Prince T. Kurian v. State of Kerala and Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931** **WP(C).No. 9255 of 2008(B)** **---------------------------------------** **PETITIONER(S):** **-------------------------** **PRINCE T.KURIAN, THEKKEKARA HOUSE, ARTHAT, ARTHAT P.O., THRISSUR DISTRICT-680 521.** **BY ADV. MR.S.M.PRASANTH** **RESPONDENT(S):** **---------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF AGRICULTURE, SECRETARIATE, TRIVANDRUM-695 001.** **2. KERALA STATE PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, TRIVANDRUM, PIN-695 004.** **R1 BY GOVERNMENT PLEADER SMT. T.B.REMANI R2 BY ADV. MR. ALEXANDER THOMAS, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON 23/02/2010 DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.9255/2008 B** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE RELEVANT PAGES OF THE QUESTION BOOKLET BEARING ALPHA CODE A.** - **P2: COPY OF THE ANSWER KEY PUBLISHED BY THE 2ND RESPONDENT IN P.S.C. BULLETIN DTD. 15/08/2007.** - **P3: COPY OF THE RELEVANT EXTRACTS FROM THE BOOK AGRICULTURAL METEOROLOGY PUBLISHED BY KERALA AGRICULTURAL UNIVERSITY.** - **P4: COPY OF THE PAGE 3 OF THE THOZHIL VEEDHI DTD. 15/03/2008.** - **P5: COPY OFTHE RELEVANT EXTRACTS FROM THE BOOK PACKAGE OF PRACTICES RECOMMENDATIONS CROPS 2007 PUBLISHED BY KERALA AGRICULTURAL UNIVERSITY.** - **P6: COPY OF THE LETTER DTD. 18/02/2008 FROM THE STATE PUBLIC INFORMATION OFFICER.** - **P7: COPY OF THE LETTER DTD. 6/03/2008 FROM THE STATE PUBLIC INFORMATION OFFICER.** **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **P.N.RAVINDRAN,J.** ## **---------------------------------------W.P.(C) No.9255 of 2008 - B ---------------------------------------Dated 23[rd] February, 2010** ## **Judgment** The petitioner applied for appointment as Agricultural Officer pursuant to a notification issued by the Kerala Public Service Commission. A written test was held on 4.8.2007. The petitioner appeared for the said test. Ext.P2 answer key to the question paper was published in the Kerala Public Service Commission Bulletin on 15.8.2007 and objections were invited from interested candidates. The objections were to be submitted within 15 days from the date of publication of the answer key. The petitioner did not submit any objection to the answer key. The Kerala Public Service Commission considered the objections received by them and published Ext.P4, revised/modified answer key in the Kerala Public Service Commission Bulletin dated 1.3.2008. In the modified answer key, the Commission took the stand that the correct answer for question No.10 in the question booklet bearing Alpha Code 'A', question No.98 in the question booklet bearing Alpha Code 'B', 2 **W.P.(C) No. 9255/2008** question No.70 in the question booklet bearing Alpha Code 'C' and question No.50 in the question booklet bearing Alpha Code 'D' is 'B' and that the answer earlier given in Ext.P2 namely, 'A' is incorrect. The Commission also decided to delete question No.14 from the question booklet bearing Alpha Code `A', question No.2 from the question booklet bearing Alpha Code `B', question No.74 from question booklet bearing Alpha Code `C' and question No.54 from question booklet bearing Alpha Code `D'. 2. When the petitioner appeared for the examination, he was given question booklet bearing Alpha Code 'A'. He had answered question No.14 which was later deleted by marking 'C' as the answer. After Ext.P2 answer key was published, objections were raised to the said answer and thereupon the said question itself was deleted. According to the petitioner, the answer 'C' earlier given in Ext.P2 answer key is the correct answer and therefore the Commission was not justified in deleting the said question. Likewise, the 3 ## **W.P.(C) No. 9255/2008** petitioner contends that in respect of question No.62, when Ext.P2 answer key was published, answer `B' which is an incorrect answer was shown as the correct answer. He submits that answers 'A', 'C' and 'D' are all correct answers. According to the petitioner, he is entitled to get full marks for question Nos.14 and 62. 3. After Ext.P4 modified answer key was published, the petitioner moved the Kerala Public Service Commission for a copy of his answer script. That request was rejected. Later, by Ext.P6 letter dated 18.2.2008 he applied for a copy of the modified answer key. That was also rejected on the ground that modified answer key has already been published in the KPSC Bulletin on 1.3.2008. This writ petition was thereupon filed on 18.3.2008 challenging the decision taken by the Kerala Public Service Commission to delete question No.14 from question booklet bearing Alpha Code 'A' and seeking a direction to the Commission to retain the said question and to award marks for candidates who have correctly answered the 4 **W.P.(C) No. 9255/2008** said question. The petitioner has also prayed for a direction to the respondents to either delete question No.62 from the question booklet bearing Alpha Code 'A' or award marks to candidates who have marked options 'A', 'C' or 'D' as the answer. The petitioner contends that question No.14 was illegally deleted, that question No.62 has three correct answers 'A', 'C' and 'D' and that the answer given in the modified answer key is incorrect. 