Sija M.B v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY ,THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940** ## **OP(KAT).No. 314 of 2018** ## **AGAINST THE ORDER/JUDGMENT DATED 26.7.2018 IN R.A 24/2018 AND ORDER DATED 10.4.2018 IN OA(EKM 2026/2017 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **SIJA M.B, AGED 38 YEARS,W/O.SAJEEV N.K., MANAPPURATH HOUSE, KARIMPADAM, CHENDAMANGALAM P O, NORTH PARAVUR, ERNAKULAM ,683512** **BY ADV. SRI.K.P.SATHEESAN SRI.P.MOHANDAS** ## **RESPONDENT/S:** - **1 RADHU K.N.,AGED 29 YEARS,W/O.AJESH.P.P., PRATTIL HOUSE, EROOR WEST, TRIPUNITHURA, ERNAKULAM 682306** - **2 REEMA RESMI AUGUSTINE,AGED 36 YEARS, W/O.P.V.MARTIN, PARAYAMTHARA HOUSE, BHAGATH SINGH ROAD,THYKKOODAM, VYTTILA.P.O., ERNAKULAM 686019** - **3 RAJANI T.R., AGED 37 YEARS,W/O.UNNIKRISHNAN, LAKSHMI BHAVAN, PANDIPPARAMBU ROAD, KANNANKULANGARA, TRIPUNITHURA, ERNAKULAM 682306** - **4 SUKANYA K.V.,AGED 26 YEARS, W/O.PRAMOD V.G., VETTIKKAPPILLIL HOUSE, ATHIRAKANDATHIL LANE, THEKKUMBHAGOM, TRIPUNITHURA, ERNAKULAM 682301** - **5 THE SECRETARY,KERALA PUBLIC SERVICE COMMISSION, P.S.C. OFFICE, PATTOM, THIRUVANANTHAPURAM 695004** - **6 KERALA PUBLIC SERVICE COMMISSION,REPRESENTED BY ITS SECRETARY, P.S.C. OFFICE, PATTOM, THIRUVANANTHAPURAM 695004** - **7 THE EXAMINATION CONTROLLER,KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, P.S.C. OFFICE, PATTOM, THIRUVANANTHAPURAM 695004** 2 OP(KAT).No. 314 of 2018 **8 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, M.G. ROAD, STATUTE, PALAYAM, THIRUVANANTHAPURAM 695001** R5 TO **SRI.P.C.SASIDHARAN, STANDING COUNSEL** R7 R8 **SRI.ANTONY MUKKATH, GOVERNMENT PLEADER** **THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP FOR ADMISSION ON 11.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 OP(KAT).No. 314 of 2018 ## **JUDGMENT** ## **C.T.RAVIKUMAR, J.** The petitioner is a rank holder in a ranked list published for Ernakulam District by the Kerala Public Service Commission (PSC for short) for appointment to the post of Lower Division Clerk in various departments. The petitioner is placed therein at rank No.486. Similar notification was issued for effecting recruitment in Kannur District as well. Annexure RA3 in Ext P2 was a common question paper of both Districts with different Code numbers. 2. Respondents 1 to 4 herein approached the Kerala Administrative Tribunal, Thiruvananthapuram Bench by filing O.A No.2026/2017 mainly, challenging the final answer key published by the 'PSC' as relates the written test conducted for appointment to the post of Lower Division Clerk for Ernakulam pursuant to a notification therefor, in various departments in all the districts in the State of Kerala. Their grievance was mainly with respect to the answers to question Nos 4 and 64. They also sought for consequential reliefs, raising various contentions. 3. The respondents therein resisted the claims and contentions raised by the said applicants. The Tribunal after considering the rival contentions, passed the final order on 10.4.2018 in the said Original Application. In fact, the aforesaid Original Application was considered along with a batch of Original 4 OP(KAT).No. 314 of 2018 Applications, viz., OA(EKM) Nos 1650, 1970, 1979, 2043, 2210, 2578, 2938 and 3049 of 2017. As per the impugned order, the Tribunal partly allowed OA (Ekm) Nos 1970, 1979, 2026, 2210, 2938 and 3049 of 2017 and dismissed other Original Applications. In fact, the aforementioned Original Applications were partly allowed only in regard to Question No.4 in Question Booklet A holding that the correct answer is Choice (C). The disputed question reads as follows:- 29. ഗഗാരരര്‍ഹിക പപീഢനതര്‍ഹില്‍ നര്‍ഹിനനന്നും സസ(തപീകളളസ സന്നുംരക്ഷണന്നും നല്‍കനന നര്‍ഹിയമന്നും നര്‍ഹിലവര്‍ഹില്‍ വന വരരന്നും: - (A) 2014 (B) 2005 ( C) 2006 (D) 2010 4. The Tribunal also directed the PSC to correct the final answer key accordingly and to allot marks to the candidates concerned for the said correct answer, while publishing the final ranked list. Further it was ordered thus:- “If the same has already been published, a Revised Final Ranked list will be published as expeditiously as possible, at any rate within a period of two months from the date of receipt of a certified copy of this order.” 5. Apprehending that revision of ranked list would alter the seniority position in the ranked list, the petitioner approached the Tribunal by filing a review application viz., RA No.24/2018 in O.A No.2026/2017. It is to be noted that she was 5 OP(KAT).No. 314 of 2018 not a party in OA 2026/2017. RA No.24/2018 filed in OA No.2026/2017 was dismissed by the Tribunal confirming the order dated 10.4.2018 in O.A No.2026/2017. It is in the said circumstances that the petitioner approached this Court by filing this Original Petition challenging the order dated 26.7.2018 in RA No.24/2018 and order dated 10.4.2018 in O.A No.2026/2017, passed by the Kerala Administrative Tribunal. 