Sunil K. Sudhakaran v. Kerala Public Service Commission, State of Kerala, Vocational Higher Secondary Education Department, and Director of Printing

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 WP(C).No. 20801 of 2011(A) -------------------------- ## SUNIL K.SUDHAKARAN, KOLLAMPARAMBIL HOUSE, POOTHOTTA P.O., ERNAKULAM, BY ADV. SMT.K.P.GEETHA MANI SRI.ANIL K.NARENDRAN SMT.ASWATHI APPUKUTTAN 1. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THULASI HILLS, PATTOM PALACE P.O., THIRUVANANTHAPURAM 2. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - VOCATIONAL HIGHER SECONDARY EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF PRINTING, THIRUVANANTHAPURAM PIN - 695 001. ADV. SRI.P.C.SASIDHARAN, SC, KPSC FOR R1 R2 TO R4 BY G.P. SMT. NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1/12/2011, THE COURT ON 12/12/2011 DELIVERED THE ## APPENDIX EXT.P1-TRUE COPY OF NOTIFICATION DT.26.4.2005 EXT.P2-TRUE COPY OF DO. DATED 29.1.2009 EXT.P3-TRUE COPY OF GENERAL INSTRUCTIONS EXT.P4-TRUE COPY OF ADMIT CARD ISSUED TO THE PETITIONER's EXT.P5-TRUE COPY OF DO. EXT.P6-TRUE COPY OF QUDSTION BOOKLET ISSUED TO THE PETITIONER's EXT.P7-TRUE COPY OF PROVISIONAL ANSWER KEY EXT.P8-TRUE COPY OF OFFICAL WEBPORTAL OF THE KPSC EXT.P9-TRUE COPY OF FINAL ANSWER KEY EXT.P10-TRUE COPY OF RELEVANT PAGES WITH FULL GLOSSARY OF THE PROJECT WORK DONE BY THE FINAL YEAR PRINTING TECHNOLOGY STUDENTS OF THE INSTITUTE OF PRINTING TECHNOLOGY, SHORNUR. EXT.P11-TRUE COPY OF PRINTOUT TAKEN FROM THE INTERNET EXT.P12-TRUE COPY OF RELEVANT PAGES OF THE BOOK “PRINTING TECHNOLOGY” EXT.P13-TRUE COPY OF DO. “TECHNOLOGY OF OFFSET PRINTING” EXT.P14-TRUE COPY OF RELEVANT PAGE OF THE BOOK “A MANUAL FOR LITHOGRAPHIC PRESS OPERATION” EXT.P15-TRUE COPY OF DO. LITHOGRAPHIC TECHNOLOGY IN TRANSITION EXT.P16-TRUE COPY OF DO. TECHNOLOGY OF OFFSET PRINTING EXT.P17-TRUE COPY OF DO. PRINTING TECHNOLOGY EXT.P18-TRUE COPY OF RELEVANT PAGES OF THE BOOK 'MODERN FILM PLANNING AND PLATE MAKING' EXT.P19-TRUE COPY OF RELEVANT PAGES OF THE BOOK LITHOGRAPHIC TECHNOLOGY IN TRANSITION ' EXT.P20-TRUE COPY OF DO. 'TECHNOLOGY OF OFFSET PRINTING' EXT.P21-TRUE COPY OF DO. 'LITHOGRAPHIC TECHNOLOGY IN TRANSITION'. EXT.P22-TRUE COPY OF DO. 'PRINTING TECHNOLOGY' EXT.P23-TRUE COPY F DO. A MANUAL OF GRAPHIC REPRODUCTION FOR LITHOGRAPHY.' // TRUE COPY // P.S. TO JUDGE ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 20801 of 2011-A** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 12th day of December, 2011.** ## **JUDGMENT** The petitioner challenges Exts.P1 and P2 notifications and seeks to set aside the entire selection process initiated upon those notifications. 2. The notifications have been issued by the Public Service Commission for appointment to the post of Vocational Instructor in various subjects in the Department of Vocational Higher Secondary Education (Ext.P1) and for appointment to the post of General Foreman in the Printing Department (Ext.P2). A common written examination was conducted on 10.11.2010. 3. The petitioner was an applicant and he appeared for the common written test. Ext.P7 is the provisional answer key published by the Commission in the website inviting objections. It is stated that the petitioner submitted an objection and thereafter a final answer key was published on 27.12.2010, wherein the Commission deleted 8 questions. The petitioner contends that out of the said 8 questions, three of the answers are correct. 4. Another contention raised by the petitioner is that certain wpc 20801/2011 2 questions have been selected by a retired lecturer of the Institute of Printing Technology, Shornur from a project work done by the final year Printing Technology students of 2002-2003 batch. It is stated that 37 questions were taken from the said project report. Some of the students had written the examination also. Accordingly, the petitioner seeks for conducting a re-test itself stating that the entire test is vitiated. 5. Therefore, mainly two contentions are there. One is that three questions were unnecessarily deleted causing serious prejudice. The petitioner also points out that the answers given in respect of 11 more questions, are not correct and in that context he has produced the relevant pages of certain published text books. 6. The Public Service Commission has filed a counter affidavit stating that after the provisional answer key was published, objection was invited, to which the petitioner has not responded. Various aspects have been explained in the counter affidavit. The Commission explains that the questions are selected from a panel of renowned persons who have academic attainments and proven eminence in the field. The relevant procedures have been explained in the counter affidavit. Various objections were raised against 27 answers. They were scrutinised by a subject expert and in the light of the expert opinion final answer key was published. It is wpc 20801/2011 3 explained that even though 15 days time was given, the petitioner has not submitted any complaint through on line. The form for filing complaint is pasted on the page for provisional answer key in the website. The candidates have to download the form and make use of it to prefer the complaint. This facility was not resorted to by the petitioner. Reliance is placed on the judgment in W.P.