IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 WP(C).No. 30239 of 2003(Y) ----------------------------------------- PETITIONER(S): ------------------------ K.L.SAJIMON, ARMED RESERVE POLICE CONSTABLE, KOTTAYAM , SAJIBHAVAN, KUNNATHU PUTHENPURACKAL HOUSE, CHANNAIKKAD P.O., KOTTAYAM DISTRICT. BY ADV. MR.K.GOPALAKRISHNA KURUP RESPONDENT(S): --------------------------- 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIATE, THIRUVANANTHAPURAM. 3. VIJAYAN S., S/O. ZACHARIAS, SHAJI BHAVAN, PADAPPAKKARA P.O., KOLLAM DISTRICT. 4. REJI E.P., S/O. PRABHAKARAN NAIR, PATTOOPARAMBIL, MUNDAKKAYAM P.O., KOTTAYAM. 5. SAJIMON P.JOSEPH, THEKKAKUTTIL PARAMBILE, KALLARA SOUTH P.O., KOTTAYAM-686 611. R1 BY ADV.MR.ALEXANDER THOMAS,SC,KPSC R2 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA R3,R4 & R5 BY MR.KRB.KAIMAL, SENIOR ADVOCATE, MR.ANIL K.NAIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2010, THE COURT ON THE SAME DELIVERED THE FOLLOWING: Kss WPC.NO.30239/2003 Y APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE NOTIFICATION ISSUED BY THE 1ST RESPONDENT CATEGORY NO.256/96 DTD. 31/12/96. P2: COPY OF THE NOTICE DTD.11/12/2002 ISSUED BY THE 1ST RESPONDENT. P3: COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DTD. 16/12/02. P4: COPY OF THE JUDGMENT DTD. 20/12/02 IN O.P.NO.39040/02. P5: COPY OF THE CALL LETTER FOR INTERVIEW ISSUED TO THE PETITIONER DTD. 26/12/02. P6: COPY OF THE SHORT LIST OF CANDIDATES WHO WERE SELECTED AFTER THE PHYSICAL EFFICIENCY TEST WAS PUBLISHED BY THE PSC DTD. 11/12/2002. P7: COPY OF THE RANK LIST DTD. 8/02/03 PUBLISHED IN MATHRUBHUMI THOZHILVEEDI. P8: COPY OF THE LETTER DTD. 20/01/03. P9: COPY OF THE JUDGMENT DTD. 4/03/03 IN O.P.NO.4268/03. P10: COPY OF THE NOTICE ISSUED TO THE PETITIONER ON 2/06/03 DIRECTING HIM TO APPEAR FOR PERSONAL HEARING ON 13/06/03. P11: COPY OF THE ORDER ISSUED BY THE PSC DTD. 30/07/03. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 30239 of 2003 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30thday of January, 2010 J U D G M E N T Pursuant to Ext.P1 notification issued by the Kerala Public Service Commission, for selection to the post of Sub Inspector of Police (General Executive Branch), the petitioner submitted his application. The selection was to be made from three categories. The category 3 was Graduate Police Constables/Head Constables and officers in the Police department of equal rank. The petitioner applied under category 3. The selection process consisted of three stages viz. a written test, a physical efficiency test and an interview. After the written test, a short list was published on 09.05.2002. The petitioner was included in the short list. Petitioner underwent the physical efficiency test also. Thereafter Ext.P2 show cause notice, dated 11.12.2002, was issued to the petitioner stating that on revaluation of the answer papers of the petitioner, it was found that the W.P.(C)No. 30239 of 2003 -2- petitioner actually scored only less than the cut off marks fixed for inclusion in the short list. Therefore he was directed to show cause why the petitioner's name should not be deleted from the short list. Petitioner filed Ext.P3 objections. He also filed O.P. No.39040/2002 in which, by Ext.P4 judgment dated 20.12.2002 this court directed the Commission to permit the petitioner to appear for the interview provisionally and to pass final orders after considering the objections filed by the petitioner. Thereafter the petitioner was also interviewed and Ext.P7 rank list was published, in which the result of the petitioner was stated to be withheld, subject to final orders of the High Court. The petitioner thereafter challenged the same show cause notice by filing O.P. No.4268/2003, taking the contention that the PSC had no power to conduct revaluation of answer papers. In that writ petition, this court upheld the power of the P.S.C. to revalue the answer papers in appropriate cases for finding out whether there is any irregularity in the selection process. In that writ petition, the petitioner W.P.(C)No. 30239 of 2003 -3- challenged Ext.P8 communication issued to him refusing to divulge the marks obtained by him also. But the learned judge held that there is nothing wrong in Ext.P8 in the absence of any rule or order enabling the petitioner to get the marks awarded to him disclosed. But the court reserved the right of the petitioner to challenge the final orders passed by the PSC, if the same is adverse to him. The petitioner challenged the judgment of the learned Single Judge, by filing W.A. No.1267/2003. But by that time the PSC had passed Ext.P11 order, directing deletion of the petitioner's name from the short list. In view of the same, without prejudice to the rights of the petitioner to challenge the final order, the writ appeal was withdrawn. Thereafter the petitioner has filed this writ petition challenging Ext.P11 order. Petitioner contends that there is no provision of law which enables the PSC to conduct revaluation of the answer papers and therefore the very action of the PSC in conducting the revaluation to exclude the petitioner alone on the basis of that revaluation is W.P.