6. We have heard the learned Senior Counsel for the petitioner, the learned Government Pleader and also the learned Standing Counsel appearing for the PSC. 7. The bore of contention is only with respect to the answer to Question No.29 in Annexure RA3, as extracted hereinbefore. While the petitioner contends that the correct answer is '2005', the respondents contend that the Tribunal was right in holding that the correct answer is '2006'. The learned Senior Counsel appearing for the petitioner submitted that the stand taken by the PSC before the Tribunal was that the correct answer is 2005 and therefore they are not justified in resisting the contention of the petitioner. 8. Per contra, the learned Standing Counsel appearing for the PSC submitted that in respect of matters where interpretation is with respect to the coming into force of an enactment the Commission thought it fit to accept and act upon the interpretation in the verdict of the Tribunal. The learned 6 OP(KAT).No. 314 of 2018 Senior Counsel for the petitioner would further contend that the same question was put in a different manner in respect of another selection process conducted by the PSC, as is revealed from Annexure A8 in Ext P3. Annexure A8 is a question paper for examination conducted in 2016 for appointment to the post of Police Constable-Police (India Reserve Battalion Regular Wing). Question No.25 therein runs as follows:- 25. ഗഗാരരര്‍ഹിക പപീഢന നര്‍ഹിയമന്നും (പഗാബലലൃതര്‍ഹില്‍ വനതസ എനസ? (A) 2005 (B) 2006 (C ) 2009 (D) 2016 9. Going by the answer key pertaining to the said examination conducted in the year 2016 the correct answer was 2006. There was no challenge against the same. The contention of the learned Senior Counsel appearing for the petitioner is that there is fundamental difference between Question No.25 in Annexure A8 and Question No.29 in Annexure RA3. According to the learned Senior Counsel Question No.25 in Annexure A8 should be understood as one seeking answer to the question as to when the Protection of Women from Domestic Violence Act came into force and the question in Annexure RA3 at serial no.29 should be understood as a question seeking an answer as to when Protection of Women from Domestic Violence Act came into existence. In short, according to the learned counsel the expressions 'came into force' and 'came into existence' are 7 OP(KAT).No. 314 of 2018 different and distinct and carry different meanings. It is the further contention that a bare perusal of the impugned order would reveal that it is without looking into the distinction between the aforesaid terms that the Tribunal had proceeded to consider the question treating Question No.29 as the question: 'When did the Protection of Women from Domestic Violence Act come into force?'. The contention of the learned counsel is that if the question is taken as: 'When did the Protection of Women from Domestic Violence Act come into force', its answer can only be the year '2005' and if the question is understood as 'When did the Protection of Women from Domestic Violence Act come into existence' its answer must be the year '2006'. The learned counsel further contended that in the light of the decision of the Division Bench of this Court in **Nowfal H. and others vs KPSC, Trivandrum and another** reported in **2014 (3) KHC 349)** the Tribunal ought not to have interfered with the answer key prepared by the PSC in the said circumstances. In other words, it is contended that the Tribunal had committed an error in interfering with the answer key prepared by the PSC and also in issuing a direction to treat the correct answer as 'C' viz., the year '2006' in respect of the aforesaid question. 10. Per contra, the learned Standing Counsel for the PSC as also the learned Government Pleader contended that though normally such interference is not permissible, it cannot be said 8 OP(KAT).No. 314 of 2018 that at no circumstances, the Tribunal or the Court could make interference in such matters. It is submitted that even the decision relied on by the petitioner would reveal that when a palpable error is demonstrated such interference is permissible. On the said point, the learned Standing Counsel appearing for the PSC relied on a decision of the Hon'ble Apex Court in **U.P.P.S.C., through its Chairman and Another vs Rahul Singh and Another** reported in **2018 (4) KHC SN 2.** In fact, the learned Standing Counsel made available the full text of the said decision for our perusal. The Hon'ble Apex Court was dealing with the extent and power of courts to interfere with a selection process initiated by the PSC. After referring to a decision of its earlier decision in **Kanpur University, through Vice Chancellor and others vs Samir Gupta and others (1983) 4 SCC 309** the Apex Court held therein thus:- “We agree that the key answers should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct”. 