Andhra Pradesh High Court - Amravati
Kommaddi. Srutha Keerthi, vs Andhra Pradesh Public Service ... on 16 June, 2021
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
I.A.No.1 of 2021
In
W.P.Nos.11000, 11011 and 11026 of 2021;
I.A.No.2 of 2021
In
W.P.Nos.10853, 10856, 10866, 11005, 11033 and 11034 of
2021
And
I.A.No.3 of 2021 in W.P. No.10805 of 2021
COMMON ORDER:
A large number of candidates who appeared for the Group-I examination in 2019-2020 have challenged the digital evaluation system adopted for the evaluation of the main examination papers of Group-I Services.
In view of the urgency being expressed and as the results are scheduled to be declared on 17.06.2021, the matter was taken up for hearing the Interlocutory Application immediately after reopening the Courts.
Sri B.Adinarayana Rao, learned senior counsel led the argument in WP.No.10853 of 2021. He raised the principal issue about the mode and manner in which the conventional system of evaluation of marks has been replaced by the digital method of evaluation. He points out that disregarding the conventional method, a new digital method of evaluation of answer papers has been adopted, which according to him is contrary to the statute and the law on the subject. 2
Drawing the attention of this Court to Articles 315 to 319 of the Constitution of India, learned senior counsel argues that Public Service Commission should be an independent and autonomous body and that it should discharge its statutory duties in a fair manner. He points out that the Chairman of the Commission was not discharging his duties. Relying upon the APPSC Rules and procedures, he argues that the examination rules and schemes of examinations and syllabus can only be allotted to a Chairman and one member. The appointment of examiners and moderators can be done either by the Chairman or by the Chairman and one member. He draws the attention of the Court to the annexure to the Rules pursuant to Rule 17. According to him, it is only the Full Commission that can change the Andhra Pradesh Public Commission Regulations. He argues that the procedure adopted in this case is totally contrary to the rules and regulations as the Chairman was not involved at all. He points out that when the examination was announced, the candidates were informed that they would be selected for appointment based on merit in the main written examination (which is conventional) followed by oral interview. He relies upon clause 15.2 of the notification dated 31.12.2018 for this submission. Relying upon the subjects prescribed, learned senior counsel argues that a very detailed syllabus was given for the candidates. He draws the particular attention of this Court to the syllabus in paper-II dealing with History, Culture and Geography of India and Andhra Pradesh. By relying upon paper-II which deals with History and Culture of 3 Andhra Pradesh (6.2 to 15), the learned senior counsel argues that only a person with an in-depth knowledge of the History, Culture of Andhra Pradesh can evaluate the paper which has such subjects. He argues that "generalists" cannot correct the paper. Similarly, even with regard to the Geography of India and Andhra Pradesh, learned senior counsel argues that these are papers which require correction by experts. He points out that despite the letters written by candidates and the apprehensions expressed by the candidates in the pleadings, absolutely nothing is forthcoming in the counter to show that a transparent method is adopted for selecting the third party evaluating company. He also submits that the counter is absolutely silent about the method in which the evaluators were selected and the manner in which the evaluation was done. The entire method of paper evaluation etc., according to him were given to a third party without any exercise being conducted about their expertise or skill. He states that the Rules of the game were changed after the games have begun. He relies upon K.Manjusree v. State of Andhra Pradesh and another1. He also points out that the moderation of marks of people of the candidates who have answered the examination in Telugu is also to be kept in mind and the bias of the evaluators in their mother tongue should also be eliminated. He relies upon Central Board of Secondary Education v. Aditya Bandopadhyay2. Therefore, according to the learned senior counsel, it is not clear as on date 1 (2008) 3 SCC 512 2 (2011) 8 SCC 497 4 even after the counter affidavit has been filed in W.P.Nos.10853 and 10856 of 2021 as to (a) the manner in which the third party has been hired and (b) the expertise of the people who have been hired to formulate the paper and (c) their expertise to evaluate the same. He points out that the decision making process is thus very vague and opaque.
