IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 WP(C).No. 33742 of 2006(P) -------------------------- PETITIONER: ------------ 1. PREMJITH.K., S/O.BALAKRISHNAN NAIR, KRISHNAPURI HOUSE, ERANHIKKAL P.O., MOKAVOOR, KOZHIKODE DIST. 2. SREERAJ.P.K., "SREYAS", NELLIKODE P.O., KOZHIKODE DIST. 3. SREEJITH.A., AZHINHILATH HOUSE, CHATHAMANGALAM P.O., NIT VIA, KOZHIKODE DIST. 4. HAREESH.P.K., HARISREE HOUSE, MEDICAL COLLEGE P.O., AMBALAKOTHU, KOZHIKODE DIST. 5. SHAIJU.K.K., S/O.CHATHU K.P., KARUVANGOTT KOTTAYIL, FAROOK COLLEGE, MALAPPURAM. 6. SIDHEESH.M., MUDAVANPILAKKAL HOUSE, PANTHEERANKAVU P.O., KOZHIKODE DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF SURVEY & LAND RECORDS, SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC GOVERNMENT PLEADER SRI. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/02/2008, ALONG WITH WPC NO. 26166 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33742 of 2006 APPENDIX PETTIONER'S EXHIBITS EXT.P1- TRUE COPY OF THE NOTIFICATION PUBLISHED WHICH WAS REPRODUCED IN MATHRUBHUMI THOZHIL VARTHA DATED 26.11.05 EXT.P2- TRUE COPY OF THE ADMISSION TICKET ISSUED TO THE FIRST PETITIONER EXT.P3- TRUE COPY OF OTHE ADMISSION TICKET ISSUED TO THE 2ND PETITIONER EXT.P4- TRUE COPY OF THE ADMISSION TICKET ISSUED TO THE 3RD PETITIONER EXT.P5- TRUE COPY OF THE ADMISSION TICKET ISSUED TO THE 4TH PETITIONER EXT.P6- TRUE COPY OF THE ADMISSION TICKET ISSUED TO THE 5TH PETITIONER EXT.P7- TRUE COPY OF THE ADMISSION TICKET ISSUED TO THE 6TH PETITIONER EXT.P8- TRUE COPY OF THE MARK LIST OF THE 1ST PETITIONER EEXT.P9- TRUE COPY OF THE NATIONAL TRADE CERTIFICATE OF THE 2ND PETITIONER EXT.P10- TRUE COPY OF THE MARK LIST OF THE 3RD PETITIONER EXT.P11- TRUE COPY OF THE MARK LIST OF THE 4TH PETITIONER EXT.P12- TRUE COPY OF THE NATIONAL TRADE CERTIFICATE OF OTHE 5TH PETITIONER EXT.P13- TRUE COPY OF THE MARK LIST OF THE 6TH PETITIONER EXT.P18- TRUE COPY OF THE DIPLOMA CERTIFICATE IN CIVIL ENGINEERING DATED 13.10.98 OBTAINED BY KUMARI BINDU S.R. EXT.P19- TRUE COPY OF THE NATIONAL TRADE CERTIFICATE IN SURVEY OBTAINED BY A CANDIDATE NAMELY KUMARI BINDU S.R. (TRUE COPY) P.A TO JUDE V.GIRI, J ------------------- W.P.(C)s. 33742, 29998, 30729, 26271, 31637, 29794, 26568, 29451, 27443, 26407, 27423, 26867, 26166, 26377, 26507 & 29523 of 2006 -------------------- Dated this the 21st day of February, 2008 JUDGMENT There are certain common issues which arise for consideration in these cases. Therefore, they have been heard together. Some of the writ petitions also involve a different issue and therefore, those issues are being dealt with separately. But as I mentioned above, there are certain issues which are common and all of them involve issues which emanate from a notification issued by the Public Service Commission for selection to the post of Surveyor Grade-II in the Department of Survey and Land Records. I will refer to the facts in Writ petition No.29794/2006 as also the facts in Writ Petition No.33742/2006 in the first instance. 2. Ext.P1 notification was issued by the PSC inviting applications for the post of Surveyor Grade-II. Qualifications prescribed for the said post are those contained in Special rules namely Kerala State W.P.(C)s.33742/2006 and Connected Cases 2 Subordinate Services Special rules in the Kerala Survey and Land Records (hereinafter referred to as Special Rules). The prescribed qualifications are as follows:- (I). A pass in S.S.LC examination or possession of any of the other equivalent qualification specified in the schedule to Part II of the General Rules. (II). Must possess - (i). I.T.I (Surveyor Trade) Certificate introduced with effect from the year 1966, OR (ii). The I.T.I (Surveyor Trade ) Certificate issued prior to the year 1966 and satisfactorily completed six months inplant training according to the rules approved by the Board of Revenue in this regard; OR (iii). A pass in Surveying and Levelling (Higher) M.G.T.E or K.G.T.E with Chain Survey Test; OR (iv). Experience in Military service for a period of six years in Surveyor trade: provided that in the absence of candidates with the technical qualifications mentioned W.P.(C)s.33742/2006 and Connected Cases 3 above, a pass in Higher Survey Test shall be deemed sufficient: provided further that in the absence of candidates with any of the technical qualifications mentioned above, a pass in Chain Survey Test shall be deemed sufficient.” 