Satheesh.T.V. v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933** ## **WP(C).No. 27206 of 2011(A)** **-----------------------------------------** ## **PETITIONER(S):** **------------------------** **SATHEESH.T.V.,THENGUMTHETTAYIL HOUSE, URULANTHANNI P.O., KOTHAMANGALAM-686 691, ERNAKULAM DISTRICT.** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA REPRESETNED BY SECERETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, SECRETRIAT,THIRUVANANTHAPURAM-695 001.** **2. THE STATE POLICE CHIEF, THIRUVANANTHAPURAM-695 001.** **3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, KERALA PUBLIC SERVICE COMMISSION,PATTOM, THIRUVANANTHAPURAM-695 004.** **R1 & R2 BY SR.GOVERNMENT PLEADER SRI. C.S.MANILAL R3 BY ADV. SRI. P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2011 ALONG WITH WPC.NO.26594 OF 2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.27206/2011 A** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1. TRUE COPY OF THE QUESTION PAPER WITH ALPHA CODE A.** - **EXHIBIT P2. TRUE COPY OF THE PROVISIONAL ANSWER KEY.** - **EXHIBIT P3. TRUE COPY OF THE FINAL ANSWER KEY.** - **EXHIBIT P4. TRUE COPY OF THE KERALA PADAVALY.** - **EXHIBIT P5. TRUE COPY OF THE RESULTS PUBLISHED IN THE OFFICIAL WEBSITE.** - **EXHIBIT P6. TRUE COPY OF THE QUESTIONNAIRE.** - **EXHIBIT P7. TRUE COPY OF THE ANSWER GIVEN TO EXT.P6.** - **EXHIBIT P8. TRUE COPY OF THE CANDIDATES TO BE CALLED FOR DESCRIPTIVE TEST.** - **EXHIBIT P9. TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER.** ## **RESPONDENTS' EXHIBITS: N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **K.SURENDRA MOHAN, J** --------------------------------------------- W.P.(c)Nos.27206 of 2011, 26594 of 2011, 29520 of 2011 and 29941 of 2011 --------------------------------------------- Dated this the 17[th] day of November 2011 ## **JUDGMENT** These writ petitions raise identical questions for determination and are therefore considered together. 2. The petitioner in WPC No.27206/2011 is an applicant to the post of Sub Inspector of Police Trainee (General Executive Branch) from the open market category. He applied for the post pursuant to a gazette notification dated 28.9.2007 published by the Kerala Public Service Commission ('PSC' for short). He appeared for the selection test, an OMR (Objective Type) test. He was awarded 48 marks. However, according to him, the cut off marks for the candidates to be called for a descriptive test that is to be conducted on 19.11.2011 is 49. So he has not been included in the list, being short by one mark. 3. The petitioner claims that he is entitled to get WPC No.27206 of 2011 & conn.cases 2 above 50 marks for the reason that he had answered Question No.43 correctly, going by the answer given in the provisional answer key. But, later on, when the final answer key was published, a wrong answer has been given for the said question, thus denying him of the one mark that he would have got for the correct answer. 4. Secondly, for question No.71, though the petitioner had given the correct answer, the said question has been cancelled thereby again denying him one mark. Since the final answer key shows his answer to question No.43 as wrong, he also alleges that he has been awarded negative marks for a wrong answer. As a consequence, he fell short of the required 49 marks by one mark. 5. The petitioners in WPC No.26594/2011 are Constables in the Police Department. They also applied for selection to the post of Sub Inspector of Police, but, from a different category, that of graduate Police Constables, Head Constables and Officers of corresponding rank in the Police. Their case is also identical to that of the petitioner in WPC No.27206 of WPC No.27206 of 2011 & conn.cases 3 2011. Though they answered a question paper with a different Alpha code, but object to the very same questions referred to above. According to them, they were also denied one mark for the alleged correct answer, a further one mark for the question that was cancelled and had to suffer a negative mark for having answered a question wrongly. Therefore, they also contend that they would have secured sufficient marks for being included in the short list for being called for the descriptive test that is scheduled to be conducted on 19.11.2011. 6. The petitioner in WPC No.29520 of 2011 is also a Police Constable who had applied for selection and appointment to the post of Sub Inspector of Police (Trainee) meant for Graduate Police Constables. He had also appeared for the OMR test and has secured 43 marks. The cut off mark in his case is 45 and therefore, he has two marks short. According to the petitioner, he would have got more than 46 marks for the reason that though he had answered the very same questions referred to by the petitioners in the other cases correctly, he has been WPC No.27206 of 2011 & conn.cases 4 denied the marks thereof for the reason that one of the said questions has been cancelled and the other question has been assigned a wrong answer by the final key. He has also been awarded negative marks for the wrong answer to the said question. The petitioner in this case has an additional contention regarding Question No.32 where the candidates were asked to name the key to Indian pre-historic Archeology. As per the provisional answer key, one answer was indicated as correct while as per the final key, a different answer has been shown as the correct one. It is contended by the petitioner that both the answers are wrong and that the questions ought to have been cancelled, in which event he would have obtained marks in excess of the cut off marks. 