Sri G.Vidyasagar, learned senior counsel continued the argument. He adopted the arguments of Sri B.Adinarayana Rao and further submitted that the minutes of the meeting dated 28.10.2020 make it clear that arbitrary decisions were taken. He submits that certain directions were given by the high Court in WP.No.536 and batch on 22.10.2020. A meeting was held on 28.10.2020 in which it is noted that the quotations were already invited from A.P. Online and "Data Tech" to evaluate the papers. Therefore, the learned senior counsel submits that even before the meeting was held that a decision was taken to invite the quotations for digital evaluation. He further submits that Rule 17 of the APPSC Rules and the procedure is completely flouted. Learned senior counsel relies upon Rule 17 read with the annexure to argue that the Chairman has to allot the work to the members. The Chairman, according to the learned senior counsel, also has the discretion to place the matter before all the members of the committee. He submits that the minutes dated 28.10.2020 do not contain any reference whatsoever to the allocation of subjects by the Chairman. Therefore, he states that the entire procedure adopted to shift the digital evaluation is incorrect. He also relies upon Pranav Verma v. Registrar 5 General of the High Court of Punjab and Haryana at Chandigarh3 to support his submissions. He submits that the entire procedure/decision making process to shift the digital evaluation is flawed and the available material does not show that the due procedure was followed.
Sri Vijay Kumar.M appearing for the petitioner in WP.No.10853 of 2021 adopts the arguments of the learned senior counsel who preceded him. He submits that the fundamental aspect that the respondents have overlooked is the question of examiner 'variable'. He submits that some examiners may be liberal in awarding marks while others may be very strict. Therefore, to neutralize this, the system of moderation is adopted. He draws the attention of this Court to the judgment of the Hon'ble Supreme Court in Sanjay Singh and another v. U.P.Public Service Commission, Allahabad and another4 and also relies upon the judgment of the high Court of Manipur reported in Shalini Chingtham and others v. The Manipur Public Service Commission and others5.
Learned counsel submits that approximately 6800 candidates appeared for the main examination which consists of 7 papers. According to him, approximately 19 to 20 lakh sheets of papers are involved for evaluation. Relying upon the affidavit in W.P.No.11033 of 2021, he argues that it was mentioned that 20.9 lakh sheets of papers are involved. He draws the attention 3 (2020) 15 SCC 377 4 (2007) 3 SCC 720 5 MANU/MN/0184/2019 6 of the Court to the fact that no details are provided as to how the third party was selected for this huge gigantic task. It is his contention that the entire system is flawed.
Sri J. Sudheer, learned counsel for the petitioners in W.P.No.10805 of 2021 also adopted the arguments of the learned senior counsels. He pointed out that even a small error in evaluation can make or mar a candidate's future and even one mark can decide whether a candidate will become a Police Wala / Officer or a dabba wala. He points out that the expertise of the third party, qualifications of the evaluators etc., are not disclosed even now and that the power given to the APPSC is a constitutional duty which cannot be delegated. He points out that in the main examination, the written component carries largest amount of marks while the interview carries a very small percentage. Therefore, he submits that a greater duty was cast on the APPSC to carryout the evaluation by itself. The credibility of the third party and their capability to evaluate these subjects is not disclosed as per him. He also points out that the practical aspects of scanning etc., should be safeguarded. He argues that an answer may end at a particular part of the page and in the scanning it should be carefully ensured that all the pages are properly scanned. Lastly, he submits that if no interim order is granted and the proceedings are stayed most of the candidates would also lose their chance due to age bar and would be barred from the further examinations if orders were not granted.
7
Sri G.V.Siva, learned counsel for the petitioners in W.P.No.10866 of 2021 argues that language used in Article 320 of the Constitution is clear and it states clearly that it "shall be the duty of the Public Service Commission to conduct the examination". Therefore, he submits that this is not a duty that can be delegated further. He also argues in the alternative that by a mere press-note, which is disclosed, the entire constitutional duty conferred upon the Public Service Commission has been abdicated. This is a specific ground which he relies upon apart from the other grounds raised by him in line with the other submissions.
