Rajesh R. v. Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 2ND DAY OF MARCH 2017/11TH PHALGUNA, 1938** **OP(KAT).No. 8 of 2017 (Z) --------------------------** **AGAINST THE ORDER IN OA(EKM) 463/2016 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 3/11/2016** **PETITIONER/APPLICANT IN O.A.NO.463 OF 2016:** **--------------------------------------------** **RAJESH R.** **S/O.RAJAGOPALA PRABHU K., AGED 42, PANACKAL HOUSE, PARAYAKADU P.O., THURAVOOR, ALAPPUZHA-688540, NOW WORKING AT HIGHER SECONDARY SCHOOL TEACHER IN THE EZHIKKARA GOVERNMENT HIGHER SECONDARY SCHOOL, NORTH PARAVUR, MOB.NO.9846175368.** **BY ADVS.SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI SRI.M.ASHOK KINI** ## **RESPONDENTS/DEFENDANTS IN O.A.:** **---------------------------------** **1. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695004.** **2. THE SECRETARY** **KERALA PUBLIC SERVICE COMMISSION, REGIONAL OFFICE, ERNAKULAM (NEAR SOUTH RAILWAY STATION, EASTERN ENTRY TOWER)-682016.** **3. DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, ALAPUZA-688001.** ## **BY SRI.P.C.SASIDHARAN, SC, KPSC** **THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD ON 17-02-2017, THE COURT ON 02-03-2017 DELIVERED THE FOLLOWING:** **OP(KAT).No. 8 of 2017 (Z) --------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 THE TRUE COPY OF THE ORDER DATED 8-12-2016 IN O.A. (EKM)NO.463/2016.** **EXHIBIT P2 THE TRUE COPY OF THE I.A.(EKM)NO.463 OF 2016 ALONG WITH ANNEXURES.** **EXHIBIT P3 THE TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS IN THE O.A., BEFORE THE TRIBUNAL.** **EXHIBIT P4 THE TRUE COPY OF APPLICATION AS MA(EKM)NO.467/16 FILED BEFORE THE TRIBUNAL, ALONG WITH ANNEXURE A-11.** **EXHIBIT P5 THE TRUE COPY OF THE REJOINDER FILED BY PETITIONER IN O.A. TO REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS.** **EXHIBIT P6 THE TRUE COPY OF ORDER DATED 3-11-2016 IN O.A.NO.463/16.** **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** **Rp** **//TRUE COPY//** **PS TO JUDGE** ## **A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.** =========================== OP(KAT) No. 8 of 2017 ================== Dated this, the 2[nd] day of March, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This Original Petition is filed by the applicant in O.A. (EKM) No.463/16 challenging the order dated 8/12/2016 by which the application of the petitioner came to be dismissed. The O.A. was filed by the petitioner inter alia seeking for a direction to set aside Annexure A7, the final answer key prepared by the Kerala Public Service Commission (KPSC) while conducting an examination for appointment to the post of Lecturer in Hindi and for other consequential reliefs. 2. The short facts involved in the application would disclose that the petitioner is an applicant to the post of Hindi Lecturer in terms of notification dated 30/11/2012. After a preliminary examination held on 29/4/2014, the main examination was conducted on 1/10/2015. The main examination consisted of a question booklet containing 4 versions A, B, C and D. The question OP(KAT) No.8/2017 -:2:- paper received by the petitioner belongs to Alfa Code A. In fact, all the questions in the booklet are the same but arranged in different series in each Alpha Code. Each correct answer carries one mark and each wrong answer would lose 1/3 mark. There is no negative mark for unattended question or cancelled question. After main examination, KPSC published provisional answer key and final answer key was published later. It was then noticed that 9 questions were cancelled and the valuation would be based on 91 marks. Petitioner submits that if the cancelled questions are attempted by a candidate and had given a correct answer, such person would loose one mark and those who have answered and given a wrong answer, he or she will not lose any mark since the question itself is cancelled. But if the question is not cancelled, they would have lost 1+1/3 mark for each question. It is therefore contended that those persons who have attempted and given a wrong answer would gain 1+1/3 mark for each question. Petitioner submits that he is aggrieved by cancellation of three questions in Hindi, especially question Nos.13, 32, and 53. In OP(KAT) No.8/2017 -:3:- regard to question No.13, the question was, "भ�ल�न�थ त�व�र� क� अन�स�र उर शबर क� म�ल भ�ष�”. Petitioner places reliance on a book written by Bolanath Thiwari and submits that the actual answer was option 'D', that is, "च�न�”. With reference to question No.32, according to the petitioner, the correct answer is option 'B' and in regard to question No.53, the correct answer is option 'D'. Petitioner submits that these answers are stated to be suspected by KPSC and therefore it has been deleted. It is in the said circumstances petitioner had sought for a direction to include question Nos. 13, 32 and 53 and conduct a re-evaluation of the selection process. 