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Kerala High Court · body

2008 DIGILAW 265 (KER)

Ajith K. Gokulam v. Kerala Electricity Board

2008-05-06

V.GIRI

body2008
Judgment : The challenge in these writ petitions essentially relate to the list prepared by the Public Service Commission for the post of Sub Engineer (Electrical) in the Kerala State Electricity Board pursuant to its notification dated 12.2003. Though the grounds of challenge are not identical, since the list published by the PSC, forming subject matter of the challenge in these writ petitions is common, they have been heard and are being disposed of by this common judgment. It is necessary to refer to the bare facts involved in both these writ petitions separately. I will refer to the facts in writ petition No.12199/2006 in the first instance. 2. The PSC invited applications for the post of Sub Engineer (Electrical) in the KSEB as per Ext.P1 notification dated 12.2003. The petitioner applied and was asked to participate in the written test. The written test was held on 3.2005. It consisted of 100 questions totaling 100 marks. Ext.P3 is the question paper. The question paper along with the answer key was published in Mathrubhumi Thozhil Vartha dated 13.2005 as per Ext.P4. Subsequently by Ext.P5 dated 14.2005, the PSC published the answer key of Ext.P3 question paper. It is found from Ext.P5 that question Nos.12,14,27 and 98 were deleted and that no marks were awarded to those who answered these questions correctly. The petitioner contends that the cancellation of the aforementioned questions was arbitrary, unreasonable and irrational. The petitioner is entitled to full marks for the aforementioned questions. 3. It is the further contention of the petitioner that going by Ext.P5 answer key, the answer in relation to question Nos.23, 55, 86, 71 and 82 were incorrectly given. The petitioner had answered the aforementioned questions correctly but was given negative marks for these questions. The petitioner and other candidates made a joint petition before the Commission pointing out the aforementioned facts. Thereafter the Commission clarified that 4 out of 100 questions were cancelled without specifying the cancelled questions as such. The short list was published on 14.2006 as per Ext.P24. The petitioner was not included in the short list. Hence this writ petition seeking a declaration that cancellation of question Nos.12, 14, 27 and 98 is illegal, arbitrary and void and for a further declaration that the petitioner is entitled to marks for the answers which he has given to question Nos.12, 14, 23, 27, 55, 71, 82, 86 and 98. Hence this writ petition seeking a declaration that cancellation of question Nos.12, 14, 27 and 98 is illegal, arbitrary and void and for a further declaration that the petitioner is entitled to marks for the answers which he has given to question Nos.12, 14, 23, 27, 55, 71, 82, 86 and 98. Further consequential relief’s have also been sought for. 4. A counter affidavit was filed by the PSC in the first instance on 8.6.2006. The Commission contended that the written test was held on 3.2005 and answer key was published by the Commission on 14.2005. The writ petition is filed only on 27.4.2006. The writ petition is therefore filed about an year after the publication of the answer key. The publication of the answer key is effected well before the valuation of the answer script. After the examinations are conducted but before the commencement of the valuation, the question paper and answer key was subjected to detailed verification and scrutiny by the experts appointed by the Commission for that purpose. Such verification of question is not undertaken before the conduct of examinations essentially to maintain utmost secrecy in relation to the question papers. Experts are appointed as question settlers and out of three sets of questions received by the Commission, one set of questions will be chosen by lot and that set of questions would be sent for printing. The Commission gets an opportunity to verify the question and answer key only after the examinations are over. It was this procedure which was followed in the present case also. 5. Theexperts appointed by the Commission scrutinized and verified the questions and answers and found that out of 100 questions, 4 were having two correct answers or answers which are likely to confuse the candidates. The report of the experts was accepted by the Commission and it was decided to delete question Nos.12, 14, 27 and 98. The Commission only acted upon the opinion given by the experts. The said procedure was adopted only to conduct an independent and impartial selection. Marks were awarded for 96 questions. The petitioner was not subjected to any hostile discrimination. 6. It was again reiterated that the petitioner had not chosen to point out the mistake, if any within a reasonable time of the publication of the answer key which was effected as early as on 14.2005. 