3. PSC conducted a written test for the selection to the post on 13.10.2006. According to the petitioners, persons who did not possess the prescribed qualification but who possessed Diploma or even a Degree in Civil Engineering had applied for the same. They were also permitted to take part in the test. On enquiry, it was understood that the Commission took the view that the Diploma holders and Degree holders in Civil Engineering are also eligible to apply for the post, and this is the view the Commission took, apparently on the basis of Rule 10(a)(ii) of Part-II of K.S. & S.S.R. It is contended that the prescribed qualification is a certificate in Survey Trade or a pass in Surveying and Levelling (higher), MGTE or KGTE with Chain Survey test. Syllabus for the Trade of Surveyor under Craftsmen Training scheme is produced as Ext.P4 and the Syllabus for Diploma W.P.(C)s.33742/2006 and Connected Cases 4 course in Civil Engineering in so far as it relates to the discipline of Surveying is produced as Ext.P5. A copy of the syllabus for B.Tech in Civil Engineering regarding the discipline of Surveying is produced as Ext.P6. Petitioners contend that the Syllabi, Exts.P4 to P6, have no commonality as such. I may straight away refer to a similar contention raised in Writ Petition No.33742/2006 wherein the petitioners have produced Exts.P15, P16 and P17 along with I.A.10161/2008 being the syllabus for a Diploma or a Degree in Civil Engineering. Specific contention taken up in Writ Petition No.33742/2006 in this regard is encapsulated in ground B of the said Writ petition which is extracted herein:- “It is pertinent to note that the degree holders/diploma holders in Civil Engineering have only passed in SSLC. But they do not have anyone of the Certificates enumerated in Ext.P1 under clause (ii) of under the title of “Eligibility”. That is to say, the degree holders/diploma holders who are now permitted to take part in the examination do not have ITI Survey Trade Certificate or KGTE in Survey, Chain Survey W.P.(C)s.33742/2006 and Connected Cases 5 Test or MGTE of six years Military experience in Survey Trade. These qualifications specified in the notification are practice oriented and are totally distinct. Neither a degree holder in Civil Engineering nor a diploma holder will have any practical experience in these areas. A student who undergoes the ITI and ITC course undergo a total practical training in these courses. They study the subject by practicing it in the field and on the earth. At the same time such a methodology is not adopted in the B.Tech or diploma course. The practical hours of study spend by ITI certificate holder in Surveying would be 4242 hours where as that availed by a degree/diploma holders in surveying is less than 413 hours. This shows that fundamental and apparent difference between the two courses. Therefore it is absolutely wrong to say that a degree or diploma is in Civil Engineering is a higher qualification to a Certificate course in Survey Trade granted by the ITI or ITC. As such the very stand of the PSC that degree or diploma holders are eligible to be considered because they hold the higher qualification is patently erroneous. W.P.(C)s.33742/2006 and Connected Cases 6 4. Petitioners therefore, contend that the Public Service Commission committed an illegality in considering those persons who do not possess the prescribed qualification but only possessed Diploma or Degree in Civil Engineering, along with the persons like the petitioners who possessed the prescribed qualification in the selection. Essential relief sought for in Writ Petition Nos.29794/2006, 33742/2006, 31637/2006, 30729/2006, 26271/2006, 26568/2006, & 29998/2006 is that the PSC should prepare a rank list by excluding those persons who possessed Diploma or Degree in Civil Engineering. 5. Petitioners in Writ Petition No.30729/2006 have an additional contention namely that the test has not been conducted properly. According to them, 31 out of 100 questions forming part of the question paper in the objective format seem to be a verbatim re-production of Ext.P13, which is a guide published by a publishing house, of which the fourth respondent is the Chief Editor. Fourth respondent is also one of the applicants for the post. They, therefore, contend that the W.P.(C)s.33742/2006 and Connected Cases 7 similarity in the lay out and the content of 31 questions out of 100, cannot be dismissed as a mere coincidence but as an indication of factors which vitiate the selection as such. In effect, the prayer therefore, is to set aside the entire selection and direct the PSC to conduct fresh selection in accordance with law. 6. I will deal with these two contentions in the first instance. As I have mentioned earlier, some of the Writ Petitions involve a different question and therefore, it would be advantageous to consider those writ petitions separately. 7. PSC has filed a counter affidavit essentially contending that the prescribed qualification for the post in question is a certificate in Surveyor Trade. It cannot be gainsaid that the qualification of a Diploma or a Degree in Civil Engineering would equip a diplomate or a Degree holder in acquiring requisite knowledge in Chain Survey as is acquired by a person who is a certificate holder in Chain Survey. In fact the level of knowledge required from a diplomate or a degree holder W.P.