Telangana High Court
Kraanthi Kumar Maddhi vs V. Ramachandra Reddy on 3 June, 2019
Bench: V.Ramasubramanian, P. Keshava Rao
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
Coram :
* The Honourable Mr. Justice V.RAMASUBRAMANIAN
and
The Honourable Mr. Justice P. KESHAVA RAO
+ WRIT APPEAL Nos.1525, 1527, 1560, 1571, 1584, 1593, 1624, 1625, 1629,
1645, 1664, 1667, 1689 & 1697 OF 2018 AND 81 & 210 OF 2019
AND
WRIT PETITION Nos.43778, 44063, 44243 AND 44270 OF 2018
% Delivered on: 03-06-2019
Between:
# Ms. G. Rekha D/o Yadagiri & others .. Appellants/Respondent Nos.101,
90, 105, 106, 110, 118, 138, 126,
81, 116,102, 94, 92, 74, 129, 137,
79, 89, 125 & 77 in W.P.
No.18834/17
Vs.
$ Mr. V. Ramachandra Reddy S/o Kondal Reddy & 14 others
.. Respondents/ Writ Petitioners
The State of Telangana, rep.by its Prl.
Secretary, GAD, Telangana Secretariat, Hyd.
Telangana State Public Service Commission,
Rep.by its Secretary, Nampally, Hyderabad .. Respondents/ Respondent Nos.1
and 2
Mr.Garjala Praven Kumar S/o Ramachandru
& others .. Respondents/Respondents
! For Appellants : Mr. P. Gangaiah Naidu, Sr. Counsel
Mr. S. Ramachander Rao, Sr. Counsel
Mr. K.G. Krishna Murthy, Sr. Counsel
Mr. M. Lakshma Reddy, Sr. Counsel
Mr. Vedula Venkata Ramana, Sr. Counsel
Mr. D. Prakash Reddy, Sr. Counsel
Mr. J. Sudheer, Mr. Gopala Rao AmancharlaV.
^ For Respondents : Mr. C.V. Mohan Reddy, Sr. Counsel
Mr. M. Surender Rao, Sr. Counsel
Mr. G. Vidya Sagar, Sr. Counsel
Mr. P.B. Vijay Kumar,
Mr. Prabhakar Chikkudu,
Ms. B. Rachna Reddy and
Mr. D. Balakishan Rao, Standing Counsel
for TSPSC.
<Gist :
>Head Note :
? Cases referred :
1. (1992) 2 SCC 206
2. (2014) 14 SCC 95
2
VRS,J&PKR,J
W.A. No.1525 of 2018 & Batch
HONOURABLE SRI JUSTICE V. RAMASUBRAMANIAN
AND
HONOURABLE SRI JUSTICE P. KESHAVA RAO
WRIT APPEAL Nos.1525, 1527, 1560, 1571, 1584, 1593, 1624, 1625,
1629, 1645, 1664, 1667, 1689 & 1697 OF 2018 AND 81 & 210 OF 2019
AND
WRIT PETITION Nos.43778, 44063, 44243 AND 44270 OF 2018
COMMON JUDGMENT:(Per Hon'ble Sri Justice V. Ramasubramanian) While the Writ Appeals on hand arise out of a common order passed by the learned Single Judge in a batch of writ petitions, the writ petitions on hand challenge the list of selected candidates released by the Public Service Commission upon implementation of the order of the learned Single Judge.
2. We have heard Mr. P. Gangaiah Naidu, Mr. S. Ramachandra Rao, Mr. K.G. Krishna Murthy, Mr. M. Lakshma Reddy, Mr. Vedula Venkata Ramana and Mr. D. Prakash Reddy, learned Senior Counsel appearing for the appellants in the writ appeals, Mr. J. Sudheer and Mr. Gopala Rao Amancharla V., learned counsel appearing for the appellants in a few writ appeals, Mr. C.V. Mohan Reddy, Mr. M. Surender Rao and Mr. G. Vidya Sagar, learned Senior Counsel appearing for the respondents in the writ appeals along with Mr. P.B. Vijay Kumar, Mr. Prabhakar Chikkudu and Ms. B. Rachna Reddy, learned counsel appearing for the respondents, and also Mr. D. Balakishan Rao, learned Standing Counsel for the Telangana State Public Service Commission.
3. A brief history of this litigation is as follows: 3
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a) By a Notification, dated 30.12.2015, the Telangana State Public Service Commission invited applications for appointment to five different Categories of Posts included in the Group-II Services of the State.
b) A supplementary notification was issued on 01.09.2016 inviting applications for posts in thirteen (13) more Categories in the Group-II Services of the State.
c) Altogether, a total of 1032 Posts were advertised for being filled-
up.
d) The process of selection comprised of a written test for a maximum of 150 marks and oral interview for a maximum of 75 marks.
e) The written examinations were conducted on 11.11.2016 and 13.11.2016. A total of about 7,89,435 candidates applied. But, around 5,20,000 candidates took part in the written examination.
f) A list of candidates short-listed for certificate verification in the ratio of 1:3 was published on 01.06.2017 and the process of verification of certificates commenced on 12.06.2017.
g) In the meantime, lot of complaints were made to the Public Service Commission, immediately after the conclusion of the written examinations. A majority of the complaints pointed out serious lapses on the part of the Invigilators. One of the main grievances complained of by the candidates, was that the Invigilators originally distributed one set of Question Paper Booklets and OMRs and later changed the Question Booklets and 4 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch OMRs under the wrong impression that serial numbers of both should tally. But, by the time the replacement took place, some of the candidates in some of the Centres had already filled-up one portion of the OMR sheet. Therefore, after replacement of the OMR sheets, the columns already filled-up by others had to be erased and re-filled.
h) It appears that a total of 300 representations were received by the Public Service Commission. The Chief Superintendents of the examination centres and four District Collectors also sent letters to the Public Service Commission about this goof-up.
i) Therefore, in a meeting held on 26.11.2016, the Public Service Commission constituted a Technical Committee to examine the issue.
j) When the Technical Committee was examining the issue, a set of candidates approached this Court by way of a writ petition in W.P. No.3862 of 2017, complaining that their answer scripts were not evaluated on the ground that many of the columns in Part-A of the answer scripts were not properly filled-up. It was their grievance that the Invigilators were squarely responsible for the manner in which columns in Part-A got filled-up.
k) The Technical Committee constituted by the Public Service Commission submitted a report on 9/17.03.2017 recording a finding that the mistake was on the part of the Invigilators.
l) But, unfortunately, the report of the Technical Committee was not placed by the Public Service Commission before this Court, when 5 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch the writ petition, W.P.No.3862 of 2017 came up for hearing. Therefore, a learned Single Judge of this Court, by an order, dated 24.04.2017, dismissed the W.P. No.3862 of 2017, holding that the candidates had to blame themselves for the improper filling-up of personal details in Part-A of the answer scripts. It is relevant to point out at this stage that the OMR answer sheet had three distinct parts. The first Part contained columns for filling up the Candidate's Roll Number, Question Booklet Number, Paper Code, Venue Code and Booklet Series. The second Part contained boxes/circles as against 150 questions and the candidates were expected to bubble the box that correlated to the choice of answer that they wanted to pick for every question. The third part contained boxes for the name and signature of the Invigilator and the signature of the candidate.
m) As pointed out above, the writ petition, W.P. No.3862 of 2017, was dismissed by a learned Single Judge, holding the candidates responsible for the mishap, though a Technical Committee appointed by the Public Service Commission had already recorded a finding that the fault lay partly in the hands of the Invigilators. But, the report of the Technical Committee dated 9/17.03.2017 was not placed before this Court, though the writ petition was decided only on 24.04.2017.
n) Despite the dismissal of the writ petition on 24-04-2017, the Public Service Commission constituted a Sub-Committee to find out the action to be taken on the report of the Technical 6 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch Committee. This Sub-Committee of the Public Service Commission, by a resolution, dated 06.05.2017, approved the findings of the Technical Committee.
o) Later, the Public Service Commission proceeded to publish a list of short-listed candidates on 01.06.2017 for certificate verification. This list included candidates whose answer papers came to be evaluated on the basis of the recommendations of the Sub-Committee. The certificate verification process commenced on 12.06.2017.
p) Immediately, a writ petition was filed in W.P. No.18834 of 2017 by a group of fifteen (15) candidates contending that the candidates, who had committed errors in filling up the details in Part-A of the OMR answer sheet, are not entitled to have their answer scripts evaluated, especially in the light of the judgement in W.P. No.3862 of 2017. While ordering notice in the writ petition, a learned Single Judge granted stay on 12.06.2017.
q) Thereafter, few more writ petitions followed. The flood-gates were thus opened not only on one side but also on both sides with several candidates seeking to implead themselves as parties, either to support the cause of the writ petitioners or to oppose.
r) In the said batch of writ petitions, W.P. No.18834 of 2017 batch, the challenge was two fold, viz., (i) the evaluation of OMR sheets of candidates, who committed mistakes (either on their own or due to the Invigilators' faults) while filling up details in Part-A; and (ii) the questions that went wrong.
