IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.08.2008 CORAM THE HONOURABLE MR. JUSTICE P.JYOTHIMANI W.P.Nos.18714, 18780,18839 to 18842, 18866 to 18871, 18911 to 18914, 18881 to 18890, 18948 to 18953, 18955, 18974, 19121 to 19125, 19134 to 19138, 19146 to 19152, 19171, 19223 to 19227, 19243 to 19248, 19254 to 19260, 19264 to 19266, 19288, 19305 to 19307 of 2008 and connected M.Ps. John Kennady ..Petitioner in WP 18714/2008 K.Dhakshinamoorthi ..Petitioner in WP 18780/2008 A.Ramesh ..Petitioner in WP 18839/2008 P.Sridharan ..Petitioner in WP 18840/2008 S.Uma Maheswari ..Petitioner in WP 18841/2008 C.Ravi Shankar ..Petitioner in WP 18842/2008 S.Srinivasan ..Petitioner in WP 18866/2008 K.Ezhil Rani ..Petitioner in WP 18867/2008 M.S.Sathis Kumar ..Petitioner in WP 18868/2008 K.P.Madhava Janarthanan ..Petitioner in WP 18869/2008 R.Mohan ..Petitioner in WP 18870/2008 P.Vadivelan ..Petitioner in WP 18871/2008 Veerapillai Ramesh ..Petitioner in WP 18911/2008 P.Velayudam ..Petitioner in WP 18912/2008 R.Vivekanandan ..Petitioner in WP 18913/2008 S.Raja ..Petitioner in WP 18914/2008 P.Adhavanj Seral ..Petitioner in WP 18881/2008 B.S.Saravana Kumaran ..Petitioner in WP 18882/2008 https://hcservices.ecourts.gov.in/hcservices/ M.Dharmarajan ..Petitioner in WP 18883/2008 V.Karthikeyan ..Petitioner in WP 18884/2008 P.Rajkumar ..Petitioner in WP 18885/2008 V.Arivukannan ..Petitioner in WP 18886/2008 R.L.Arun Prasad ..Petitioner in WP 18887/2008 V.Balasubramanian ..Petitioner in WP 18888/2008 D.Ganesh Babu ..Petitioner in WP 18889/2008 R.Kaipana ..Petitioner in WP 18890/2008 Jamuna.G. ..Petitioner in WP 18948/2008 K.Neppolean ..Petitioner in WP 18949/2008 Sri Nithya Mahaprabhu ..Petitioner in WP 18950/2008 S.Maheshwaran ..Petitioner in WP 18951/2008 M.Dhandapany ..Petitioner in WP 18952/2008 M.Backia Nathan ..Petitioner in WP 18953/2008 B.Saranya ..Petitioner in WP 18955/2008 P.Mahalakshmi ..Petitioner in WP 19121/2008 N.Amutha Sujatha ..Petitioner in WP 19122/2008 S.Subramanian ..Petitioner in WP 19123/2008 K.Emayavaramban ..Petitioner in WP 19124/2008 P.Ponnuchamy ..Petitioner in WP 19125/2008 M.Selvaraj ..Petitioner in WP 19134/2008 G.Elamurugu ..Petitioner in WP 19135/2008 K.Mayavanthan ..Petitioner in WP 19136/2008 S.Jegan ..Petitioner in WP 19137/2008 R.Satheesh Kumar ..Petitioner in WP 19138/2008 https://hcservices.ecourts.gov.in/hcservices/ G.Sumathi ..Petitioner in WP 19146/2008 D.Viswanthan ..Petitioner in WP 19147/2008 P.Kalidoss ..Petitioner in WP 19148/2008 P.Agoramurthy ..Petitioner in WP 19149/2008 J.N.Bargavi ..Petitioner in WP 19150/2008 K.Jeyakumar ..Petitioner in WP 19151/2008 M.Senthiappan ..Petitioner in WP 19152/2008 B.Geetha ..Petitioner in WP 19171/2008 Sumathi R. ..Petitioner in WP 19223/2008 P.Senthil Kumar ..Petitioner in WP 19224/2008 S.Sivarajavel ..Petitioner in WP 19225/2008 P.Anbazhahan ..Petitioner in WP 19226/2008 J.Ganesh Kumar ..Petitioner in WP 19227/2008 S.Janaki Raman ..Petitioner in WP 19243/2008 R.Nagendran ..Petitioner in WP 19244/2008 K.Jayakumar ..Petitioner in WP 19245/2008 K.Vijayakumar ..Petitioner in WP 19246/2008 B.Manikandan ..Petitioner in WP 19247/2008 S.Krishnakumar ..Petitioner in WP 19248/2008 P.Sivakumar ..Petitioner in WP 19254/2008 A.Elaiyaraja ..Petitioner in WP 19255/2008 Saravanakumar Chowdry.S ..Petitioner in WP 19256/2008 A.Padmashini ..Petitioner in WP 19257/2008 K.Ganesan ..Petitioner in WP 19258/2008 S.Thangadurai ..Petitioner in WP 19259/2008 https://hcservices.ecourts.gov.in/hcservices/ B.Sathish Kumar ..Petitioner in WP 19260/2008 C.Alwyn Deva Mano ..Petitioner in WP 19264/2008 S.Balaji ..Petitioner in WP 19265/2008 A.Senthil Kumaran ..Petitioner in WP 19266/2008 R.Sheela Rani ..Petitioner in WP 18974/2008 M.Chandrasekar ..Petitioner in WP 19288/2008 K.Senthil Kumar ..Petitioner in WP 19305/2008 P.Nithya ..Petitioner in WP 19306/2008 P.Senthil Kumar ..Petitioner in WP 19307/2008 -vs- The Secretary, Tamil Nadu Public Service Commission, Chennai-600002. ..Respondent in all the Petitions PRAYER:-Writ Petitions filed under Article 226 of the Constitution of India praying to issue a writs of mandamus directing the respondent to treat the petitioner as having passed the Group-I Services Preliminary examination 2006-2007 conducted by the respondents on 23.12.2007 by rectifying the wrong key answers assigned to questions in B series numbers 118, 133, 140, 143, 152 and 167 in the said examinations .