(C)s.33742/2006 and Connected Cases 8 in the concerned trade would be much higher. In such circumstances, Commission is justified in recognizing a Diploma or a Degree in Civil Engineering as a higher qualification which presupposes the holder as possessing lower qualification of a trade certificate, which happens to be the prescribed qualification, in terms of Rule 10 (a) (ii) of Part-II of K.S. & S.S.R. The Commission refers to the judgment in Jyoti K.K. & Others v. Kerala Public Service Commission & Others (JT 2002 [Suppl. 1] SC 85) in support of their contention. 8. In so far as the challenge against the test is concerned, it is contended that the fact that the fourth respondent happens to be the Chief Editor of a publishing house which publishes guides and other related publications is of no consequence as such. The further fact that 31 out of 100 questions happens to be contained in a guide published by the fourth respondent’s publishing house, does not by itself indicate any vitiating factor in so far as the selection is concerned. It is nothing but a coincidence. But on complaints received as to the nature of certain questions, W.P.(C)s.33742/2006 and Connected Cases 9 the Commission referred the issue to an expert and the answer thereafter is stated in paragraphs 9, 10 and 11 of the counter affidavit filed by the Commission in Writ Petition No.30729/2006 and the same is extracted herein: “It is respectfully submitted that the expert assigned by the Commission, after verification of the question paper and the syllabus, suggested that 17 questions were not according to the prescribed syllabus for the said post. Those 17 questions were either by Diploma (Civil) or NTC (Civil) level. Even though Surveying and Levelling are also the major portion of the topics in NTC (Civil)/D'man (Civil)/Diploma (Civil) the Service Commission decided to delete the above said 17 questions from the question paper before valuation. It was also recommended that 3 other questions have also to be deleted for having defective answers. Thus, in all, the Commission have decided to delete 20 questions (17 + 3) from the question paper for the post of IInd Grade Surveyor. The 17 questions deleted for having been out of syllabus are question Nos.6, 16, 17, 18, 21, 22, 42, 45, 46, 47, 49, W.P.(C)s.33742/2006 and Connected Cases 10 50, 51, 53, 60, 90 and 97 in Alpha Code “C” question paper. The 3 other questions deleted for proving defective answers are question Nos. 64, 68 and 88 in Alpha Code 'C' Question Paper. It is respectfully submitted that moreover the answer key of 4 other questions 23, 82, 86 and 89 of Alpha Code 'C' Question Paper have been changed as per the Expert's opinion the details of revised answer key are as follows:- Sl.No. Qn.No.Alpha Code 'C' Qn.Paper Previous answer Corrected Answers as per experts opinion 1 23 C B 2 82 A C 3 86 A D 4 89 D C It is respectfully submitted that the contention of the petitioner in this WP that 31 questions were verbatim reproduction of questions for the Rank File of private firm, namely Technical Publishers, Distributors has been examined in detail by the Service Commission and found that the similarity, if any, is just a coincidence so far as questions based on a technical qualification are concerned. The Service Commission have, W.P.(C)s.33742/2006 and Connected Cases 11 therefore, decided to go on with the selection process after deleting 20 questions and modifying the answer to 4 questions. In view of these aspects, this Honourable Court may be pleased to vacate the interim stay order granted in this WP and to dismiss the WPs.” 9. It is contended that the conduct of the test therefore, does not suffer from any illegality. Reference in this regard is made to the limited scope of judicial review available in matters involving conduct of public examinations, as has been laid down by the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth (1984 (4) SCC 27), President Board of Secondary Education v. Suvankar (2007 (1) SCC 603), and State of Kerala v. Fathima Seethi (2002 (3) KLT 871) and the judgment of the Division Bench of this Court in Writ Petition No.18896/2005 and connected cases. 10. I heard the learned Senior counsel for the W.P.(C)s.33742/2006 and Connected Cases 12 petitioners in two writ petitions Mr.T.P.Kelu Nmbiar, Mr.Jaju Babu, Mr.Kalleswaram Raj, Mr.George Abraham, Mr. Naveen T., and the learned Senior Government Pleader Mr.Nandakumar and the learned Standing Counsel for the PSC Mr. Alexander Thomas. 11. It would be appropriate to consider the second aspect raised in the Writ petition No.30729/2006 namely whether the selection as such should be treated as vitiated, in the first instance. 