(C)No. 30239 of 2003 -4- clearly without jurisdiction. He further submits that the PSC has stated in Ext.P2 itself that they have conducted the revaluation adopting the revaluation procedure followed by the Universities in Kerala in the matter of revaluing answer papers of students undergoing courses in the universities. The counsel for the petitioner submits that in none of the universities is there a procedure of reducing original marks obtained, if on revaluation the marks are found to be less than the original marks. 2. It is further submitted that on the finding that there is no malpractice or corruption in the valuation itself, for finding which only the PSC had embarked on the process of revaluation, the Commission should have stopped at that instead of conducting a process of comparing marks given by three different examiners for the answer paper of the petitioner and adopting the average of the lesser of the two marks. The petitioner therefore submits that the action of the PSC in deleting the petitioner's name alone from the short list is arbitrary and W.P.(C)No. 30239 of 2003 -5- unsustainable. He also refers to the decisions of the Supreme Court in President, Board of Secondary Education, Orissa And Another v. D. Suvankar And Another (2007) 1 SCC 603, Sanjay Singh And Another v. U.P. Public Service Commission, Allahabad And Another (2007) 3 SCC 720, Secy., W.B. Council Of Higher Secondary Education v. Ayan Das And Others (2007) 8 SCC 242 and Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna and others (AIR 2004 S.C 4116). 3. The PSC has filed three counter affidavits. The first counter affidavit was very sketchy. In the same they stated that the power of the PSC to conduct revaluation cannot be disputed in view of Ext.P9 judgment. They generally supported the decision taken by them without going into specifics in that counter affidavit. That counter affidavit is dated 16.10.2006. In the 2nd counter affidavit dated 26.10.2009, they stated thus: “3. It is respectfully submitted that the maximum marks for the written test of descriptive type of 3 hours duration conducted in May 2000 for the selection in question, was 100 marks. The petitioner was initially awarded 70 marks in the W.P.(C)No. 30239 of 2003 -6- above said written test. After the first revaluation, referred to in Ext.P-2, the marks of the petitioner was 38 marks. In the second revaluation, the petitioner's marks was 40. The average of the marks of the above said two revaluations, viz, 39 marks, was reckoned for determining the petitioner's merit in the written test. Candidates who had secured 60 marks and above were included in the short list. Accordingly, the petitioner's name had to be deleted from the short list, pursuant to Ext.P-2 and the subsequent proceedings. The other details are already stated in the impugned proceedings and in the counter affidavit already filed in this matter. The ranked list in question, was finalised w.e.f. 31-1-2003 and it was cancelled w.e.f. 20-09-2004. The subsequent ranked list finalised on 19-8-2006 has also been cancelled. The selection notification for setting in motion the fresh selections has also been issued and steps in that regard are on the anvil. It is most respectfully submitted that there is no merit in the petition and this Hon'ble Court may be pleased to dismiss the same.” This was done only after the hearing on 5.10.2009 when this court passed the following order: “When it was pointed out to the learned standing counsel for the PSC that they have not chosen to give the original marks and the revalued marks of the petitioner, so as to show that there is any large discrepancy between the two marks, the learned standing counsel for the PSC seeks time to file additional affidavit”. 4. An additional counter affidavit was again filed on 21.12.2009 wherein the process of revaluation adopted by the University was elaborated. This again was because this court again found fault with the PSC in not disclosing the full details. They took the stand that since the variation was almost 32 marks the average of the 2nd and 3rd valuation was W.P.