Andhra Pradesh High Court - Amravati
Kommaddi. Srutha Keerthi, vs Andhra Pradesh Public Service ... on 1 October, 2021
1
* HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ WRIT PETITION Nos.11000; 10805; 10853; 10856; 10866;
11005; 11011; 11026; 11033; 11034; 11078; 12914; 15062
and 16939 of 2021
% 1st October, 2021
W.P.No.11000 of 2021
# Rompalli Sankara Rao and 3 others ... Petitioners..
AND
$ The State of Andhra Pradesh and 3 others. ... Respondents.
! Counsel for the Petitioners : Sri T.D.Phani Kumar
^ Counsel for the 2nd respondent : Sri R.V.Mallkarjuna Rao
Standing Counsel for APPSC
^ Counsel for the 3rd&4th respondents : Sri Madiraju Srinivasa Rao
< Gist:
> Head Note:
? Cases referred:
1. 1994 Supp (3) SCC 220
2. (1990) 3 SCC 157
3. (2010) 13 SCC 467
4. (2007) 3 SCC 720
5. AIR 1996 SC 11
6. (2010) 13 SCC 586
7. (2016) 3 SCC 417
8. 1996 AIR 11 = (1994) 6 SCC 651
9. (1974) 3 SCC 337
10. AIR 1966 Cal 290 (FB)
11. (2009) 7 SCC 647
12. (2013) 4 SCC 540
2
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION Nos.11000; 10805; 10853; 10856;
10866; 11005; 11011; 11026; 11033; 11034; 11078;
12914; 15062 and 16939 of 2021
COMMON ORDER:
With the consent of all the learned counsels the writ petitions have been taken up for hearing.
PETITIONERS' SUBMISSIONS:
The lead argument in this batch of cases was commenced in W.P.No.11033 of 2021 by Sri B. Adinarayana Rao, learned Senior Counsel for the petitioners. Learned Senior Counsel briefly touched upon the history of the case and pointed out that in W.P.No.11033 of 2021 the crux of the issue (as described in the Writ Petition) is the conduct of the main examination, evaluation of answer scripts, which are outsourced to an unknown entity, and a new concept of 'digital evaluation' being introduced by the A.P.Public Service Commission. The learned Senior Counsel drew the attention of this Court to the interim order that was passed in this batch of cases on 16.06.2021. He points out that in the interim order itself there was a discussion about the issues raised and thereafter the order was passed. He points out that in the interim order in page 10, this Court noticed that the essential issue raised is about the appointment of the third party to digitally evaluate the answer script, the 3 methodology that is adopted by them for the purpose of selecting the agency and their experience in evaluation of such papers. He next draws the attention of the Court to the paragraph 1 of the part described as on "Consideration by the Court" wherein it is mentioned that this Court prima facie noticed that Clause 17 of the Notification is not complied with. He also points out that in paragraph 2, this Court commented upon the process by which the State or the State instrumentality can award a contract and that no details were forthcoming as to how the third party was selected and what is the criteria of their selection. The prima facie opinion expressed by this Court that the system of selection of this third party is not disclosed and their qualifications, expertise, their domain knowledge etc., is not spelt out is highlighted now. He also points out that as per Clause 17 of the Rules provides that any change in evaluation should be brought to the notice of all the persons concerned, which includes the applicants, for the examination. Whether the press statement meets the rigor of Clause 17 is an issue commented upon by this Court as per him. He submits that the change in the method of evaluation, the questions regarding examiner bias/variability, moderations etc., were left open for further investigation. Relying upon the other part of the paragraph he points out that this Court prima facie came to a conclusion that it is not clear who evaluated the papers. Their expertise was also not spelt out. He also 4 draws the attention of this Court to the order of the Jammu and Kashmir High Court (W.P.C.No.2255 of 2019, dated 06.08.2019), which is considered in paragraph 4 of the judgment, and also the conclusion at the end of the para 4 where the following questions were posed -
(A) Whether the procedures and rules were followed in "awarding the work" to a third party for evaluation; (B) The evaluators' knowledge and expertise in correction and (C) The procedures followed for "evaluation" etc., The learned Senior Counsel took this Court to the entire interim order and pointed out that this order was passed on 16.06.2021 but that even on date after the 2nd counter was filed and the matter is argued the 3 questions mentioned are not fully answered.
Before the interim order was passed the counters were filed in Writ Petitions including a counter in W.P.Nos.10853 of 2021 and 10826 of 2021. This counter was verified on 09.06.2021. After the interim order was granted a common counter was filed in many these matters. This was verified on 05.08.2021. Learned Senior Counsel points out that the same deponent has signed both the counters. Thereafter he took the Court through the second counter and argued that none of the issues that were considered by this Court and the issues which are left open for consideration are correctly or 5 satisfactorily answered in the second writ affidavit. He submits that even after the second counter affidavit is filed, it is not clear on what basis the third party was appointed to evaluate the papers or to scan the papers and their expertise in these subjects is also not clear. Drawing attention of this Court to the detailed syllabus which has been prescribed for this particular examination, learned Senior Counsel submits that only persons with domain knowledge or expertise in issues like Andhra History, Andhra Geography etc., can evaluate these papers. He points out that even in the subsequent counter that is filed these issues are not clarified.
It is also pointed out by the learned counsel that in the second counter that has been filed the stand of the APPSC has undergone a sea change. According to him, in the initial counter and the documents that were filed it is asserted that digital evaluation itself was given to the third party. However, in the current counter that is filed it is stated that the services of third party were taken to "aid the evaluators" who have been employed by the APPSC. Their role is limited to "scanning" the papers and forwarding them to the evaluators in this second counter. Learned Senior Counsel points out that this change in the method of evaluation is also borne out from the records which were filed. He relies upon the press cuttings etc., that were filed in the 1st writ petition, wherein it is clearly spelt out that the evaluation itself was being done by the third party. Learned counsel relies upon documents 6 which are certified and filed by the Nodal Officer of the APPSC itself wherein it is clearly mentioned that the third party has been hired to "set the question paper and to evaluate the same". The statements clearly go to show, according to him, that paper will be set by the third party and evaluation would also be done by the third party. Learned Senior Counsel argues that the variations in the counter are striking and clear. He points out that even as on date respondents have not disclosed the method by which the third party was selected for valuation, paper setting or for digital scrutiny.
Learned Senior Counsel also draws the attention of this Court to the counter filed by the Chairman of the APPSC in W.P.No.12914 of 2021 and points out that the Chairman, who was allotted certain clear powers in the examinations, valuation etc., is totally bypassed and that the affidavit contains very serious allegations about the functioning of the APPSC. Hence he questions the authority of APPSC to award any work of paper setting, evaluation etc., to 3rd parties.
Relying upon the rules, which are filed along with the counter affidavit the learned Senior Counsel argues that it is still doubtful if these rules of procedures have actually been amended. He points out that the Chairman has stated on oath that he was totally bypassed. He also argues that the amended rules of procedure, which are filed as material documents, are supposedly passed on 25.02.2020. Learned 7 Senior Counsel, therefore, argues that if these rules were amended on 25.02.2020 they should have been filed or at least clearly mentioned in the earlier counter which was attested on 09.06.2021. Learned senior counsel points out that no reason is forthcoming why these rules were not filed with the first counter. Drawing the attention of the Court to the earlier rules, which are filed with the counter affidavit, learned Senior Counsel argues that these rules give powers to the Chairman which are totally taken over. He also argues that the rules cannot be amended to totally take over the Chairman's power. He points out that the earlier rules were notified and published in the gazette. Therefore, learned Senior Counsel argues that there is a serious doubt if these rules were actually amended or not. He also draws the attention of this Court to Article 316 (1)(A) of the Constitution of India to point out that if the office of the Chairman of the Commission is vacant or if the Chairman is unable to perform his duties, the duties of the Chairman shall be performed by one of the Members of the Commission, who has been appointed by the Governor of the State or the President of India. It is, therefore, argued that in the case on hand even if the Chairman was not functioning or acting; his place can only be taken by a person "appointed" by the Governor of the State. He concludes by stating these rules are also not valid until and unless they are notified. The earlier instances where the G.Os., were published were again highlighted by 8 the learned senior counsel. Relying upon Bihar Public Service Commission and another v Dr.Shiv Jatan Thakur and Others1 (para-32) he argues that the Chairman is a constitutionally empowered authority who has an 'exclusive' role to play in the PSC and is a "repository" of duties.