3. The KPSC had filed a reply statement inter alia stating that the notification inviting application for selection to the post of Lecturer in Hindi in the Collegiate Education Department was published in the Gazette on 30/11/2012 fixing 2/1/2013 as the last date. It is stated that the main examination (online) for the post of Lecturer was conducted on 1/10/2015. The provisional answer key of the OMR test was published in the official website of the Commission which was open to the candidates for submitting OP(KAT) No.8/2017 -:4:- complaints/suggestions within the stipulated time frame. Complaints/suggestions thus received against answers in the provisional answer key from the candidates were referred to an Expert Committee consisting of three experts for detailed analysis. The Expert Committee had recommended to change 7 options which appeared wrongly and recommended to exclude 9 questions from the provisional answer key in which either answers have multiple options/no correct answers in their options or answers create general confusion or experts have different opinion about the answers. On the said basis, the final answer key was published on 28/1/2016. It is submitted that the applicant had submitted a representation on 2/2/2016 requesting to verify and re-examine the correctness of three questions, i.e., 13, 32 and 53 of Alpha Code A. The said request has been turned down as being without any merits. It is stated that entertaining such complaints at every stage will adversely affect the selection process within a reasonable time. It is further submitted that a transparent procedure has been adopted in the matter and more care has been taken to publish the final answer key after OP(KAT) No.8/2017 -:5:- completing all the required formalities and procedures and therefore interfering with it at this stage would affect the selection process. 4. The Tribunal on a consideration of the factual and legal aspects involved in the matter opined that on a perusal of the opinion given by the Expert Committee, it has to be held that three questions referred by the petitioner would come within the definition of suspect questions since the expert themselves differ as regards the correct answers. Therefore, the action taken by the Public Service Commission to delete those questions cannot be termed as illegal or arbitrary and on the said basis, the original application was dismissed. 5. Learned counsel for the petitioner while impugning the aforesaid order passed by the Tribunal submits that on a mere verification of the questions and optional answers given, supported by the documents relied upon by the petitioner clearly proves the fact that there is no ambiguity regarding the question or the answers so that any candidate who writes the examination for the aforesaid post will be able to understand the questions OP(KAT) No.8/2017 -:6:- correctly and there is no ambiguity in the answers provided as well, in order to delete them. Learned counsel submits that as per Annexure A8, which is a Book written by Sri.Bolanath Thiwari, he had clearly indicated that though there is doubt that Urdu language has its source from Turkish language, it is developed from Chinese language and therefore, there cannot be any doubt regarding the answer to question No.13. 6. Similarly, with reference to question No.32, the question asked is:- "समवर�य प�नरक$� क%न-स� ह( ?” The answers given are (a) प�प-प�णय (b) र�न� बज�न� (c) हष1 प�ष1 (d) भर� ” . प�र� Petitioner places reliance upon the very same book written by Sri.Bolanath Thiwari indicating that र�न� बज�न� is the correct answer. The other answers given as हष1 प�ष1 and भर� प�र� are सम�न�थ� प�नरक$� and प�प-प�णय comes under ववपर���थ� प�नरक$�. In OP(KAT) No.8/2017 -:7:- respect of question No.53, learned counsel fairly submits that there is no supporting material to substantiate the contention . It is therefore argued that when the answers to two questions are clearly evident from the approved texts in Hindi, there is no reason why the said questions are deleted. 7. Learned counsel for the petitioner placed reliance on the judgment of the Apex Court in _**Kanpur University and others v. Samir Gupta**_ [AIR 1983 SC 1230] wherein it was held that a key answer 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. It must be such as no reasonable body of men well versed in particular subject would regard as correct. 8. Learned counsel for KPSC had also placed before us the report of the Committee. Three experts were asked to verify the correctness of the questions and answers. Two of them had given reasons and also the books referred by them. One of the expert has not indicated the reference books. While two of them has treated question Nos. 13 and 32 as contended by the OP(KAT) No.8/2017 -:8:- petitioner, one member has taken a different view. 9. Learned counsel for KPSC placed reliance on judgment in _**State of Kerala v. Fathima Seethi**_ (2002 (3) KLT 871) wherein a Division Bench of this Court had occasion to consider the scope of judicial review in such matters. It is held at paras 10, 17 and 18 as under:- _“10. These writ petitions are in the nature of petitions for the issue of a writ of certiorari by invoking Article 14 of the Constitution. Article 14 is anathema to arbitrary action. Petitioners could succeed only if they show that the State or its officers have acted arbitrarily and unreasonably and in breach of the fundamental right guaranteed under Article 14. In a challenge to State action in Writ Petition of this nature under Article 226 invoking the high prerogative writ of certiorari, it is not the function of this Court to sit in judgment over the correctness of the administrative or executive action. The Court has to examine if the decision making process has been vitiated on account of illegality, arbitrariness and mala fides both legal and/actual. Absent these factors, the court must refrain from interfering with the decision taken by the administrative authority, whatever its personal predictions.”