Sailendran P.V. v. Kerala Public Service Commission

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **MONDAY, THE 9TH DAY OF JANUARY 2012/19TH POUSHA 1933** **WPC.No. 15331 of 2009 (J)** **------------------------------------** **PETITIONER(S) :** - **---------------------** **SAILENDRAN.P.V.,PEON, KERALA STATE FINANCIAL ENTERPRISES LIMITED, MAIN BRANCH,THIRUVANANTHAPURAM, RESIDING AT SREESAILAM, KARINGAL, KANDALA (P.O.), THIRUVANANTHAPURAM.** **BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.PRAJEESH N.P.** **RESPONDENT(S) :** **------------------------** **1. THE KERALA PUBLIC SERVICE COMMISSION, REP.BY THE SECRETARY, PATTOM, THIRUVANANTHAPURAM.** **2. THE CHAIRMAN, KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM.** **3. THE CONTROLLER OF EXAMINATIONS, KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM.** - **BY SRI.P.C.SASIDHARAN, SC, KPSC** - **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AMV** ## **WPC.No. 15331 of 2009 (J)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** |**P1.**|**:**|**COPY OF THE HALL TICKET ISSUED TO THE PETITIONER BY**| |---|---|---| |||**THE 1ST RESPONDENT.**| |**P2.**|**:**|**COPY OF THE QUESTION PAPER.**| |**P3.**|**:**|**COPY OF THE ANSWER KEY.**| |**P4.**|**:**|**COPY OF THE MARKS AWARDED TO THE PETITIONER.**| |**P5.**|**:**|**COPY OF THE CERTIFICATE ISSUED BY THE TEACHER,**| |||**BRILLIANCE COLLEGE, THIRUVANANTHAPURAM.**| |**P6.**|**:**|**COPY OF THE REPRESENTATION SUBMITTED BY THE**| |||**PETITIONER DATED 25.05.2009.**| **RESPONDENTS' EXHIBITS : NIL** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **AMV** **K. SURENDRA MOHAN, J. -----------------------------------------------------------W.P(C) NO: 15331 OF 2009 ----------------------------------------------------------Dated this the 9[th] January, 2012.** ## **JUDGMENT** The petitioner is working as a Peon in the Kerala State Financial Enterprises Limited, Main Branch, Thiruvananthapuram. He was appointed to the said post pursuant to a selection conducted by the Kerala Public Service Commission ( PSC for short). As per the relevant rules, five percent of the vacancies to the post of Junior Assistants is to be filled up from eligible subordinate staff of the company. The PSC had published a notification in the Government Gazette dated 12.12.2007. Since the petitioner was eligible for such appointment, he submitted an application for being selected. Thereafter, a written test was conducted by the PSC on 22.8.2008. The question papers for the test were designated by four Alpha Codes, A, B, C and D. The petitioner took the examination by answering a question paper with Alpha Code 'B'. A copy of the question paper is produced as Ext.P2. The petitioner has been awarded 39 marks. The candidates who have obtained marks up to 40 have been included in the list of eligible candidates WPC 15331/2009 2 for appointment. The petitioner has not been so included for the reason that he was short by one mark. 2. According to the petitioner, he had answered Question No.84 in Ext.P2 question paper correctly. However, since the answer key published contained a wrong answer, he has lost one mark. If he had been granted the said one mark, he would have been included in the list of selected candidates. According to the petitioner, 151 persons had taken the test. Only 26 persons have been included in the list. The petitioner's mark sheet is Ext.P4. Though the petitioner had submitted Ext.P6 representation pointing out the error, he contends that no action has been taken thereon, so far. The petitioner has therefore filed this writ petition seeking the issue of appropriate directions to include his name also in the list of eligible candidates. 3. Adv.P.C.Sasidharan who appears for the PSC opposes the contentions of the petitioner. A counter affidavit has been filed on behalf of the respondents. According to the counter affidavit, the written test was conducted on 22.8.2008. Thereafter, on 3.9.2008, a provisional answer key was published, stipulating seven day's time for filing objections. The objections could be filed not only by the candidates but also by experts or members of the general WPC 15331/2009 3 public. The petitioner did not file any objections. In the above circumstances, the objections received were considered and the answer key was finalised. The final answer key was published on 17.12.2008. It was only thereafter that the valuation of the answer papers was conducted. 4. The counsel for the PSC submits that the procedure adopted is with the object of ensuring that correctness of the answers are kept beyond any dispute. For the above purpose, the suggestions and objections made by the public, the experts as well as the candidates are considered, evaluated and incorporated. It is only after finalising the answer key that the exercise of valuation of answers is commenced. Once the answer key is finalised the valuation is conducted and the list of eligible candidates is published. It is long thereafter on 28-5-2009 that the petitioner has submitted Ext.P6 objections. According to the counsel, even assuming that there is an error in the answer to question No:84, any correction thereof at this stage would affect the rights of persons who are not parties to this writ petition. A person who has obtained 40 marks on the strength of the answer to question No:84 would become ineligible to be listed if the answer given in the final answer key is now declared to be wrong. WPC 15331/2009 4 However, it is not possible to identify and eliminate such persons. A converse situation of there being other persons like the petitioner who would have failed to make the selection by being short of one mark caused by reason of giving the same answer to petitioner question No:84 would also be prejudiced by including the petitioner in the rank list at this stage. It is for the above reason that necessary correction to the answer key is made before the actual commencement of the valuation. As a rule, it is pointed out that even if an answer is found to be wrong it is only appropriate in the larger interests of all concerned to refrain from interfering with the same. The petitioner not having been vigilant enough to object to the answer key at the right point of time has forfeited his right to object to the answer, it is contended. 