The Kerala Public Service Commission v. K. L. Sajimon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 30TH DAY OF MARCH 2016/10TH CHAITHRA, 1938** ## **WA.No. 892 of 2010 ( )** **-----------------------------AGAINST THE JUDGMENT IN WP(C).NO.30239/2003 DATED 30-01-2010.** **........** ## **APPELLANT/R-1 IN WP(C).:** **----------------------------------------** **THE KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM.** **BY ADV. SRI.P.C.SASIDHARAN, SC.** ## **RESPONDENTS/PETITIONER AND R-2 TO 5 IN WP(C).:** **-------------------------------------------------------------------------------** **1. K.L. SAJIMON, ARMED RESERVE POLICE CONSTABLE, KOTTAYAM, SAJI BHAVAN, KUNNATHU PUTHENPURACKAL HOUSE, CHANNAIKKAD P.O., KOTTAYAM DISTRICT.** **2. STATE OF KERALA, REP. BY CHIEF SECRETARY TO GOVT., SECRETARIAT, THIRUVANANTHAPURAM.** **3. VIJAYAN. S., S/O.ZACHARIAS, SHAJI BHAVAN, PADAPPAKKARA P.O., KOLLAM DISTRICT.** - ***4. REJI. E.P., S/O.PRABHAKARAN NAIR, PATTOOPARAMBIL, MUNDAKKAYAM P.O., KOTTAYAM. (DELETED)** - ***5. SAJIMON P.JOSEPH, THEKKAKUTTIL PARAMBILE, KALLARA SOUTH P.O., KOTTAYAM-686 611. (DELETED)** - **R4 AND R5 ARE DELETED FROM RESPONDENT ARRAY AS PER ORDER DATED 16/11/2010 IN I.A. NO.887/2010.** **R1 BY SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE. R2 BY SR. GOVT. PLEADER SMT.GIRIJA GOPAL.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. **WA.No. 892 of 2010** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A1 COPY OF THE DIVISION BENCH JUDGMENT IN W.A. NO.2910/2009.** **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **ASHOK BHUSHAN, CJ & A.M. SHAFFIQUE, J.** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=** W.A. No. 892 of 2010 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 30[th] day of March, 2016 ## **JUDGMENT** ## ASHOK BHUSHAN, CJ Heard Sri. P. Sasidharan, learned Counsel for the appellant and Sri. K Gopalakrishna Kurup, learned Senior Counsel for the respondents. 2. This writ appeal has been filed against the judgment dated 30.1.2010 in W.P.(C).No.30239 of 2003. The first respondent herein was the petitioner in the writ petition. The brief facts necessary for deciding this writ appeal are as follows: The first respondent (hereinafter referred to as the petitioner) was a member of the Armed Reserve Police constabulancy and attached to the District Armed Reserve Police,Kottayam. Notification inviting application for the selection of the post for Sub Inspector of Police was issued by the Kerala Public Service Commission dated 31.12.1996. According to the petitioner, selection was to be held from three categories. The petitioner belongs to the third category Police Constables and Head Constables having a degree. W.A. No.892 of 2010 -2- 3. Written examination was conducted and thereafter the physical efficiency test and oral test were to be conducted. Those candidates who were found eligible in the written examination were to be called for physical examination. Petitioner was declared qualified in the written examination. He was short listed for physical efficiency test published on 9.5.2002. Before the interview, petitioner was served with show-cause memo intimating that the Commission have tentatively decided to delete the name of the petitioner from short list and asked to show cause why his register number may not be deleted from the short list. The physical efficiency test was held on 2.8.2002. interview was scheduled to be held during December 2002. 4. In the said circumstance, petitioner had filed an O.P as O.P.No. 39040 of 2002 challenging the show cause notice. The petitioner was permitted to appear in the interview, however, subject to the final orders to be passed by the Commission. The said order was passed by this Court on 20.12.2002. It was produced as Ext.P4 in the writ petition. Petitioner appeared in the oral interview. The petitioner made a request to the Commission to intimate the marks awarded to him in different valuations so as W.A. No.892 of 2010 -3- to give an effective explanation to Ext.P2. The same as rejected as per Ext.P8 letter dated 20.1.2003. It was challenged by the petitioner again by filing O.P.No.4268 of 2003. This Court has disposed of the petition on 4.3.2003 observing that the Commission shall consider the reply submitted by the petitioner. In paragraph '5' it was stated that the respondent will consider the objection filed by the petitioner and pass appropriate orders thereupon in accordance with law. However, this Court held that it is the duty of the Commission to conduct the selection in a fair and proper manner and the Commission's authority to re-evaluate the answer sheet was also upheld. 5. The petitioner had filed a writ appeal against the said judgment during pendency of which the final order was issued by the Commission dated 30.7.2003 as Ext.P11. In view of Ext.P11 order the petitioner was permitted to withdraw the writ appeal with liberty to challenge Ext.P11 order passed by the Commission. 