Sumesh P.P v. Central University of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** ## **WEDNESDAY, THE 12TH DAY OF NOVEMBER 2014/21ST KARTHIKA, 1936** ## **WP(C).NO. 20312 OF 2014 (L)** **-----------------------------------------** ## **PETITIONER(S) :** ## **------------------------** **SUMESH P.P, S/O.P.GOPALAN, C/O.KAKKARAYIL HOUSE, UDINUR POST, TRIKARIPUR, KASARAGOD - 671 310.** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT(S) :** **---------------------------** **1. CENTRAL UNIVERSITY OF KERALA, REPRESENTED BY THE REGISTRAR, CENTRAL UNIVERSITY OF KERALA, VIDYANAGAR P.O., KASARAGOD-671 123.** **2. VICE CHANCELLOR, CENTRAL UNIVERSITY OF KERALA, VIDYANAGAR P.O, KASARAGOD-671 123.** **3. BIJU.P, SECTION OFFICER, CENTRAL UNIVERSITY OF KERALA, VIDYANAGAR P.O., KASARAGOD-671 123.** **4. PRADEEP P.T,** - **SECTION OFFICER, CENTRAL UNIVERSITY OF KERALA, VIDYANAGAR P.O., KASARAGOD-671 123.** **5. THANKESH KUMAR.D,** - **SECTION OFFICER, MINISTERIAL STAFF, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM - 695 001.** **6. RAVI.K, SECTION OFFICER, CENTRAL UNIVERSITY OF KERALA, VIDYANAGAR POST, KASARAGOD - 671 123.** **7. SUBASH.K.B,** - **SECTION OFFICER, CENTRAL UNIVERSITY OF KERALA. VIDYANAGAR POST, KASARAGOD - 671 123.** **R1 & 2 BY ADV. SRI.JAYASURYA.B, SC, CENTRAL UNIVERSITY OF KERALA R3,R4 & R7 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.S.A.ANAND SRI.PETER JOSE CHRISTO SRI.K.A.BALAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 20312 of 2014 (L) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **EXHIBIT P1 : TRUE COPY OF THE EMPLOYMENT NOTIFICATION NO.4/13 DATED 26.09.2013.** **EXHIBIT P2 : TRUE COPY OF THE APPLICATION DATED 09.10.2013 TOGETHER WITH COVERING LETTER DATED 14.10.2013.** **EXHIBIT P3 : TRUE COPY OF THE MEMO DATED 28.11.2013.** **EXHIBIT P4 : TRUE COPY OF THE ADMIT CARD OF THE PETITIONER.** **EXHIBIT P5 : TRUE COPY OF THE CALL LETTER DATED 15.01.2014.** **EXHIBIT P6 : TRUE COPY OF THE RANK LIST FOR THE POST OF THE SECTION OFFICER.** **EXHIBIT P7 : TRUE COPY OF THE QUERY DATED 03.02.2014.** **EXHIBIT P8 : TRUE COPY OF THE REPLY DATED 26.02.2014.** **EXHIBIT P9 : TRUE COPY OF THE APPEAL DATED 11.03.2014 SUBMITTED BEFORE THE 1ST RESPONDENT BY THE PETITIONER.** **EXHIBIT P10 : TRUE COPY OF THE ANSWER SHEET TOGETHER WITH REPLY DATED 02.04.2014.** **EXHIBIT P11 : TRUE COPY OF THE PART OF CENTRAL UNIVERSITY ACT 2009 CONSISTING OF SECTION 6.** **EXHIBIT P12 : TRUE COPY OF THE ANSWER SHEET OF SRI.LEVEN.S** **EXHIBIT P13 : TRUE COPY OF THE APPEAL DATED 25.04.2013.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------------------------** **EXHIBIT R1(A): TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE HELD ON 28.02.2013.** **EXHIBIT R1(B): TRUE COPY OF THE CLARIFICATION OF THE EVALUATOR DATED 18.08.2014.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. Dama Seshadri Naidu, J. ------------------------------------------- W.P.(C)No.20312 of 2014 L -------------------------------------------- Dated this the 12[th] day of November, 2014 ## **JUDGMENT** The issue in this writ petition is whether the petitioner, being a prospective job applicant, lost out in the race owing to the lapse on the part of the evaluator in considering and awarding marks to one of the answers in the written test. 2. The facts in brief are that, in response to Exhibit P1 notification issued by the first respondent University, the petitioner applied for the post of Section Officer. In course of time, he faced the written test on 22.12.2013 and the interview on 30.01.2014. Though the written test was for 200 marks, it was condensed to 80 marks, leaving 20 marks for interview, thus making the total score 100. When Exhibit P6 rank list, valid for one year, was published, the WPC 20312/14 2 petitioner’s name was shown at serial No.6 in the general merit list with rank No.4 (OBC). 3. Given his relatively low rank, the petitioner suspected that there had been some omission in the evaluation of his answer sheet. Accordingly, on 03.02.2014 the petitioner submitted Exhibit P7 application under the provisions of Right to Information Act to the respondent University for the supply of certain information, including a copy of the answer sheet. When the respondent University supplied the information to the petitioner, it did not give a copy of the petitioner’s answer script. Aggrieved, when the petitioner filed Exhibit P9 appeal, the respondent University supplied Exhibit P10 answer sheet to the petitioner. 4. From the information supplied by the University, the petitioner has come to know that he got 49.2 marks out of 80 in the written test; 9 marks out of 20 in the interview, the total marks being 58.2. The seventh respondent, who secured fifth position as an OBC candidate, having secured WPC 20312/14 3 59.2 marks in total, was appointed in the post. A breakup of his marks shows that the seventh respondent secured 45.2 marks in the written test and 14 marks in the interview. 5. On the examination of Exhibit P10 answer sheet, the petitioner realised that no marks were given to the answer to question No.3. Having secured Exhibit P12 answer sheet of another candidate under RTI Act, the petitioner has assessed in comparative terms that he would have secured at least 7 to 8 marks to question No.3 had it been evaluated, for in Exhibit P12 the other candidate was given five marks to the said answer. Under those circumstances, the petitioner filed the present writ petition assailing the action of the respondent University in not assigning marks to his answer to question No.3. Incidentally the petitioner arrayed most of the respondents eo nominee alleging mala fides against the said authorities. 