In conclusion learned Senior Counsel points out that -
(a) that the alleged change in the rules is not correct and is only projected for the sake of this case;
(b) nobody can act in the place of the Chairman expect an appointee of the Governor of the State; and that the rules cannot be amended to take away the Constitutionally guaranteed powers of the Chairman.
(c) the variations and improvements in the two counters that are filed clearly show that the respondents are trying to improve their case;
(d) the manner and method in which the third party was chosen is still not disclosed;
(e) that it is not clear if the 3rd party was appointed for scanning or evaluation or both. He states that procedural / institutional integrity is lost and that lack of procedural due process vitiates the case.
(f) the expertise, domain knowledge etc., of the evaluators is still not disclosed.
1 1994 Supp (3) SCC 220 9
g) There is arbitrary action by APPSC; that they did not act fairly and the much needed "fair play in action" is totally absent.
He also points out that most of the issues which came to the notice of this Court in the interim order are not clarified even as on date. Hence he prays that the Writ should be allowed and that a CBI enquiry should also be allowed as the entire action in awarding the work; evaluation etc., are arbitrary.
Sri G. Vidya Sagar, learned Senior Counsel continued the arguments. Apart from adopting the arguments of Sri B. Adinarayana Rao, learned Senior Counsel focused on amendment to the rules and on the copy thereof which is filed with the second counter. He points out that in the entire counter filed there is no reference to the manner and method in which these rules were amended. He also points out that the amended rules which are filed with the second counter are dated before the first counter itself, yet no mention is made in the first counter about the existence of these rules and in fact the APPSC relied upon the earlier rules only. He also argues it is not clear when the meeting took place, who participated and what is the resolution passed to change these rules. He also relies upon the counter affidavit filed by the 3rd respondent-Chairman, wherein it is mentioned that since January, 2020 he was not allowed to participate in any 10 meeting. Therefore, learned Senior Counsel expressed a very serious doubt about the meeting. He also relies on para 5A of the counter affidavit filed by the Chairman, wherein the rules issue is discussed. The Chairman has stated on oath that the meeting was not conducted as per rules and the chairman did not preside over the same nor did he authorize the senior officer to preside over the meeting. The procedure, which is stipulated in the paragraph, was not followed at all by the Commission. Therefore, the learned senior counsel argues that the amendments are not valid in law and the Chairman was deliberately bypassed without any valid rules. He also relies upon N.T.Devin Katti and Others v Karnataka Public Service Commission and Another 2 and State of Bihar and Others v Mithilesh Kumar 3 to argue alternately that these rules are only prospective and cannot affect the selection in the present Notification (December- 2018).
Sri Motupalli Vijaya Kumar, continued the arguments. He points out that in W.P.No.10853 of 2021, particularly in paragraphs 15 to 17, he has raised important issues about the moderation, evaluation methods etc. He points out that the valuation in this case was awarded to third party (TCS), which may be a well-known software company, but they do not have the expertise in the evaluation of examination 2 (1990) 3 SCC 157 3 (2010) 13 SCC 467 11 papers. It is his contention that some examiners are liberal and some examiners are frugal in awarding the marks. Therefore, in order to strike a balance, a method of moderation is to be adopted. He also points out that in a subject like mathematics a candidate can score 100 out of 100, but in art subjects a person normally does not get 100% marks. Therefore, these systems of moderation etc., are scientifically designed to eliminate all kinds of biases that may arise during the evaluation. Relying upon the judgments of the Hon'ble Supreme Court of India, which are reproduced in paragraph 16, learned counsel argues that methods like moderation, scaling, normalization etc., are all being adopted by various recruiting agencies. He points out to the judgment of a three Judge Bench reported in Sanjay Singh and Another v U.P. Public Service Commissioner, Allahabad and another4 and argues that awarding marks by the examiner is one stage of process of evaluation, moderation becomes a part of the evaluation and the marks awarded on moderation become the final marks of the candidate. Learned counsel argues that many of the issues that are raised by the petitioner in his writ affidavit are not answered in the counter affidavit. It is also specifically argued that the said method of evaluation described in paragraph 17 is not followed and the same was done by the third party called TCS. It is also argued by the learned Counsel that despite 4 (2007) 3 SCC 720 12 the specific issues being raised about the training, lack of expertise etc., of the third party the counter affidavit is absolutely silent.
Sri Sudheer Jonnalagadda continued the arguments. According to him APPSC alone can answer about the procedures to be followed and that the "implead petitioners"
cannot go into the merits of the matter. Apart from that he argues that despite the passage of time, despite the interim order passed, the counter affidavits filed did not specify or clarify the manner in which the evaluation was done. According to him the counters do not state about the technical expertise of the third parties chosen to evaluate the paper. The manner in which these third parties were chosen, the manner in which they had evaluated the papers is not clearly explained by the counter affidavit. Learned counsel also points out that earlier the Commission chose the examiners and paper setters, now they have entrusted the entire work of examination, paper setting and evaluation to a third party, whose expertise / knowledge etc., is not disclosed. He argues that this is a clear case of "malice in law" and that as a Constitutional authority (the APPSC) unfairly treated the petitioners, they are before this Court.
Sri Goda Siva, learned counsel argues in line with what is submitted by his predecessors and he also points out that this is clear case of abdication of power and responsibility by 13 the constitutional authority. He also relies upon the change in the counter and the variation in the stand of the APPSC. It is argued that the newspaper reports were not fully considered by this Court during the course of the interim order. But the learned counsel points out that in the counter affidavit that is filed it is mentioned that the newspapers, press conferences are correct and the contents of the report are correct. Therefore, he argues that the newspaper reports are correct. He submits that the change in the stand of the APPSC is clearly visible. Coming to the amendments of the rules, learned counsel argues that this is the crux of the defence. He points out that on the basis of amended rules it is argued that a new method of evaluation is adopted. However, he points out to the rules filed and more particularly argues that the annexure of Rule 17 is totally done away taking away the appointment of examiners (which is a prerogative of the Chairman). This argument is made without prejudice to his contention that the amendment is not done properly. He also argues that even though alleged change is an internal rule since it affects the functioning of the APPSC and also candidates and their futures they have a right to question the same. He also points out that the press statements which are relied upon by the respondent APPSC to justify the digital evaluation are of 2019 and by that time pandemic had not set in for the respondents to justify the method of digital evaluation as a method to avoid the 14 pandemic and its risk. He also relies upon the document called the "Digital Evaluation Process" which is filed with the earlier counter at page 106 which clearly shows that evaluators are chosen from the pool belonging to the third parties. By relying upon this document learned counsel argues that it is clear that the entire process of evaluation itself was passed on to third party. He relies on the press clippings, which are certified by the Nodal Officers, are filed. Therefore, learned counsel argues that this is clear case of abdication of a constitutional duty by APPSC.
Sri T.D.Phani Kumar and Sri Siva Prasad Reddy learned counsels adopted the arguments advanced by the other learned counsels.
Sri Tandava Yogesh, learned counsel relies upon his writ affidavit in W.P.No.11005 of 2021 to argue that the entire exercise is a fraud. He points out that he has made the 5 th respondent as party but they did not appear before this Court. Apart from that he also argues that in his writ affidavit he has raised number of important issues which are not at all answered in the course of counter affidavit. Relying upon the Commission's regulations, which are filed as material papers, he also argues that the Rule 8 (a) states that the Commission should be manned by a Secretary, Additional Secretary etc., who are all appointed with the previous approval of the Governor of the State. He points out that in 15 this case the current Secretary has been appointed without following the process and the appointment order is given by the Government and not by the Commission with the previous approval of the Governor. Therefore, he submits that the appointment of the current Secretary is itself is violative of the law. He also argues that the application is made under the RTI Act for providing data was refused and that despite the case law on the subject the respondents have refused to give the information. He also argues that as per the annexure to Rule 17 of the Rules of procedure it is only the Chairman who can approve and print the question papers. The functions of the Chairman, according to the learned counsel, are being taken over by the current Members. He also states that it is very clearly averred that the current Chairman is being prevented from discharging his duties. This is specifically pleaded in the writ affidavit and the learned counsel draws the attention of the Court to the counter affidavit filed by the Chairman in W.P.No.12914 of 2021 wherein the Chairman himself has stated on oath that he is being prevented from discharging his functions. Learned counsel, therefore, argues that a constitutionally appointed authority is being deprived of his powers by the political hierarchy and that the current incumbent Secretary does not have the power to take over the function of the Chairman. He argues that the present incumbents / members of APPSC have no authority to award the evaluation 16 of marks to 3rd party. He states that the entire exercise is mala fide and is a "surgical strike" to denude the current Chairman of his powers. He points out that the pleadings are not at all answered in the counter and that an adverse inference must be drawn. In other aspects he adopts the arguments of the learned Senior Counsels.