7. WPC No.29941 of 2011 has been filed by a person who had applied for selection and appointment to the post of Sub Inspector of Police (General Executive Branch) of the Kerala Police in the category of open market. He is a graduate in Commerce. He had also appeared for the objective type test conducted by the PSC. WPC No.27206 of 2011 & conn.cases 5 He secured 48 marks, but, has been excluded from the short list for the reason that the cut off marks is 49. According to him, he should have got 51 marks. However, the rightful marks due to him were denied by assigning wrong answers to questions relating to the name of the World Champion in Foot Ball (FIFA) and the question relating to Indian pre-historic Archaeology. 8. The petitioners in all the cases have therefore sought identical reliefs and permission to appear for the descriptive test that is scheduled to be conducted on 19.11.2011. The petitioners have produced photostat copies of the relevant pages of text books of History as well as data downloaded from Wikipedia to support their contentions that the answers to the questions referred to by them were wrong and that they have been prejudiced by assigning wrong answers to those questions. Strong exception has also been taken by the respective counsel appearing for the petitioners in different cases to the cancellation of the question regarding the name of the World Champion in Foot Ball (FIFA) contending that such WPC No.27206 of 2011 & conn.cases 6 cancellation has caused serious prejudice to them. The respective counsel appearing for the petitioners in various cases have placed reliance on the judgment of the Supreme Court in **CHAIRMAN, ALL INDIA RAILWAY RECRUITMENT BOARD AND ANOTHER** V **K.SHYAM** **KUMAR AND OTHERS** [(2010) 6 SCC 614]. Relying on the dictum in the said case, it is contended that any unreasonableness in the selection process is to be eliminated at all costs and it should be ensured that the selection process itself is kept clean and pure. In view of the palpably wrong answers to the three questions which are shown to have caused prejudice to the petitioners, in order to set matters right, it is contended that the present writ petitioners should also be given an opportunity to take part in the descriptive test, that is to be held on 19.11.2011. 9. The contentions of the petitioners are seriously opposed by the PSC. A counter affidavit has been filed on behalf of the PSC in WPC No.26594 of 2011 which has been relied on for the purpose of answering the WPC No.27206 of 2011 & conn.cases 7 allegations contained in the other writ petitions also. 10. The first contention of the PSC is that the challenge of the petitioners is highly belated for the reason that the written test for the post was conducted as early as on 2.10.2010. The PSC had published a provisional answer key to which objections were called for. After verifying the objections, a final answer key was published on 6.12.2010. However, the writ petitions have been filed only in October/November 2011. Admittedly, the petitioners are persons who have not submitted any objections to either the provisional answer key or the final answer key published by the PSC. Therefore, having kept silent for months together, having waited for the valuation of answer papers of thousands of candidates to be completed on the basis of the final answer key published and having waited for publication of the short list, the present challenge has been raised, upon realising that their names have not been included in the short list. Therefore, the attempt of the petitioners is to make a speculative attempt to assail the final answer key at a WPC No.27206 of 2011 & conn.cases 8 belated stage. 11. It is the case of the PSC that the provisional answer key was published on 19.10.2010, soon after the examination was over. 93 objections were received within the time stipulated by the PSC. All the objections were considered at length and a decision was taken to delete two questions and to modify the answer to one question. The decision was taken on the basis of the information obtained from experts in the field. Therefore, it is contended that there is absolutely no infirmity in the procedure adopted by the PSC. 12. Regarding the answers to the questions that are in dispute, according to the PSC, since there were two options that could have been described as correct in the question regarding the World Champion in the game of Foot Ball, the question was decided to be deleted. With respect to the question as to which company had left India last after India's independence, the correct answer is stated to be French. 13. It is the further contention of the PSC that the WPC No.27206 of 2011 & conn.cases 9 opinions of experts in any field would be divided and therefore there are always disputes regarding the correct answers of some questions. However, the object is only to ensure that a fair selection process is adopted, which is reasonable in all respects. It is also pointed out that it is not for this Court to go into the correctness of the answers, in exercise of the jurisdiction under Article 226 of the Constitution. This Court would only look at and examine whether the procedure adopted was fair and reasonable. Since the procedure adopted by the PSC was absolutely fair and reasonable, it is contended that the writ petitions are liable to be dismissed. 14. I have heard Sri.Kaleeswaram Raj, Advocate, Sri.M.R.Sasith Panicker and Sri.K.C.Santhosh Kumar for the petitioners. Adv.Sri.P.C.Sasidharan the learned standing counsel for the PSC has also addressed the Court on the various aspects in dispute. I have considered the rival contentions anxiously. 