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s) While addressing the first issue, viz., that of filing up of wrong particulars in Part-A of the OMR sheets, the learned Single Judge felt constrained to constitute a Committee of three Senior Advocates of this Court to scrutinize the OMR sheets of about 5000 candidates, who had secured top merit and from out of whom candidates were picked for certificate verification in the ratio of 1:3. By an order, dated 28.02.2018 the committee of three Senior Advocates was constituted by the learned Single Judge and the mandate given to them was also defined in the said order.
t) The Committee filed a report, copies of which were furnished to the counsel on either side, and objections invited. u) The Committee made certain recommendations in their report, after examining which, the learned Single Judge disposed of W.P. No.18834 of 2017 batch of cases by a final order, dated 12.10.2018. Certain directions were issued by the learned Single Judge for the re-verification of the OMR sheets. The learned Single Judge also directed that the answer sheets of candidates, who committed mistakes while filling up the columns in Part-A of the OMR sheet, should not be valued.
v) Pursuant to the judgment of the learned Single Judge, the Public Service Commission carried out the exercise ordained to them and came up with a fresh list of candidates.
w) Aggrieved by the judgment of the learned Single Judge, candidates, who were parties, and candidates, who were not 8 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch parties to the writ petitions, have come up with the above writ appeals.
x) Similar candidates whose names were earlier found in the list of short-listed candidates for certificate verification, but whose names now stand deleted after implementation of the judgment of the learned Single Judge, have come up with independent writ petitions.
Thus, we have on hand a batch of writ appeals challenging the judgment of the learned Single Judge. These writ appeals are filed by parties as well as non-parties to the writ petitions. In addition to the writ appeals, we also have a set of writ petitions challenging the refusal of the Public Service Commission to evaluate the answer sheets of some candidates either on the ground that there were bubbling errors in filling up Booklet number/venue code or on the ground that invigilators had not signed in the column reserved for the purpose at the bottom of the OMR answer sheet.
4. As we have pointed out earlier, the learned Judge thought that two (2) issues arose for consideration in the batch of Writ Petitions before him. The first related to the evaluation of OMR sheets of candidates who had committed mistakes in filling up the columns in Part-A of the answer scripts. The second related to the correctness or otherwise of some of the questions and answers.
5. On the second question relating to the correctness of some questions and answers, the learned Judge noted that the Writ Petitioners 9 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch had grievances (i) with respect to revised final key answers for '13' questions, (ii) with respect to deletion of '17' questions, and (iii) with respect to the prescription of multiple choices in '14' questions. The learned Judge came to the conclusion that on the revised final key, no interference was called for except in respect of Question No.113. Two (2) questions were accepted by the Government Pleader to be defective and hence they were directed to be deleted. Anyway, the findings of the learned Judge on the issue relating to the correctness of some of the questions and answers, is not under challenge before us in any of the Writ Appeals.
6. What is under challenge before us, is only the finding of the learned Judge on the issue relating to the evaluation of the answer papers of candidates who had committed mistakes while filling up Part- A of the OMR sheets. Therefore, it is enough for us to see what was the scope of the challenge on this issue and how the learned Judge dealt with the same.
7. As pointed out earlier, the learned Judge appointed a Committee of Three (3) Senior Advocates. The task assigned to the Committee was to examine the OMR sheets of about 20,000 candidates and to find out the extent of corrections made etc.
8. The mandate given by the learned Judge by his Order, dated 28.02.2018 to the Committee of Three Senior Advocates, was extracted 10 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch by the learned Judge himself in para 57 of the Order impugned in the Writ Petition. It reads as follows:-
"3. Broadly the Committee is requested to examine extent of corrections made; whether those corrections were genuinely made as sought to be projected; impact of such corrections; number of candidates who are involved in making such corrections in the short listed candidates in the ratio of 1:3 and candidates now identified to subject them to oral interview; whether such corrections vitiate entire selection process, even assuming those corrections were not made intentionally. It is also necessary to ascertain whether such mistakes were repeated even in second session of 11.11.2016 and on 13.11.2016; whether there were mistakes committed by candidates without regard to mismatch of question paper booklet series and OMR sheet series; whether manual verification can result in influencing the performance of a candidate; whether such mistakes are all pervasive; whether only few short listed candidates resorted to such corrections and if so, what is the nature of corrections/mistakes made by them; whether the corrections are made inter se between two candidates whose OMR sheets were exchange on the ground of mismatch of the booklets series and OMR sheets series; the Committee shall also consider whether such corrections were made because of confusion on mismatch or mistakes were committed by the candidates on their own; whether manually also is it possible to match candidates name, roll number and question paper booklet and whether is it possible for the scanning agency to identify and match correct OMR sheets to right candidate.
4. The above parameters are only suggestive and it is for the Committee to look into any other aspect and make an assessment on the entire exercise undertake by TSPSC."
9. The Committee of Three (3) Senior Advocates appointed by the learned Judge filed their report. The salient features of the report submitted by the Committee of Three (3) Senior Advocates, as extracted by the learned Judge in para 93 of the impugned Judgment, read as follows:-
11
VRS,J&PKR,J W.A. No.1525 of 2018 & Batch "1. The Committee divided physical verification into three parts. First part verification was confined to OMR sheets of short listed candidates in the ratio of 1:3 i.e., 3027, excluding 120 candidates whose OMR sheets contained errors; second part verification as OMR sheets of candidates ranked from 3147 to 5000; and lastly, OMR sheets of 120 candidates separate from 3147 list.
2. PSC undertook three stage process to evaluate OMR sheets. OMR sheets are scanned for creating JPEG images and stored in hard disk, at the second stage part-A of OMR sheet scanning was undertaken; and at the third stage Part-B of OMR sheet is scanned twice. After this scanning process computer develops error list of candidate who committed errors in Part-A, errors in darkening, use of whitener or scratching of bubbles.
3. 55,000 candidates are found to have committed errors in Part-A.
4. PSC decided to evaluate performance of candidates ignoring errors noticed by computed in Part-A.
5. PSC took raw data from scanning of OMR sheets in Parts-'A' and 'B' by applying separate software programme in its office, evaluated the raw data and allotted marks to the candidates.
6. OMR scanner would not pick up corrections made by applying whitener."
10. The findings recorded by the Committee specifically in relation to the issues referred to them, were also recorded by the learned Judge in paragraph No.94 of the impugned Judgment. They read as follows:-
"Q.3. Impact of such corrections?
Ans: Candidates who would otherwise be eliminated due to the errors in Part-A have been brought back into the evaluation process.
Q.6. Whether such mistakes/corrections were made in the afternoon session of 1.11.2016 and 13.11.2016?
Ans: Such mistakes were detected by the Committee even for the subsequent papers in the tests which were conducted in the afternoon sessions of 11.11.2016 and 13.11.2016.12
VRS,J&PKR,J W.A. No.1525 of 2018 & Batch Q.7. Whether the corrections were made even if there was no mismatch between QPB and OMR?