Sri Goda Siva, learned counsel continuing his arguments pointed out that normalization and the requirement thereof which are spelt out specifically as ground-G in his writ affidavit is also not answered in the reply.
SUBMISSIONS OF A.P.PUBLIC SERVICE COMMISSION:
Sri Mallikharjuna Rao, learned standing counsel for the APPSC argued the matter at length with great passion and vigor. According to him before seeking a Writ of Mandamus the petitioner should prove that they have a right and an infringement of that right. He contends that in this case no such right available to the petitioner has been infringed.
He points out very vehemently that the only change brought about in this case is the method of digital evaluation. It is this evaluation which is the subject matter of the dispute. He points out that in the notification it is the examination which has been notified as "conventional" and not the evaluation. Even otherwise, the learned counsel 17 submits with considerable force that the petitioners like any other candidate appearing in any competitive examination does not have any intimation or knowledge about the paper setters or the paper evaluators. Even in the conventional method the question papers were set by an expert who was selected by the APPSC from various academic and other institutions. Neither the petitioners nor any other candidate appearing for the examination had any role in this selection. Similarly, even the correction / evaluation of written papers was done by a pool of evaluators, who are chosen by the APPSC from various sources. APPSC evaluates their credentials, integrity and knowledge to evaluate the papers and then selects them. The petitioners do not have a choice in this. Learned counsel points out that in the present case also except for digital evaluation the rest of the procedure has been followed carefully. Therefore, he submits that the petitioners cannot have a grievance about the same. As far as the safeguards for digital evaluation are concerned, learned counsel relying on the counter affidavit points out that all the requisite safeguards were taken for scanning and sending the papers to the evaluators. The question of any variations / bias etc., during evaluation has also been answered by providing for check evaluation; further evaluation in the case of discrepancy in marks etc. Apart from this learned counsel also points out that the petitioners have never objected to this method or 18 methodology earlier. He points out that press releases were given in December-2019, but the petitioner never questioned the same till the writ petitions were filed. For the preliminary examination also which was conducted in 26.05.2019 the questions were set by a 3rd party and evaluated, in the digital mode. Only after the results were announced for the mains the present Writ Petition is filed and more particularly after the petitioners had failed to clear the examination. Having failed in the examination the petitioners are now before this Court. He, therefore, submits that their conduct estops from raising the present issues.
He also points out that the "rules of the game" or the eligibility criteria were not changed at all. The eligibility criteria for application, the minimum educational standards, age and all other parameters have not been changed. Only the method of evaluation of the papers has been changed. Therefore, learned counsel argues that the rules of the APPSC have not been changed.
Coming to the counter affidavit filed by the Chairman of the APPSC, learned standing counsel submits that he has a personal axe to grind against the Commission. He has already filed a Writ Petition and as he was made a party in his personal name in the present he has filed this present counter affidavit stating that the rules of procedure has been changed. In view of his personal dispute; the counter is filed 19 to support the petitioners. He submits that the counter affidavit is filed by a disgruntled Chairman who has a running feud with the APPSC and should not be given any importance.
He also submits that what are changed are mere procedural rules, which are not regulations. Regulations have to be published in a gazette and the rules of procedures need not be published in a gazette. He submits that the change in the rules of the procedure has not affected the petitioners in any way. The exam remains the same. The syllabus remains the same. The standard of examination remains the same and it is the only the method of evaluation that has changed a little. Therefore, he submits that the grievance of the petitioner does not give them a legal right to seek for a Mandamus. Earlier also APPSC for the conventional exam was chosen the evaluators from the multiple sources, which were disclosed to them. In this case also the same procedure was followed. As far as moderation / bias etc., he submits that the pleadings are not clear; do not make out a case for looking into these allegations and that these issues are mere apprehensions without any proof of mala fides; arbitrariness etc. he relies upon the case law filed by him (with a memo) i.e., Tata Cellular v Union of India5 and W.P.No.4780 of 2021 and points out the need for restraint by this Court in checking administrative decisions 5 AIR 1996 SC 11 20 apart from the limited scope of enquiry. Sri Ravender Rao, learned senior counsel also argued at length for the petitioners in W.P.No.11000 of 2021. He also submitted that the facts pleaded do not make out a case for cancellation. He argued on the basis of case law that a case for moderation etc., is not made out. He points out that mala fides are not proved and that fanciful allegations are made without basis. SUBMISSIONS OF THE IMPLEADED PETITIONERS:
On behalf of the newly impleaded petitioners Sri Dr.K. Lakshmi Narasimha, Ms. B.Rachana and Sri N.Ashwani Kumar argued the matter.
Sri Dr.Lakshmi Narasimha argues that the entire case is based upon the allegations of mala fides and improper exercise of powers etc. He contends that the pleadings do not give clear or categorical details necessary to set aside the entire exercise. Learned counsel points out on the basis of the case law that he relies upon that the cancellation of examination is an extraordinary relief and it should only be given on the basis of very clear and categorical submissions and proof. He points out that the petitioners have not made out a case of bias / mala fide and that their conduct estops them from filing the writ and that they cannot approbate / reprobate.21
Continuing the argument Ms. Rachana appearing for some more implead petitioners argues that the petitioners are estopped from raising any plea before this Court since they have participated in the examination after being aware that the papers would be evaluated by the digital mode. She points out that the press note is dated 25.11.2019 and the exam was conducted in December, 2020. The decision taken, according to the learned counsel, was spelt out in web note dated 19.02.2021 itself. Therefore, she argues that the petitioners are estopped from questioning the digital evaluation, particularly as they unconditionally participated in the examination. As far as the issue of the Chairman is concerned learned counsel points out that the chairman is supporting the case of the petitioners because he also has a personal grievance against the present office bearers of the APPSC and that the contents of the counter need not be taken into consideration. With regard to normalisation and other issues, learned counsel argues that since every candidate has to answer all the papers, the syllabus of which is given in Annexure-II, the question of normalisation etc., are not really applicable or necessary in this case. Since the averments that are made by the petitioners do not amount to valid proof she submits that there is no need or necessity to set aside the entire examination and that the implead petitioners will suffer irreparable loss if such frivolous writ petitions are entertained.22
Sri N. Ashwani Kumar also appearing for some of the implead petitioners also alleges that there is collusion between the Chairman and the present set of petitioners. He points out that when the writ petitioners were filed all the respondents were not added. He points out that the petitioners had a duty to bring on record all the candidates who appeared and that this is not a curable defect either. The mere fact that they were added later will not cure the foundational defect as per the learned counsel. With regard to mala fides also he argues on the basis of case law cited by him that the foundational facts are not laid out for mala fides to be accepted as a ground. He also submits that the scope of enquiry of a Court in such matters, which are decided by experts, is limited and that the Court should not substitute the experts' decision for its own decision, particularly in the absence of any mala fides. He also submits that no fundamental rights of the petitioners are affected and frivolous disputes are raised. He also argues that the decision of the Jammu and Kashmir High Court cited by the AP Public Service Commission in its first counter is fully applicable with the facts and circumstances of the case. REJOINDER SUBMISSION OF PETITIONERS:
In rejoinder Sri B. Adinarayana, reiterates even as on date it is not clear who "set" the question papers and who actually "evaluated" the same. He points out that it is not 23 clear as to who exactly is the "third party" that was involved and what was the extent of their involvement. He points out whether it is TCS or AP Online is not clear. Learned senior counsel submits that like Caesar's wife the APPSC's conduct should always be above board. The importance of APPSC is borne out by the judgments of the Hon'ble Supreme Court of India, particularly in Bihar Public Service Commission case (1 supra) and Mehar Singh Saini, Chairman, Haryana Public Service Commission and Others, In Re 6 according to the learned counsel for the petitioner. He also argued that the constitutional functions cannot be delegated and that the actions of the Secretary-respondents in the case are clearly vitiated. He points out that the Chairman of the APPSC is kept out of all the meetings and the amended rules are pressed into service to justify all these actions. It is his contention that once the procedural due process is vitiated this Court has to interfere and argued relying upon Bihar Public Service Commission (1 supra) learned senior counsel argues that the Chairman is like a Chief Justice of a Court, as he has certain duties which have to be performed by him alone. He submits that if there are differences the procedures are stipulated. He points out that the Secretary, who is not properly appointed as per the Constitution of India is taking over the entire Board. Learned senior counsel submits that the integrity of the exam and the institutional integrity are in 6 (2010) 13 SCC 586 24 question in this writ petition. He points out that reading of the two counters makes it clear that even as on date APPSC has not disclosed the true facts and that as there is manifest arbitrariness, irrationality, this Court must interfere.