Sri T.D.Phani Kumar and Sri T. Lokesh, learned counsels for the other petitioners adopted the arguments of the learned counsels who preceded them.
On behalf of Andhra Pradesh Public Service Commission, (the main answering respondent) Sri Mallikarjuna Rao appeared and argued the matter. He pointed out to this Court that this is a case where the examinee is examining the examiner. His preliminary point is that the candidates were aware of the change to the digital mode and that it was published through a web note in January, 2021; that they have appeared for the examination in digital mode. Therefore, he prays that the petitioners cannot change their stand/aprobate or reprobate to question the same. He also points out that the issue of the Chairman of the APPSC is being continuously raised, but he points out that in view of the certain circumstances, the 8 Chairman is not attending the meetings and is absent in most of the times. Therefore, learned counsel argues that the Full Commission took a decision to outsource the work to a third party, who has the necessary expertise and the capacity to evaluate the paper. He points out that this decision as taken by all the Members of the Committee and that the evaluators have the necessary expertise. Even earlier, the learned counsel submits that the APPSC has a pool of evaluators from which they choose the persons to evaluate a particular examination. The pool in the present case is created by the third agency, which is a reputed agency, and is approved by the APPSC. Therefore, he refutes the submissions of the petitioners' counsels. Learned counsel took the Court through various steps in the evaluation of the answer scripts; whereby the confidentiality was kept and also pointed out that the input safeguards to ensure that the evaluators did not have any chance whatsoever to know about the candidates. Learned counsel also submits that as per the scheme of examinations in vogue for decades in this country candidates do not have a right to know about their evaluators and their qualifications and that even in the normal mode of examination examiner / examinee anonymity is maintained in order to prevent the candidates from meeting the evaluators and vice versa. He also submits that if the rules are not been changed after the first ball has been bowled. As per the learned counsel the judgment of the Jammu and Kashmir High Court in W.P.No.2255 of 2019, dated 06.08.2019 is a complete answer to all the issues that are raised 9 by the petitioners in this case. He also argues that in view of the Covid situation, the APPSC has taken a decision to streamline the process and used the latest technology for evaluating the answer scripts. He points out that the evaluators are qualified and those of them who were not "tech savvy" were also given training to use the tools that are provided. Learned counsel therefore argues that the other issues raised about the Chairman being present or not etc., and the allegations made against the current Secretary are all not true or valid and that they are needlessly raised in the current set of writ petitions. He reiterates that adequate safeguards were taken, proper procedures and protocols were followed and only thereafter the results were announced. Learned standing counsel also argued that in some of the writ petitions notices have to go to the unofficial respondents and no interim orders can be granted.
In rejoinder, Sri D. Adinarayana and other learned counsel argued and reiterated that many of the issues are submitted by the learned counsel for the APPSC are not borne out by the pleadings. In addition, they also submit that unless the Court interferes at this stage and looks at the matter in greater depth, the careers of many will be spoiled. Learned counsels also argued that in a such situation an interim order can be granted without ordering notice to the unofficial respondents. CONSIDERATION BY THE COURT:
This Court is considering only the interim applications, and prima facie opinions alone are being expressed. It is also 10 important to note that counter affidavits were filed in some cases like W.P.Nos.10866, 10863 and 10856 of 2021.
1) The importance of the main examination and the written component of this main examination is visible from the fact, that out of 825 marks that are provided, 750 marks are allotted to written examination itself and 75 marks only are allotted to Interview. Paper-I to Pater-V are for 150 marks each, totaling 750 marks. Therefore, the marks secured in the written examination will make or mar a candidate's entire future and life. This importance is also highlighted by the passionate arguments that were advanced by all the learned counsel.
2) The Group-I examination is the most important examination in the State of Andhra Pradesh for recruitment of Administrators and Officers, who aid and assist the Indian Administrative Officers in the administration of the State. Thus they form the very foundation of the administrative machinery in every State.
These two facts cannot be lost sight of.
3) Articles 315 to 320 of the Constitution of India also clothe the APPSC with great responsibility for recruiting this Group of Civil Servants. It is a constitutional duty that has been cast upon the APPSC in these matters and it cannot be said to be a mere "routine" administrative duty.