7. Thepetitioner has filed a reply affidavit. Marks were awarded for 96 questions. The petitioner was not subjected to any hostile discrimination. 6. It was again reiterated that the petitioner had not chosen to point out the mistake, if any within a reasonable time of the publication of the answer key which was effected as early as on 14.2005. 7. Thepetitioner has filed a reply affidavit. 8. After the matters were taken up and heard at some length, it was felt that it would be appropriate to file an additional counter affidavit. Accordingly, an additional counter affidavit was filed by the Commission on 12.2008. 9. Paragraphs 3 and 4 of the said additional counter affidavit contain the gist of the contentions raised by the Commission and I consider it appropriate to refer to the same specifically. They read as follows:- 3. It is most respectfully submitted that the written test for the selection in question was conducted by the Service Commission on 5-3- 2005 and the answer key in respect of the said test was published in the PSC bulletin dt. 14.2005, wherein the specific questions, which were cancelled, have also been published, along with the answers of the remaining questions to be evaluated. Thereafter, the Service Commission has published the short list on 33.2006. The ranked list for the said post was finalised on 30.12.2006 and about 197 candidates have been advised from the said ranked list. The petitioner has neither challenged the validity of the short list and the ranked list, after impleading the affected parties. The petition is liable to be dismissed on this sole ground. Moreover, the challenge made in this petition as regards the correctness of some of the questions, etc, is highly belated, as this writ petition is filed only on 26.4.2006, even though the answer key was published on 14.2005. 4. It is most respectfully submitted that immediately after the examinations are over and before the commencement of the valuation, the question papers and the answer key are subjected to detailed verification and scrutiny by the experts appointed by the Service Commission for that purpose, so as to ensure that no error or mistake has crept in either in the question paper or in the answer key. In the instant case, the Service Commission have followed the above said procedure and the experts, so appointed have verified, the questions and the answers of all the 100 questions of this written examination and the experts have given their report that out of the above said 100 questions, 4 questions are having 2 correct answers or answers which are likely to confuse the candidates etc. On consideration of the above said report of the experts, the Service Commission accepted the said report and decided to delete 4 questions and conduct valuation for the remaining 96 questions. It is on this basis that the Service Commission has published the answer key on 14.2005, wherein the above said 4 questions were deleted/cancelled for the purpose of the valuation and valuation was to be conducted for the remaining 96 questions and the answers for these 96 questions were also published in the aforesaid answer key, for all the alpha codes concerned. The questions which were deleted as above said are question Nos.48, 62, 64 & 77 of alpha code D (question Nos.12, 14, 27 & 98 of alpha code C). Thus the contentions of the petitioner in relation to those 4 questions and question Nos.23, 55, 86, 71 & 82 of alpha code C as well as the contentions in the connected WP in relation to question Nos.5, 9, 24, 25, 32, 34, 36, 52, 68, 73, 74, 75 & 97 of alpha code D and such other questions challenged therein, are unsustainable, as the experts who are well versed in this professional field, have found that out of the above said 100 questions, only the above referred 4 questions were to be deleted and that the valuation can be conducted for the balance 96 and based on this expert report, the Service Commission on accepting the same, decided to delete the above said 4 questions and published the answers in respect of the 96 questions, for which valuation was to be conducted. This is a fair and reasonable procedure adopted by the Service Commission. .10. In so far as WPC.No.12668/2006 is concerned the petitioners herein had also participated in the written test conducted by the PSC as part of the selection to the post of Sub Engineer in the Electricity Board. This is a fair and reasonable procedure adopted by the Service Commission. .10. In so far as WPC.No.12668/2006 is concerned the petitioners herein had also participated in the written test conducted by the PSC as part of the selection to the post of Sub Engineer in the Electricity Board. Though the grounds of challenge are different, they contend that there were serious errors in the questions relating to the test held on 3.2005. The petitioners asserted that 17 out of 100 questions ought to have been deleted. In relation to some of those questions more than one answer was possible and in some questions the suggested answer in the answer key is wrong. .The petitioners submit that though the answer key was published by the Commission on 14.2005 and Ext.P25 and P25C objections were filed on 20.4.2005 and 26.4.2006, the objections were not looked into and the petitioners became aware of the fact that the objections have been ignored only when a short list was published on 4.2006. The writ petition came to be filed on 9.5.2006. 