12. The allegation of the petitioner, seems to be centred around two factors, firstly that the fourth respondent happens to be the Chief Editor of a publishing house which has published Ext.P13 guide. He has also gone out of his way to assure success to the persons who deem it fit to follow the course of instructions laid down in the publications made from his publishing house. Obviously these cannot be treated as frivolous in the context of the fact that 31 questions in the question paper also happen to find a place in Ext.P13 guide published by him. Counsel for the petitioners W.P.(C)s.33742/2006 and Connected Cases 13 particularly emphasized on what he calls as a significant fact that the said 31 questions seem to be bodily lifted from the guide published from the fourth respondent. They are similar in content, they are similar in lay out, in fact they are identical in every respect. It is contended that these cannot be dismissed as mere coincidence but points to a deep malaise which apparently afflicts the entire selection process. The second aspect highlighted by the learned counsel for the petitioners in this regard is that coupled along with the above, since the Commission itself has decided to eschew 20 questions as such from consideration ( for the reasons which are mentioned in paragraphs 8 and 9 of the counter affidavit), it is only appropriate that the selection be re-considered. 13. The limited scope of judicial review that is available to cases involving allegations of an improper conduct of examination by a public body has been dealt with by the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth (AIR W.P.(C)s.33742/2006 and Connected Cases 14 1984 SC 1543). It was again followed in President Board of Secondary Education v. Suvankar (2007 (1) SCC 603) and in Secretary West Bengal council of Higher secondary Education v. Ayan Das and Others (2007 (8) SCC 242). The ratio decidendi in the aforementioned decisions, essentially point out to the principle that there cannot be a pedantic application of the principles of natural justice as is normally done in the case of disputes involving administrative law to the conduct of examinations by the public bodies. There are large number of candidates who respond to such notifications. The preparation of the question paper will have to be shrouded in secrecy. The body will have to ensure that there is no leakage of the question papers. Where examination is conducted in the objective format, it is possible that a different set of examiners may have a different opinion as regards the answers for some of the questions. But obviously this cannot be treated as a factor that vitiates the entire selection as such. It is better to respect the wisdom of the body which conducts the selection and judicial review in these matters will have to be confined W.P.(C)s.33742/2006 and Connected Cases 15 to cases where there are clear allegations of malafides or arbitrariness or some like factor which vitiates the exercise of power by any Public body. 14. Going by the parameters which are outlined above, can it be said that the conduct of the examination itself stands vitiated ? What exactly is the allegation raised by the petitioners ? They contend that 31 out of 100 questions, contained in the objective format, are also seen in a publication which will have to be sourced to a publishing house associated with the fourth respondent. In my opinion, one will have to take into account the fact that the test is conducted in a discipline or subject among the applicants whose knowledge in the Craft would be rather peripheral, elementary and basic. 15. I have also gone through the 31 questions which are pointed out by the petitioner as alleged to be bodily lifted from the guide published by the fourth respondent’s publishing house. The questions will have to be treated as one which requires knowledge at a W.P.(C)s.33742/2006 and Connected Cases 16 fairly elementary level, in the discipline concerned and capable of being answered pointedly. Such questions may be found in several publications of similar nature. The body, which must have prepared the question papers, would also have been required to formulate questions which test the knowledge of the applicant at not more than a peripheral on basic level. In my view, a bank of questions would also have been available to them. There is nothing wrong in going by the format of questions that were included in the question papers for the previous tests. It obviously would not be possible for an examiner like PSC to insist that questions which are asked in any particular test should not have been asked in any previous test conducted by the same body. The similarity in the lay out of the questions or in the manner in which they are formated, would, in my opinion, also be indicative of the limited material that is available with the body which must have set the question paper, at the instance of the PSC. 16. The petitioners’ allegation that there is something more than a mere coincidence might have merited a W.P.