(W.P.NO.18714 of 2008) directing the respondent to re evaluate the petitioners answer sheet by rectifying the wrong key answers assigned to some of the questions in the Group I preliminary examination 2006-2007 conducted by the respondent on 23.12.2007 and to hold the petitioner as having passed the said examination, thereon to be allowed to write the Group I main examination scheduled on 16.8.2008 and 17.8.2008 .((W.P.19134, to 19138, of 2008, 19146, to 19152 of 2008, 19223 to 19227 of 2008, 19243 to 19248 of 2008 , 19254 to 19260 of 2008, 19264 and 19265 of 2008, 18780/2008, W.P.No.18840 to 18842 of 2008, W.P.NO.18866 to 18871 of 2008 , 18911 to 18914/2008, 18881 to 18885/2008, 18886 to 18890/08, 19121 to 19125/08, 19288 of 2008, 19305 to 19307/2008) directing the Respondent to treat the petitioner as having passed the group I Services Preliminary Examination 2006-2007 conducted by the respondent on 23.12.07 by rectifying the wrong key answers assigned to Question Nos. 118, 133, 140, 143, 152 & 167 in the said examination. (W.P.No.19171 of 2008, 18974/2008) https://hcservices.ecourts.gov.in/hcservices/ directing the respondent to re evaluate the petitioners answer sheet by rectifying the wrong key answers assigned to some of the questions in the Gruop I preliminary examination 2006-2007 conducted by the respondent on 23.12.2007 and to hold the petitioner as having passed the said examination, thereon to be allowed to write the Group I main examination scheduled on 16.8.2008.(W.P.No.19266 of 2008 , 18839/08, 18955/2008) to direct the respondent to add the marks allotted to the questions for which wrong answers were given in the examination paper and permit the petitioner to attend the main examination fixed on 16.08.2008 and 17.08.2008 for the posts included in Group I services 2006-2007 to be conducted by the Tamilnadu Public Service Commission (W.P.No.18948 to 18953 /2008) For petitioner in :Mr.S.Silambannan, S.C., W.P.No.18714/2008 for Mr.N.Umapathi. For petitioner in :Mr.C.K.Chandrasekar for W.P.No.18780/2008 M/s.Row and Reddy. For Petitioners in :Mr.C.Sivakumar W.P.Nos.18839 to 18842/2008 & 18911 to 18914 /2008 For Petitioners in :Mr.G.R.Prasad for W.P.Nos.18866 to 18871/2008 Mr.P.K.Rajesh Praveenkumar & 19121 to 19125/2008 & 19134 to 19138/2008 & 19223 to 19227/2008 & 19243 to 19248/2008 & 19254 to 19260/2008 For Petitioners in :Mr.A.Mohamed Ismail W.P.Nos.18881 to 18885/2008 & 18886 to 18890/2008 For Petitioners in :Mr.S.Udayakumar W.P.Nos.18948 to 18952/2008 For Petitioner in :Ms.E.Balasharmila W.P.No.18953/2008 For Petitioner in :M/s.G.Vijay Anand W.P.No.18955/2008 Associates For Petitioner in :Mr.R.Y.George Williams W.P.No.18974/2008 For Petitioners in :Mr.V.P.Rajendran https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.19146 to 19150/2008 & 19151 & 19152/2008 & 19305 to 19307/2008 For Petitioner in :Mr.M.Rajasekar W.P.No.19171/2008 For Petitioners in :Mr.N.Velmurugan W.P.Nos.19264 to 19266/2008 For Petitioner in :Ms.B.Jayanthi W.P.No.19288/2008 For Respondent in :Mr.V.T.Gopalan, S.C., all the W.Ps. For M/s.C.N.G.Ezhilarasi for T.N.P.S.C. C O M M O N O R D E R By consent of all the parties, the above writ petitions have been taken up for final disposal. 2. Since the issue involved in all the cases are one and the same, the writ petitions are disposed of by this common order. 3. The issue involved in all these writ petitions are relating to the preliminary examination conducted by the Tamil Nadu Public Service Commission for Group I Services in the year 2006-2007 on 23.12.2007. It is seen that the respondent, Tamil Nadu Public Service Commission, has issued a Notification on 01.08.2007 for commencing selection process for Group I Services. It is not in dispute that the present Notification has been issued in respect of the selection process for Group I Services after a period of 7 years. The respondent Service Commission has notified 178 posts. As per the Notification, the process of selection for Group I Services consists of 3 stages. The 1st stage is about the preliminary examination, which was conducted on 23.12.2007. The said preliminary examination is stated to be a screening test consisted of a single paper