11. The Apex Court had also referred to another decision in **Ran Vijay Singh and others vs State of Uttar Pradesh and others ((2018) 2 SCC 357)** and relevant portion thereof was quoted with agreement. For the purpose of disposal of this 9 OP(KAT).No. 314 of 2018 case paragraph 12 therein assume relevance and it reads thus:- “The law is well settled that the onus is on the candidate to not only demonstrate that the key answer is incorrect but also that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is wrong. The Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers”. 12. As noticed hereinbefore, the nub of the contention of the learned Senior Counsel appearing for the petitioner is that in the light of the expression of law by the Apex Court as aforesaid even if a mistake has crept in an answer key prepared by the PSC with the help of experts an interference is not required. At the same time, the nub of the contention of the learned Standing Counsel for PSC as also the learned Government Pleader is that in the light of the position of law settled by the Apex Court an interference is possible and permissible in a case where a candidate demonstrated that the key answer is incorrect and that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is correct. 13. In the light of the aforesaid position obtained from the decisions of the Apex Court referred hereinbefore, the question is whether the Tribunal was correct in holding that the applicant 10 OP(KAT).No. 314 of 2018 before it had not only demonstrated that the key answer is incorrect but also demonstrated that there is a glaring mistake which is totally apparent in the answer key. It is also relevant to note another submission made by the learned Standing Counsel appearing for the PSC. The learned Standing Counsel submitted that whenever the question is one which requires an interpretation of law, the Commission is under the firm view that the opinion of the Tribunal or Court should be regarded as the expert opinion and in such circumstances it is only proper to accept the opinion, rather, the finding interpretation of the Court/Tribunal. In this case though initially the Commission entertained a stand that the year '2005' is the answer pursuant to the decision of the Tribunal, in view of its aforementioned opinion the Commission changed its stand and thought fit to accept and act the verdict of the Tribunal. Further, it is submitted by the learned Standing Counsel that the decision of the Tribunal was accepted and acted upon and consequently the ranked list was already revised on 2.4.2018 and therefore, if further direction is issued to revise the ranked list it would create further undue delay in the matter of finalisation of the selection. At the outset, we do not find any reason not to accept the stand taken by the PSC that in respect of matters where an interpretation is required it is only proper to accept the finding of the Tribunal or Court in that matter treating it as expert opinion. We have already extracted the question in dispute. The very contention made by the 11 OP(KAT).No. 314 of 2018 learned Senior Counsel appearing for the petitioner itself would reveal that it is a question which requires an interpretation. Evidently, the learned Senior Counsel appearing for the petitioner attempted to get it interpreted that what was actually put as a question at serial no.29 is: 'When did the Protection of Women from Domestic Violence Act come into existence'. It is also his contention that the said question was wrongly treated by the Tribunal as 'When did the Protection of Women from Domestic Violence Act come into force'. It is to bring out a distinction between these two questions that the learned Senior Counsel referred to the question at serial no.25 in Annexure A8. At the risk of repetition, we will extract the question no.25 in Annexure A8 and question no.29 in Annexure RA3. 25. ഗഗാരരര്‍ഹിക പപീഢന നര്‍ഹിയമന്നും (പഗാബലലൃതര്‍ഹില്‍ വനതസ എനസ? - (A) 2005 (B) 2006 (C ) 2009 (D) 2016 29. ഗഗാരരര്‍ഹിക പപീഢനതര്‍ഹില്‍ നര്‍ഹിനനന്നും സസ(തപീകളളസ സന്നുംരക്ഷണന്നും നല്‍കനന നര്‍ഹിയമന്നും നര്‍ഹിലവര്‍ഹില്‍ വന വരരന്നും: - (A) 2014 (B) 2005 ( C) 2006 (D) 2010 14. Evidently, the endeavour of the learned Senior Counsel appearing for the petitioner is that the question at serial no.29 in Annexure RA3 should be taken as a question seeking actually answer to the question as to 'When did the Protection of Women from Domestic Violence Act get assent of the President?'. The learned Senior Counsel also relied on Section 5 12 OP(KAT).No. 314 of 2018 of the General Clauses Act which reads thus:- **Coming into operation of enactments** .