Ans: Yes Q.10. Whether only few short listed candidates resorted to such corrections and if so? Ans: 120 candidates were identified on this count by TSPSC. The Committee had identified some more OMR sheets, set out in the tables above, in which TSPSC has taken a call to ignore the corrections/errors on the ground that these errors/corrections do not merit disqualification.
Q.11. What is the nature of the mistakes/corrections made by them? Ans: The mistakes appear to be wrong bubbling, no bubbling or double bubbling of the information relating to Roll Numbers, question paper booklet number, test book series number in Part-A of the OMR sheets.
Q.12. Whether the mistakes are made inter se between two candidates whose OMR sheets were exchanged?
Ans: The Committee could not identify such instances from the material available. Q.13. Whether mistakes were made due to confusion or due to their own mistakes? Ans: Most errors appear to have been done due to confusion in bubbling the correct numbers in Part-A. The Committee has noticed that since '0' was mentioned as the 1st number in each row, the candidates started darkening the number in the circles treating the zero as '1' and having realized the mistake, tried to correct ikt.
Q.16. Committee can examine any other aspect and make an assessment on the entire exercise taken up by TSPSC.
A. To avoid any possibility of such erasure/alteration in Part-A of the OMR sheets, the Committee feels that the short listed candidates should be verified manually as the scanner cannot register whitener or any other colour ink except blue and black.
B. In the OMR sheets, no intervention by TSPSC was seen."
11. On the basis of the findings of the Committee of Three Senior Advocates, the learned Judge came to the conclusion (i) that the Public 13 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch Service Commission erred in undertaking the evaluation of OMR sheets of candidates which contain bubbling errors including scratching and use of whitener, and (ii) that however the evaluation of the answers of few candidates who committed such mistakes would not vitiate the entire selection process.
12. Therefore, in fine, the learned Judge summarized his conclusions and directions in paragraph No.100 of his Judgment, which read as follows:-
"1. There is no infirmity in the selection process to conduct recruitment to Group II service pursuant to recruitment notification No.20 of 2015 dated 30.12.2015, per se to hold that selection process is vitiated. Selection process cannot be held vitiated merely because the OMR sheets of few candidates who have committed errors such as, wrong bubbling, no bubbling or double bubbling of the information relating to Roll number, question paper booklet number, used Whiteners/used Erasers were evaluated. Such candidates are identifiable and can be separated. The candidates who have committed such mistakes can be excluded and rest of the selection process can be continued.
2. The candidates who have committed errors in bubbling, such as wrong bubbling, no bubbling or double bubbling of the information relating to Roll number, question paper booklet number, centre code etc. used whiteners/used Erasers, shall be excluded from consideration for certificate verification process in the ratio of 1:3 and for subjecting them to interview in the ratio of 1:2. TSPSC may continue selection process after excluding the candidates referred to above.
3. Exclusion of few questions, change of answers in revised final key and prescribing more than one option as valid do not vitiate the selection process on that ground.
4. TSPSC shall exclude Question No.111 of Part III: CD series and question No.93 of Paper IV:
CD series. This is in addition to questions already excluded.14
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5. TSPSC shall treat option No.3 in question 113 of Part IV: CD series only as valid answer.
6. TSPSC shall re-evaluate the merit of candidates after excluding Question No.111 of Part III: CD series and Question no.93 of Paper IV: CD series and treating Option '3' only as the correct answer to Question No.113 of Part IV: CD series to arrive at the final list of candidates for certificate verification in the ratio of 1:3.
7. For the questions which are deleted, only those candidates who have attempted the said questions should be awarded marks.
8. As substantial number of candidates are to be excluded and two additional questions are to be deleted and for one questions answer changes, there is no certainty as to who would be in the final list of candidates called in the ratio of 1:3 for certificate verification. Therefore, the contention of Special Government Pleader that petitioners are not in the zone of consideration even after excluding some candidates and that petitioners have not suffered legal injury and therefore no adjudication is required on various contentions urged is stated to be rejected.
9. As the Committee of Senior Advocates opined that the OMR machine reader was not recognizing the use of whitener, before finalizing the list of candidates for interview, the TSPSC shall physically verify the OMR sheets to ascertain whether any of the candidates used whitener to change the answers in Part-B and personal particulars in Part-A and exclude candidates who have used whiteners. The proceedings of such verification should be conducted in the presence of Member-Secretary and two members of the TSPSC;
should be video graphed; and be stored at least for a period of six months after finalization of selections.
10. If any candidate applies for verification of his OMR sheet, images of such candidate's manual verification of OMR sheet be captured and furnished to him/her."
13. The impugned Judgment of the learned Judge is assailed by the learned Senior Counsel and learned Counsel appearing for the appellants on various grounds. Instead of extracting the contentions of everyone of the learned Senior Counsel separately, we would summarise 15 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch the contentions of all of them, for easy appreciation and then deal with them.
14. Broadly, the grounds of attack to the impugned Judgment are:
(i) that the impugned Judgment is vitiated for non-
impleadment of necessary and proper parties, who were likely to be affected by the outcome;
(ii) that even admittedly, the OMR answer scripts contained '3' parts i.e., Part-A, Part-B and Part-C, of which Part-B alone contained boxes for bubbling the correct choice of the answer to the questions and hence any mistake in filling up Part-A or Part-C should not throw meritorious candidates out of the contest;
(iii) that the requirement for filling up the particulars in Part-A and Part-C can only be considered as directory and not mandatory;
(iv) that, in any case, both the Technical Committee of the Public Service Commissioner and the Committee of Senior Advocates clearly found that the invigilators were responsible for the mistakes in Part-A and Part-C and hence the candidates cannot be penalized; and
(v) that the learned Judge committed a grave error in directing the manual evaluation/manual examination of the answer scripts, thereby striking at the very root of the conduct of an objective type examination with OMR sheets. 16
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15. The Writ Appeals are resisted not only by the learned Additional Advocate General appearing for the State as well as the Public Service Commission but also by a few individuals who succeeded before the learned Single Judge. The contentions of the respondents who are represented by the learned Additional Advocate General and a few learned Senior Counsel are:
(i) that the non-impleadment of necessary and proper parties cannot be sustained as a ground of attack, in view of the fact that a majority of the candidates whose names were found in a list furnished by the Public Service Commission, who were likely to be affected by the outcome of the writ petitions were made parties to the Writ Petitions;
(ii) that '8' candidates who filed the first Writ Petition W.P.No.3862 of 2017 were made parties to the Writ Petition;
(iii) that '3' sets of instructions were issued to the candidates, one found in the notification, the second found in the Hall Ticket, and the third found in the booklet question, all of which made it clear that the OMR sheets should not be tampered with;
(iv) that the instructions issued by the Public Service Commission are statutory in character and hence they are binding on all the parties including the Service Commission;17
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(v) that the answer scripts provided in the form of OMR sheets cannot be artificially segregated into Part-A, Part- B and Part-C, so as to belittle the mistakes committed in one part;
(vi) that persons who committed mistakes in the answer scripts cannot claim equality of treatment with others; and
(vii) that the sanctity attached to the OMR sheets cannot be diluted by relaxing the instructions given to candidates.
16. We have carefully considered the rival contentions. We shall deal with every-one of them seriatim.
Non-impleadment of necessary and proper parties
17. The first ground of attack to the impugned judgment is that persons whose answers scripts were evaluated by the Public Service Commission on the basis of the report of the Technical Committee and the recommendations of the Sub-Committee, were not made parties to the writ petitions, though the challenge in the writ petitions was to the evaluation of their answer scripts.
18. It is seen from the reliefs sought in W.P. No.18834 of 2017 that the writ petitioners prayed for a declaration that the candidates, who committed mistakes in filling up their personal details in the OMR sheet, are not entitled to have their answer sheets evaluated. In W.P. No.18929 of 2017 also, one of the reliefs prayed for was to set aside the merit list, which included candidates who had filled up their personal 18 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch details wrongly in the OMR sheets. But, persons whose answer sheets were so evaluated were not made parties to the writ petitions. Therefore, the appellants are justified in assailing the impugned judgment on the ground of non-impleadment of necessary and proper parties.