6. The Commission in its proceeding dated 30.7.2003 took the view that the petitioners answer sheet was re-evaluated and there was 2[nd] and third re-evaluation and it was found that there was difference in the marks obtained by the petitioner originally W.A. No.892 of 2010 -4- and re-evaluated marks and on the basis of the average of the reevaluated marks, the petitioner's marks were less than the marks obtained by the candidates included as last in the rank list. Hence, the Commission rightly decided to delete the name of the petitioner from the published short list. The order was challenged before this Court in W.P.(C).No.30239 of 2003. A counter affidavit as well as additional counter affidavit was filed in the writ petition. The additional counter affidavit disclose the original marks obtained by the petitioner as 70 and the marks on first and second re-valuation as 38 and 40 respectively. 7. However, accepting the contention of the Commission, in paragraph '10' the learned Single Judge observed as follows: “ 10. I am prompted to take this view, in view of another factor also. From the very inception of the dispute the petitioner has been diligently prosecuting his case by filing writ petition after writ petition. In fact one of the interim reliefs sought by him was to direct the University to produce the PSC answer script of the petitioner and the marks awarded to him in the three valuations in a sealed cover before this Court along with the answer keys supplied to the examiners. Ever since the show cause notice issued to the petitioner the issue was very much alive before this court. The PSC was very well aware of the same. That being so they were W.A. No.892 of 2010 -5- duty bound to preserve the answer papers. But they now say that they do not have the answer script for verification. The counsel for the PSC would rely on an observation in Sidhik's case (supra), wherein this court held that when the period prescribed for keeping the answer sheets have expired the Commission is not expected to keep them. The situation in that case and in this case are totally different. That is a case where the question of production of answer sheets arose at the time of hearing. But here is a case wherein in the original petition itself the petitioner wanted production of the answer sheets for perusal of this court. That interim relief was not refused also. As such the PSC had a bounden duty to preserve the answer paper for judicial scrutiny, which admittedly they have not done. I am of the opinion that in the absence of the answer paper itself the benefit of doubt should go to the petitioner, especially when the PSC themselves in paragraph 6 of their counter affidavit dated 21.12.2009 categorically admitted that the variation in awarding marks by different examiners is more or less justifiable.” Learned Single Judge has also referred to the judgment of the Apex Court in **Sanjay Singh and Another v. U.P Public Service Commission, Allahabad and Another** (2007) 3 SCC 720. Challenging the judgment of the learned Single Judge, this writ appeal has been filed by the Commission. 8. Sri. P.C. Sasidharan, learned counsel for the appellant W.A. No.892 of 2010 -6- contents that the Commission, who is entrusted with the duty to maintain fairness and standard in all its examination had to satisfy itself that the marks allocated to candidates are as per the answers given by them. It is submitted that after receiving various information that certain candidates have been given excessive marks, a decision was taken to re-evaluate the marks of those candidates who had obtained 70 or more marks and in that exercise the answer sheets were revalued and with regard to petitioner's mark huge difference was found and taking average of that re-evaluated marks in different re-evaluations, it was found that he had secured less mark than the last candidate and hence his name was deleted. It is submitted that power of the Commission to re-evaluate the marks cannot be denied and submitted that the learned Single Judge committed error in allowing the writ petition. 9. Learned Senior Counsel for the respondent/petitioner disputing the submission contended that present is not a case where any kind of malpractices have been found by the Commission. Re-evaluation was directed only with regard to those who secured more than 70 marks. Whereas there were W.A. No.892 of 2010 -7- large number of candidates who secured less than 70 marks and were included in the rank list whose marks were not re-evaluated. He further contends that it was only the petitioner who was directed to go out of the list and no other candidate was directed to go out of the list. The exercise conducted by the Commission was not justified. Learned counsel for the petitioner further submits that in pursuance of the judgment of the learned Single Judge dated 30.1.2010, petitioner was advised by the Commission by order dated 5.1.2011. Thereafter, he was directed to join the training and after completion of the training he has been appointed as Sub Inspector with effect from 18.3.2013. The petitioner has joined as Sub Inspector of police on 18.3.2013 and continuing thereafter. The probation of the petitioner has also been declared with effect from 18.3.2015. 