The essential issues raised in this case are about the appointment of a third party to digitally evaluate the answer scripts; the methodology that is adopted by them for the purpose 11 of selecting this agency and their experience in evaluation of such papers. It is also clear that as a State instrumentality, "APPSC" has to act as mandated by law.
With these observations, the following prima facie conclusions are being reached at this stage. These conclusions, in the opinion of the Court, make it clear that they are seriously triable issues and matters which need to be heard at greater length.
1) Clause 15 (2) of the notification issued in this case on 31.12.2018 clearly specifies that the selection shall be on the basis of merit in the main written examination followed by an interview. It is specified that the main written examination will be held in a "conventional method". Para-17 of the notification dated 31.12.2018 makes it clear that the commission reserves the right to alter the terms laid down in the notification by duly intimating the details thereof to all the concerned. The first point that arises, therefore, is whether this was followed in letter and spirit. The rules and procedure of the APPSC are filed as a material paper. Rule 17 specifies the various items of work allotted to the Members by the Chairman as indicated in the Annexure. The Chairman has been given the power to refer a matter to one or more Members or to the full Members of the Commission for their decision. The annexure to these rules clearly states that the examination rules including the schemes for examination and syllabus shall be determined by the Chairman and one Member as per Clause 6 of the Annexure. 12 Clause 9 of the Annexure talks of the appointment of examiners and moderators by the Chairman and one Member. The Full Commission is also given the power to discharge duties including the cases of disagreement among the members. The disclosures made in the counter affidavit are the minutes of the meeting dated 28.10.2020, in which it is spelt out that the entire Committee decided to reschedule the Group-I examination and in agenda Item No.3 to continue the system of digitalization by enabling the evaluators to mark the scanned scripts. The quotations were invited from AP Online and "Data Tech". This Court is of the prima facie opinion that the digitalization and its advantages are definitely apparent. However, the questions that arise in this case are whether the procedure stipulated under Clause 17 of the Rules mentioned above has been followed or not. The counter affidavits filed do not disclose this. The reasons for the absence of the Chairman is not clear from the minutes (as on date).
2) Apart from this, the Rules with regard to awarding of any work by the State or State instrumentalities is no longer res integra. The decision making process can be examined by the Court to see if State largese is properly allocated or given. No details are forthcoming as of now to show how the third party was selected and what was the criteria fixed for engaging their services. It is not clear if the same was by open tender / or any other lawful method. The name of the third party is disclosed during the arguments, but the question that arises is if they have necessary qualifications/expertise for evaluation this sort 13 of answer sheets. The procedure followed to assess the "capability" of the evaluators, their domain knowledge, expertise etc., is not spelt out even broadly. While it is true that the complete details of the evaluators should not be disclosed in such competitive examinations, this Court is of the prima facie opinion that once an issue has been raised, the respondents should disclose at least the overall qualifications, past experience etc., and the method of selection of the evaluators in such matters. Even a general statement giving the number of evaluators for each subject, with their qualifications without disclosing the names etc., is not done. The counter affidavits are conspicuously silent in this aspect.
3) The other issue that requires further examination is, whether the paper publication dated 08.01.2021 filed with the counter affidavit meets the rigor of Rule 17, which is reproduced earlier. This press note was given in January, 2021, whereas the examinations were held on 14.12.2020. In addition, APPSC has also relied upon a web note dated 12.12.2020 to argue that information was given. This web note dated 12.12.2020 is after the meeting dated 28.10.2020. There is no reference in this web note to the fact that the system of digital evaluation is being adopted. It is the system of digital evaluation that is the crux of the issue now. Clause 17 clearly states that an alteration or modification of the terms and conditions should be intimated to all the concerned along with "details thereof". Whether this press statement published in Indian Express etc., meets this standard prescribed by the Commission deserves to be 14 investigated further. The change in the method of evaluation and the various issues raised by the learned counsels including examiner bias; the need to avoid examiner variability "the need to adopt moderations etc.," were all raised in the writ affidavits filed. The applicants will have a legitimate expectation that their papers will be evaluated properly and by qualified people. However, it is not yet clear "who" has evaluated the papers. Their expertise is also not spelt out. The judgments of the Hon'ble Supreme Court of India were also reproduced in the writ affidavits filed. In the opinion of this Court, these are all matters, which have to be examined later when the other interlocutory applications are determined.