19. But, it is contended by Mr. Surender Rao, learned Senior Counsel for the respondents (who were the writ petitioners) that eight (8) candidates who were the petitioners in W.P. No.3862 of 2017 were made parties to one of the writ petitions. Apart from impleading them, the writ petitioners also secured a list of candidates who were the beneficiaries of the decision taken by the Public Service Commission. The Public Service Commission furnished a list of 120 candidates. Out of them, only 74 were included in the list of candidates short-listed. Some of them got impleaded in the writ petitions by filing necessary applications. Some of them are now before the Division Bench by filing Writ Appeals. Therefore, it is contended by the learned Senior Counsel that the contention regarding non-impleadment is not fully correct and that in any case it did not vitiate the impugned judgment.
20. We agree with the aforesaid contention of the learned Senior Counsel appearing for some of the contesting respondents. It is not the case of the writ appellants that none of the candidates, who were likely to be affected by the impugned judgment, were ever heard by the learned single Judge. Apparently and admittedly, at least some of the candidates, who allegedly made mistakes in filling up the columns in OMR sheets and whose answer papers were evaluated, were either made 19 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch or later became parties to the writ petitions and they were also heard by the learned Single Judge. Therefore, this is not a case where the opposite view point was never heard by the learned Single Judge. In fact, after the judgment of the learned Single Judge, a fresh list has been prepared by the Public Service Commission. Candidates, who now stand deleted due to the implementation of the impugned judgment, have also come up with writ petitions. Therefore, it is not possible to set aside the judgment of the learned Single Judge solely on the ground of non- impleadment of all the necessary and proper parties.
21. We must also bear in mind one important aspect. The writ petitioners had not come up with specific grievances as against the individual candidates. The grievance of the writ petitioners was primarily against the policy decision taken by the Public Service Commission, to evaluate the answer scripts of even those who had committed mistakes while filling up the details in Part-A of the answer scripts. The Law is well-settled to the effect that when a policy is attacked, it is enough if a few beneficiaries of such policy are heard, before the Court took a view on the correctness of the policy. Hence, the first ground of attack to the impugned judgment is liable to be rejected. Whether the instructions were directory or mandatory
22. The second ground of attack to the impugned judgment is that the OMR sheets provided to the candidates comprised of three Parts, viz., Part-A, Part-B and Part-C, of which Part-B alone contained boxes/ circles for bubbling the correct choice of the answer to the questions. 20
VRS,J&PKR,J W.A. No.1525 of 2018 & Batch Part-A contained columns for filling up details such as the roll number of the candidate, question book-let number, paper code, venue code and test book-let series. Part-C contained boxes for filling up the name of the candidate and the signatures of the candidate and the invigilator. Therefore, according to the writ appellants, the mistakes even if any, committed while filling up columns in Parts-A and C are insignificant and do not co-relate to the merit of the candidates. Hence, it is contended by the appellants that the general instructions issued to candidates to be careful in filling up details, should be taken to be mandatory only in so far as Part B is concerned and to be merely directory in so far as Parts A and C are concerned and that therefore, the rejection of the answer sheets of candidates who committed mistakes in Parts A and C, according to the appellants, is wholly unjustified. But, as per the judgment of the learned Single Judge, even the candidates, who committed mistakes in bubbling the correct boxes in Part-A and candidates whose answer sheets contained mistakes in Part-C, have also been thrown out of the selection process and hence the appellants contend that the impugned judgment is liable to be set aside.
23. The correctness of this contention, on facts and in law, can be tested only after having a look at the answer sheet provided to the candidates, in OMR Format. The image of the OMR sheet looks as follows:
21
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24. It may be seen from the above image of the OMR answer sheet that the answer sheet by itself is not divided into Part-A, Part-B and Part-C. But, the OMR sheet contains three portions, the first of which requires the filling up of details, such as roll number of the candidate, question book-let number, paper code, venue code and test book-let series. The second part of the OMR sheet contains spaces reserved for choosing the correct answer out of four multiple choices given to the 150 questions. There are four circles as against each of the 150 questions. The candidates are supposed to darken one of the four circles which correlate to the correct choice of the answers to the questions.
25. The third portion of the OMR sheet comprises of three boxes, one reserved for writing the name of the candidate, another reserved for the signature of the candidate and the third reserved for the signature of the Invigilator.
26. By its very nature, OMR (Optical Mark Recognition) devices will not read anything contained in the three boxes found at the bottom of the OMR sheet, which we have referred to as the third portion of the OMR sheet for the purpose of convenience. The name of the candidate written by hand, the signature of the candidate and the signature of the invigilator within the boxes earmarked in the third portion of the answer sheet, cannot be read by OMR device.
27. If we have a look at the way OMR devices work, it could be seen that many of them work with a dedicated scanner that shoots a beam of light on to the answer paper. The light gets reflected from pre- 23
VRS,J&PKR,J W.A. No.1525 of 2018 & Batch determined locations on the answer sheet. Wherever the pre-determined locations are darkened, the light reflected from those areas is either minimal or nil, in contrast to the light reflected from locations which contained blanks. Therefore, the third part of the answer sheet whose image is extracted above, which contains three boxes, one for the name of the candidate, another for the signature of the candidate and the third for the signature of the invigilator, is of no relevance to the evaluation of the answer sheet by the OMR device and the scanner.
28. But, the first part of the OMR answer sheet which contains provisions for filling up the roll number, question book-let number, paper code, venue code and test book-let series, is in the format readable by the OMR device and the scanner. Therefore, if a candidate has bubbled the circles in the first part of the OMR answer sheet wrongly or if they have tampered with the first part by erasing the ink from the space darkened earlier so as to darken another circle/box, the OMR device is prone to reject such an answer sheet, irrespective of whether the mistake is on the part of the candidate or on the part of the invigilator and irrespective of whether the mistake has something to do with the merit of the candidate or not. It is true that the second part of the OMR sheet alone, containing four circles against 150 questions, determines the merit of the candidate. But, the OMR device does not segregate a sheet into two parts, one focussed on assessing the merit of the candidate and another focussed on personal information. The OMR devices do not also have any emotions or sympathies so as to identify the candidates who have suffered due to the wrong instructions of the 24 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch invigilators. Therefore, in the first instance, the OMR device seems to have rejected the answer sheets of the candidates, who had committed mistakes, while filling up the columns in the first part relating to roll number, question book-let number, paper code, venue code and the test book-let series. This rejection came to be challenged in a writ petition in W.P. No.3862 of 2017, but the challenge failed.
29. Even when the challenge was pending before this Court in W.P. No.3862 of 2017, the Public Service Commission seems to have appointed a Technical Committee to go into the grievances of the candidates, who claimed to have suffered on account of the invigilators issuing one OMR answer sheet, in the first instance, and later taking the same back and issuing another OMR sheet. This Committee seems to have submitted a report on 09/17.03.2017 recording a finding that due to the mistake committed by the invigilators, the candidates had suffered. The writ petitioners in W.P. No.3862 of 2017 were not aware of this report. The Public Service Commission also appears to have suppressed this report, either by default or by design. Therefore, this Court rejected W.P. No.3862 of 2017, without being aware of the report of the Technical Committee.
30. Thinking that the dismissal of the writ petition would not preclude them from taking corrective measures, the Public Service Commission evaluated the answer sheets of those candidates who suffered due to the mistakes on the part of the invigilators. It is this decision of the Public Service Commission that came to be assailed in the batch of writ petitions before the learned Single Judge. 25
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31. Actually what was an issue before the learned Single Judge was the legality of the decision of the Public Service Commission in taking corrective action on the basis of the report of the Technical Committee and Sub-Committee, especially in the light of the dismissal of W.P. No.3862 of 2017? But, instead of restricting the scope of the writ petitions to this core question, the learned Single Judge appointed a Committee of Three Senior Advocates to scrutinise about 20,000 answer sheets.