Sri Vidya Sagar, learned senor counsel also appearing for the petitioners questions the manner in which the rules were amended and also argues that the stipulations in the employment notification were not followed. According to him the press note filed with the counter does not meet the stipulation of Clause I of the Notification. He also argues that the minutes dated 28.10.2020 are not in accordance with the rules. He points out that once the alleged meeting is not validly held all the consequential decisions taken pursuant therein also fall to the ground. The website of the APPSC to which the attention of the candidates is always drawn has not been updated according to the learned senior counsel. Relying on the Chairman's affidavit learned senior counsel submits that if the Chairman is not cooperating the APPSC has to approach the governor of the State in accordance with the Article 316 (1-A) and not to amend the rules.
Sri M. Vijay Kumar, learned counsel also argues on the same lines and argues that the issue raised in this case goes to very root of the matter. According to him the Public Service Commission failed to answer clearly about the method of evaluation, need for moderation, the hawk-dove 25 method etc. Therefore, he submits that this is a case where the Court should interfere.
Sri J. Sudheer also argues on the same lines and points out that even in the preliminary examination there were clear errors in evaluation and because of the order passed by the learned single Judge more candidates were permitted to appear to the examination. He also submits that once there is malice in law and glaring procedural irregularities are clearly pointed out the Court must interfere and set aside the examination.
Sri Goda Shiva argues on similar lines and submits that the amendment to rules is totally incorrect. He also reiterates that the rules have not been updated and the abdication is clear. He points out that the change in the rules and the current provisions are the crux for the defence of the APPSC. Therefore, learned counsel argues that since the amendment is not done as per the procedure, this Court should set aside the entire action which is based on the meeting dated 28.10.2020. He points out that in the earlier instances for amendment of the rules of procedure G.Os., were issued by the State Government but in the present case no G.O. was issued. Only in the counter affidavit filed in the second time the amendment of rules are pressed into service and they are not mentioned even in the 1st counter affidavit. 26
Lastly, Sri Tandava Yogesh argues that the implead petitioners do not have a right to talk of the exam procedure and to justify the actions of the APPSC. While arguing that the petitioners have no right he points out that in majority of the cases the counter is only filed by the APPSC and the State Government did not try to rebut any of the allegations made. The appointment of the 4th respondent, according to him, is contrary to the law and constitutional mandate. It is only the Governor of the State who can appoint the Secretary. He also points out that, basing upon the case law, this is a fit case in which the Court should interfere since the entire exercise has been done contrary to the constitutional mandate and that the rules of procedure are not actually amended. He points out that the in some of the writ petitions challenge is made to the minutes of the meeting dated 28.10.2020 and yet this Court has not been privy to, the full minutes, agenda etc. Relying upon the counter of the Chairman, he also argues that there is no rebuttal to what is stated by the Chairman and the meeting dated 28.10.2020 is not validly conducted. Consequently, all decisions taken are wrong. He reiterates that a "surgical strike" was carried out to deprive the Chairman of his Constitutional duties.
Sri R.V.Mallikarjuna Rao, learned standing counsel for the APPSC finally states that the petitioners are trying to vindicate their individual rights and that this is not a PIL that is being heard by the Court and that as no fundamental 27 right's of the petitioners are involved this Court cannot grant any relief to the petitioners.
CONSIDERATION BY THE COURT:
1) This is a batch of 14 Writ Petitions. The prayers in the Writ Petitions are being summarised hereunder:
Sl. W.P.No. Prayer No.
1. 11000 of 2021 ; ...to declare the action of the 2nd
2. 11034 of 2021 ; respondent in getting the main
3. 16939 of 2021 ; examination answer sheets of the Group I
4. 10805 of 2021 ; Services recruitment vide Notification
5. 10853 of 2021; No.27/2018, dated 31.12.2018 by digital
6. 10856 of 2021 ; Evaluation and through third party, as
7. 11011 of 2021& illegal etc.,
8. 11033 of 2021 To direct the 2nd respondent to evaluate the answer sheets in a proper, transparent and conventional method.
9. 11026 of 2021 ...to declare the action of the respondent in evaluating the main exam answer scripts of Group-I Service held vide Notification No.27/2018, dated 31.12.2018 through digital evaluation mode as illegal and to set aside the decision for digital evaluation vide Minutes of the Meeting dated 28.10.2020 as illegal and arbitrary.
To declare the results of Group-I Service Main (Conventional Types) Exam vide Notification dated 28.04.2021 as illegal and consequently set aside the same.
To direct the respondents to re-
evaluate the answer sheets without the insistence of digital methods.
10. 12914 of 2021 ...to declare the action of the 2nd respondent in evaluating the main exam answer papers of Group - I Services through digital mode by a private agency as illegal.
Set aside the results dated 28.04.2021.
To direct the respondents to conduct the Group -I Main exams afresh.
11. 15062 of 2021 & ....to declare the action of the 1st and 4th
12. 11005 of 2021 respondents in misappropriating the powers of constitutionally independent 2nd respondent from the 3rd respondent without any authority; and sub-
delegating the Group-I mains exam 28 conduction process to TCS in the middle of the Exam process; and changing the process of Group-I Mains exams, thus changing the rules of Group-I examination after commencement of the exam; and evaluating the group-I mains answer sheets with unauthorised evaluators that too without awarding the marks on them; and not providing the answer sheets to the petitioners, who filed RTI applications; and changing the master record of mains results submitted by 5th respondent to the 2nd respondent on 01.04.2021 is illegal;
To set aside the Group-I Mains exam conducted on 14.12.2020 to 20.12.2020 and consequential results of Group I services main written (Conventional type) Examination (general recruitment) of Notification No.27 / 2018, dated 31.12.2018 released on 28.04.2021;
Direct the 2nd respondent to re-
conduct the mains examination under the active chairmanship of 3rd respondent without 4th respondent as secretary of APPSC within three months;
Direct the 6th respondent to
investigate the illegalities and
irregularities in the mains exam
conduction process and pass such other
orders.
13. 10866 of 2021 ...to declare the action of the 1st respondent in getting the main examination answer sheets of the Group I Services recruitment vide Notification No.27/2018, dated 31.12.2018 by digital Evaluation and through third party, as illegal etc., To direct the 1st respondent to evaluate the answer sheets in conventional method.
To direct R1 to subject the petitioners to interview on being found to have cleared the main exam (conventional type) and appoint them in suitable post.
Direct the 1st respondent to furnish the papers under the RTI Act to the petitioners.
14. 11078 of 2021 ...to declare the action of the respondent in evaluating the answer scripts by engaging the 3rd party evaluators in the examinations conducted vide Notification No.27/2018, dated 31.12.2018;
To direct the respondents to re-
evaluate the answer sheet of the petitioner and also provide the evaluated answer booklet of the petitioner and also publish the marks of all the candidates 29 who appeared for the APPSC main exam conducted from 14th to 20th December, 2020.
2) The issues raised in all these matters can be summarised as follows:
a) The job/task of evaluation of the answer sheets being given to a third party is illegal, contrary to rules;
b) The manner and method in which the work was awarded to the third party for digitalisation, scanning, 'evaluation' etc., is not disclosed and it is not proper.
c) The manner in which evaluation was done: Whether the evaluation was done by the regular examiners of APPSC pool or by the third party's examiner's from their pool?
d) The minutes of the meeting dated 28.10.2020 and the decision to adopt digital evaluation procedure are not correct and are illegal, being contrary to the APPSC Rules of Procedure, 1988. The stipulated method of holding a meeting is also not followed.
e) The Secretary/Members of the APPSC are not authorised to act in the manner stated. The Chairman is bypassed deliberately and this is contrary to the Constitution of India and Rules of Procedure. The rules of procedure are still not 30 amended and what are filed as amended rules are only created for the purpose of this case to justify the action.