11. The PSC has filed a counter affidavit in this case which is in tune with the counter affidavit that had been filed in writ petition No.12199/2006. The petitioners have filed a reply affidavit as well. Both writ petitions were heard together. 12. I heard learned counsel for the petitioners Sri. S. Ramesh Babu and P. Chandrasekhar on behalf of the petitioners and Sri. Alexander Thomas, Standing Counsel on behalf of the respondents. 13. Sri. Ramesh Babu contends that 17 out of 100 questions had contained either more than one correct answer or the answer key adopted by the PSC shows that in respect of some of them, the wrong answer had been treated as correct one. He contends that specific reference has been made to the questions and the materials on the basis of which such assertions were made by the petitioners. He also contends that there has been no rebuttal on the factual aspects so asserted by the petitioners in this writ petition. He contends that specific reference has been made to the questions and the materials on the basis of which such assertions were made by the petitioners. He also contends that there has been no rebuttal on the factual aspects so asserted by the petitioners in this writ petition. In the counter affidavit filed by the Commission, the Commission has merely stated that the question papers and answer key which must have been given by the question settlers had been referred to the panel of experts and the ultimate decision to delete 4 out of 100 questions had been taken by the Commission on accepting the recommendation of the experts. Counsel contends that this is hardly sufficient. He further contends that even going by the counter affidavit filed by the Commission, the objection raised by the petitioners as regards 17 out of 100 questions has not been seen by the experts and therefore the Commission cannot sustain its decision by merely stating that the answer key was ultimately prepared on the basis of the opinion given by the experts. As regards the allegation of delay on the part of the petitioners in approaching this court, Sri. Ramesh Babu contends that Ext.P25 objections were filed within a few days of publication of the answer key by the Commission and the cause of action for the petitioners has ultimately arisen only when a short list was published. That Ext.P15 short list was published on 4.2006 and the writ petition was filed on 9.5.2006. 14. Sri. Chandrasekhar submits that there was no justification for deleting 4 out of 100 questions done by the Commission, as the aforementioned questions are not suspect questions. The answer key given in respect of some other questions were wrong, but when objections were filed by the petitioners, that has not been looked into by the Commission. Mr. Chandrasekharan also submits that since the short list has been challenged before the court, the Commission cannot contend that there was delay or laches on the part of these petitioner in approaching this court. The writ petition was obviously instituted before finalization of the list. Notice on both these writ petitions were taken out by paper publication. 15. Sri. Alexander Thomas on the other hand submits that the power of judicial review in matters of this type are extremely limited. The writ petition was obviously instituted before finalization of the list. Notice on both these writ petitions were taken out by paper publication. 15. Sri. Alexander Thomas on the other hand submits that the power of judicial review in matters of this type are extremely limited. There are no statutory rules enabling the petitioners to seek revaluation of the answer sheet. The Commission had thought it fit to go by the opinion of the experts. This is all what has been done in the present case. .16. It is also contended by Alexander Thomas that at any rate this court should not interfere in these two writ petitions because there was grave delay and laches on the part of the petitioners in approaching this court. The petitioners cannot contend that their cause of action arose only when short list was published. The short list was only consequential to the assessment made by the Commission on the basis of the answer key given by the experts. Since the decision of the Commission to delete 4 out of 100 questions was brought to the notice of the examinees as early as on 14.2006, there is no justification for the petitioners to await the publication of the short list to .approach this court. 