(C) No.25659/2005. It is also pointed out that no complaint has been received with regard to the setting of question papers and therefore the said contention also cannot be accepted. 7. Learned counsel for the petitioner submitted that the documents produced by the petitioner will show that some of the questions and answers are wrong. It is submitted that the examination conducted will have to be set aside in the light of the principles stated by the Apex Court in **Kanpur University v. Samir Gupta** {(1983) 4 SCC 309}, **Manish Ujwal and others v. Maharishi Dayanand Saraswati University and others** {(2005) 13 SCC 744} **and Guru Nanak Dev University v. Saumil Garg and others** {(2005) 13 SCC 749} and a decision of a Division Bench of this Court in **Madhumohan v. State of Kerala** (2000 (2) KLT 669). It is argued that unless the questions contains the correct answers, the entire test will have to be set aside. wpc 20801/2011 4 8. Herein, after the test was conducted, a provisional answer key was published inviting objections and after considering objections, final answer key has been published. Evidently, the petitioner did not submit a proper objection as directed in the website. 9. In the above factual situation, the contentions will have to be considered. The Apex Court in **Kanpur University's case** {(1983) 4 SCC 309}, considered a case where detailed evidence was produced before the High Court with regard to certain questions and the mistakes therein. The findings of the High Court were not interfered with. After referring to the contents of the text books, it was observed that the answer given by the students is correct and the key answer is incorrect. Of course, the Apex Court, therein, in paragraphs 16 and 17 held as follows: “The key answer 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 rationalisation. 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. Reliance can be placed on the prescribed text-books from which students derive their knowledge on the subjects. If it is beyond doubt that the key answer is incorrect, it would be unfair to penalise the students for not giving an answer which accords with such wrong key answers.” wpc 20801/2011 5 10. The petitioner has not pleaded for sending the questions and answers for assessment by an expert body. There was no interim application in this writ petition seeking for such a relief and in the relief portion, such a direction is not sought. The main relief sought for is to set aside the entire selection process and to conduct a re-test. Evidently, this Court cannot be an expert in such matters, so as to evaluate the questions and answers herein, as settled by various decisions of the Apex Court itself. 11. As rightly pointed out by the learned Standing Counsel for the Commission, after inviting objections, the questions and answers were subjected to assessment by an expert and thereafter only the final key has been published. A valid assessment was done by the Commission itself to go into the objections and to publish the final key. There is no pleading that against the final key objections have been raised by anybody else. The petitioner challenges the final key itself without resorting to the remedy properly given to object to the provisional key. Evidently, therefore, the contentions cannot be accepted. 12. In the other decisions relied upon by the learned counsel for the petitioner, viz. **Manish Ujwal's case** {(2005) 13 SCC 744) and **Guru Nanak Dev University's case** {(2005) 13 SCC 749} also similar questions wpc 20801/2011 6 were considered. True that findings were there with regard to the error crept in certain answers. But such findings were rendered after the High Court directed to obtain expert opinion in the matter by appointing experts and the mater was considered by the Apex Court on the basis of the said material alone. In both the cases the said approach was made. But herein, no such attempt has been made by the petitioner. Therefore, an automatic application of the principles stated therein cannot be done at all. 13. The same is the position with regard to the decision of a Division Bench of this Court in **Madhumohan's case** (2000 (2) KLT 669). Therein, a common entrance examination was held and mistakes in the questions were alleged. The Commissioner himself referred the matter to the Professors who set the question papers and then the mistakes in certain questions and answers were found. After the rank list was published thereafter, this Court directed certain experts to go into the matter and after the report reached this Court alone, various directions have been issued. Evidently, the said case also stands on a totally different footing. Herein, the petitioner wants this Court to assess the printed portions of certain text books and take a decision, which is not legally permissible. 