5. The counsel for the petitioner on the other hand points out that going by Ext.P5 diagram that he has produced in support of his contention, the correct answer to question No:84 is 'C' and not 'A' as given in the final answer key. Therefore, it is contended that by denying the petitioner one mark for a correct answer he is not only loosing one mark but also the eligibility to be selected to the quota that is earmarked for candidates of the subordinate services. Consequently, it is contended that the operation of any rule WPC 15331/2009 5 wherever it is seen to cause injustice to a party should be modified or corrected so as to remedy the injustice caused. For the above reasons, the counsel for the petitioner contends that the petitioner may be directed to be included in the list of eligible candidates as the last person. The counsel also points out that the list is still in force and would expire only on 5-2-2012. Since no other person has come forward raising a contention that the wrong answer published by the PSC has worked injustice to him, the only presumption is that the petitioner is the only person who is so prejudiced. The counsel for the petitioner therefore seeks the issue of appropriate directions to rectify the error. 6. I have heard Mr. Gopakumar R. Thaliyal for the petitioner and Mr. P.C.Sasidharan for the PSC. I have also considered the contentions of the parties anxiously. 7. It is not in dispute that the test was conducted on 22-82008. Thereafter, the PSC published a provisional answer key on 3-9-2008 calling for objections to the answers so published from the candidates as well as the general public. Seven days time was given for filing such objections. Thereafter, the objections were considered and the final answer key was published on 17-12-2008. It is worth noticing that the petitioner had no objections to either WPC 15331/2009 6 the provisional or the final answer key at that time. According to the counsel for the petitioner, the need for the petitioner to challenge the answer key arose only when he got his mark sheet Ext.P4 and came to know that he had failed to get selected by shortage of one mark. For the above reason, it is contended that the necessity to challenge the answer arose only after the mark list was obtained. It is only thereafter on 28-5-2009 that the petitioner has filed Ext.P6 representation. Meanwhile, the list of selected candidates had also been published by the PSC on 5-2-2009. This writ petition has been filed only much later, on 3-6-2009. For the above reason it cannot be said that the petitioner has been vigilant in questioning or objecting to the alleged wrong answer to question No:84. 8. The procedure that is adopted by the PSC has been subjected to elaborate examination by this Court with the object of ascertaining whether the procedure was fair, just and reasonable. In the decision in **Ajith K. Gokulam v. K.S.E.B {2008(3) KLT 170}** a learned Single Judge of this Court has found after detailed examination of the procedure followed by the PSC that the procedure was just, fair and reasonable. After referring to the WPC 15331/2009 7 various decisions of the Apex Court as well as the Division Bench of this Court, this Court has observed as follows at page 177:- “It is not the function of the court to sit in judgment over the correctness of the administrative or executive action. Court has only to examine whether the process has been vitiated by an illegality, arbitrariness and malafide both legal and factual. It is keeping in mind the aforementioned principle that I had referred to the method adopted by the Commission in the preparation of the questions and the answer key. Adoption of the method involving a requisition of multiple set of questions, choosing one among them is an attempt to minimise the chances of leakage of question papers. So also is the reference to a panel of experts after the conduct of the examination to decide upon the correct answer key. Hence I hold that the above procedure is fair and reasonable and once it is so found, the scope of interference by this Court under Art.226 would be extremely limited. Interference could be possible only if it is demonstrated beyond any reasonable doubt, that there has been clear arbitrariness in the preparation of the correct answer key.” I am in respectful agreement with the above observations. 9. Since the procedure adopted by the PSC has been found to WPC 15331/2009 8 be fair and reasonable the omission of the petitioner to object to the alleged wrong answer at the right point of time cannot be justified. As rightly pointed out by the counsel for the PSC, to tinker with the answers to the various questions after completion of the valuation process would result in a lot of uncertainty leading to a situation where it would become impossible to finalise the selection lists due to the raising of objections like the present one that are likely to arise belatedly. For the above reasons I am not satisfied that the list published on 5-2-2009 requires interference at this length of time. 10. At the same time on an examination of Ext.P5 in which the petitioner has with the help of a diagram justified his contention that the answer to question No:84 was wrong, leaves room for serious doubts in the mind of any person regarding the correctness of the answer given in the final answer key. According to the counsel for the PSC answer given in the final answer key is the answer provided by the question paper setter who had set the question with the said answer in mind. In the absence of anything to show that the said answer is patently unreasonable, the counsel for the PSC contends that there are no reasons to presume that the answer given in the final answer key was wrong. Further, by a WPC 15331/2009 9 different method, the answer that is given in the final answer key could also be obtained, it is contended. However, I am not in a position to decide whether it is possible for the answer given in the final answer key to be also arrived at by following a different method or not. The said exercise is best left to those competent to do so. Since Ext.P6 is pending consideration before the first respondent, it is sufficient that the same is directed to be considered. 11. For the above reasons, this writ petition is disposed of directing the first respondent to consider the representation submitted by the petitioner, evidenced herein by Ext.P6 in accordance with law and to pass appropriate orders thereon, as expeditiously as possible and at any rate within a period of three weeks from today. Sd/K. SURENDRA MOHAN Judge jj P.S.to Judge WPC 15331/2009 10