15. It is to be noticed that the objections in all the above cases are with respect to three questions though WPC No.27206 of 2011 & conn.cases 10 designated by different que4stion numbers depending on the question paper code. All the three questions and the multiple choices that were provided are extracted hereunder, for convenience of reference:- “Question No:40 in question book with code B 40. The ...............Company was the last to leave India after independence - (a) English (b) Dutch - (c) French (d) Portuguese Answer as per the provisional answer key - (d) Portuguese Answer as per the final answer key - (c) French Question No: 68 in question book with code B 68.............became victorious in Football as world champion (FIFA) - (a) Spain (b) Netherlands - (c) Uruguay (d) England Answer as per the provisional answer key - (a) Spain Answer as per the final answer key - Question itself cancelled Question No: 32 in question book with code 32. Name the key to Indian pre historic archaeology WPC No.27206 of 2011 & conn.cases 11 ## (A) Harappa (B) Lothal ## (C) Kalibangan (C) Muciric Answer as per the provisional answer key ## (C) Kalibangan Answer as per the final answer key (A) Harappa.” With respect to question No:40, though the correct answer was given as 'Portuguese' in the provisional answer key, the same has been changed to 'French' in the final answer key. With respect to question No:68 though the answer was 'Spain' in the provisional answer key, which is the correct answer, the question itself has been cancelled. For question No:32 the answer as per the provisional answer key was 'Kalibangan', as per the final answer key it has been changed to 'Harappa'. The contention of the petitioners is that question No:40 'Portuguese' should have been the correct answer, for question No:68 'Spain' should have been the correct answer and question No:32 should have been cancelled. Instead of that by indicating a wrong answer for question No:40 and by cancelling question No:68 the petitioners have been prejudiced. In WPC No.27206 of 2011 & conn.cases 12 the case of two of the petitioners question No:32 has also caused prejudice. According to the petitioners the prejudice is two fold inasmuch as they have not only lost marks for correct answers but have also suffered negative marks by treating a correct answer as wrong. According to the counsel for the PSC the petitioners have had ample opportunities to raise their objections, had they been vigilant. It is pointed out that the written test was conducted on 12-10-2010 and the final answer key was published on 6-12-2010. Therefore, on 6-12-2010 the petitioners came to know of the alleged errors pointed out by them. However, they waited and filed the writ petition only in October/November 2011, long after the list was published. 16. According to the counsel for the petitioner question No:40 is worded in a peculiar manner so as to prompt the candidates to think and choose the options. The question says, “The.... company was the last to leave India after independence”. Therefore, the answer that was required was that of the company that was last to leave WPC No.27206 of 2011 & conn.cases 13 India after independence not a sovereign. The Portuguese were in occupation of the Indian territories as a sovereign and not as a company. According to the PSC, French is therefore the correct answer having been the last company to leave India. The above explanation is contested by the counsel for the petitioners who have produced data downloaded from the wikipedia to show that the French East India Company had been wound up much earlier. 17. As far as the next question is concerned, the question was “.....became victorious in football as world champion 'FIFA'. The choices indicated show the names of both the Spain and Uruguay. While Spain is the current world champion, Uruguay has also won the cup in the past. Since there was multiplicity of correct answers it is submitted that the question was cancelled. According to the petitioners, Spain being the current world champion is the correct answer. 18. Regarding question No:32 the case of the petitioners is that pre-historic period is the period before the recorded history originated and therefore, Harappa WPC No.27206 of 2011 & conn.cases 14 cannot be considered to be the correct answer. According to the PSC Harappa is the correct answer and the expression 'pre-historic period' has not been used in any technical sense. 19. It is true that the wording of the questions reproduced above leave a lot to be desired. All the above questions suffer from some or the other vagueness in expression. Certainly, the questions could have been more precisely worded. One would expect such precise expression especially in view of the formal nature of the activity for which the questions are intended. However, whether the lack of precision in the wording of the questions has been of any serious prejudice to the candidates, is a matter that has to be examined. In the present state of the evidence and material available before me, I am not in a position to decide one way or the other regarding the correctness of the answers with respect to the disputed questions. Though assertions and counter assertions are made by the respective counsel on both sides, it is not possible for this Court sitting in Art.226 to WPC No.27206 of 2011 & conn.cases 15 decide the correctness of the answers to the said questions. It is also worth noticing that even where opinions of experts are sought to be relied upon, it cannot be said that there is any consensus of opinion regarding matters of history or historic events. Therefore, I refrain from embarking upon any such enquiry. 