14. Then what remains is the contention regarding 37 questions. The allegation is against the setter of the question paper. When the wpc 20801/2011 7 petitioner has chosen to raise such allegations, he should have impleaded the said person as a party respondent in the writ petition. None of the students who are alleged to have prepared the project report, have also been made parties to the writ petition. The counter affidavit filed by the Commission shows that the Commission did not receive any complaint in the matter. The petitioner has also not raised any complaint before the Commission. The writ petition is filed on 29.7.2011 whereas the final key was published by the Commission on 27.12.2010. Therefore, there is long delay also in approaching this Court by the petitioner. 15. In the absence of definite materials, this Court cannot consider the allegations raised by the petitioner. A mere allegation as such will not be a justification for cancelling the test conducted by the Commission. The allegation raised by the petitioner that out of 100 questions, 37 questions are taken from a project work done by the final year students of the Institute of Printing Technology, really remains unsubstantiated. There is no reliable material for this Court to examine the same. Of course, the petitioner has produced Ext.P10 to contend that various questions have been taken from it. But there is no material by which this Court can check the veracity of the same. Apart from that, the system followed by the Commission, as explained in para 6 of the counter affidavit, shows that the Commission wpc 20801/2011 8 sends requisitions to different question setters in a particular discipline or faculty, they will receive more than one set of questions from them and adopt one among the multiple question sets, by lot. Therefore, evidently, the said method is a fair and reasonable one. Herein, a chance was given for candidates to object when the provisional answer key was published. At that point of time the petitioner did not make any valid objection to the Commission about any deficiency in setting of question papers and about the allegation that 37 questions are taken from a project report of the students of the Institute of Printing Technology. The said allegation is raised for the first time before this Court, which cannot be accepted at all. 16. Regarding the above, learned counsel for the petitioner submitted that when those allegations are not denied in the counter affidavit, they must be deemed to have been admitted. But it is not safe to adopt the said principle here, even though learned counsel for the petitioner relied upon the decision of a Division Bench of this Court in **Venkitaramanan Potti v. Travancore Devaswom Board** (1993 (2) KLT 374) in that context. Lack of bonafides in the allegations raised by the petitioner and non raising of such a complaint before the Commission and also the delay in approaching this Court for about 8 months after the publication of the final key, will go wpc 20801/2011 9 against the contentions of the petitioner itself. When irregularities are alleged against a question setter, normally the petitioner should have impleaded him as a party respondent. Without him in the party array, the veracity of the allegations cannot be gone into by this Court. As already noticed, no complaint was there before the Commission also. 17. Learned Standing Counsel for the Commission relied upon the judgment of a Division Bench of this Court in W.P.(C) No.18896/2005 and connected cases in this context. Therein, a similar contention was considered. The facts of the case show that therein also the final answer key was published by the Commission after giving opportunity to the candidates and other interested persons to file representation against the notified answers. The Division Bench, (to which I am a party) after considering the contentions, held thus: “ 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 P.S.C. has wpc 20801/2011 10 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 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.” Herein, the situation is also similar and therefore I respectfully follow the above dictum. For all these reasons, the writ petition fails and the same is accordingly dismissed. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**