner had produced certain documents along with his reply affidavit, viz; Exts.P3 to P7. Ext.P3 is the photocopy of the relevant portion of a text book. It is relied on to contend that the answer of question No.21 given in the answer key is wrong. Ext.P4 is a piece of information about one Anilraj (not the petitioner herein) obtained under the Right to Information Act regarding the establishment of Vaikunth Mehta National Institute of Co-operative Management. Exts.P5 & P6 is allegedly a copy of the relevant portion of a publication, namely; 'Co-operative Management and Administration' published by K.Manoharan Nair. That is relied on to canvass the position that the answer given in the answer key, of question No.72 is wrong. Ext.P7 is said to be a OP(KAT).No. 187 of 2015 -15- copy of the relevant pages of the text book of Std.X. When photocopies of such documents alone are produced, what sanctity could be attached to such documents and how such documents could be relied on to hold that the petitioner had succeeded in showing that the answers given in the answer key by the KPSC are demonstrably wrong. There is also nothing before us to hold that the books, the relevant pages of which are produced, are books of authority capable of placing reliance on. 10. Having perused Exts.P3 to P7, we have no hesitation to hold that they cannot be relied on to hold that the petitioner had succeeded in establishing that the answers given by the KPSC in respect of the questions referred herein before, are palpably wrong or that he had succeeded in establishing that the KPSC had committed a OP(KAT).No. 187 of 2015 -16- palpable wrong in giving such answers as correct answers in answer key. In in the said circumstances and in the light of the decisions referred herein-before, we are of the considered view that no interference with the examination conducted by the KPSC pursuance of the notification is permissible. That apart, it is a fact that among the original applications referred to in the impugned order, orders from two original applications were challenged before this Court, viz; order in O.A.Nos.202 of 2014 and 1709 of 2014. The order in O.A.No.202 of 2014 was challenged in O.P.(KAT) No.342 of 2014 and the order in O.A.No.1709 of 2014 was challenged in O.P.(KAT) No.345 of 2014. Both the original petitions were dismissed by this Court as per a common judgment dated 9.10.2014. In paragraph 5 of thereunder, it was held thus:- OP(KAT).No. 187 of 2015 -17- “5. First of all, the Original Applications are filed before the Tribunal by six candidates who appeared in the written test out of hundreds of candidates who had taken part in the written test that was held on 28/9/2013. Their prayer was to invalidate the written test and to conduct a fresh test. In the O.As. they had not impleaded any one of the other candidates.” 11. It is to be noted that the original application from which the captioned original petition arises, was filed only by one such candidate, viz, the petitioner herein and he had also not chosen to implead any one of the other candidates, though any decision in this matter might adversely effect their interests in the Original Application and in this Original Petition, as well. That apart, a careful perusal of the said common judgment would reveal that in respect of the said selection, this Court had declined to interfere with, at the instance of some such candidates, who had partaken in the very same examination in question. Evidently, this factor OP(KAT).No. 187 of 2015 -18- was also not taken into account by the Tribunal for dismissing the original application. 12. In the light of the aforesaid circumstances obtained and in view of the reasons mentioned hereinbefore, we do not find any reason at all to uphold the challenge of the petitioner against the selection process involved in the examination conducted in pursuance of the notification in question as also against in the order passed by the Tribunal. In the said circumstances, this original petition must fail and accordingly, it is dismissed. Sd/- **C.T.RAVIKUMAR JUDGE** **Sd/V.G.ARUN JUDGE** scl/5.12 -19- OP(KAT).No. 187 of 2015 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 13/2/2015 IN O.A(EKM) 212/2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** ## **EXHIBIT P2** **COPY OF THE OA (EKM) 212/2015 DATED 5/11/2014.** **EXHIBIT P3 COPY OF THE RELEVANT PORTION OF THE TEXT BOOK ON 'WORKING OF FUNCTIONAL SOCIETIES PUBLISHED BY THE STATE CO -OPERATIVE UNION, KERALA, ESTABLISHED BY THE GOVERNMENT OF KERALA UNDER THE KERALA CO-OPERATIVE SOCIETIES ACT, 1969.** **EXHIBIT P4 COPY OF THE LETTER DATED 31.10.2013 ISSUED BY VAIKUNTH MEHTA NATIONAL INSTITUTE OF CO-OPERATIVE MANAGEMENT, PUNE.** **EXHIBIT P5 COPY OF THE RELEVANT PORTION OF THE PUBLICATION 'CO-OPERATIVE MANAGEMENT AND ADMINISTRATION' PUBLISHED BY K.MANOHARAN NAIR' IN PAGE NO.50. EXHIBIT P6 COPY OF THE RELEVANT PAGE OF THE PUBLICATION 'CO-OPERATIVE MANAGEMENT AND ADMINISTRATION' PUBLISHED BY K.MANOHARAN NAIR'** **EXHIBIT P7 COPY OF THE RELEVANT PORTION OF THE TEXT BOOK FOR THE 10TH STANDARD PUBLISHED BY THE STATE GOVERNMENT. RESPONDENT'S EXHIBITS:** **R2(a): TRUE COPY OF THE JUDGMENT IN O.P.(KAT) 345/2014**