_ OP(KAT) No.8/2017 -:9:- _“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, bonafide, 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 results and only added to the confusion which prevailed._ _18. One principle is certain, namely, every 'suspect question' needs to be deleted so that no student gets advantage, or is denied advantage, because_ OP(KAT) No.8/2017 ## -:10:- _of evaluation of such questions. A 'suspect question' is one which is incapable of being asked as objective multiple choice question, in that it has no single, unique or 'most appropriate answer'. This may be because the answer requires an explanation and argumentation or reasons for its justification. These are exercises not permissible in an objective multiple choice question, where the candidate has to merely mark a tick in the space provided for it. The answer key is also programmed into the Computer.”_ 10. Another judgment relied upon is _**Nowfal H. and others v. KPSC**_ [2014 (3) KHC 349 (DB)], wherein also, this Court had occasion to consider the scope of judicial review in matters relating to examinations being conducted by the Public Service Commission and it is held at para 11 as under:- _“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 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_ OP(KAT) No.8/2017 ## -:11:- _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 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_ OP(KAT) No.8/2017 ## -:12:- _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 exercise of its discretion which would still be in exercise of its jurisdiction keeping it within the four walls of its jurisdiction.”_ 11. Having heard the learned counsel on either side and having perused the records, there is no dispute about the fact that KPSC has not complied with the procedural requirements. When they have published a provisional answer and complaints and suggestions were invited from the applicants, on the basis of such complaints, the matter was referred to an Expert Committee OP(KAT) No.8/2017 -:13:- consisting of three members and it is based on their opinion that KPSC decided to delete 9 questions. Suspected questions can have different dimensions. It may be on account of the failure to understand the question properly or there might be doubt regarding the optional answers which are given. Some ambiguity in the question may also give rise to suspected question. Therefore, it is apparently a matter to be considered by an Expert body and if they come to a conclusion that there might be some ambiguity in the question, KPSC will be justified in deleting the said questions. 12. As rightly pointed by the learned counsel for the petitioner, as far as questions 13 and 32 are concerned, if we look at the Hindi text relied upon, the contention appears to be correct. But, still, when two of the experts had treated those answers as correct and one of the expert felt that it is a suspected question or he feels that the answer is not correct, KPSC cannot brush aside the Committee's report and then take a decision on their own. Coming to the question of judicial review, the only factor which should be considered is whether the KPSC had OP(KAT) No.8/2017 -:14:- deleted the questions after complying with the prescribed procedure. When doubts were expressed regarding the questions, they have deleted 9 questions after referring the matter to a Committee. Even according to the petitioner, he has no objection regarding the other six questions and during hearing of the original petition, learned counsel fairly submits that as far as question No.53 is concerned, appropriate material is not available to disprove the said fact. 13. Under such circumstances, when the KPSC had deleted the questions after obtaining a proper report from the Committee which is also placed before this Court in a sealed cover and the said fact was also brought to the notice of the Tribunal, we are of the view that the KPSC has not committed any procedural infirmity in the matter. Learned counsel submits that going by the exhibits produced by her, there cannot be any doubt regarding the answer to questions 13 and 32. But still, if one of the members of the Committee had felt that it would be a suspected question and he had given a wrong answer, there was every possibility that many of the candidates may have such a OP(KAT) No.8/2017 -:15:- view as well. The issue therefore has to be considered in a larger perspective. The members of the Committee can only be treated as a cross section of the candidates. Hence, we do not think that KPSC has committed any legal infirmity in deleting the questions referred above from being considered for evaluation. 14. Further, as rightly pointed out by the learned counsel for the KPSC, if this Court interferes with the selection process, which is at an advanced stage, it may delay the whole process and may affect several persons who are not parties to the _lis_ . For that reason also, we do not think it necessary to interfere with the impugned order. In the result, since no grounds are made out to interfere with the order passed by the Tribunal, this OP is dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **K.RAMAKRISHNAN, JUDGE** Rp2/3/2017 //True Copy// P.S to Judge