6. In the above factual backdrop, the learned counsel for the petitioner has strenuously contended that the WPC 20312/14 4 evaluator has deliberately omitted to evaluate the petitioner’s answer to question No.3. According to the learned counsel, the question concerns itself with the powers of the respondent University under Section 6 of the Central University Act, 2009 and that the petitioner has answered it substantially correctly. Even the minimum marks to the said answer could have placed the petitioner over and above the seventh respondent. 7. Placing reliance on **Ashabai v. State of Maharashtra** (AIR 2013 SC 341), the learned counsel contends that if any irregularity in evaluation is found, it ought to be corrected by the authorities, lest it should enable an undeserving candidate to be selected. The learned counsel has also placed reliance on **M.G. University v. Millu Dandapani** (2000 (1) KLT 351) to underline the need for proper evaluation of the answer sheets in a fair manner. WPC 20312/14 5 8. Per contra, the learned Standing Counsel for the respondent University, in tune with the averments made by the University in its counter affidavit, has submitted that the post which the petitioner has applied for is a middle level post requiring honesty and integrity on the part of the prospective applicant, but the petitioner lacked integrity inasmuch as he did not care to put question numbers to the answers in Exhibit P10. 9. The learned Standing Counsel has further made efforts to call in question the petitioner’s past conduct. According to him, in 2012, the petitioner, having applied for the post of Assistant, was called for interview by the respondent University. Since he suppressed the fact that he had been employed in Government service by the time he applied for the said post, the selection committee disqualified the petitioner. The learned Standing Counsel has also contended that the petitioner never raised any objection during the course of selection process and that he WPC 20312/14 6 has approached the Court very belatedly. 10. The learned Standing Counsel has also submitted that though the petitioner answered question No.5, he did not put any number against the said answer. Accordingly, the answer to question No.5, contends the learned Standing Counsel, remained unevaluated. According to him, 7 marks were awarded to question No.3 and no marks were awarded to question No.5. By making a specific reference to Exhibit P10, the learned Standing Counsel has made strenuous efforts to demonstrate before the Court that when 4 marks were awarded to the answer to question No.4, the evaluator by oversight put those marks just below that answer giving an impression as if those marks were assigned to the answer to question No.5, which, according to the University, was never evaluated owing to the fact that the answer remained without any question number. The learned Standing Counsel has drawn the attention of the Court to Exhibit R1(b), which is a letter of clarification issued, WPC 20312/14 7 presumably, by the evaluator. Based on the said clarification, the learned Standing Counsel has strenuously contended that it is beyond the pale of any doubt that question No.3 was evaluated, but question No.5 was not assigned any mark. Accordingly, the learned Standing Counsel has urged the Court to dismiss the writ petition. 11. The learned counsel for respondents 3, 4 and 7, who have been selected and appointed as Section Officers to the exclusion of the petitioner, has adopted the submissions of the learned Standing Counsel for the respondent University. Without conceding the claim of the petitioner, the learned counsel, in addition, has also submitted that those respondents have fairly secured employment. He has further submitted that all of them, in the bona fide belief that they secured permanent employment in the respondent University, also resigned to their previous positions in other services. He has further stressed the fact that the said respondents have been WPC 20312/14 8 working in the respondent University for the past more than two years, and any effort at this stage to displace them would be fraught with disastrous consequences as far as their careers are concerned. Accordingly, the learned counsel for respondents 3, 4 and 7 has urged the Court to dismiss the writ petition. 12. Heard the learned counsel for the petitioner, the learned Standing Counsel for the respondent University and the learned counsel for respondents 3, 4 and 7, apart from perusing the record. 13. At the outset, this Court wishes to address the issue of the alleged want of bona fides on the petitioner’s part. It is also the contention of the learned Standing Counsel that the petitioner has approached the Court belatedly. As could be seen from the record, the petitioner has shown sufficient cause for his relatively delayed approach to the Court. He has submitted that having applied for the information and material under Right to WPC 20312/14 9 Information Act, he was constrained to wait until the respondent University supplied the information. He has reminded the Court of the fact that Exhibit P10 answer script was not provided to the petitioner until he had filed a statutory appeal and agitated the issue. In my considered view, the delay, if any, in the petitioner’s approach to the Court has not ripened into laches, disentitling him to any relief. 