in General Knowledge of Degree Standard with 200 questions, which are objective in nature. The maximum marks being 300 and the duration of examination, which was conducted, was 3 hours. The 2nd stage is the main examination. After the screening test conducted by way of preliminary examination, the Service Commission selects candidates on the basis of 1:10 ratio having regard to the rule of reservation of appointments and the selected candidates are sent for the final written examination, which are to be conducted on 16.08.2008 and 17.08.2008 in various centres at Chennai. The said main examination is a proper written examination consisting of two https://hcservices.ecourts.gov.in/hcservices/ papers, viz., General Studies Paper-I and General Studies Paper- II, each of 300 maximum marks with 3 hours duration. The 3rd stage is that after the selection process made in the written examination is over, the selected candidates are called for oral interview. 4. These writ petitions are concerned about the manner with which the preliminary examination was conducted by the Tamil Nadu Service Commission on 23.12.2007. These writ petitioners, who have participated in the preliminary examination on 23.12.2007, have raised some doubts about either the validity of the questions, which are prepared by the Service Commission, or about the correctness of the key answers stated to have been prepared by the Service Commission and these discrepancies, according to the petitioners, have come to limelight only after the declaration of results on 25.04.2008, by way of group discussion among the petitioners and on the basis of self-evaluation. Normally, this Court would not entertain such writ petitions against the examinations conducted by a Constitutional Authority like Tamil Nadu Public Service Commission, which is performing its constitutional function, but considering the genuineness of some of the grievances raised by the petitioners as well as some candidates, this Court has taken a definite stand that the suspicion in the minds of the candidates, who have taken part in the preliminary examination, that there has been some discrepancies is well founded. 5. It is also relevant to point out at this stage that after the preliminary examination was over, nearly 31 candidates, who have participated in the examinations, have raised some objections in the light of Clause 42 of the instructions to the candidates issued by the Tamil Nadu Public Service Commission. 6. The said Clause 42 of the instructions to the candidates, which confers certain rights on the participants in the preliminary examination to point out any defects in the question booklets to the Service Commission so as to enable the Service Commission to take proper steps, is as follows:- "Candidates are advised to write to the Controller of Examinations on items or question, the candidate considers defective in the Question Booklet within three days from the date of examination. In such representations, Register Number, Name and address of the candidate, Question Number, Question Booklet Series etc. should invariably be quoted. Any representation received after three days from the date of examination or without any of the required particulars will receive no attention." https://hcservices.ecourts.gov.in/hcservices/ It is true that as per the said clause, the participants in the preliminary examination have right to point out the mistakes or defects, which are to be exercised within 3 days from the date of examinations. It is stated that the above said 31 candidates, who have taken part in the preliminary examination, have, in fact, made representations within the stipulated time bringing out some of the defects in the question papers. It is also not in dispute that no one of the 31 candidates, who have raised objections, have approached this Court. A batch of students, who have taken the preliminary examination on 23.12.2007 and who have not made any representations in conformity with Clause 42 of the Notification, have approached this Court by filing writ petitions in the same terms as the present writ petitioners. Those writ petitions came to be disposed of on 31.07.2008. While disposing of the said writ petitions, this Court has taken a stand that the technical rule that objection should be filed