(C)No. 30239 of 2003 -7- taken as the mark obtained by the petitioner in the written test which was far below the cut off marks and therefore he was excluded from the short list. The standing counsel for the PSC would justify the action of the Commission on the basis of Rule 15A of the KPSC Rules of Procedure which contention has been taken in the counter affidavit also. According to the learned counsel in view of Rule 15 A, the Commission has the power to correct any mistake in the rank list, advice list or short list, in exercise of which only the petitioner's name has been excluded from the short list. In support of his contention he relies on the decision of this court in Sidhik v. State of Kerala (2010 (1) KLT 113) which decision was upheld by the Division Bench in W.A. No.2910/2009. 5. In the reply affidavit filed by the petitioner, after filing the first additional counter affidavit of the PSC, he quoted the rules regarding revaluation available in the Kerala University Statutes, which according to him does not authorize reduction of the marks, if on revaluation marks W.P.(C)No. 30239 of 2003 -8- are found to be below the original marks. The petitioner also takes strong objection to the method adopted by the PSC. According to him if there were objections regarding valuation made by one examiner, the procedure to be adopted by the PSC was to revalue all the answer sheets valued by the same examiner. He contends that admittedly, in this case only the answer paper of those who obtained more than 70 marks and who passed the physical efficiency test were revalued. He points out that the answer papers of those who got marks between 60 and 70 and who passed physical efficiency test have not been revalued and the petitioner has been singled out for hostile discrimination. He points out that after the elaborate exercise undertaken by the PSC for finding out whether there were malpractice or corruption in valuation of the answer papers, the action was taken only against the petitioner and nobody else, that too after finding that there was no malpractice or corruption and that the variation in marks were justifiable. W.P.(C)No. 30239 of 2003 -9- 6. I have considered the rival contentions in detail. I am of the opinion that the question as to whether the PSC has power to order revaluation of answer papers is already covered by Ext.P9 judgment, wherein a learned single Judge of this court has held as follows: “ 4. It is true that the applications for revaluation of answer sheets of the candidates were always rejected by the Public Service Commission saying that there is no Rule or order for the same. But, in the case at hand, some of the candidates who took the written test for the post of Sub Inspector of Police secured unusually high marks. The questions were comparatively tough and therefore several eye brows were raised and there were even newspaper reports making allegations against the correctness of the valuation. Therefore, the Public Service Commission thought it fit to have a second look at the valuation, and upon revaluation, it was found that some of the allegations were justified. It was also noticed that the petitioners marks on revaluation was far below when compared to the marks awarded in the first valuation. Therefore, it was decided to hold a third valuation and taking the average marks of the 2nd and 3rd valuations, it was found that the petitioner was not eligible to be included in the shortlist. Article 320 of the Constitution of India empowers the Public Service Commission to conduct the selection process and to advise candidates for appointment in State Public Service. The power to select and advise candidates includes the power to hold the written test, interview etc. In case it is found that there is any irregularity in the selection process, the Public Service Commission has got the power to rectify it. Rather, it is the duty of the Public Service Commission to conduct the selection process in a fair and proper manner. When power is conferred on an authority to do something, incidental or ancillary power required to effect exercise that power is also conceded to that authority. There the action of the Public Service Commission in revaluing the answer sheets of the petitioner and others is perfectly within jurisdiction. Accordingly, the challenge against Ext.P1 is repelled.” W.P.