14. Concerning the alleged past misconduct of the petitioner, the learned counsel for the petitioner has quickly rebutted the allegation by submitting that in 2012, during the course of interview before the selection committee, the petitioner himself revealed the fact that he had been employed in Government service, and that could not get the necessary clearance for want of time. According to him, it is not based on any enquiry or investigation conducted by the University, but based on the information voluntarily supplied by the petitioner, that the University came to know WPC 20312/14 10 about the petitioner’s previous employment. Thus, the learned counsel for the petitioner contends that it is not suppression of information with a mala fide intention to gain wrongfully, nor does it amount to any misconduct. Be that as it may, the issue of the petitioner’s alleged misconduct is not an issue in the present writ petition. At the same time, it is to be noted that on that occasion the respondent University did not impose any restriction on the petitioner in competing for future employment. Even otherwise, the character of a person does not assume any importance in determining his civil rights, unless the very question of character or integrity is an issue in determining the said right. 15. As could be seen, the fulcrum of the dispute is Exhibit P10, the answer script of the petitioner. Instead of examining it in isolation, to appreciate the method of evaluation adopted by the University in assessing the performance of the candidates in the written test, Exhibit WPC 20312/14 11 P10 could be compared with Exhibit P12, the answer script of another candidate. 16. The written test comprised Paper I, which is descriptive and Paper II, which is objective. Both papers are for 100 marks each, but later at the time of consolidating the marks, both papers together were proportionately condensed to 80 marks. There is no dispute in this regard. Further, concerning paper II, no issue has been raised. 17. At the outset, it is pertinent to observe that the candidates are required to attempt all the questions compulsorily. The maximum and minimum marks are 100 and 40 respectively. Since each question carried different marks, it is appropriate to set out the marking pattern, which is as follows: |Question No.|Maximum Marks| |---|---| |1|20| |2|10| |3|10| |4|10| |5|10| |6|15| |7|25| WPC 20312/14 12 In the same vein, we may as well examine the marks awarded to the petitioner in Exhibit P10: Answer to Question No. Marks Awarded |1|10| |---|---| |3|---| |4|07| |5(?)|04| |6|05| |7<br>|(5+4+4+4) = 17| |2|---| 18. Since all the questions were required to be attempted, the petitioner attempted the second question as well in the end, but the answer was found to be wrong by the evaluator. Insofar as question No.7 is concerned, it is in several parts, each part carrying a distinct mark. Thus, the petitioner secured 17 marks in the manner indicated above. 19. Before undertaking further discussion, it assumes importance to bear in mind that every candidate was mandated to attempt all the questions without exception. Since omission of any question to be answered WPC 20312/14 13 amounts to disqualification, it can safely be presumed that the petitioner answered all the questions, for the respondent University has not contended that the petitioner attracted any disqualification by not attempting any question. It is the contention of the petitioner that answer to question No.3 has been altogether omitted; the University, on the contrary, contends that question No.3 has been evaluated, but answer to question No.5 has not been evaluated since the petitioner did not put the question number in the left margin to the answer. 20. The correctness of the conflicting claims of the petitioner and the respondent University has to be examined based on Exhibit R1(b), submitted as an explanation by the evaluator, and Exhibit P12, the answer sheet of another candidate. In both Exhibits P10 and P12, whenever an answer has been evaluated, certain portions of the answers had been underlined to stress either the correctness or the falsity of the answer. Squarely in the left WPC 20312/14 14 margin of the answer just below the question number marks were awarded, notwithstanding the fact that the answer has spilled over to the next pages. This feature is uniform in both the answer sheets. 21. It is not in dispute that the petitioner did not put question No.5 in the left margin to the answer, though the answer runs into 3 pages. In fact, the evaluator on the left margin to the answer wrote the question number, circled it and put a question mark above it, apart from underlining the question with three parallel lines, evidently, to emphasise the petitioner's omission to put the question number. Just below the said question number, as has been consistently done, the evaluator assigned four marks. If we are to examine Exhibit R1(b), the evaluator has tried to explain away the whole issue in the following manner: “7 marks had been awarded to Q.No.3 on page No.7 of the answer book. But mistakenly the mark has been put slightly below the Q.No.4. I firmly clarify that it is the marks of Q.No.3 and the inconveniences caused to the University (This can be easily understood if WPC 20312/14 15 you visualise the marks awarded to Question Numbers 3 and 4 together).” 