within a period of 3 days, as stipulated under Clause 42 of the Instructions to the Candidates, should not stand in the way of rendering substantial justice in cases, where the participants in the preliminary examination were able to bring out some of the patent errors either in the examination or in the manner of self-valuation. In that view of the matter, this Court has passed final orders permitting the petitioners therein to appear for final examinations, which are to be conducted by the Tamil Nadu Public Service Commission on 16.08.2008 and 17.08.2008 with direction to the petitioners therein to make proper representations clarifying that on such representations, it is for the Service Commission to refer the same to Experts and take a final decision. The following were the directions issued by this Court while disposing of the batch of writ petitions in W.P.No.12127 of 2008 batch dated 31.07.2008:- " 18. In the light of the above findings and having regard to the judgments cited supra, I am inclined to pass the following orders: (i) The petitioners herein are directed to submit representation pointing out the number of questions where the questions are not correctly asked, more number of answers are found correct as per leading text books and whether key answer to the questions are correctly given on or before 7.8.2008. (ii) On receiving the said representations the respondent/TNPSC is directed to place the disputed questions/answers before the Expert Committee to be constituted by it for verification as to whether the questions pointed out are correct, if more than one answer given in the choice are correct and whether the key answers given to any question pointed out by the petitioners are wrong. https://hcservices.ecourts.gov.in/hcservices/ (iii) On verifying the same, the Expert Committee is directed to award marks to such of those petitioners who attempted the said questions and on that basis determine the final marks of the petitioners in the preliminary examination. (iv) Since the above said exercise will take some time and in view of fixation of date for the main written examination as 16.8.2008 and 17.8.2008, the respondent/ TNPSC is directed to permit the petitioners herein to write the main written examinations along with 1750 candidates, who are already found eligible to write main written examination. (v) By following the above process, if the petitioners are getting the required cut- off marks prescribed for the respective category, their final written examination papers shall be valued. If the petitioners are not getting the required cut-off marks, their final written examination papers need not be valued. (vi) Since the preliminary examination results were published as early as on 25.4.2008, and the main written examination is to be held on 16.8.2008 and 17.8.2008, the benefit of this order is restricted to the writ petitioners herein, as no general directions could be issued at this belated stage. All The writ petitions are ordered accordingly. No costs. Connected miscellaneous petitions are closed." While disposing of the said writ petitions with the above said directions, a restriction has been imposed by this Court stating that the benefit of the directions should be made applicable and restricted only to the writ petitioners therein and such direction should not be treated as a general direction, since the learned Judge felt that such general direction could not be given at a belated stage especially when the main written examination is to be conducted on 16.08.2008 and 17.08.2008. 7. However, the present writ petitions came to be filed after the disposal of the above said batch of writ petitions and are placed before this Court for a decision. Before adverting to the various arguments advanced by the respective counsels including Mr.V.T.Gopalan, learned Senior Counsel appearing for the Tamil Nadu Public Service Commission, it is relevant to refer to some of the passages in the counter affidavit filed by the Service https://hcservices.ecourts.gov.in/hcservices/ Commission in the earlier batch of writ petitions stated above. This is relevant because in these batch of writ petitions, the Service Commission has not filed any counter affidavit and it is anybody's knowledge that the Service Commission cannot take any