10. We have considered the submissions of the learned counsel for the parties and perused the records. 11. The Commission has filed a counter affidavit in the writ petition as well as an additional counter affidavit. In the affidavit filed on behalf of the first respondent dated 21.12.2009, detailed facts and events were mentioned. In paragraph 2 it is mentioned W.A. No.892 of 2010 -8- that the Commission has received complaints alleging that certain candidates were included in the short list through malpractice and corruption. Paragraph 2 of the counter affidavit reads as follows: “2. It is submitted that the Commission had received complaints alleging that certain candidates through malpractice and corruption were included in the Short list of candidates eligible to be called for Physical Efficiency Test for the post of Sub Inspector of Police published on 09.05.2007. It was also alleged that some candidates secured very high marks in the test which was of a descriptive nature.” 12. The Commission after receiving the said information decided to have thorough checking and examination of entire process of valuation of answer sheet. The answer scripts of 45 candidates who secured marks above 70 in the written test and who passed in the physical efficiency test and certain random answer sheets were subjected to re-valuation. Details of which are explained in paragraph '5' reads as follows: “5. The answer scripts of 45 candidates who secured marks above 70 in the written test and who passed in the Physical Efficiency Test and 24 scripts on random which secured marks below the marks of the last candidate in the list marks including the scripts of petitioners in 4 Ops were subjected to revaluation. On revaluation it was revealed that the difference between the original marks and marks W.A. No.892 of 2010 -9- on revaluation in the case of candidates who passed Physical Efficiency Test is 5 and below in the case of 5 candidates, between 5 and 10 in the case of 12 candidates and above 10 in the case of 24 candidates. As a general principal the difference upto 5% of the maximum marks between the first valuation and the second valuation was ignored as the difference is only marginal. In the case of candidates in whose case the variation is above 5% but below 10% of the maximum marks, the average of the original marks and revalued marks were taken as their final marks. In the case of candidates in whose case the variation is 10% and above the scripts were subjected to a third valuation. The third valuation did not reveal much variation of marks from the second valuation.” 13. The Commission in its affidavit has clearly stated that it found that variation of marks is only on account of error of judgment of persons who valued the scripts or on account of mode of valuation and award of marks by the examiners. The aforesaid stand is clearly reflected in paragraph 6. In so far as the submission of the learned counsel for appellant that the commission has power to re-value the answer scripts of the candidates since Commission is conducting examination for appointment to a post and not for awarding an academic degree, we do not find any lack of jurisdiction on the part of the Commission in directing for re-valuation of answer sheet to check W.A. No.892 of 2010 -10- the process of revaluation and to maintain the transparency in the whole process. 14. We thus are of the view that no error was committed by the Commission in directing for revaluation of certain answer books. But there are two reasons due to which we are not inclined to interfere in the judgment of the learned Single Judge. They are: 1. The present is a case where the Commission itself did not find any malpractices and the difference in the mark was on account of error of the examiner himself which has already been stated in paragraph 6 of the counter affidavit. From the materials which have been brought on record, including the above affidavit of the Commission, it is clear that it was the only the petitioner who was to go out of the short list consequent to the revaluation process of re-valuating the answer sheets who secured 70 marks or more and certain randomly selected candidates. 2. In pursuance of the judgment of the learned Single Judge, petitioner was advised on 5.1.2011 and after completion of training he joined on 18.3.2013 and is working in the post of Sub Inspector. W.A. No.892 of 2010 -11- Due to these two reasons, we are of the view that the advice in favour of the petitioner consequent to the judgment of the learned Single Judge need not be interfered. We however, are of the view that all the reasons given by the learned Single Judge's judgment are not to be approved by us and the non interference in the appeal is only due to the reasons noticed by us as above. With these observations this writ appeal is dismissed. sd/- **ASHOK BHUSHAN, CHIEF JUSTICE** sd/- **A.M. SHAFFIQUE, JUDGE** kp/-2.04.16 True copy P.A. To Judge.