4) Coming to the judgment of the Jammu & Kashmir High Court (W.P.C.No.2255 of 2019, dated 06.08.2019) relied upon by the learned counsel for the APPSC, this Court notices that the judgment was passed on merits of the matter after counter affidavits were filed and the entire material was produced before the Jammu & Kashmir High Court. In paragraph 26 of the judgment, the points raised by the petitioners were condensed and reproduced by the Court. The answers given by the Jammu & Kashmi Public Service Commission were reproduced from para-27 to para 33. The Commission in that case has highlighted all the safeguards that had taken including the selection of the agency/service provider for evaluation. Paragraph-29 onwards of the judgment deals with these issues. In fact, it is clearly highlighted that the first and most important task for the commission was the selection of agency/service 15 provider. It is stated in the affidavit that the Commission after a due consultation and of being satisfied about the creditability of the consultancy, it opted for the same. It is also specified in paragraph-34 and other paragraphs of the advantages that were found by the Commission in hiring a third party. Whether all such procedures and safeguards to enlist the services / to award the work to the third party were followed is to be examined in greater detail as the counter affidavits filed do not set out the same in detail. Even otherwise, paragraphs-65 of the Jammu & Kashmir judgment makes it clear that the Commission only outsourced the "scanning and electronic transportation" of the answer scripts to an examiner engaged by the Commission itself. It is also specified that the Commission itself engaged 150 examiners for this purpose. In the present case, the available material indicates that the evaluation was also given to the third party. This one fact makes a "difference" to the applicability of the judgment to this case. While this Court agrees that the electronic evaluation and digital correction have certain advantages, the question that is not yet clear in this case is (a) whether the procedures and rules were followed in awarding the work to the third party for evaluation; (b) the evaluators knowledge and expertise in correction; (c) the procedures followed for evaluation etc.,
5) That even in digital evaluation some mistakes have occurred earlier cannot be doubted and the same is borne out by the judgments of this Court, also which are filed by the petitioners as material papers too. In fact, in some judgments, 16 this Court directed the reevaluation of the papers by the digital mode in view of the mistakes committed during the course of digital evaluation. Prima facie, this Court holds that the "rules of the game" were changed after the game has begun.
6) The last question that survives for consideration at this stage is, whether any interim order should be given or not.
As mentioned by this Court, the petitioners have made out a case for further investigation and detailed hearing. If the interviews that are scheduled from tomorrow are held, there may be a chance that genuine candidates may be deprived of the right to go for the interview/further selection. The procedure in this case started with the notification for recruitment in December 2018. This Court is, therefore, of the opinion that the petitioners have made out a prima facie case and the balance of convenience is in their favour. Greater harm will be caused to them if the interviews are allowed to go ahead. The loss will definitely be "irreparable". As rightly pointed out by the learned counsel for the petitioners a difference of one mark may mar a person's entire life and career. Hence, this is irreparable loss. Postponing the interviews for now will not cause irreparable loss to the short listed candidates. This is the "stitch in time" that is needed in this case. In the opinion of the Court, the long submissions about the 'Secretary' of the APPSC are not really made out through the pleadings and the material filed. He is also not a eo nominee party. In his absence and as details are 17 not furnished, this Court opines that these issues need not be dealt with in the order.
Therefore, there shall be an interim order in favour of the petitioners as prayed for staying all further proceedings including the interviews scheduled to be held from 17.06.2021 pursuant to the notification dated 31.12.2018 for a period of four weeks. Respondents are directed to file their counters in the applications which have been filed for producing the answer sheets before the Hon'ble Court and other similar applications.
__________________________ D.V.S.S.SOMAYAJULU, J Date : 16.06.2021 KLP/SSV