32. We have our own doubts about the process so adopted by the learned Single Judge, in appointing a Committee of Three Senior Advocates, to check the answer sheets. As we have stated earlier, what was under challenge before the learned Single Judge was the correctness of the decision of the Public Service Commission to evaluate the answer sheets of the candidates who cried foul due to the mistakes committed by the Invigilators and whose cries were examined by the Technical Committee of the Public Service Commission. The learned Single Judge could have accepted or rejected the action taken by the Public Service Commission on the basis of the report of the Technical Committee and the recommendations of the Sub-Committee. There was actually no question of appointing a Committee of Three Senior Advocates to carry out the very same task or a higher task as carried out by the Technical Committee appointed by the Public Service Commission. The manner in which the Technical Committee carried out its task was not the subject matter of challenge, but what was under challenge was the very action 26 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch taken by the Service Commission in constituting a Technical committee. Therefore, there was no scope for appointing another committee.
33. The Supreme Court has repeatedly cautioned against any interference with the opinion of the Expert Bodies. If what was done by the Public Service Commission in appointing a Technical Committee was wrong, the same could not have been set-right by the appointment of one more Committee (of Three Senior Advocates). If what was done by the Public Service Commission in appointing a Technical Committee was right, then there was no necessity to appoint a Committee of Three Senior Advocates. Therefore, either way the appointment of a Committee of Three Senior Advocates, cannot be accepted as correct.
34. Generally the approach of courts should be to refrain from appointing Committees for examining contentious issues, especially after expert bodies have appointed committees and examined those issues. There is a rationale behind this approach and it is this. If the Public Service Commission had not appointed a Technical Committee, the Service Commission would have prepared a list of selectees (we shall call it List-1). But the Service Commission appointed a Technical Committee and took action on the basis of their findings, which resulted in the publication of a list of selectees (this is List-2). Now, after the learned Judge appointed a Committee of 3 Senior Advocates and made certain recommendations, a fresh list of selectees has been prepared (List-3). In this List-3, some persons whose names were found in List-2 are not found and some persons whose names were not found in List-2 are included. Therefore, more and more people have become aggrieved 27 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch with the scope of the lis ever expanding and the remedy becoming worse than the disease. Therefore, it is better for Courts to avoid the appointment of Committees.
35. Coming back to the answer scripts and the mistakes committed by the candidates in filling-up the columns in the first part of the OMR sheet, the arguments advanced on both sides center around the question whether the mistakes committed in the first or last part of the answer sheets are so fatal as to deprive a candidate of the very right of evaluation of their answer sheets. On the side of the writ appellants, it is argued that the mistakes, if any, committed in the first part and the last part of the OMR answer scripts are not very fatal. But, it is argued by the learned counsel for the respondents that in an objective type examination, the instructions issued to the candidates are inviolable and that the candidate can afford to commit a breach only at his own peril.
36. The instructions to candidates, contained in three places are relied upon by the respondents. In the first place, even the notification inviting the applications (including the supplementary notification) made it clear that the candidates should fill-up all the relevant columns in the answer sheet correctly, failing which the answer sheet will be rejected. Secondly, the instructions contained in the Hall-ticket also made it clear that it is the responsibility of the candidate to ensure encoding of the Register Number, Subject Code etc., failing which the answer sheet will be rejected. Thirdly, there were instructions in the question paper booklet also, warning the candidates that the columns are to be filled-up properly as otherwise the answer book will not be valued. 28
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37. Let us now take a look at the instructions relied upon by the respondents, which are found (i) in the Notification, (ii) in the Hall- ticket and (iii) in the Question Paper Booklet.
38. The Notification for recruitment contained about five Annexures. Annexure - IV contained two different sets of instructions to candidates. Part-A of Annexure - IV of the Notification contained general instructions to candidates. Part-B of Annexure - IV contained instructions regarding off-line OMR based examination for candidates. Instruction No.3 in Part-B of Annexure - IV of the Notification reads as follows:
"3) Since the answer sheets are to be scanned (valued) with Optical Mark Scanner system, the candidates have to USE BALL POINT PEN (BLUE/BLACK) ONLY FOR MARKING THE ANSWERS. The candidates will be supplied OMR Sheet consists of two copies i.e., the Original Copy (Top Sheet) and Duplicate Copy (Bottom Sheet).
The candidate is required to use Ball Point Pen (Blue or Black) for filing the relevant blocks in the OMR Sheet including bubbling the answers. After writing the examination the candidate has to handover the original OMR sheet (Top Sheet) to the invigilator in the examination hall, if any candidate takes away the original OMR Sheet (Top Sheet) his/her candidature will be rejected. However the candidate is permitted to take away the duplicate (Bottom Sheet) OMR Sheet for his/her record. The candidates should bring Ball Point Pen (Blue/Black and smooth writing pad) to fill up relevant columns on the Answer Sheet. The candidate must ensure encoding the Register Number, Subject/Subject Code, Booklet Series, Name of the Examination Centre, Signature of the Candidate and Invigilator, etc., on the O.M.R. Answer sheet correctly, failing which the Answer sheet will be rejected and will not be valued. Use of whitener on OMR Sheet will lead to disqualification."
29
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39. The second place where similar instructions are found, is the Hall-ticket. Instruction No.12 contained in the Hall-ticket reads as follows:
"12. Since the answer sheets are to be scanned (valued) with Optical Mark Scanner system, the candidates have to USE BALL POINT PEN (BLUE/BLACK) ONLY FOR MARKING THE ANSWERS. The candidates will be supplied OMR Sheet consists of two copies i.e., the Original Copy (Top Sheet) and Duplicate Copy (Bottom Sheet). The candidate is required to use Ball Point Pen (Blue or Black) for filing the relevant blocks in the OMR Sheet including bubbling the answers. After writing the examination, the candidate has to handover the original OMR sheet (Top Sheet) to the invigilator in the examination hall. If any candidate takes away the original OMR Sheet (Top Sheet), his/her candidature will be rejected. However the candidate is permitted to take away the duplicate (Bottom Sheet) OMR Sheet for his/her record. The candidates should bring Ball Point Pen (Blue/Black and smooth writing pad) to fill up relevant columns on the Answer Sheet. The candidate must ensure encoding the Register Number, Subject/Subject Code, Booklet Series, Name of the Examination Centre, Signature of the Candidate and Invigilator, etc., on the O.M.R. Answer sheet correctly, failing which the Answer sheet will be rejected and will not be valued. Use of WHITENER/BLADE OR ERASER ON OMER SHEET WILL LEAD TO INVALIDATION OF OMR ANSWER SHEET."
40. The third place where similar instructions are found, is the Question Paper Booklet itself. Instruction No.17 in the Question Paper Booklet reads as follows:
"17. The script will not be valued if the candidate:
i) Writes the Hall Ticket No. in any other place of OMR sheet, except in the space provided for the purpose.
ii) Writes irrelevant matter, including the religious symbols, words, prayers or any communication whatsoever, in any place of the OMR Answer Sheet.
iii) Uses other than Blue/Black Ball Point Pen to darken the circles.30
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iv) Forgetting to bubble the Test Booklet series or bubbling the other Test Booklet Series code than supplied to him/her.
v) Bubbling the circles incompletely or using √ or x in the circles.
vi) Using of whitener on the Answer Sheet.
vii) If attempts any type of tampering (rubbing the circles with chalk powder/scratching the circles with razors etc.) on the OMR Answer Sheet.
viii) Adopts any method of malpractice."
41. Arguments were advanced on both sides on the question whether these instructions are directory or mandatory and as to whether the breach of these instructions even in relation to the first or third part of the OMR Answer Sheet could be fatal to the candidate or not.