17. The first question which arises for consideration relates to the extent of judicial review that is possible in relation to matters of this type. I will start on the premise that there are no allegations of any malafides raised against the Commission or specific member of the Commission, in both these writ petitions. What has been challenged is the decision to exclude 4 out of 100 questions in one case and the decision not to include 17 out of 100 questions on the other hand. Sri. Chandrasekhar submits that 4 questions which had been decided to be deleted cannot came under the category of "suspect questions" as they were capable of generating only one answer, the Commission ought not have been deleted the same. 18. Sri. Ramesh Babu, learned counsel for the petitioner in WPC. 12668/2006 submits that apart from 4 questions which have been deleted, 13 questions are capable of generating either more than one correct answer or the answer key adopted by the Commission shows that the wrong answer has been treated as correct one by the Commission. 18. Sri. Ramesh Babu, learned counsel for the petitioner in WPC. 12668/2006 submits that apart from 4 questions which have been deleted, 13 questions are capable of generating either more than one correct answer or the answer key adopted by the Commission shows that the wrong answer has been treated as correct one by the Commission. This therefore vitiates the assessment of comparative merit of the examinees, according to him. Essentially what has been therefore challenged in these writ petitions is valuation of the answer script. 9.19. It has to be remembered that there are no statutory provisions governing the method adopted by the Commission for preparation of the answer key. The version given by the Commission in this regard has already been referred to above. Essentially the procedure adopted by the Commission consists of the following steps : (a) requisition being sent by the Commission to different question settlers to prepare the objective type questions in a particular discipline or faculty (b) receipt of more than one set of questions by the Commission from the question settlers.(c) adoption of one among the multiple question sets, by lot. (d) distribution of the said set of questions to the examinees. The procedure adopted in this regard of requisitioning multiple sets of question is obviously with an intent to minimise the chances of leakage of question paper. It is a wise method and obviously in adopting such a method the Commission has not only acted within its limits as a constitutional body but has also adopted a method which is fair, reasonable and justified. 10.20. The second step taken, in choosing one among the multiple sets of question also cannot be faulted with. This ensures the secrecy of the question papers in so far as it is possible. The Commission contends that after the conduct of the examination the set of question papers which has been distributed among the examination is then sent to a panel of experts to prepare the correct answer key. Obviously, the answer key prepared in this regard by the question settlers in the first instance would also be sent to the panel of experts, who ultimately prepare an answer key which according to them, reflects the correct position. 121. May be, the method adopted is not completely fool-proof. May be the answer key ultimately formulated by the panel of experts is not completely correct. 121. May be, the method adopted is not completely fool-proof. May be the answer key ultimately formulated by the panel of experts is not completely correct. Different sets of text books sometimes come out with different answers. May be there is divergence of opinion among the different sets of text books on the same subject. The panel of experts would have gone by one set of text books. But the question is whether the Commission can be considered as having adopted a method which is so unreasonable and arbitrary, that it would straight away invite interference by this court exercising powers of judicial review under Article 226 of the Constitution. 122. I am of the view that the method adopted by the Commission as asserted by them reflects an attempt on the part of the Commission to be fair and reasonable in the assessment of the answer script, to minimise the chances of tinkering with the process of preparation of questions and generally to see that the method adopted gives as reasonable a chance as possible to the multitude of the examinees to participate in a competitive test on an even platform. .23. Once the fairness of the procedure adopted by the Commission is found to be satisfactory , then the extent of judicial review in these matters are extremely limited as has been held by the Apex Court and this court on more than one occasion. The decisions cited in this regard by the counsel on both sides need only be referred to for the purpose of pointing out the law that stands settled by more than one pronouncement of the Supreme court and the bench of this court. Reference in this regard will have to be made to the judgment of the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education and another vs. Paritosh Bhupeshkumar Sheth and others (1984(4)SCC 27), Pramod Kumar