3) DATES/TIMELINES:
The important dates and timelines are as follows:-
1) The recruitment notification No.27/2018 is dated 31.12.2018;
2) Preliminary examination was held on 26.05.2019;
3) The main written examination was held between 14.12.2020 and 20.12.2020;
4) The results of the main examination were declared on 28.04.2020.
5) Interviews were scheduled to be held on 17.06.2021.
4) MAIN EXAMINATION:
750 marks out of 825 marks in the main examination are allotted to the written examination alone. Only 75 marks are allotted to the interview. This underscores the importance of the main examination. Even one mark can make or mar a candidate's selection and thus; his or her entire career. Even in the second counter affidavit filed it is reiterated in the last part of para-6 at page 61 that the difference between the candidates' marks is very less, sometimes only fraction of marks makes a difference. It is 31 further specified that out of 6807 candidates, who attended the Group-I examination only 326 were selected for the interview. Thus the importance of examination is accepted by respondents also.
5) NOTIFICATION - IMPORTANT CLAUSES:
The important clauses of the Notification dated 31.12.2018 which are relied upon and are relevant for deciding this dispute are as follows:
"1.10: The applicant is required to visit the commission's website regularly to keep himself/herself updated until completion of the recruitment process. The Commission's website information is final for all correspondence. No individual correspondence by any means will be entertained under any circumstances.
11.3: The Main (Conventional Type) Examination will be held at the following Four Centres only.
However, the Commissioner reserves the right either to increase or decrease the number of Centres.
1. Visakhapatnam 2) Vijayawada 3) Tirupati 4) Ananthapur 13.4 The Commission is empowered under the provisions of Article 315 and 320 of the Constitution of India read with relevant laws, rules, regulations and executive instructions and all other enabling legal provisions in this regard to conduct examination for appointment to the posts notified herein, duly following the principle of order of merit as per Rule 3 (vi) of the APPSC Rules of Procedure read with relevant statutory provisions and ensuring that the whole 32 recruitment and selection process is carried out with utmost regard to secrecy and confidentiality so as to ensure that the principle of merit is scrupulously followed.
15.2 The selection of candidates for appointment to the posts shall be based on the merit in the Main Written examination (Conventional) followed by oral test (Interview), to be held as per the scheme of examination enunciated at para 10 above. 17 COMMISSION'S DECISION TO BE FINAL:
The decision of the commission in all aspects and all respects pertaining to the application and its acceptance or rejection as the case may be, conduct of examination and at all consequent stages culminating in the selection or otherwise of any candidate shall be final in all respects and binding on all concerned, under the powers vested with it under Article 315 and 320 of the Constitution of India. Commission also reserves its right to alter and modify the terms and conditions laid down in the notification for conducting the various stages up to selection, duly intimating details thereof to all concerned, as warranted by any unforeseen circumstances arising during the course of this process, or as deemed necessary by the Commission at any stage." (Emphasis supplied)
6) CONSTITUTIONAL PROVISIONS AND THE DECISIONS:
The constitutional provisions which are relevant are Articles 315 to Article 320 of the Constitution of India.
Article 316 (1-A) however has an important bearing on the issues raised. It is as follows:
Article 316 (1-A): If the office of the Chairman of the Commission becomes vacant or if any such Chairman is 33 by reason of absence or for any other reason unable to perform the duties of his office, those duties shall, until some persons appointed under clause (1) to the vacant office has entered on the duties thereof or, as the case may be, until the Chairman has resumed his duties, be performed by such one of the other members of the Commission as the President, in the case of the Union Commission or a Joint Commission, and the Governor of the State in the case of a State Commission, may appoint for the purpose. (Emphasis supplied) Article 320(1) is as follows:
320. Functions of Public Service Commissions. -
(1) It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively."
6 (a) POSITION OF THE CHAIRMAN:
As far as the position of a Chairman is concerned the Hon'ble Supreme Court of India in the case of Bihar Public Service Commission (1supra) held as follows:
"32.......... But, that does not mean that there is no difference between the office held by the Chairman and the office held by member of the Public Service Commission as regards functions to be performed by each of them in respect of his respective office. ....... Further, the Chairman and the member of the Public Service Commission cannot be treated as persons standing on the same footing in respect to every matter, when the Constitution in several of its Articles treats the Chairman and the members alike for certain purposes and in several other articles treats them differently for certain other purposes by use of the words "the Chairman and the member", and "other than the Chairman". Therefore, under the scheme of the provisions in the Constitution and the scheme of the 34 Regulations to which we have already adverted, Chairman of a Public Service Commission has an "exclusive role" to play in discharge of administrative duties of his office as a Chairman while a member cannot have any role to play in that regard unless otherwise required. As the Chief Justice of a High Court is made the repository of duties to be performed in respect of administration of a High Court under the Constitution, the Chairman of a Public Service Commission is made the "repository of duties" to be performed in respect of administration of the Public Service Commission under the Constitution. Chairman of a Public Service Commission is entrusted with the "discharge of administrative duties" of the Public Service Commission obviously for the reason that as high constitutional functionary he could be depended upon to discharge such functions justly and fairly." (Emphasis supplied) 6(b) In addition, the Hon'ble Supreme Court of India in the case of Kerala Public Service Commission and Others v State Information Commission and Another 7 has reproduced with approval the view of the Kerala High Court in Kerala Public Service Commission case:
"16. What, if any, is the fiduciary relationship of PSC qua the examinees? Performance audit of constitutional institutions would only strengthen the confidence of the citizenry in such institutions. PSC is a constitutional institution. To stand above board, is one of its own prime requirements."
7
(2016) 3 SCC 417 35
7) SCOPE OF ENQUIRY:
The learned standing counsel for APPSC relied on the leading judgment of Tata Cellular v Union of India8 to highlight the limited scope of the enquiry / limited grounds for reviewing an administrative decision. In para 94 it was held as follows:
"94. The principles deducible from the above are: (1) The modem trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be 8 1996 AIR 11 = (1994) 6 SCC 651 36 free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
Coming to the issue or reasonableness / fairness it was held as follows:
"The administrative law test of reasonableness is not by the standards of the 'reasonable man' of the torts law. Prof. Wade says:
'This is not therefore the standard of "the man on the Clapham omnibus". It is the standard indicated by a true construction of the Act which distinguishes between what the statutory authority may or may not be authorised to do. It distinguishes between proper use and improper abuse of power. It is often expressed by saying that the decision is unlawful if it is one to which no reasonable authority could have come. This is the essence of what is now commonly called "Wednesbury unreasonableness", after the now famous case in which Lord Greene, M.R. expounded it." (emphasis supplied)
90. Referring to the doctrine of unreasonableness, Prof. Wade says in Administrative Law (supra):
"The point to note is that a thing is not unreasonable in the legal sense merely because the court thinks it is unwise."
91. In Food Corpn. of India v. Kamdhenu Cattle Feed Industries [(1993) 1 SCC 71] it was observed thus : (SCC p. 76, para 7) "In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law : A public authority possesses powers only to 37 use them for public good. This imposes the duty to act fairly and to adopt a procedure which is 'fairplay in action." (Emphasis supplied)
8) CONSIDERATION BY THE COURT:
8 (a) EVALUATION:-
There are two counters filed in these cases. Initially in W.P.No.10866 of 2021 and in a few other matters the counters were affirmed and signed by the Assistant Secretary and Nodal Officer (Legal). Interim Applications were heard and disposed in the same Writ Petition No.10866 of 2021. A common counter affidavit was later filed in a batch of 13 matters for the final hearing. This common counter affidavit is affirmed and signed by the very same officer, who is working as Assistant Secretary and Nodal Officer.
This Court passed interim orders dated 16.06.2021 in this matter. A copy of the interim order is also filed as a material paper by the respondents. The factors that weighed with the Court at that stage are spelt out as "prima facie conclusions" from page 11 of the said order.
(1) The rules and procedure of APPSC and in particular Rule 17 and powers given to the Chairman of the Commission.
(2) The award of work by the APPSC to a "third party". (3) Whether the paper publication / press notes that were given meets the rigour or the test of Clause 17 38 of the Notification and the candidates were fully aware of digital evaluation.