42. But, in our considered opinion, the question whether these instructions are directory or mandatory and whether they could be fatal to the case of the candidates or not, is actually secondary. This is in view of the fact that the primary grievance with which hundreds of candidates knocked at the doors of the Public Service Commission at the earliest point of time (immediately after the examination), was that the Invigilators committed a mistake in distributing wrong Question Booklets and later taking them back and replacing them with right Question Booklets. The District Collectors also sent reports to the Public Service Commission about these goof-up. This forced the Public Service Commission to constitute a Technical Committee which submitted a report on 09/17.03.2017. The learned Single Judge, in his impugned judgment has not dealt with the report of the Technical Committee at least to find out where the mistake laid. Instead of looking at the 31 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch report of the Technical Committee, the learned Single Judge appointed a Committee of Three Senior Advocates to carry out the very same task or a higher task.
43. It is seen from the report of the Technical Committee that the examinations were conducted on 11.11.2016 and 13.11.2016. It is stated in the report that representations were received from about 300 candidates, complaining about what happened in the examination halls. Therefore, by proceedings, dated 06.12.2016, the Public Service Commission constituted a Technical Committee. In the first paragraph of the report of the Technical Committee, it is stated that the Technical Committee was constituted to look into the issues concerning the mismatch between Question Paper Booklet and OMR and other related issues.
44. The Technical Committee comprised of (i) the Registrar of Jawaharlal Nehru Technological University, Hyderabad, (ii) a Professor of the University College of Law, Osmania University, (iii) the Director, National School of Banking and (iv) the Additional Secretary of the Public Service Commission.
45. In its report dated 09.03.2017, the Technical Committee of the Public Service Commission identified thirty (30) issues and grouped them under three different heads. The issues identified by the Technical Committee are as follows:
"Part (A):
1. In the Roll No. column the number is written but bubbling not made
2. Number not written but bubbling made
3. Number written but corrections made 32 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch
4. Multiple bubbling made in case of registered numbers
5. Mismatch between the number written and number bubbled
6. In question booklet blocks the question booklet is not matching with OMR sheet bar code number
7. Roll No. Struck-off and re-written
8. Question booklet no.wrongly bubbled
9. question booklet no.multiple bubbling
10. Question booklet no.in blocks- corrections made
11. Paper code-wrong number mentioned
12. Paper code-wrong bubbled
13. Paper code-corrections made
14. Venue code-wrong number mentioned
15. Venue code-wrongly bubbled
16. Venue code-corrections made
17. Question booklet series- Code one of the following: AB, BC, CD, DA need to be mentioned, but not done
18. Question Booklet Series- Code mentioned but not bubbled
19. Question booklet series- Code mentioned but wrong code bubbled
20. Question booklet series- Code mentioned but bubbled in the same column
21. Question booklet series- Code not mentioned but bubbled Part (B):
22. Information related to the performance of the candidate where corrections were made in certain cases and whitener applied in some others Part (C):
23. In the Name of the candidate block more than two names found
24. In the Name of the candidate block more than two names found but one name struck down
25. In the Signature of the candidate block more than two signatures found
26. In the Signature of the candidate block more than two signatures found but one cancelled
27. In the Name of the candidate block no name found in the Signature of the candidate block no signature of the candidate is found
28. Signature of the Invigilator not found in the prescribed column
29. In respect of one test centre namely Centre No.31196, MESCO Grade School at Hyderabad, as per the report of the chief superintendent, after the commencement of the examination, when already some candidates had filled up general information of part (a) like their roll number in the OMR sheets etc., the invigilators had, on the presumption that the Q Paper booklet code and the OMR sheet codes should 33 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch have a matching number, swapped the OMR sheets of the candidates. Say candidate 'A" was given with Question booklet code number as 1234567 and OMR sheet number was 1234569. Another candidate "B" was given Qn.paper booklet code as 1234569 and OMR had 1234567. Both A and B had entered their roll numbers but subsequently the invigilator had taken the OMR sheet from B and gave it to A and OMR of A was given to B.
30. In some cases where rearrangement of papers had taken place probably due to the above mentioned reason, the Roll no. was not corrected."
46. It is stated in the report of the Technical Committee that the Technical Committee interacted with the Technical Team, Confidential Team and other members responsible for the conduct of the examination, to understand the relevant issues. After such interaction, the Technical Committee recorded its findings as follows:
"Findings of the Committee:
After interacting with the Commission's staff and also the technical team, and after perusing all the documents/details mentioned above, the Committee found the following.
In the preliminary scanning, the scanning agency has identified the OMR sheets with several errors like no bubbling, wrong bubbling, double bubbling etc. (These errors were committed either by the candidates on their own or because of rearranging of OMR sheets by the administrative staff.) Because of these errors on OMR sheets, it became difficult to match the candidate's name, his/her roll number and the series of Question Paper Booklet.
In this scenario, all these OMR sheets are liable for rejection as per the instructions provided by TSPSC on hall tickets and on the OMR as well as on Question Paper Booklet. However, the scanning agency by following an appropriate method, has identified and matched the correct OMR sheet to right candidate.
The committee is satisfied with the procedure followed by the scanning agency in establishing the link between the mismatched Roll Numbers, Question Paper Booklet Numbers and the Series."34
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47. The Technical Committee also went into the question as to why the aforesaid types of mistakes occurred. The primary reason that caused the state of affairs, was recorded by the Technical Committee in its report as follows:
"The primary reason that caused the present state of affairs appears to be the mistaken belief that the QB No. and the OMR Sheet No. should match with each other. It is not clear as to how this misconception was created but it appears that in Paper-I examination of the Gr.II Examination, within few minutes of distributing the QBs and OMR sheets to the candidates, either due to the prompting by the invigilators or the insistence of the candidates themselves, a situation arose whereby certain administrative handling of the QBs and OMR sheets took place to ensure that the correctly matched twin documents were supplied to them. By that time, some of the candidates had already written and bubbled their Roll No.s, QB codes and Test Booklet Series i.e., AB, BC, CD or DA. It was also possible that some of the candidates might have started answering the questions in the middle part of the OMR by bubbling answers to few questions. Similarly it is equally possible that the candidate who was given first the QB and OMR also might have signed on OMR after writing the name. However due to the attempts to give matching QBs and OMRs immediately thereafter, the exchange of QBs and OMRs took place which is the ultimate cause of the present situation being inquired into. Therefore it so happened in a few test centres, in a situation of panic, neither the invigilators nor the candidates had paid attention to the clear instructions printed on QBs and OMR sheets regarding the warning not to use erasers, whiteners etc apart from not to overwrite or strike of any information on OMRs. In some cases it also appears to have happened that in spite of the exchange of OMR sheets, the Roll no.s of the first candidate apart from QB series no. were retained by the candidate to whom the said OMR was subsequently given. Such candidates continued to answer the questions in the middle part of the OMR related to performance. The committee therefore found that most of the requests/representations were made to the Commission regarding the errors pertaining to the above situation."35
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48. Thus, after analysing the cause for the chaos and recording its findings, the Technical Committee gave its recommendations as follows:
"Recommendations of the Committee:
1) The errors were committed while making entries in the upper part of the OMR in the Roll No. and Test Booklet Series No. which is general information of the candidate and in the middle part of the OMR, which is related to the performance of the examination and the bottom most part of OMR which captures the name, signature of the candidate and the invigilator.
(a) If the candidates have made some mistakes while filling up the information in the top most part of the OMR which is related to the general information boxes, such mistakes may be addressed by verifying the details of the candidates with reference to the other parallel records viz; Nominal Rolls, Absentee statements and seating plans etc and they may be resolved and their performances may be considered after resolving the corrections.
(b) If the candidates committed mistakes like erasures, corrections, multiple bubbling or no bubbling while filling up the information in the middle part of the OMR sheet, as this part is related to the performance of the candidate, such mistakes need not be considered with relation to those questions where the above mistakes had occurred.