4. The Kerala Public Service Commission has filed a counter affidavit contending inter alia that the petitioner cannot challenge the answer key and that the question papers and the answer keys were settled by experts. As regards question No.14 in question booklet bearing Alpha Code `A', the Commission contends that the question itself was deleted though Ext.P2 answer key was published setting out the answer to question No.14 as 'C'. It is stated that since many objections were received to the said answer, the opinion of experts was sought and based on their opinion a decision was 5 **W.P.(C) No. 9255/2008** taken to delete the said question. As regards question No.62, the Commission has contended that the answer key was first published on 15.8.2007 showing the correct answer as 'B', and that the petitioner who did not object to the answer at that stage cannot after Ext.P4 modified answer key was published question the modified answer to that question, which was decided upon after consulting experts. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. A Division Bench of this Court has in **State of Kerala v. Fathima Seethi** (2002 (3) KLT 871) held as follows: “16. The Supreme Court had occasion to consider a similar situation in **Kanpur University v. Samir Gupta** (AIR 1983 SC 1230). In that case, in a situation of objective multiple choice question, there was a challenge to the correctness of some of the answers which were said to be the key answers. The matter was decided by the Allahabad High Court by taking a particular view. While disposing of the appeal thereagainst, the Supreme Court indicated in paragraph 18 of the principle to be adopted while dealing with such a matter. The Supreme Court observed: “In a system of 'Multiple Choice Objectivetype test', care must be taken to see that 6 **W.P.(C) No. 9255/2008** questions having an ambiguous import are not set in the papers. That kind of system of examination involves merely the tick-marking of the correct answer. It leaves no scope for reasoning or argument. The answer is 'yes' or 'no'. That is why the questions have to be clear and unequivocal. Lastly, if the attention of the University is drawn to any defect in a key answer or any ambiguity in a question set in the examination, prompt and timely decision must be taken by the University to declare that the suspect question will be excluded from the paper and no marks assigned to it.” 17. This being the principle enunciated by the Supreme Court, it appears to us that much of the controversy raised before us can easily be resolved by recourse to this principle. While we appreciate the keen efforts taken by the learned Single Judge in appointing experts to advise him, and commend the pains taken by him in studying the subjects and deciding the correctness of each disputed answer, we are afraid that the jurisdictional limits of judicial review were not observed. As already pointed out, it is not the function of this court to decide what should be the correct answers to the multiple choice questions. This is not a case where there is any mala fides or improper motives alleged against the Commissioner. Nor is there any illegality alleged. The Commissioner, bona fide, accepted the advice tendered to him by the experts appointed by him. It is not as if the credentials of the said experts is under challenge or any mala fides are attributed to the experts themselves. In a situation like this, it would have been preferable to leave the matters where they lay. We see that appointing of further experts by the learned Single Judge produced no better 7 **W.P.(C) No. 9255/2008** results and only added to the confusion which prevailed.” (emphasis supplied) It was held that when the Kerala Public Service Commission has followed a fair procedure it is not within the province of this Court to decide on the correctness of each disputed answer and that in the absence of any illegality or mala fides, it would be preferable to leave the matters where they lay. 6. The same view was reiterated by another Division Bench of this Court in W.P.(C) No.18896 of 2005 and connected cases wherein this Court held that even assuming that there is some mistake in some answers, it would not be proper for this Court to interfere with the answer keys published by the Public Service Commission in exercise of the power of judicial review. It was held that it is impossible to publish an answer key acceptable to all experts, that differences of opinion are always likely to linger and that in such circumstances, this Court cannot interfere with the valuation by appointing a panel of experts to modify the answer key and to make a fresh valuation based on the modified answer key. The issue raised by the petitioner in this writ petition is in my opinion squarely 8 **W.P.(C) No. 9255/2008** covered against him by the Division Bench decisions of this Court referred to above. What the petitioner seeks is a recasting of the answer key which would involve an adjudication by this Court as regards the correctness of the answers decided by the experts. Such a course of action cannot be adopted by this Court as held by the Division Bench in **State of Kerala v. Fathima Seethi** (supra) and in W.P. (C) No.18896 of 2005. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. No costs. ## **P.N.RAVINDRAN Judge** vaa