(4) Whether the expectation of the students, who appeared for the examination, that their papers were evaluated properly or not is fulfilled.
(5) Lastly, the judgment of the Jammu & Kashmir High Court (W.P.C.No.2255 of 2019, dated 06.08.2019).
These were the questions and issues which led this Court to come to a prima facie conclusion that a further detailed inquiry is necessary and therefore an interim order was granted. After this order was passed the second counter was filed in this batch of Writ Petitions including W.P.No.10866 of 2021 as mentioned earlier.
The first issue that this Court has to decide is about the appointment of a third party for evaluation of the answer scripts. Prayers in various Writ Petitions were reproduced earlier. The sum and substance of the challenge in all these writ petitions is about the appointment of third party for the purpose of evaluation of the answer scripts and about the methodology adopted in going for digital evaluation. Since counters were filed in W.P.No.10866 of 2021 twice these two counters would be referred to as the 1stcounter and the 2nd counter in this order. They were also so relied on by the learned counsels.
39
With regard to "evaluation of the papers" it is stated in the 1st counter affidavit filed that evaluation of papers is always delegated to experts (para-4), the same was done in this case also (para-4). In para-7 also it is reiterated that evaluation is always been outsourced to the subject / domain experts. In para-8 it is reiterated that "it was announced widely through press that Group-I mains digital tabs would be used and evaluation of answer scripts would be in the digital mode" (para-8 of page-7). Again in paragraph 11 at page 8 it is reiterated that "the decisions taken by the Commission, including the opting of digital valuation process was arrived at by a proper consultative process..... It is reiterated in the last line that the Commission cannot / does not evaluate answer papers, always gets it done by subject experts, did the same this time through digital mode in view of Covid.
However, in the second counter affidavit which was affirmed and signed on 05.08.2021 the following statements appear:
In paragraph 10, it is stated that digital evaluation was undertaken with technical support by a reputed agency following strict confidential protocols and procedures.
In para-11 at page 64 it is asserted as follows:
"The written scripts of all candidates are scanned by the agency chosen by the PSC in the presence of the staff 40 of PSC under strict security protocols and entered into separate files in the electronic systems.
The scripts are then transported to the evaluators speciality wise and subject wise for evaluation. These evaluators or examiners are not employees of the PSC but are chosen on the basis of their domain expertise and experience in valuing these type of answer scripts by the PSC after obtaining the details and credentials of these persons and after due verification of the same from that are furnished by reputed agencies. Even hither to in all recruitments the examiners are chosen (by every PSC) and this PSC also, by obtaining the details of the examiners from various organisations like Universities and reputed organisations. Hence since the syllabus of this examination is not an academic oriented one only such experts conversant with the present syllabus were picked up from the large pool of experts available to attend the task of evaluation. This is not peculiar to this PSC alone but many other PSC's like Karnataka, Gujarat, Tamil Nadu and Kashmir have already introduced this system and has been quite successfully implemented.
Hence alleging that tenders have not been called to choose the agency and the credentials and capacity of these examiners is doubtful is only a malicious after thought by the petitioners."
It is thus seen that in the 2nd counter it is asserted that the written scripts of all the candidates only are 'scanned' by an agency which is chosen by the APPSC and are not evaluated. These scripts were transported to the evaluators separately. These evaluators, according to the 2 nd counter, are chosen after obtaining details and credentials of these persons and after due verification from the information furnished by the reputed agencies. It is also mentioned that the experts were picked up from the larger pool of experts 41 who were available. Similarly, in page 65 continuation of para 11 it is again stated that the services of the third party agency were taken to aid and assist the evaluators. This is reiterated in page 66 and para 14, in pages 67 and 68. During the course of submissions it was categorically asserted and reiterated that services of the third party were only used for the purpose of scanning the papers and not for evaluation.
Coming to the documents, which were disclosed in the first counter:- a document called "Physical Evaluation Process" is filed at page 100 of the counter. According to the petitioners this is a document pertaining to the third party, who evaluated the answer sheets, but the learned standing counsel for APPSC argues that this is in the nature of report submitted and is not part of any contract or other document. A reading of this document indicates (under the heading 'Selection of Evaluators') that the evaluators are:
"from our pool of evaluators the evaluators are further shortlisted and picked up for digital evaluation".
It is also reiterated that the evaluators were subject matter experts chosen based upon education background, qualifications, experience, ability to handle digital evaluation, interest in online evaluation. Lastly, it is mentioned for this evaluation process for total 123 evaluations have been used and a team of 26 members in quality control has been used. 42 The last line of this document under the heading of "report generation" is as follows:
"The summary report is as per the format prescribed by APPSC wherein the total marks are allotted to the answer sheets".
This document filed with the counter, in the opinion of this Court, is not a document pertaining to APPSC or originating from APPSC. There is no reference to an office bearer, member of the APPSC being involved in preparing this. It is not signed by anyone. It is not referred to as an extract etc. The selection of evaluators is described to be from "our pool of evaluators". The last line also states that the summary report is as per the "APPSC format" and not "our" format-which should be the norm if it was an APPSC report. The use of the words "APPSC format" and not "our format" etc., makes this clear. The interesting part is that there is no pleading or reference about this document in the counter affidavit. It is merely an annexure to the counter of APPSC.
The figure of 123 evaluators mentioned in this document differs with the figure in the "abridged" list of evaluators filed by APPSC in the sealed cover. Hence it is not clear how "many" evaluators were used.
Apart from this a number of press cuttings have also been disclosed. In the interim order that has been passed by this Court, this Court touched upon press statements vis-a- 43 vis Clause 17 of the procedure. In the 2nd counter that is filed it is reiterated in paragraph 26 at page 75 that these statements are issued by a responsible officer, the Secretary of APPSC. As per the settled law on the subject, news paper reports amount only to hearsay evidence. However, in view of the reiteration in the counter affidavit that these statements are made by the Secretary APPSC and as the counter and these documents are filed by a responsible official in a Writ proceeding under Article 226 of the Constitution of India this Court is looking into the same. The headline itself reads "APPSC hires third party for Group-I Mains". All the press statements interestingly are countersigned by the Nodal Officer (Press) of the APPSC and are filed by APPSC only as evidence. At Page 110 it is reiterated in a public daily called 'Eenadu' that preparation of the question paper, printing, the ranking etc., duties were entrusted to a reputed agency. It is stated that this agency has "international reputation" in this aspect and an "agreement" was entered into with the said organisation. Since secrecy has to be maintained about the name of the third party the details are not being given. In the next statement, which is dated 31.12.2019, the heading itself states that the "APPSC would be a spectator". However, it is reiterated in this press statement that a decision on the evaluation of the papers in the digital mode or manual mode are yet to be taken. This press clipping reads as follows:
(Translation by Court). "After the examination - should be 44 answer sheets be corrected manually or after digital scanning, is a matter on which a decision is to be taken". In the next paragraphs it is mentioned that henceforth the duty of conducting all examination will be entrusted to an "internationally" reputed and trusted organisation. The date relating to the recruitment, syllabus, the model question paper, reservation etc., were all furnished to the said organisation. This press cutting is dated 31.12.2019 and is signed by the Nodal Officer. Similarly, in the press cutting of Indian express at page 115, dated 08.01.2021, which is in English, it is stated that the third party has been hired to "set" the question paper and to "evaluate" the same. It is reiterated that the evaluation will be done digitally. The statement reads as follows:
"The company hired for the job is well recognised. We have given them the entire syllabus and few patterns for the question paper on the basis of which they set the paper. It has trained those who will evaluate the papers"
In the press statement dated 19.12.2019 (page 109 - 2nd counter) clarifications were also given that because the accusation of one candidate getting more and another candidate getting less are reduced. The examiner mood and bias etc., are reduced and that two evaluators would first correct the paper and if there is a difference of more than 50% the same would be sent to a third evaluator. 45
Therefore, a reading of all these press disclosures would show that the APPSC had also taken a decision to get the papers "evaluated" by a third party.