Srivastava vs. Chairman Bihar Public Service Commission, Patna & others (2004 (6) SCC 714), Board of Secondary Education vs. Pravas Ranjan Panda and another (2004(13)SCC 383), President, Board of Secondary Education, Orissa and another vs. D.Suvankar and another (2007(1) SCC 603) and Secretary, W.B. Council of Higher Secondary Education vs. Ayan Das and others (2007(8) SCC 242). Reference should also be made to the bench decision of this court in State of Kerala vs. Fathima Seethi (2002(3)KLT 871) and the judgment of this court in WPC.18896/2005. The bench in the last among the said decisions specifically referred to paras 16 and 17 of the judgment in State of Kerala vs. Fathima Seethi (2002 (3)KLT 871). It is not the function of the court to sit in judgment over the correctness of the administrative or executive action. Court has only to examine whether the process has been vitiated by an illegality, arbitrariness and malafide both legal and factual. It is keeping in mind the aforementioned principle that I had referred to the method adopted by the Commission in the preparation of the questions and the answer key. Adoption of the method involving a requisition of multiple set of questions, choosing one among them is an attempt to minimise the chances of leakage of question papers. So also is the reference to a panel of experts after the conduct of the examination to decide upon the correct answer key. Hence I hold that the above procedure is fair and reasonable and once it is so found, the scope of interference by this court under Article 226 would be extremely limited. Interference could be possible only if it is demonstrated beyond any reasonable doubt, that there has been clear arbitrariness in the preparation of the correct answer key. The para meters laid in this regard by the Supreme Court in Kanpur University and others vs. Samir Gupta and others (AIR 1983 SC 1230) which has ultimately been followed by a bench in State of Kerala vs. Fathima Seethi (2002(3) KLT 871) as brought to my notice by Sri.Alexander Thomas would be relevant. Para 16 of the judgment reads as follows:- ."16. Sri. Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree that 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. We agree that 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. The contention of the University is falsified in this case by a large number of acknowledged text-books, which are commonly read by students in U.P. Those text books leave no room for doubt that the answer given by the students is correct and the key answer is incorrect." .24. Apparently, the above mentioned was one of the cases where the court was in a position to come to a conclusion that the university had in the said case adopted an answer key which was palpably wrong. That is to say the answer accepted by the University was such that no reasonable body of men well versed in the particular subject would regard as correct. I consider it significant to take note of the fact that there is obviously divergence of opinion even among the examinees who have come to this court. As regards the correctness of the answer key published by the Commission, with regard to the same question the petitioners in WPC.No.12199/2006 have a specific case that the question numbers 12,14,27 and 98 are not suspect questions and therefore ought not have been deleted by the PSC. The petitioners in WPC.No.12668/2006 on the other hand submit that the aforementioned questions were rightly deleted by the PSC as they were capable of .generating more than one correct answer. In other words, different text books suggested a plurality of answers in respect of these four questions. If that be so, the Commission was obviously right in ultimately deciding to delete the aforementioned four questions. .25. Sri. Alexander Thomas had taken me to the materials produced by the petitioners in WPC.12199/2006, in an attempt to show that in so far as 4 questions which were ultimately deleted are concerned, the answers suggested in the question papers contain more than one correct answer and were capable of confusing the examinees. .25. Sri. Alexander Thomas had taken me to the materials produced by the petitioners in WPC.12199/2006, in an attempt to show that in so far as 4 questions which were ultimately deleted are concerned, the answers suggested in the question papers contain more than one correct answer and were capable of confusing the examinees. I consider it appropriate to refer to the answers given in respect of one among the questions, as an attempt to find out whether the present case is one which falls within the extremely limited zone of interference referred to by the Supreme Court in Kanpur Universitys case. Question No.12 which was one of the questions deleted by the Commission reads as follows:- ."12. D.C. Supply is used for the operation of......." 126. The petitioners contend that the correct answer in question No.12 is Arc Lamp and that all standard texts on the subject equivocally say that DC supply could