IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.19425, 19710, 19961 and 19962 of 2009 and M.P.NOs.1 to 5 of 2009, 1 to 6 of 2009, 1,1,2 and 2 of 2009 1.C.Sangu 2.S.Priyalatha 3.V.K.Nagalakshmi 4.K.Jayakumar .. Petitioners in W.P.No.19425 of 2009 C.Minnal Kodi .. Petitioner in W.P.No.19710 of 2009 K.Dhakshinamoorthi .. Petitioner in W.P.No.19961 of 2009 V.Balasubramanian .. Petitioner in W.P.No.19962 of 2009 Vs. The Secretary Tamil Nadu Public Service Commission, Chennai-600 002. .. Respondent in W.P.No.19425 of 2009 and first respondent in W.P.Nos.19710, 19961 and 19962 of 2009 The Controller of Examinations, Tamil Nadu Public Service Commission, Chenani-600 002. .. 2nd respondent in W.P.Nos.19710, 19961 and 19962 of 2009 W.P.Nos.19425, 19710, 19961 and 19962 of 2009 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for all relevant records relating to the impugned selected list of candidates from the preliminary examination to be permitted for the main written examination, in the Group-I services examination-2007-2008, 2008- https://hcservices.ecourts.gov.in/hcservices/ 2009, published in the official website on 4.8.2009 by the respondent and to quash the same as arbitrary improper, illegal, against the rules and procedures of the respondent, due to assigning of wrong and demonstrably erroneous wrong key answers for the questions in the preliminary examination paper, resulting in faulty evaluation of the same, thereby directing the respondent to conduct a fresh preliminary examination, for the said group-I services examination 2007-2008, 2008-2009 and consequently select and publish a fresh list of candidates for the main written examination. For Petitioner : Mr.P.K.Rajesh Praveen Kumar in W.P.Nos.19425, 19961 and 19962/2009 Mr.C.Sivakumar, in W.P.No.19710 of 2009 For Respondents : Mr.A.L.Somayaji, SC for Mrs.C.N.Niraimathi for TNPSC COMMON ORDER In all these writ petitions, the prayer of the petitioners is same. They seek to challenge the selected list of candidates in preliminary examination for the main written examination held for Grade I Service examinations for 2007-2008, 2008-2009 published in the official website of respondent Tamil Nadu Public Service Commission (for short TNPSC) and after setting aside the same, seeks for a direction to conduct a fresh preliminary examination for Grade I service for the year 2007-2008 and 2008-2009 and consequently, to select and publish a fresh list of candidates for the main written examinations. 2.In the first writ petitions, there are four writ petitioners. According to them, in the Group I service examinations for the year 2007-2008 and 2008-2009, the TNPSC assigned wrong and erroneous key answers for more than 15 questions. Though the petitioners have done well and given correct answers, they were not given good marks. In the affidavit, they have set out the nature of questions and the key answers. It is in this view of the matter, they want to set aside the select list. 3.When the matter came up on 22.12.2009, it was noted that by an order dated 1.10.2009, an interim direction was issued to respondent TNPSC to permit the petitioners to attend the main written examination subject to the result of the main writ petitions and on having written the examination, they sought for publication of results. In the other three writ petition, i.e. W.P.Nos.19710, 19961 and 19962 of 2009, the prayer of the petitioners are identical. Therefore all the four writ petitions were grouped together and directed to be posted for final disposal. https://hcservices.ecourts.gov.in/hcservices/ 4.It is stated by the petitioner that the respondent TNPSC gave a notification, dated 15.12.2008 for direct recruitment of 82 vacancies in the post included in Group I service examination for 2007-2008 and 2008-2009. Selection procedure is contemplated by three stages. The first stage is the preliminary examination, in which a screening test is conducted. The examinations are based on objective types questions. The second stage is the main examination consisting of two papers, i.e. General Studies paper-1 and General Studies paper-2 and finally, an oral test, in which interviews are conducted by the Selection Board. According to the petitioners, preliminary examinations were held on 12.4.2009. The questions contained many disputed questions and from the key answers supplied subsequently, it was found that the candidates who gave correct answers were made to lose their marks. The candidates who gave wrong answers were awarded marks. By this process, non meritorious and ineligible candidates were unlawfully selected. 5.As per para 41 of the Instruction, candidates/examinees were advised to write to the Controller of Examinations on items or questions, the candidates consider as defective in question booklet within three days of examinations and only discrepancies or defects in questions can be pointed out. But, there was no method of knowing the status of key answers. According to them, preliminary examinations results were made on 4.8.2009. In view of the same, they have come forward with the prayer to seek for key answers for the preliminary examinations and to declare the results of both selected and non selected candidates in the preliminary as well as main examinations and the cut off marks to various categories to be published. They are also seeking for revaluation. 