20. That leads me to the next aspect that arises for consideration, whether the lack of precision in the wording of the questions have caused any prejudice. The PSC has narrated the procedure that was followed by it in finalising the answer key. The written test was conducted on 12-102010 and the PSC published a provisional answer key as early as on 19-10-2010, calling for objections from the public regarding the answers that were indicated. It is not in dispute that the petitioners have not preferred any objections to the provisional answer key. At the same time, according to the PSC, 93 objections were received. On receipt of objections, each objection was considered in depth with the help of experts and thereafter, a decision was taken to delete two questions and to modify the WPC No.27206 of 2011 & conn.cases 16 answer of one question. It is to be noted that there are 100 questions in each question paper and that each question carries one mark. Negative marks are awarded for wrong answers. 21. Therefore, objections were received with respect to only three questions out of which one question was cancelled by the PSC admitting mistake and answers to the other questions were modified. Regarding cancellation of one question, it cannot be said that prejudice has been caused only to the petitioners for the reason that all the candidates who appeared are equally affected by such cancellation. Further, according to the PSC, the percentage of marks has been reworked on the basis of the reduced number of questions so as to eliminate any prejudice. Therefore, prima facie there is no evidence to show that any prejudice has been caused to the petitioners. 22. A similar situation arose for the consideration of this Court in WPC 18896/2005. In an unreported judgment dated 27-9-2007 a Division Bench of this Court considered the fairness of the procedure adopted by the WPC No.27206 of 2011 & conn.cases 17 PSC. K.Balakrishnan, J speaking for the Court has concluded the issue in the following words:- “We are in respectful agreement with the above view expressed by the Division Bench of this Court. In this case, we notice that the Public Service Commission had followed a fair procedure. Earlier, the answers of the questions were never published. But pursuant to the directions of this Court, the Public Service Commission has started publishing answer keys to enable the interested persons to point out the mistakes, if any. In this case, the Public Service Commission has followed the said procedure. After considering the objections filed by the interested persons and also taking into account the views of the panel of experts, the answer key was finalised. We feel that the PSC has done what it can do in accordance with law, to ensure that all errors in the answers are rectified. Based on the answer key which was finalised as above, the valuation was done and the short list was published. Even assuming there is some mistake in some answers, it is not proper for this court to interfere with the same in exercise of its powers of judicial review. It is WPC No.27206 of 2011 & conn.cases 18 impossible to publish an answer key acceptable to all experts. Difference of opinion in the case of correctness of answers is always likely to linger. In view of the above position and the aforementioned decision of this Court, we feel that this court is not justified in interfering with the valuation by appointing a panel of experts to modify the answer key and make a fresh valuation of the answer papers based on the modified answer key.” In view of the above dictum I do not find any scope for considering the matter further. 23. Apart from the above there is also the question of delay, as rightly pointed out by the counsel for the PSC. As already noticed, though the examination was over in 2010, the provisional answer key was published on 19-10-2010 and finalised on 6-12-2010, the petitioners did not choose to prefer their objections to any of the answers. It cannot be denied that the petitioners were aware of the answers finalised by the PSC at least when final answer key was published. Therefore, the delay in approaching this Court in October/November 2011 has WPC No.27206 of 2011 & conn.cases 19 certainly vitiated their rights. It is only apparent that the petitioners were waiting for the short list to be published to find out whether their names were included in the list. 24. The counsel for the petitioners further contended that the cancellation of the questions are tainted with arbitrariness and therefore, Article 14 is violated, enabling them to seek redressal from this Court under Art.226 of the Constitution. For the various reasons stated above while considering the procedure adopted by the PSC in finalising the answers to the questions I do not think that the procedure adopted, is vitiated by arbitrariness. I am satisfied that the procedure adopted has been open, fair and reasonable. In a similar situation in **State of Kerala v. Fathima Seethi {2002(3) KLT 871}** a Division Bench of this Court has held in paragraph 10 as follows:- “These writ petitions are in the nature of petitions for the issue of a writ of certiorari by invoking Art.14 of the Constitution. Art.14 is anathema to arbitrary action. Petitioners could succeed only if they show that the State or its WPC No.27206 of 2011 & conn.cases 20 officers have acted arbitrarily and unreasonably and in breach of the fundamental right guaranteed under Art.14. In a challenge to State action in Writ Petition of this nature under Art.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 factual. Absent these factors, the court must refrain from interfering with the decision taken by the administrative authority, whatever its personal predictions.” 25. Applying the above principle, I do not find any grounds to interfere with the impugned action or to grant any of the reliefs prayed for in these writ petitions. For the foregoing reasons, it is held that the petitioners are not entitled to any of the reliefs claimed. These writ petitions fail and are accordingly dismissed. No costs. **==> picture [175 x 28] intentionally omitted <==** css/jj true copy **==> picture [85 x 12] intentionally omitted <==**