only operate the Arc Lamp. Mr. Alexander Thomas refers to Exts.P6 and P7 (which are the materials produced by the petitioner himself ) to contend that there seems to be a divergence of opinion among the experts as regards the correct answer to the aforementioned question. Ext.P6 which is an extract from "Electrical Power" by Dr.S.L. Uppal (1989 edition) refers to Arc Lamp in para 24 thereof. It is noted therein that these types of lamps are some times used for extreme brightness. Two types of Arc Lamps are referred to there viz. Carbon Arc Lamp and flame Arc Lamp. Ext.P6 might suggest that DC supply is possible only for operation of Arc Lamp in which case D would have been the correct answer for question No.12. But Ext.P7 which is an extract from "Objective Text Book of Electrical Engineering" by M. Handa and A. Handa suggests that DC supply is used for the operation of the fluorescent lamp also. Figure 3 at para 31.5, at page 776 of the said text book extracted at page 34 of the paper book in WPC.No.12199/2006 suggests the same. If this be so, then it is obvious that the question No.12 suggests more than one correct answer. Figure 3 at para 31.5, at page 776 of the said text book extracted at page 34 of the paper book in WPC.No.12199/2006 suggests the same. If this be so, then it is obvious that the question No.12 suggests more than one correct answer. I have referred to above only for the purpose of convincing myself that the method adopted by the Commission in referring the question paper which was ultimately deployed in the examination, to the panel of experts and accepting the opinion given by the expert is a fair and reasonable procedure. The petitioners have not been able to demonstrate that it is a patently unreasonable method that was adopted by the Commission. Nor is it a case where the answer key adopted by them, on accepting the report of the expert panel is one which no body of reasonable thinking persons would have adopted. 127. I have been taken through the other three questions, which according to the petitioners in WPC.No.12199/2006 should not have been deleted as suspect questions. I am satisfied that the very materials produced by the petitioners would suggest that the Commission cannot be considered as having acted in a completely unreasonable manner in coming to the conclusion that these questions were liable to be treated as suspect questions and therefore were deleted from the set of 100 questions as such. The very ground which has been urged in respect of 4 suspect questions would be applicable in the case of 13 other questions which the petitioners in WPC.No.12668/2006 want to be deleted as suspect questions. In fact the averments in WPC.No.12199/2006 suggest that the aforementioned questions ought not be deleted. They were not capable of generating more than one correct answer. As mentioned above there is divergence of opinion even among the petitioners in these two writ petitions. Obviously the Commission had only gone by the opinion given by the expert panel. I am not in a position to hold that ultimately the answer key published by the Commission is such that no reasonable man involved in the subject in question would have thought of adopting as the correct answer key. 128. There is yet another reason why an interference as prayed for by the petitioners in this case, may, not be really justified. The PSC had published the answer key as early as on 14.2005 (Ext.P2 in WPC.No.12668/2006). 128. There is yet another reason why an interference as prayed for by the petitioners in this case, may, not be really justified. The PSC had published the answer key as early as on 14.2005 (Ext.P2 in WPC.No.12668/2006). The short list was published on 4.2006. The writ petition WPC.No.12199/2006 was filed on 27.4.2006 and WPC.12668/2006 was filed on 9.5.2006. Delay, laches and negligence on the part of the petitioners is a specific defense taken by the PSC. The petitioners contend that their cause of action arose only when the PSC published a short list on 4.2006 and therefore there has been no undue delay on their part in approaching the court. I am afraid I am unable to accept the contention. The writ petitions seek judicial review of the action taken by the PSC in (a) deleting 4 out of 100 questions and (b) not deleting another 13 questions. If that be so, the cause of action for the petitioners should be considered to have arisen as early as on 14.2005 when the PSC published the short list deleting 4 questions having more than one answer. If that be so, it must be held that the PSC is correct in contending that there has been delay on the part of the petitioners in approaching the court. If one were to accept the contentions of the petitioners, it would involve a direction to the PSC to cancel the entire selection. This action would adversely affect hundreds of examinees. For all these reasons, I do not find any grounds to interfere in these two writ petitions. The writ petitions are bereft of merit and they are accordingly dismissed.