22. Regrettably, the evaluator has chosen to be rather uneconomical with the truth. A perusal of Exhibit P10 does not leave us with any other impression. Going by his own assertion, if we examine the answers to question Nos.3 and 4, the answer to question No.3 does not have any markings or underlinings to indicate that it has been evaluated. Either in Exhibit P10 or P12 this is the only answer which does not bear any correction mark of the evaluator. As such, it is hard to believe that any mark was given to the said answer. The next excuse that comes forth from the examiner is that the marks to question No.3 were mistakenly put slightly below question No.4. One could understand placing the marks, mistakenly though, at the very end of the answer. It is, again, hard to believe that crossing over question No.4, the evaluator put the marks of question No.3 just against the answer for question No.4. WPC 20312/14 16 Invariably, for all other answers in both the exhibits, namely P10 and P12, the marks were assigned just below the question number, or in other words, just at the beginning of the very answer. 23. Indeed, there is no gainsaying the fact that the petitioner has not put the question number “5” in the left margin of the answer to the said question. Precisely taking note of the said omission, the evaluator put the question number, rounded it off and awarded the marks. The lapse on the part of the petitioner in not putting the question number is, in my considered view, condonable, and in fact, the evaluator rightly condoned it before evaluating it and awarding marks. 24. It is pertinent to observe that the petitioner has raised an issue and accordingly arrayed the respondent authorities eo-nominee that with a mala fide intention the authorities awarded very low marks to all the answers so that the petitioner would be edged out of the competition. WPC 20312/14 17 Since it lies in the exclusive domain of the experts in appreciating the correctness of the answers and thereby awarding marks, this Court does not venture to consider the said issue. On the contrary, this Court is satisfied that the University authorities have not indulged in any malafide activities and that the marks assigned to each answer may be entirely justified going by the subjective satisfaction of the evaluator. Nevertheless, it is one thing to say that inadequate marks have been given, and it is entirely another thing to say that no marks have been given at all. 25. In the light of the above discussion, it is to be observed that the first issue is ordinarily beyond the bounds of the judicial review, but not the second one. Accordingly, I am entirely convinced to conclude that probably by inadvertence the evaluator has omitted to assign marks to the answer to question No.3. Exhibit R1(b) is not an entirely convincing exercise on the part of the evaluator to explain away the said lapse, inadvertent though. WPC 20312/14 18 26. Having said that, this Court hastens to add that for the omissions of the respondent University, respondents 3 to 7 cannot be made to suffer. The learned counsel for the said respondents has submitted that all of them have quit their earlier employment and have been working in the present position for the past more than two years. Thus, any remedy required to be provided to the petitioner shall not be to their prejudice, for they have bona fide secured their employment and have nothing to do with the affair of not assigning any marks to one of the questions attempted by the petitioner. 27. It is not in dispute that the seventh respondent, who secured employment, has got only one more mark than the petitioner. The answer to question No.3 is concerning the powers of the University under Section 6 of the Central University Act, 2009. Since the petitioner has enumerated those powers vertically, it is not a subjective issue the answer of which defies comprehension. Without arrogating WPC 20312/14 19 to itself the role of an expert to evaluate the answer, this Court is of the opinion that the said answer could have secured for the petitioner at least more than one mark out of 10 marks. In that event, it cannot be contended that the petitioner has suffered on the count of merit when compared with other successful candidates. Thus, without disturbing the position of the other candidates who have already secured their employment, this Court proposes to dispose of the writ petition by working out the equities in the following manner: The petitioner stands declared as one of the successful candidates, at any rate, over and above the seventh respondent in the rank only for the purpose of securing employment. Accordingly, if any vacancy is existing as of now, the petitioner shall be appointed in the said vacancy treating the said post as if it were part of Exhibit P1 notification. If there is no clear vacancy existing as of now, the petitioner shall be appointed as Section WPC 20312/14 20 Officer in any future vacancy as and when it arises, without subjecting him to any other tests of evaluation. In the alternative, in the event of the respondent University going for another round of recruitment by consolidating all the fresh vacancies, including those of Section Officer, through another notification, the petitioner, in that eventuality, shall be treated as a successful candidate without reference to his age and be provided appointment in the post of Section Officer. With the above arrangement and directions, this Court disposes of the writ petition. No order as to costs. Dama Seshadri Naidu, Judge tkv