6.The respondents have filed a common counter affidavit, dated 28.10.2009. In the counter affidavit the stand taken was that instruction No.41 to candidates will clearly give only three days time for any examinees to point out any defects in the question. The contention that the petitioner in W.P.No.19962 of 2009 V.Balasubramanian sent representation was denied. It was stated that no such representation was received. Such a statement was made only to maintain the writ petition. They sent a representation on 15.4.2009 was clearly a false statement. Normally, question papers as well as key answers for every examinations were set by 13 subject experts drawn from various Universities or Colleges. The usual procedure is that the sealed cover containing the manuscript form of questions and answer keys are not opened by any one in the Commission's office. This was to maintain absolute secrecy. It was only opened by the Printing Press at the time of printing. The TNPSC will not be in the know of either questions or key answers. 7.It was further stated that after preliminary examinations conducted on 12.4.2009, representations were received only from 17 candidates as per instruction No.41. Their representations were referred to the Expert committee consists of 45 subject experts. After receiving the report, the Commission in its Full Commission https://hcservices.ecourts.gov.in/hcservices/ Meeting held on 1.4.2009 directed to place all 200 questions and the key answers assigned to them by the original question paper setters for verification as to the correctness by the Subject experts/Discrepancy settlers before commencing the valuation. The said exercise was carried out before valuation. Consequent upon the said exercise, the commission adopted the key answers for valuation. Therefore, uniform yardstick was adopted for all the 63283 candidates who appeared for the preliminary examination and the results were published on 4.8.2009 on the basis of cut off marks for each category of reserved and unreserved candidates. The candidates who wrote preliminary examinations were also informed of their date of main written examination. Thus, the Commission had taken all necessary steps in dealing with the alleged irregularities. 8.It was further stated that in respect of the first writ petition, a representation was received after a delay of 44 days. It was also stated that none of the successful candidates have been made as parties to the writ petitions. Without their being parties, their selection cannot be challenged. It was also stated that every successful candidates who have been selected and sent for written examinations and for interview, were all necessary and proper parties. Therefore, the respondents wanted the writ petitions to be dismissed on the ground on non joinder of parties. It was also stated that the petitioners have attended written examinations on 1st October, 2009 by an interim order. 888 candidates have also written the main written examination. In paragraphs 21 and 22, it was averred as follows: "21....it is respectfully submitted that the exercise undertaken by the Commission to have even the key answers assigned by the Original Question Paper Setters for all the 200 questions examined by an Expert Committee would go to show that the Commission acted not only on the representations made by the 17 candidates (who sent representations in the instant case) but also acted suo-motu to remedy the errors if any that might have crept in the key answers provided by the Question Paper Setters. Therefore, the writ petitioners who even failed to act as per Instruction No.41 cannot be heard to complain that under Instruction No.41, only discrepancies in the questions can be pointed out and not the discrepancies in the key answers etc. and that is the reason why they have come forward with the above writ petitions only after the publication of the results. The above allegation has been made only for the purpose of somehow gaining admission to write the Main Written Examination without any legal rights in them. https://hcservices.ecourts.gov.in/hcservices/ 22....it is respectfully submitted by way of abundant caution, that the OMT answer sheet in the Preliminary examination is processed by machine and therefore only the shaded responses are taken into consideration. In such circumstances, only if the candidate shades a key which is fed in the machine as the correct key, the candidate would be awarded mark. There is no possibility for a candidate who has given any key other than that fed in the machine as the correct key, to be awarded mark to that question. Therefore, the contention of the petitioners in the above paragraph under counter is untenable and does not have any factual or legal basis." 9.In the light of the above, it was further stated that many representations were sent after declaration of results. The prayer for revaluation of preliminary examination may not be permitted. Hence, the respondents sought for dismissal of the writ petitions. 10.The petitioners have filed a reply affidavit, dated 23.11.2009. The ground taken in the common reply affidavit was that there was no necessity to implead the selected candidates as the petitioners are not aware of the details of selected candidates. If wrong key answers are assigned and the answer sheets were valued on the basis of the wrong key answers, they should rectify the discrepancies. There must be transparency in the act of the TNPSC. In this context, they relied upon the judgment of the Supreme Court in Kanpur University, Through Vice-Chancellor v. Samir Gupta reported in (1983) 4 SCC 309 as well as the judgment of this court in John Kennedy Vs. Secretary, TNPSC, Chennai reported in 2008 (8) MLJ 836. Also they referred to an unreported judgment in S.Senthilkumar Vs. Secretary, TNPSC, dated 31.7.2008 in W.P.No.12127 of 2008 and batch cases. They also relied upon the judgment of the Supreme Court in Manish Ujwal v. Maharishi Dayanand Saraswati University reported in (2005) 13 SCC 744 and Guru Nanak Dev University v. Saumil Garg reported in (2005) 13 SCC 749. 