(C)No. 30239 of 2003 -10- 7. Of course, citing the decision in Sanjay Singh's case (supra) wherein despite the earlier Bench decision of the Supreme Court holding that revaluation process adopted by the PSC was valid, the Supreme Court held that, that decision does not prevent the later Bench from considering the validity of that process, the petitioner would contend that in this case also Ext.P9 judgment would not bar the petitioner from challenging the revaluation process again. I am not inclined to accept the same in so far as I am also of the view that the PSC should have the power to order revaluation in appropriate cases where allegations of serious irregularities or malpractice in the valuation itself requires to be investigated. But that cannot be a license for the PSC to order revaluation of individual answer papers in all cases whenever they find it fit to do so, in the absence of any statutory provision enabling them to undertake that exercise. In this case as is clear from the counter affidavits filed by the PSC, the PSC embarked on this process of revaluation because the Commission received complaints W.P.(C)No. 30239 of 2003 -11- alleging that certain candidates, through malpractices and corruption, were included in the short list of candidates eligible to be called for physical efficiency test for the particular post, published on 09.05.2002. They were impressed by the allegation that some candidates secured very high marks in the test, which test was of a descriptive nature. They were also alerted by some press reports containing the allegations of the same nature. In the counter affidavit dated 21.12.2009 they stated thus about the result of their investigation. “4. Considering all these aspects, the Commission decided to have a thorough checking and examination of the entire process of valuation of answer scripts. The result of this checking and examination is explained below: 5. The answer scripts of 45 candidates who secured marks above 70 in the written test and who passed in the Physical Efficiency Test and 24 scripts on random which secured marks below the marks of the last candidate in the list marks including the scripts of petitioners in 4 OPs were subjected to revaluation. On revaluation it was revealed that the difference between the original marks and marks on revaluation in the case of candidates who passed Physical Efficiency Test is 5 and below in the case of 5 candidates, between 5 and 10 in the case of 12 candidates and above 10 in the case of 24 candidates. As a general principle the difference upto 5% of the maximum marks between the first valuation and the second valuation was ignored as the difference is only marginal. In the case of candidates in whose case the variation is above 5% but below 10% of the maximum marks, the average of the original marks and revalued marks were taken as their final marks. In the W.P.(C)No. 30239 of 2003 -12- case of candidates in whose case the variation is 10% and above the scripts were subjected to a third valuation. The third valuation did not reveal much variation of marks from the second valuation. 6. It was found that the variation of marks is only on account of error of judgment of persons who valued the scripts or on account of mode of valuation and award of marks by the examiners. Since the questions were of a purely descriptive type hence abstract in nature this variation is more or less justifiable. From this process the Commission were satisfied that there had been no malpractice or corruption either in the conduct of examination or in the valuation of answer scripts by the examiners. The process of checking and revaluation resorted to by the Commission does not reveal any evidence of malpractice. 7. On revaluation, one of the candidates secured marks below the marks of the last candidate included in the list. This script was again subjected to a third valuation and in the third valuation also his mark remained below the mark of the last candidate in the list. The script was happened to be that of K.L. Sajimon (Reg.No.35105), the petitioner. Action was taken to delete his register number from the short list after issuing show cause memo.” (underlining supplied) 8. As is clear from paragraph 6 from the counter affidavit quoted above, on such investigation the PSC did not find any evidence of malpractice or corruption in the valuation. They found that there were differences in the mode of valuation adopted by three examiners. They also categorically admit that since the questions were of purely descriptive type and abstract in nature, the variation in marks is more or less justifiable. I am at a loss to W.P.