(c) In the bottom most part of the OMR which captures the information of the candidate and invigilator viz; name and signatures, if there are no signatures or name of the candidate or invigilator, then such cases may be resolved and their performances may be considered after resolving the corrections
2) As regards the administrative handling of the OMRs and TBs (exchange or rearrangement in some case) most probably due to the mistaken belief regarding the mismatch aforementioned- it is possible that the following developments took place:
a) Retaining the QB (TB) as it is and rearranging the OMR sheet within first few minutes after commencement of the examination. The Committee feels that such handling cannot be regarded as a malpractice as it had not affected the performance of the candidates, therefore the OMR may be valued after making corrections technically, if the particulars could be crosschecked and verified with independent information like entries in ICR (imaging), Nominal Rolls, and also the seating plans apart from the reports sent by the chief superintendents wherever necessary.
b) Retaining the OMR sheet issued but rearranging the TB.36
VRS,J&PKR,J W.A. No.1525 of 2018 & Batch The Committee feels that such handling cannot be regarded as a malpractice as it had not affected the performance of the candidates, therefore the OMR may be valued after making corrections technically, if the particulars could be crosschecked and verified with independent information like entries in ICR (imaging), Nominal Rolls, and also the seating plans apart from the reports sent by the chief superintendents wherever necessary.
c) Rearrangement of both the TBs and OMRs among the candidates. The committee feels that if the QB and OMRs are exchanged between two candidates (rearrangement of QBs and OMRs together) then such OMRs need not be considered and valued. But if the QBs and OMRs are rearranged separately among more than two candidates, then such OMRs may be considered and valued, if the particulars could be crosschecked and verified with independent information like entries in ICR (imaging), Nominal Rolls, and also the seating plans apart from the reports sent by the chief superintendents wherever necessary.
d) Any tampering with the performance of the candidate in the middle of the OMR sheet cannot be considered, and the established practice followed by the commission in the cases of striking-off, usage of erasers and whiteners etc may be adopted in such cases strictly as any consideration thereof affects the fair chances of other candidates.
e) In the absence of clear proof of the causes of exchange/fresh issue of Q.B.s and OMR sheets due to the perception that their numbers should match i.e., to make either the invigilators or the candidates liable for such action, the claims of the candidates may not be probably ignored, and the benefit of doubt may be given to them."
49. Immediately after the receipt of the above report of the Technical Committee, the Service Commission constituted a Sub- Committee to examine the feasibility of implementation of those recommendations. The Sub-Committee made recommendations for the implementation of the above report and hence the Public Service Commission went ahead with the evaluation of the answer sheets of candidates.
50. It may be seen from the recommendations of the Technical Committee that we have extracted in paragraph No.48 above that the Technical Committee segregated the errors committed by the candidates 37 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch broadly into three categories, viz., (i) the mistakes committed by candidates while filling up the general information boxes found in the first portion (Top most Part) of the OMR, (ii) the mistakes like erasures, corrections, multiple bubbling or no bubbling while answering questions found in the middle part of the OMR sheets, and (iii) the mistakes committed in the bottom most part of the OMR where the name of the candidate, the signature of the candidate and the signature of the Invigilators are to be found.
51. The Technical Committee, in its report, dated 09-3-2017, recommended that the mistakes that fell under the first and third categories could be ignored and the answer sheets of those candidates could be evaluated. But, the Technical Committee recommended to the Public Service Commission not to evaluate the answer sheets of the candidates, who committed mistakes in the middle portion of the OMR sheet containing answers to 150 questions.
52. Apart from categorising the mistakes into three types as aforesaid, the Technical Committee also made recommendations as to how to deal with the answer sheets of candidates who suffered on account of the wrong administrative handling of the OMR sheets. The mistakes that happened due to the wrong administrative handling of the OMR sheets, were also categorised into four (4) types by the Technical Committee in its report. They are (i) cases where question booklets distributed to candidates were allowed to be retained as such, but the OMR sheets were re-arranged within the first few minutes after the commencement of the examination; (ii) cases where OMR sheets 38 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch distributed to candidates were allowed to be retained, but test booklet series were re-arranged and re-distributed; (iii) cases where both test booklets and OMRs already distributed were ordered to be re-arranged; and (iv) cases where tampering had occurred in the middle portion of the OMR sheet, where answers to questions had to be given.
53. In its report, the Technical Committee opined that the cases that fell under the first three categories, ought not be considered as cases of mal-practices. Therefore, the Technical Committee recommended that the candidates should not suffer due to wrong administrative of handling and their answer papers should be evaluated. But, insofar as the fourth category of cases is concerned, the Technical Committee advised the Public Service Commission not to evaluate those answer sheets.
54. A careful reading of the report of the Technical Committee which is segregated into different parts containing (i) the issues confronted by the Commission, (ii) the reasons for such issues arising in the examination, (iii) the findings of the Committee, and (iv) the recommendations of the Committee, would show that the Technical Committee had done a scientific analysis. In fact, the Technical Committee, as we have stated earlier, comprised of outside Experts, such as the Registrar of Jawaharlal Nehru Technological University, Hyderabad, a Professor of the University College of Law, Osmania University and the Director of the National School of Banking. This Committee of Experts had actually done a very scientific analysis of the issues faced by the Public Service Commission and made 39 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch recommendations, which were not even assailed as arbitrary, unlawful or unfair. This report of the Technical Committee was not taken into account nor found fault with by the learned Single Judge, before he appointed a committee of Three Senior Advocates. Fundamentally, every institution, like the Public Service Commission, is obliged to take corrective measures whenever the task assigned to them ends up in a fiasco. This is exactly what the Public Service Commission did by appointing a Technical Committee, as the Public Service Commission realised, not merely on the basis of the representations of candidates, but also on the basis of the reports of the District Collectors and Chief Superintendents of the Examination Centres that a part of the blame had to be shared by the Invigilators of the Examination Centres. Hence, such a corrective action taken by the Public Service Commission to redress the grievances of the candidates who suffered on account of the mistakes committed by the invigilators cannot be said to be arbitrary and could not have been interfered with by the learned Single Judge.
55. In the light of the scientific manner in which the Technical Committee which comprised of outside Experts carried out its task, there was no scope for the learned Single Judge to appoint a committee of Three Senior Advocates. In any case, the report submitted by the Committee of Three Senior Advocates on 22.03.2018, also seems to have examined the report of the Technical Committee. In their report, dated 22.03.2018, even the Committee of Three Senior Advocates has not disputed the fact that there was confusion in some examination centres and the confusion got complicated by the invigilators. Paragraph 40 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch Nos.10 and 11 of the report of the Committee of the Three Senior Advocates reads as follows:
"10. The answer OMR sheets had bar codes with a seven digit number which is said to be unique to each OMR sheets. It appears that some of the candidates and in some cases, invigilators had evinced a doubt that the seven digit number in the OMR sheet and the seven digit number in the question booklet should match. According to the TSPSC, there is no such requirement. However, the candidates, in some centres, thought that was necessary and sought to exchange the OMR sheets to ensure that the seven digit number in the OMR sheet and the seven digit number in the question booklet match each other.
11. As there was confusion over this issue, some of the candidates and in some cases, the Superintendent of the test venues had forwarded complaints to the District Collectors and also to TSPSC on 11.11.2018 itself. In some cases, the Collectors of some Districts had given reports raising this apprehension. Collectors, who had submitted such reports were District Collector - Nalgonda, District Collector - Warangal, District Collector, Hyderabad and District Collector - Nirmal."
56. Again the answers provided by the Committee of Three Senior Advocates to certain pointed queries raised by the learned Single Judge, are of significance. They are reproduced as questions and answers by the Committee of Three Senior Advocates in their report, dated 22.03.2018. Some of these questions and answers are as follows:
" 9. Whether such mistakes are all pervasive?41
VRS,J&PKR,J W.A. No.1525 of 2018 & Batch ANS: The referred errors were in Part A of the OMR sheets of the short listed 3147 candidates, but the same cannot be treated as all pervasive.
11. What is the nature of the mistakes/corrections made by them?
ANS: The mistakes appear to be wrong Bubbling, No Bubbling or Double Bubbling of the information relating to Roll No., Question Paper Booklet No, Test Book series No., in Part A of the OMR sheets.