In the arguments it is reiterated that whether it is the manual examination or the digital mode of evaluation, the APPSC alone has an authority to choose the evaluators. This statement in the opinion of this Court is partially correct. If the APPSC by itself chooses the evaluators from its pool of evaluators available either from reputed institutions, universities, etc., there cannot be a ground for complaint. But when the press statements, documents and the 1st counter show that the evaluation is being entrusted to a third party the question is, can this argument be accepted? The headlines of the newspapers are clear (spectator) hires 3rd party for mains etc. An agreement (which is not disclosed) is also entered into. What is interesting is that during the course of the submissions it is reiterated by the respondents more than once that the services of a third party was only utilised for the purpose of "scanning" the papers and for digitally transmitting them. It is reiterated more than once in the course of submissions that the evaluators were chosen by the APPSC only and not by a third party.
This Court in the course of its interim order has also talked about the issue of a third party evaluator being chosen, about the expertise of evaluators, the capability of 46 their evaluators etc. This Court also held in that order that a complete details of the evaluators cannot be disclosed in a competitive examination. But once the issue has been raised the respondents should have at least disclosed some details to allay the doubts. In paragraph 2 of the "Consideration by the Court" (the interim order) at page 13 of the order it is clearly stated that even a general statement giving the number of evaluators for each subject with their qualifications, without disclosing their names etc., is not done. The remark at the end of paragraph 2 is that the counter affidavits are conspicuously silent in this aspect. Despite this comment by the Court in the interim order even in the second affidavit no details are forthcoming. Even broad details are not given. That the APPSC was contemplating the digital methods is seen from the counter affidavit and the sealed cover documents but the question is when and how were these decisions actually taken.
Additional information and certain documents were disclosed in a sealed cover by the APPSC. One of the documents is a typed tabular statement which is called an "Abridged list of examiners". Nothing more was disclosed other than this abridged list. Why the entire list was not disclosed even to this Court in the sealed cover is not clear. This Court does not have any grievance with the avowed need to keep the examiner / evaluators details secret. If the examiner's details are disclosed there is a likelihood that 47 candidates may approach them, try to influence them etc. This was also noticed by the Hon'ble Supreme Court of India. But the fact is that the petitioners have come to a Court with a clear case that a third party called TCS was appointed. They are named in the pleadings and in the array of parties with specific allegations being made that the evaluators do not have the domain knowledge. This Court is of the opinion that a duty was cast upon the respondents after the point was raised and prima facie opinions expressed to disclose the method in which they have chosen the evaluators. They could have simply said that they could have approached 'X' number of institutions, universities, shortlisted "Y" number of candidates based on their domain knowledge and then trained them in digital evaluation methods from X date to Y date and thereafter entrusted them the duty of evaluation. Nothing was done. The disclosures in the sealed covers given to Court do not disclose the full details except a work order / letter given to AP Online Ltd., for scanning of the answer booklets.
The averment in para-11 at page 64 of second counter that the written scripts of the candidates were scanned by the "agency chosen by the APPSC" also runs contra to the press statements etc., given over a period of time. In the opinion of this Court, there was no need for secrecy or for reticence in disclosing the manner of awarding the work of the scanning of scripts or the clear details with costs etc. The affidavit is 48 conspicuously silent about the "scanning work details" also. Only one document is given in the scaled work as mentioned earlier. The "agreement entered into with" this reputed international company as per the press reports is not detailed anywhere nor is it disclosed even in the sealed covers. There may be a need for secrecy with reference to "evaluators" but not for the work of scanning. The judgment of the Jammu and Kashmir High Court relied on by APPSC shows that the Commission in that case made elaborate and clear disclosures before the High Court unlike in this case. The other data and averments in the counter also talks of a "third party" being appointed to evaluate. The contention that a third party was utilised to "Scan" the answer scripts only is not borne out by the record.
8 (b) MEETING DATED 28.10.2020 AND AWARDING OF WORK:-
In the minutes dated 28.10.2020 (which is filed to justify the system of digital evaluation), agenda item No.3 deals with digitalisation for enabling the evaluators to mark these scanned scripts on the computer screen itself. As per this document quotations have been called for from (a) AP online and (b) Datatec. On the other hand, it is argued that confidentiality prevents the respondent APPSC from disclosing the name of the agency but this document is filed by the respondents themselves. It is not clear if these two organisations are the reputed organisations which are 49 referred to in the press conferences earlier. What is interesting is that this meeting was held on 28.10.2020 and these minutes are the basis on which further action is taken as per the respondents. But prior to that on 31.12.2019 itself the Chairman has announced that digital evaluation is being entered into and that the APPSC would only be a spectator. An order is placed on AP Online (whose name is disclosed as above) and the letter of award is filed in the sealed cover. As it is for scanning only it is not clear why the same could not be pleaded and described in the counter affidavit with clarity.
No details are forthcoming in the counter. In the meeting dated 28.10.2020, Agenda Item 3 is "digital evaluation". Quotations were also invited as mentioned above. Why and how this was converted to "mere scanning" as asserted now in counter-II is not clear. The group of members who attended this meeting cannot also take the said decision as per this Court in the absence of a Chairman / Acting Chairman as per Article 316 (1A) is clear. This is discussed later.
This Court also commented in the course of its interim order that digitalisation does have advantages and that despite this in the course of argument or in the 2nd counter affidavit the respondents did not disclose what were the quotations obtained from AP Online, Datatec etc. Even in the matters disclosed to the court in a sealed cover by the APPSC these issues are not fully disclosed. The name of the firm is 50 disclosed in the minutes filed with the counter and one work order for scanning is sent in the sealed cover. This Court is unable to find any justification for the failure of the respondents to disclose the complete details of the manner in which the agreement was concluded, at least with the agency for "scanning" as they now say in the 2nd counter affidavit. The counter affidavits are conspicuously silent on many of these aspects. Without a foundation in the counter affidavit some papers are enclosed in a sealed cover. The judgments of the Jammu and Kashmir High Court is clearly not applicable. In that case the Commission filed affidavits; supplementary affidavits etc., with elaborate details of the procedures for selection; the infrastructure, the meetings; the training, the safeguards etc. The Jammu and Kashmir High Court had more than adequate pleading / counter affidavits and material to come to its own conclusion. This meeting is further discussed in the next paragraphs. The lack of these details leaves very little option to this Court. 8 (c) RULES OF PROCEDURE:
A larger issue that has been raised in all these writ petitions is about the rules of procedure. In the second counter that is filed the "updated" Rules of Procedure are disclosed. These amended rules of procedure were supposedly approved as per the meeting dated 25.02.2020 and were relied on for the important meeting of 28.10.2020. 51
The first counter was attested and filed on 09.06.2021. At that point of time these rules were not filed. They are not even mentioned in the 1st counter affidavit. In the second counter affidavit that these rules are filed and pressed into service. They are not pleaded/mentioned or discussed in detail. The dispute between the Chairman and the Members of the APPSC is now in public knowledge and a Writ Petition No. 20789 of 2019 is already filed by the Chairman. By these rules of procedure many of the powers vested in the Chairman were taken away. Some of the important rules which underwent a change are -
(1) Rule 3, two new rules have been added as explanation to Rule 3.
(2) In Rule 3 (6), (7), (8) Secretary has been authorised to exercise certain powers.
(3) Rule 9(a), Rule 3 (10)(a) & (b) were added. (4) In Rule 10 a note has been appended stating that list of examiners shall be approved by the Commission.
(5) Rule 11 underwent fundamental change. (6) Rule 13 also underwent a change;
(7) Note is added to Rule 15.
(8) Rule 16 is also changed.
(9) The allocation of duties among the members is under Rule 17. This is a very important rule dealing with allocation of important duties which have a bearing on the 52 case on hand. This rule has undergone a very fundamental change. The annexure to Rule 17 which shows the allocation of business among the members of the Commission has undergone fundamental changes. The powers that were given to the Chairman are altered. Particularly, the old serial No. 9 which permitted the Chairman / Chairman and one member to appoint examiners and moderators has been totally removed (Rule-9). The Chairman was exclusive authority for the approval and printing of question papers (Rule 17 Item No.10 annexure). Now it is given to the Chairman or any member nominated by the Commission. The important parts of the 988 Rules and the 2020 Rules are reproduced here:
1988 2020
THE A.P. PUBLIC SERVICE COMMISSION THE A.P. PUBLIC SERVICE COMMISSION
RULES OF PROCEDURE RULES OF PROCEDURE
The Andhra Pradesh Public Service Commission The Andhra Pradesh Public Service Commission
hereby makes the following Rules regulating its hereby makes the following Rules regulating its
procedures in relation to performance of its procedures in relation to performance of its
functions in super session of the Rules issued in functions in super session of the Rules issued in Proceedings 348-B/61, dated 31-7-1962 and Proceedings 348-B/61, dated 31-7-1962 and amended from time to time. amended from time to time.