(C)No. 30239 of 2003 -13- understand as to how after justifying the method of valuation by all three examiners, the PSC, on the ground that there is much difference between the marks given by the original examiner and the examiners who revalued the answer papers decided to exclude the petitioner alone from the further selection process. Admittedly the revaluation of all the answer papers valued by that particular examiner was not subjected to revaluation. Only answer papers of those persons who scored above 70 in the written test and who passed in the physical efficiency test were subjected to revaluation. The PSC discounted the fact that there were candidates who passed the physical efficiency test after scoring less than 70 but the cut off marks of 60 and above. Answer papers of such candidates valued by the same examiner were not subjected to revaluation. Admittedly, the very object of conducting the revaluation was to find out whether there was malpractice or corruption in the revaluation. After admittedly having found no malpractice or corruption in the revaluation, the PSC should have W.P.(C)No. 30239 of 2003 -14- stopped there, instead of further going into the process of examining whether there is much difference between the marks given by the original examiner and the examiner who revalued the answer papers of the petitioner, especially when they themselves found that such variation in marks is more or less justifiable. In fact as rightly pointed out by the learned counsel for the petitioner, in Sanjay Singh's case (supra) the Supreme Court held that a scaling down of marks on the basis of valuation by different examiners is not a justifiable method of awarding marks. Although the facts in that case are not exactly identical, I am of the opinion that the principle laid down by the PSC in that case can be adopted for deciding this case also. When admittedly variation in marks when valued by different examiners are a natural consequence, unless there is an allegation of malpractice, I do not think that one candidate can be singled out for exclusion on the ground that on revaluation, he scored far less marks than what the original examiner had given to him. In fact if such an exercise is undertaken W.P.(C)No. 30239 of 2003 -15- in every examination, a few candidates are likely to get less marks on revaluation. That cannot be a ground for exclusion of one candidate from the selection process on the basis of the revaluation especially when the rules do not permit such exclusion by revaluation. 9. But I do not find any merit in the contention of the petitioner that after having adopted the procedure of the University in revaluation of answer papers, the PSC should not have reduced the original marks since University Rules only permitted giving higher marks and not reducing the original marks. If that contention is accepted then the very object of the exercise undertaken by the PSC would be meaningless. The PSC only stated that for doing the revaluation they adopted the principle of the procedure followed by the Universities in Kerala. But that process must be confined for the purpose of ascertaining whether there were malpractices or corruption in the valuation process and not to exclude candidates on the basis of such revaluation. W.P.(C)No. 30239 of 2003 -16- 10. I am prompted to take this view, in view of another factor also. From the very inception of the dispute the petitioner has been diligently prosecuting his case by filing writ petition after writ petition. In fact one of the interim reliefs sought by him was to direct the University to produce the PSC answer script of the petitioner and the marks awarded to him in the three valuations in a sealed cover before this Court along with the answer keys supplied to the examiners. Ever since the show cause notice issued to the petitioner the issue was very much alive before this court. The PSC was very well aware of the same. That being so they were duty bound to preserve the answer papers. But they now say that they do not have the answer script for verification. The counsel for the PSC would rely on an observation in Sidhik's case (supra), wherein this court held that when the period prescribed for keeping the answer sheets have expired the Commission is not expected to keep them. The situation in that case and in this case are totally different. That is a case where the question of W.P.(C)No. 30239 of 2003 -17- production of answer sheets arose at the time of hearing. But here is a case wherein in the original petition itself the petitioner wanted production of the answer sheets for perusal of this court. That interim relief was not refused also. As such the PSC had a bounden duty to preserve the answer paper for judicial scrutiny, which admittedly they have not done. I am of the opinion that in the absence of the answer paper itself the benefit of doubt should go to the petitioner, especially when the PSC themselves in paragraph 6 of their counter affidavit dated 21.12.2009 categorically admitted that the variation in awarding marks by different examiners is more or less justifiable. 11. The reliance by the PSC on Rule 15A is misplaced. Rule 15A empowers the PSC to correct mistakes. Here they are not correcting any mistake