13. Whether mistakes were made due to confusion or due to their own mistakes?
ANS: Most errors appear to have been done due to confusion in bubbling the correct numbers in Part A. The Committee has noticed that since "0" was mentioned as the 1st number in each row, the candidates started darkening the number in the circles treating the zero as "1" and having realised the mistake, tried to correct it."
57. Therefore, even the Committee of the Three Senior Advocates did not point out any mistakes in the recommendations made by the Technical Committee of the Public Service Commission. On the contrary, the report of the Committee of the Three Senior Advocates confirmed that there was confusion in the examination centres. In such circumstances, the corrective action taken by the Public Service Commission on the basis of the report of the Technical Committee and the recommendations of the Sub-committee could not have been found fault with.
58. Coming to the case law cited on both sides, it is seen that the appellants rely upon a few decisions which take a sympathetic view about the mistakes committed by the candidates in OMR sheets, 42 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch especially when those mistakes do not relate to the answers to questions. The decisions relied upon by the respondents are those which take a strict view that candidates who committed mistakes, should suffer.
59. But, none of the decisions relied upon by either of the parties, arose out of any peculiar circumstances comparable to the circumstances under which the present batch of cases have arisen. In many of the cases that have so far been decided by the Courts, the candidates were clearly at fault. For instance, the decision of the Supreme Court in Karnataka Public Service Commission v. B.M. Vijaya Shankar1, arose out of the refusal of the Karnataka Public Service Commission to evaluate the answer sheets of candidates who wrote their roll numbers not only on the cover page but also at other places in the answer books, in utter disregard of the instructions issued by the Commission. The Karnataka Administrative Tribunal, found fault with the refusal of the Public Service Commission to evaluate the answer sheets of those candidates. It was this decision of the Administrative Tribunal that was set aside by the Supreme Court in the aforesaid decision. Therefore, the context in which the Supreme Court made certain observations in its decision in B.M. Vijaya Shankar1, cannot be lost sight of.
60. The decision in Secretary, Tamil Nadu Public Service Commission v. A.B. Natrajan2, concerned a case with shocking facts. As seen from paragraph No.7 of the judgment of the Supreme Court, some candidates were found to have indulged in serious mal-practices by putting certain religious symbols on the answer papers. It is in that 1 . (1992) 2 SCC 206 2 . (2014) 14 SCC 95 43 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch context that the Supreme Court held that the failure of the candidates to follow the instructions would deprive them of their entitlement to have the answer book valued.
61. In fact, we must bear in mind (i) the distinction between cases where candidates commit a breach of the instructions, wholly due to their own faults and cases where mistakes happen due to the wrong administrative handling by the invigilators; and (ii) the distinction between cases where candidates, guilty of committing mistakes, come to Court and seek reliefs and cases where the Public Service Commissions take a call whether to disqualify those candidates or to evaluate their answer sheets.
62. In the cases on hand, the invigilators in some of the examination centres were at fault. Secondly, in the cases on hand, the Public Service Commission had taken a decision not to disqualify these candidates but to evaluate their answer sheets.
63. While Courts have no power to direct the Experts Bodies, like the Public Service Commission, to evaluate the answer sheets of candidates who committed mistakes, the same-thing cannot be said about the Public Service Commission, as they have the power to undo any damage. The parameters for testing whether the answer sheets of a candidate should be evaluated despite the mistakes committed by him, are completely different from the parameters for testing whether a policy decision taken by the Public Service Commission to do complete justice, is correct or not. In the case on hand, we have had an example of both these types. Immediately after the conclusion of the written 44 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch examinations in November, 2016, a few candidates came to this Court and filed W.P.No.3862 of 2017 seeking a direction to the Public Service Commission to evaluate their answer sheets, despite the mistakes committed by them. This Court rejected their request, without even being aware of the constitution of a Technical Committee and the report submitted by them. But, later the Public Service Commission took a policy decision, not arbitrarily but on the basis of a report of the Technical Committee, examined by a Sub-Committee of the Public Service Commission. This Technical Committee comprised of outside Experts in the field of Education, who were not members of the Public Service Commission. Therefore, the parameters for testing the grievance aired in W.P. No.3862 of 2017 were completely different from the parameters for testing the correctness of the policy decision taken by the Public Service Commission on the basis of the report of the Technical Committee. Hence, the decisions relied upon by the respondents, which refused relief to candidates, who approached the Courts after being guilty of mal-practices, are not of any assistance to the respondents.
64. The only thing that was required to be done in the writ petitions that came up before the learned Single Judge, was to find out whether the decision of the Public Service Commission was fair, arbitrary and justified or not. Rather than carrying out this exercise, the learned Single Judge, in all fairness, attempted to resolve the issues by appointing a Committee of Three Senior Advocates. While we appreciate that the objective was laudable and efforts taken Herculean, the same has actually resulted in some candidates who were not in the 45 VRS,J&PKR,J W.A. No.1525 of 2018 & Batch race in the first instance, becoming winners and some candidates who were earlier included in the select list getting deleted. Thus, the solution to the problem has actually become more complicated.
65. In view of the above, we are of the considered view that the remedial action taken by the Public Service Commission on the basis of the report of the Technical Committee dated 09.03.2017, did not call for any interference. Once an Expert Body, such as the Public Service Commission, constituted a Technical Committee of Academic Experts (that too outsiders) to examine the issues and once such a Technical Committee had recommended the evaluation of answer sheets of candidates who had committed errors in bubbling the circles in the First Part of the answer sheets, the scope of the inquiry to be undertaken by the Court is just to find out whether the Public Service Commission acted bonafide and whether their decision was arbitrary or unfair and whether there were justifiable reasons for their action or not. If so tested on these parameters, the corrective action taken by the Public Service Commission on the basis of the report of the Technical Committee cannot be found fault with and the writ petitions deserved to be dismissed insofar as this aspect is concerned.
66. As we have stated earlier, the learned Single Judge was confronted with two issues, viz., (i) the correctness of some of the questions and answers, and (ii) the correctness of the decision of the Public Service Commission to evaluate the answer sheets of some of the candidates, who committed bubbling errors. The learned Single Judge granted relief to the writ petitioners on both these aspects. 46
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67. But, the present batch of writ appeals is confined only to the issue relating to evaluation of answer sheets of some candidates who committed mistakes. No-one has come up with any challenge to that portion of the order of the learned Single Judge whereby he has directed the exclusion of two questions, one in Paper-III and one in Paper-IV and further directed a particular choice of answer in relation to one question as correct. Therefore, this portion of the impugned judgment, has to remain as such, as there is no challenge to the same.
68. In fine, all the Writ Appeals are allowed to the following effect:
(i) the last sentence of paragraph No.100.1 of the impugned judgment reading "the candidates who have committed such mistakes can be excluded and rest of the selection process can be continued"
shall stand set aside;
(ii) paragraph No.100.2 of the impugned judgment shall stand set aside;
(iii) as a consequence, paragraph No.100.9 of the impugned judgment shall also stand set aside;
(iv) the Public Service Commission shall go by the report of the Technical Committee, dated 09.03.2017 and the recommendations of the Sub-Committee and prepare the select list of candidates after fine tuning the same with respect to the disputed questions, about which the learned Single Judge has given directions in paragraph Nos.100.4, 100.5, 100.6 and 100.7, with which we are not interfering.47
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69. Consequently, the four writ petitions on hand are also allowed. If the petitioners in these writ petitions had been the beneficiaries of the report of the Technical Committee, they shall be granted the benefit of evaluation.
70. However, in the circumstances of the case, there shall be no order as to costs.
As a sequel thereto, miscellaneous applications/petitions, if any, pending in the writ appeals/writ petitions, shall stand closed.
____________________________ V. RAMASUBRAMANIAN, J ____________________________ P. KESHAVA RAO, J June 03, 2019 Mgr/SMR Note:
L.R. Copy to be marked.
Furnish CC today.
B/O.Mgr.