stand other than what was already taken by them in the counter affidavit. In the counter affidavit filed in the batch of cases, while the facts stated above in nutshell were not disputed, the respondent Tamil Nadu Public Service Commission has very fairly stated in paragraph No.5 as follows:- "In this connection, it is submitted that the Commission has never failed to rectify any discrepancies whenever such discrepancies came to the knowledge of the Commission. In the same way, for the present recruitment, it has come to the knowledge of the Commission about certain discrepancies in the key for some of the questions." In this connection, it is submitted that the Commission has never failed to rectify any discrepancies whenever such discrepancies came to the knowledge of the Commission, but it has now came to the knowledge of the Commission about the discrepancies in the key for some of the questions. The said stand taken by the respondent in the counter affidavit makes it clear that even though the Service Commission has not so far released or disclosed the key answers, while exercising its Constitutional function, it has found some discrepancies in the key answers. Therefore, it is not necessary for this Court to go into each and every one of the question even though the respective counsels have taken enormous efforts to bring to the notice of this Court about various discrepancies. Suffice to mention some of those questions, which are not only shocking and alarming to us, only as examples. It is also relevant at this stage to point out that the questions have been given both in English as well as in Tamil and it is also not in dispute that Tamil translation of English question is the same and without any change. Question No.57, which is as follows:- The founder of the Newspaper "The Hindu" was (a) S.Subramania Iyer (b) Kasturi Ranga Iyengar (b) S.Satyamurthy (c) T.K.Madhavan All the answers given are patently wrong. The founder of the newspaper is G.Subramania Iyer, whose name is not finding place in any one of the 4 answers. Question No.130, which is as follows:- The Pallava rulers believed in (a) Jainism (b) Buddhism (c) Hinduism (d) Shaivism Even though the correct answer is (d) Shaivism, it is doubted by some of the candidates that the Service Commission, in the key answer, has given it as Jainism. Of course, it is for the https://hcservices.ecourts.gov.in/hcservices/ respondent Service Commission to check up as to the correctness of the said averment made by some of the petitioners. Question No.135, which is as follows:- The emergency provisions of the Constitution of India was borrowed from (a) Government of India Act, 1935 (b)USSR (c) USA (d) Weimar Constitution of Germany The answer for this question could be Government of India Act, 1935 as well as Weimar Constitution of Germany, as it is asserted by the Text Book of Constitution of India by D.D.Basu. Question No.137, which is as follows:- The final work of UPSC in recruitment process is (a) Selection (b) Appointment (c) Certification (d) Placement A doubt has arisen as far as this question is concerned that while UPSC has taken its final work as "selection process", the Constitution of India uses the word, "Certifies". Therefore, there are 2 correct answers, which can be construed distinctively. Question No.140, which is as follows:- In which year, for the first time was no-confidence motion moved in the Parliament? (a) 1960 (b) 1963 (c) 1964 (d) 1967 A question is raised as to the no-confidence motion against which character, whether it is for removal of Speaker or against the Council of Ministers, because there was a no-confident motion moved in the Parliament for the removal of a Speaker in 1954 and there was a no-confidence motion moved against the Council of Ministers in 1963 and therefore, the technical validity of this question is raised by a candidate based on the Literature on the Constitutional Government in India by the author, MV Pylee. Question No.169, which is as follows:- The Industrial Tribunals are consisted of person of the rank (a) Supreme Court Judge (b) Chief Justice of Supreme Court (c) High Court Judge (d) Sessions Court Judge By referring to a website of the Ministry of Labour and Employment, the Government of India has stated that the Presiding Office of Industrial Tribunal should have been either a District Judge or an Additional District Judge for three years and alternatively, he should have held the post of Judge of a High Court. 