- [(1) Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent,- (a) in the case of a Central Act made before the commencement of the Constitution, of the Governor-General and - (b) in the case of an Act of Parliament, of the President]. (2) x x x x x (3) Unless the contrary is expressed a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. 15. Before proceeding further in the light of Section 5 of the General Clauses Act, it is only apropos to refer to Section 1 (3) of the Protection of Women from Domestic Violence Act,2005 which reads thus:- 1. (1) X X X X X X X X X X (2) X X X X X X X X X X (3) It shall come into force on such date as a Central Government may, by notification in the Official Gazette, appoint. (underline supplied) 16. In such circumstances, a bare perusal of Section 5 of the General Clauses Act would reveal that in the light of the same the date on which the said Act received the assent of the President cannot be taken as the date on which it come into 13 OP(KAT).No. 314 of 2018 force. The date on which an Act received the assent could be taken as the date on which it came into operation only if a Central Act did not express anything with respect to its coming into operation of the said enactment. At the same time, in Section 1 (3) of the Protection of Women from Domestic Violence Act it is specifically stated that it would come into force from the date on which it is notified by the Central Government in the official gazette. Though the Protection of Women from Domestic Violence Act received the assent of the President of India on 13.9.2005 it was published in the Gazette of India Extraordinary Part II only on 17.10.2006 as per S.O.1776(E). The words in Malayalam viz., '(പഗാബലലൃതര്‍ഹില്‍ വനതസ' and 'നര്‍ഹിലവര്‍ഹില്‍ വനതസ' according to the learned Senior Counsel carry different meanings. The latter, according to the counsel, would refer to the date on which the Act received the assent of the President of India. We are afraid the aid contention cannot be upheld. If the answer sought is regarding the date on which the said Act received assent of the President the question in vernacular language ought to have been: "ഗഗാരരര്‍ഹിക പപീഢന നര്‍ഹിയമതര്‍ഹില്‍ നര്‍ഹിനനന്നും സസ(തപീകളളസ സന്നുംരക്ഷണന്നും നല്‍കനന നര്‍ഹിയമതര്‍ഹിനസ (പസര്‍ഹിഡനര്‍ഹിന അനനമതര്‍ഹി ലഭര്‍ഹിച്ച വരരന്നും ഏതസ? .” 17. According to us, either to say that an Act has come into force or an Act has come into existence it should be available for enforcement. In view of Section 1(3) of the 14 OP(KAT).No. 314 of 2018 Protection of Women from Domestic Violence Act, Section 5 of the General Clauses Act is inapplicable in this case and despite attaining assent of the President of India it became operation only in 17.10.2006 when the Central Government notified it in the official gazette. In such circumstances, the cannot be said that the date on which the Act 'come into force' or it 'come into operation' should be different. In fact, it can only be one and the same. We do not find any reason to hold that the Tribunal had committed an error in accepting the contention of the applicants therein that the said question is palpably wrong and the glaring mistake is totally apparent and no inferential process or reasoning is required to show that the said answer is wrong. The meaning of the word (പഗാബലലൃതര്‍ഹില്‍ വനതസ) and the word (നര്‍ഹിലവര്‍ഹില്‍ വനതസ) cannot be given two different meanings and they carry the same meaning. In such circumstances, a glaring mistake had been committed by giving its answer as 2005 in the key answer. As noticed hereinbefore the said interpretation given by the Tribunal was virtually accepted and acted upon by the PSC and it has already revised the ranked list treating the answer to question no.29 in Annexure RA3 as 'C'. In such circumstances, in the light of the decision of the Apex Court in **Rahul Singh's** case and also the decision of the Division Bench of this Court in **Nowfal's** case we do not think that an interference is required 15 OP(KAT).No. 314 of 2018 with impugned order passed by the Tribunal. There can be no doubt with respect to the position that the power available to this Court while considering in respect of matters like this is only the power to conduct judicial review. In such circumstances when the Tribunal made a rightful conclusion and a plausible interpretation, we are of the view that in exercise of the power of judicial review any interference is required. In the said circumstances, we do not find any merit in this Original Petition. Consequently, the Original Petition is dismissed. **Sd/C.T.RAVIKUMAR JUDGE Sd/A.M.BABU JUDGE** Sks/13.9.2018 16 OP(KAT).No. 314 of 2018 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1**|**TRUE COPY OF THE ORDER DATED 26.7.2018**| ||**IN R.A.NO.24/2018 IN OA.**| ||**(EKM)NO.2026/2017.**| |**EXHIBIT P2**|**TRUE COY OF THE R.A.NO.24/2018 IN O.A.**| ||**(EKM)NO.2026/2017.**| |**EXHIBIT P3**|**TRUE COPY OF THE O.A.(EKM)NO.2026/2017.**|