(C)s.33742/2006 and Connected Cases 17 deeper scrutiny provided there were allegations of any malafide exercise of power by the persons who are in control of the affairs in PSC. There are no such allegations. In my view, even if the relevant averments in this regard are scrutinised deeply, they only indicate that there are several publishing houses which apparently try to cash in on the desire of a large multitude of unemployed people to gain an employment in public services and consequently to equip themselves for a test conducted by the PSC. Attitude is not dissimilar to thousands of students who aspire for an admission in professional colleges and therefore, subject themselves to a gruelling schedule for equipping themselves to participate in such competitive examinations. It is quite possible that the gullible among the applicants would be taken for a vide by the unscrupulous among the publishing houses. But, ultimately the system will have to fend for itself in those matters. I do not think it is a matter which merits a judicial review in the absence of clear and clinching material to indicate malafide involvement by the persons who are in a position to control the affairs of W.P.(C)s.33742/2006 and Connected Cases 18 the PSC. Prayer for cancellation of the written test as such is therefore, rejected. 17. I also mention in this context that though the petitioners in Writ Petition No.29998/2006 had also made a similar prayer, Mr.George Abraham, learned counsel for the petitioner, has expressly given up the same. 18. This brings me to the second aspect as to whether the persons with Degree or a Diploma in Civil Engineering were entitled to participate in the test as such. I have already adverted to the contentions of either side. Learned Standing Counsel for the PSC relies on the judgment in Jyoti, to contend that a Degree or a Diploma in Civil Engineering should be treated as a higher qualification, which necessarily presupposes the acquisition of the lower qualification namely the prescribed qualification of a certificate in Survey Trade. One factor which was specifically considered by the Supreme Court in Jyoti, upholding the contention of a similar nature therein, was that the Degree in Electrical W.P.(C)s.33742/2006 and Connected Cases 19 Engineering is identified as a qualification prescribed for the post of Assistant Executive Engineer, which is vertically above the post of Sub Engineer in the Electricity Board. The technical qualification prescribed for the post of Sub Engineer was a Diploma in Electrical Engineering from a recognized institute or a certificate in Electrical Engineering from anyone of the recognized technical institutes, along with five years experience. Apparently, some of the applicants for the said post were holders of B.Tech Degree in Electrical Engineering or Bachelors Degree in Electrical Engineering. Supreme Court considered it significant that a Degree in Electrical Engineering was treated as the prescribed qualification for the post of Assistant Executive Engineer as per the Special rules in question. The post of Assistant Executive Engineer is the promotion post to that of Sub Engineer and in these circumstances, Supreme Court held that the qualification that has to be possessed by a direct recruit to a higher post could be treated as the higher qualification to what is prescribed for the lower post. It was held that “in that view of the matter, the qualification of Degree in Electrical W.P.(C)s.33742/2006 and Connected Cases 20 Engineering presupposes the acquisition of the lower qualification of Diploma in that subject prescribed for the post”. What was considered by the Supreme Court was the Special rules, which provided for a vertical hierarchy amongst the post of Sub Engineer and Assistant Executive Engineer (and others) and the degree as a prescribed qualification for the promotion post, “in the same line of promotion”. The situation would probably be different in the present case. A perusal of the Special Rules would show that a Degree or Diploma in Civil Engineering is not treated as a qualification even as an alternate qualification for anyone of the posts in the hierarchy of the posts comprehended by the same set of Rules. It is not the qualification for the post of Surveyor Grade-I or a Head Surveyor and it is not even a qualification for the post of Superintendent which is a promotion post, but covered by Special Rules for the State Service. In such circumstances, I am of the view that the principle