8. These are only some of the instances, which are taken from the objections raised by few of the petitioners in their affidavits. There are many more instances, which are stated by the petitioners, of course, which are relating to the probabilities, suspicions and surmises and therefore, it is not https://hcservices.ecourts.gov.in/hcservices/ necessary to extract those questions. But the fact remains that even though it is stated by the Service Commission in its counter affidavit in the previous batch of cases that there has been many discrepancies in the setting of question papers and there are obvious mistakes in the key answers also, about which, this Court is not able to lay its hands, since the key answers have not been placed before this Court either in the previous batch or in this batch of cases. 9. Mr.V.T.Gopalan, learned Senior Counsel appearing for the Tamil Nadu Public Service Commission, has contended that as the learned Single Judge of this Court, while disposing of the batch of writ petitions previously, in the ultimate paragraph held that the benefit of the said order should be restricted only to the writ petitioners and it should not be treated as general directions, if this Court decides to extend the said benefits given in the earlier batch, in fairness, it should be referred to a larger Bench. Since this question has been raised by a learned Senior Counsel, as a matter of preliminary objection to the jurisdiction of this Court, it is necessary to deal with the said contention. 10. First of all, on a reading of the order of the learned Single Judge in the batch of writ petitions, it is crystal clear that the learned Judge has come to a definite conclusion that the rights given to the parties to exercise, as per the Notification under Clause 42, viz., within 3 days, which is technical, which cannot stand in the right of rendering justice, considering the over all situations of the cases. A specific contention was put forth before this Court in the earlier batch that the students, who have written examinations based on the notifications issued by the Service Commission, are bound by the Notification and therefore, it is not open to the students to come back or act against the Notification and this Court should not permit such an attitude. While dealing with the said contention, the learned Judge has elaborately dealt with the same by taking into consideration the various case laws, but ultimately decided that in these matters, when once the malpractice has been revealed to limelight, even to a limited extent, the ultimate goal of the Court is to render substantial justice and the technicalities should not stand in the way of rendering such substantial justice. This Court has taken note of the fact that the Tamil Nadu Public Service Commission is conducting these examinations after a long period of 7 years and therefore, any narrow meaning given to the various terms in the Notification would only destroy the very concept of rendering justice to the participants. In fact, the learned Judge has also referred to the judgment of the Supreme Court in Gurunanak Dev University -vs- Saumil Garg reported in 2005 (13) SCC 749, wherein the Supreme Court has asserted in clear definite terms that the paper setters have legal duty to give correct key answers and in the event of the key answers having https://hcservices.ecourts.gov.in/hcservices/ found to be wrong, the same cannot be taken light by a Court and a consequential order should be passed. The Supreme Court has held in paragraph No.6 as follows:- "The questions posed must have only one correct answer out of the four options given. Likewise, there is responsibility on those, who finalise the key answers. If none of the answers is correct, it becomes their duty to say that none of the answers is correct, so that if any remedial action is to be taken, it should be taken before the answers are valuated. It is evident that on both these aspects, there was serious lapse which resulted in litigation which is otherwise avoidable." 11. The nature of care, which should be taken while preparing the key answers,