11.Per contra, learned Senior Counsel for TNPSC relied upon the judgment of the Supreme Court in Maharashtra State Board of S.H.S.E. v. Paritosh Bhupeshkumar Sheth reported in (1984) 4 SCC 27 and placed reliance upon the following passages found in paragraphs 12, 14, 15, 20, 22, 26 and 29, which may be usefully extracted below: "12.....In our opinion, the High Court was perfectly right in taking this view and in holding that the “process of evaluation of answer papers or of subsequent verification of marks” under clause (3) of Regulation 104 does not attract the principles of natural justice since no decision- making process which brings about adverse civil https://hcservices.ecourts.gov.in/hcservices/ consequences to the examinees is involved. The principles of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried to such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been a proper and fair valuation of the answers by the examiners..... ........ 14.....In our opinion, this approach made by the High Court was not correct or proper because the question whether a particular piece of delegated legislation — whether a rule or regulation or other type of statutory instrument — is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the Court to substitute its own opinion for that of the Legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the Legislature and its delegate to determine, as a matter of policy, how the provisions of the statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to https://hcservices.ecourts.gov.in/hcservices/ examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the statute..... 15....It is thus clear that the conduct of the final examination and the evaluation of the candidates’ performance and the compiling and release of results are all to be carried out by the Divisional Board in accordance with the instructions to be issued by the State Board from time to time. It is, therefore, manifest that a duty is cast on the State Board to formulate its policy as to how the examinations are to be conducted, how the evaluation of the performances of the candidates is to be made and by what procedure the results are to be finalised, compiled and released. In our opinion, it was perfectly within the competence of the Board, rather it was its plain duty, to apply its mind and decide as a matter of policy relating to the conduct of the examination as to whether disclosure and inspection of the answer books should be allowed to the candidates, whether and to what extent verification of the result should be permitted after the results have already been announced and whether any right to claim revaluation of the answer books should be recognised or provided for. All these are undoubtedly matters which have an intimate nexus with the objects and purposes of the enactment and are, therefore, within the ambit of the general power to make regulations conferred under sub- section (1) of Section 36. In addition, these matters fall also within the scope of clauses (c), (f) and (g) of sub-section (2) of the said section. We do not, therefore, find it possible to accept as correct the view expressed by the High Court that clause (3) of Regulation 104 is ultra vires on the ground of its being in excess of the regulation-making power conferred on the Board...... ..... 20. We consider that the above approach made by the High Court is totally fallacious and is vitiated by its failure to follow the well- established doctrine of interpretation that the provisions contained in a statutory enactment or in rules/regulations framed thereunder have to be so construed as to be in harmony with each other https://hcservices.ecourts.gov.in/hcservices/ and that where under a specific section or rule a particular subject has received special treatment, such special provision will exclude the applicability of any general provision which might otherwise cover the said topic. Regulation 102(2), if properly construed in the setting in which it occurs, only confers a suo motu power on the Divisional Board to amend the result of the examination in respect of any candidate or candidates on its being found that such result has been affected by error, malpractice, fraud, improper conduct, etc. The “error” referred to in the said provision has, in the context, to be understood as being limited to an error arising in consequence of malpractice, fraud, improper conduct or other similar matter of whatsoever nature. We are unable to understand this provision as conferring any right on an examinee to demand a disclosure, inspection or verification of his answer books or other related documents........ The right of verification conferred by clause (1) is subject to the limitation contained in the same clause that no revaluation of the answer books or supplements shall be done and the further restriction imposed by clause (3), prohibiting disclosure or inspection of the answer books. ........ In our opinion, this interpretation of the concluding words of clause (3) is incorrect. What is laid down therein is that the answer books and other documents are to be treated by the Divisional Boards as most confidential. In other words, this clause of the regulation contains a mandate to the Divisional Boards to treat the answer books and documents as confidential and lays down that no candidate shall be entitled to claim disclosure or inspection of the said confidential books and documents. We are also of the opinion that the High Court was in error in invoking the “doctrine of implied power and obligation” for the purpose of holding that because the right of verification has been conferred by clause (1) of Regulation 104, there is an implied power in the examinees to demand disclosure and inspection and a corresponding implied obligation on the part of the Board to accede to such a demand. There is no scope at all for invoking any such implied power or imputing to the regulation-making authority an intention to confer such power by implication when there is an express provision contained in the very same regulation [clause (3)] which clearly manifests the contrary intention and states in https://hcservices.ecourts.gov.in/hcservices/ categorical terms that there shall be no claim or entitlement for disclosure or inspection of the answer books. ........ 22.....In making the above observations, the High Court has ignored the cardinal principle that it is not within the legitimate domain of the Court to determine whether the purpose of a statute can be served better by adopting any policy different from what has been laid down by the Legislature or its delegate and to strike down as unreasonable a bye-law (assuming for the purpose of discussion that the impugned regulation is a bye-law) merely on the ground that the policy enunciated therein does not meet with the approval of the Court in regard to its efficaciousness for implementation of the object and purposes of the Act. ......... 26.....What constitutes fair play depends upon the facts and circumstances relating to each particular given situation. If it is found that every possible precaution has been taken and all necessary safeguards provided to ensure that the answer books inclusive of supplements are kept in safe custody so as to eliminate the danger of their being tampered with and that the evaluation is done by the examiners applying uniform standards with checks and cross-checks at different stages and that measures for detection of malpractice, etc. have also been effectively adopted, in such cases it will not be correct on the part of the courts to strike down the provision prohibiting revaluation on the ground that it violates the rules of fair play. 29. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them......" https://hcservices.ecourts.gov.in/hcservices/ 12.Further he placed reliance upon the judgment of the Supreme Court in Board of Secondary Education v. Pravas Ranjan Panda reported in (2004) 13 SCC 383. The Supreme Court in paragraph 6 of its judgment observed as follows: "6. The High Court though observed that the writ petitioner who has taken the examination is hardly a competent person to assess his own merit and on that basis claim for re-evaluation of papers, but issued the aforesaid direction in order to eliminate the possibility of injustice on account of marginal variation in marks. It is an admitted position that the regulations of the Board of Secondary Education, Orissa do not make any provision for re-evaluation of answer-books of the students. The question whether in absence of any provision to that effect an examinee is entitled to ask for re-evaluation of his answer- books has been examined by us in Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission2 decided on 6-8-2004. It has been held therein that in absence of rules providing for re- evaluation of answer-books, no such direction can be issued. It has been further held that in absence of clear rules on the subject, a direction for re-evaluation of the answer-books may throw many problems and in the larger public interest such a direction must be avoided. We are, therefore, of the opinion that the impugned order of the High Court directing for re-evaluation of the answer-books of all the examinees securing 90% or above marks is clearly unsustainable in law and must be set aside." 13.It must also be noted that earlier various selections made for the year 2007 by the TNPSC came to be challenged in P.Thamilarasi Vs. TNPSC in W.P.No.8745 of 2009, dated 26.8.2009. This court rejected the request of the petitioner in the miscellaneous petition on the ground that the selection was already over and results were published on 25.4.2008 and the petition has to be dismissed on grounds of delay. 14.The matter was taken on appeal by the affected candidate by a division bench in W.A.No.1453 of 2009. The division bench dismissed the writ petition itself by an order dated 14.10.2009. In paragraph 7, the division bench held as follows: "7.In any case, inasmuch as the selection process in respect of the aforesaid notification having already been completed, it will be difficult to upset the selected candidates at this stage. Learned senior counsel, therefore, requests that if that is the view of the Court, the writ petition itself be decided. We, therefore, withdraw the writ https://hcservices.ecourts.gov.in/hcservices/ petition to this Division Bench and in view of what is stated above, inasmuch as there is substantially long delay in approaching the Court, we dismiss the writ petition on that ground alone." 15.Similarly, for the selection conducted for the year 2006-2007 for Group-I Examination had three rounds of litigation before this court. In the final round, a division bench of this court in W.A.No.649 of 2009 and batch cases in M.A.Ravivarma Vs. The Secretary, TNPSC, by a common order, dated 18.09.2009 held as follows: "60. Having stated this, we have to look into the problem which has come up