TITLE TITLE: Rule 1 : These Rules shall be called the Andhra Rule 1: (i) These Rules shall be called the Pradesh Public Service Commission Rules of Andhra Pradesh Public Service Commission Procedure and shall come into force on and from Rules of Procedure and shall come into force on 1-1-1988. and from 1-1-1988.
(ii) Transaction of business of the Commission -
The business of the APPSC shall be transacted in accordance with the provisions of APPSC Regulations and the provisions of these Procedure Rules.
(iii) Disposal of the business by the APPSC
a) The APPSC may, regulate the procedure for transaction of its business as also of its business amongst the Chairman and other Members
b) Save as provided in sub-section (a), all business shall as far of procedure as possible be transacted unanimously
c) Subject to provisions of Sub-section (b) if there is difference of opinion among the members on any matter, such matter shall be decided according to the opinion of the majority.
53
DEFINITIONS DEFINITIONS Rule 2 : In these Rules Rule 2: In these Rules
i) Commission' means Andhra Pradesh Public
(i) 'Commission' means Andhra Pradesh Service Commission.
Public Service.
(ii) 'Member' means a Member of the (ii) Member' means a Member of the Commission Commission and includes the and includes the Chairman thereof. Chairman thereof.
Rule 13: The Secretary shall place before the Rule 13: All the items shown in the schedule to Commission all matters which it has to decide the Annexure shall be placed before the along with the subjects suggested by the Commission by the Secretary with memorandum Members with agenda notes, wherever and notes. Further if any Member/ Members-s necessary. The agenda and notes shall be proposes in writing for inclusion of any subject, circulated to the Chairman and Members of the the Secretary shall place the same before the Commission at least one day in advance. Commission. The agenda and notes shall be circulated to the Chairman and Members of the Commission atleast one day in advance.
Rule 14: Every question at a meeting of the Rule 14: Every question at a meeting of the Commission shall be determined by a majority of Commission shall be determined by a majority of the votes of the Members present and voting on the votes of the Members present and voting on the question, and in case of an equal division of the question, and in case of an equal division of votes, the Chairman shall have a second or votes, the Chairman shall have a second or casting vote. casting vote.
Rule 15: All decisions of the Commission shall Rule 15: All decisions of the Commission shall be recorded in such manner as the Commission be recorded and all the Members have to affix may direct. It shall be open to any member who their signatures. If any member is in dissents from a decision to record his dissent disagreement with any of the decision, he is at and if he thinks fit, also his reasons for such liberty to record the same but he has to sign the dissent. proceedings. If any member present at the meeting has to sign the proceedings within a period of not exceeding 7 days, failing which it will be deemed that he is in agreement with the decisions taken and the proceedings will be recorded. Such proceedings shall be kept by Secretary and each decision ill be sent to the concerned wing under his signature for implementation.
NOTE: the commission shall function as a unit. The Members of the Commission shall not question the validity or correctness of the function performed or duties discharged by the Commission as a body. A member is regarded as the party to the function performed or duties discharged by the Commission even though the member concerned might have been a dissenting member of a member in minority or a member who abstained from participation in the function performed or duty discharged.
Rule 16: Where the Chairman is absent on leave Rule 16: The Commission meetings are presided or is unable to be present at a meeting of the over by the Chairman. Where the Chairman is Commission, the Chairman shall authorise the absent on leave or is unable to be present at a senior most Member to preside over the meeting meeting of the Commission, the senior most and perform the functions of the Commission : Member shall preside over the meeting and Provided that a list of cases on which decisions perform the functions of the Commission:
have been arrived at and those in respect of which action has been taken during his absence on leave shall be placed before him immediately on his return from leave, by the Secretary.
ALLOCATION OF BUSINESS AMONG ALLOCATION OF BUSINESS AMONG MEMBERS MEMBERS Rule 17: The various items of the work of the Rule 17:
Commission shall be allocated to Members by the Chairman as indicated in the Annexure. Any (a) The powers for conduct of business rests with matter not covered in the Annexure may also be the Commission and the decisions will be taken allocated to one or more Members by the in the meetings of the Commission. However, for Chairman. Not withstanding any allocation administrative convenience, items of work will be made in the Annexure, Chairman may, in any allocated by the Commission to the Members particular case, direct that the matter be placed and to Sub Committee of members. The various before all the Members of the Commission for items of the work of the Commission shall be the decision. allocated to Members by the Chairman as indicated in the Annexure. Notwithstanding any allocation made in the Annexure, Chairman may, in any particular case, direct that the matter be placed before the Commission for the decision.
(b) However nothing in these rules shall prevent the Secretary, if majority members request in 54 writing, to send the file/files to all the members, for decisions.
(c) All the relevant files have to be submitted first to the Members in the order of seriatim and then to the Chairman.
Rule 18: The decisions of any sub-committee to Rule 18:The decisions of Members and Sub- which powers have been allocated under Rule 17 Committee to which subjects have been shall be reported to the Commission. Lists of allocated under Rule 17 shall be reported to the such cases shall be prepared and circulated by Commission in the next meeting. If all the the Secretary to the Chairman and the Members members have seen the files in which decisions at least one day prior to each meeting of the are taken, such decisions need not be reported Commission. to the Commission in the Commission's meeting.
Lists of such cases shall be prepared and circulated by the Secretary to the Chairman and the Members at least one day prior to each meeting of the Commission.
Rule 19: The Chairman, or in his absence, the Rule 19: The Chairman, or in his absence, the senior most Member may deal with any urgent senior most Member may deal with any urgent matter within the purview of the Commission matter within the purview of the Commission. but appearing to him to require immediate which require immediate action. Such action action. Such action shall be reported by the shall be reported by the Secretary to the Secretary to the Commission immediately. Commission immediately and be placed before the next meeting of the Commission for ratification.
ANNEXURE (Rule 17) Statement showing allocation of business among member of the Commission 1988 2020 S.No. Functions Allocations Functions Allocations 01 Administration Chairman Administration as per Chairman the provisions of (during Chairman's APPSC Regulations (during absence on leave or Chairman's tour the Senior most absence on leave (Member present). or tour the Senior most (Member present).
2 Co-ordination of Chairman Matters not specifically Commission
commission's work allotted to members
3 Matters not Chairman Conferences of Chairman
specifically allotted to Chairmen, Public
Member Service Commissions
and correspondence
with Union Public
Service Commission or
State Public Service
Commissions on
important matters of
Policy
4 Conferences of Chairman Selection of Advisers Commission
Chairmen, Public for Interview Boards
Service Commissions and constitution of
and correspondence
Interview Boards
with Union Public
Service Commission
or State Public
Service Commissions
on important matters
of Policy
5 Selection of Advisers Chairman Constitution of Commission
for Interview Boards Interview Boards
and constitution of
Interview Boards
6 Examination Rules Chairman and one Examination Rules Sub-committee
including schemes of Member including schemes of consisting of 3
Examination and Examination and members, of
syllabus syllabus which one
atleast is a
Member from
Service
55
1988 2020
7 Creation of new Chairman and one Creation of new centres Chairman and
centres and physical Member and physical one Member
arrangements arrangements
8 Appeals from Appeals from Appeals from Appeals from
candidates whose candidates whose candidates whose candidates
applications are applications are applications are whose
rejected rejected
rejected applications are
rejected
9 Appointment of Chairman/Chairman Approval and printing Chairman or any
Examiners and and one Member of Question papers Member
Moderators nominated by
the commission
10 Approval and printing Chairman Preparation of Sub-committee
of Question papers guidelines, manuals, consisting of 3
etc., members, of
which one
atleast is a
Member from
Service
11 Preparation of Chairman and one Scoring and Scaling / Sub-committee
guidelines, manuals, Member Moderation consisting of 3
etc., members, of
which one
atleast is a
Member from
Service
12 Scoring and Scaling / Chairman and one Matters pertaining Sub-committee
Moderation Member recruitments, consisting of 3
qualifications scrutiny members, of
which one
etc.,
atleast is a
Member from
Service
13 Matters pertaining Chairman and one Preparation of Annual One Member
recruitments, Member Report
qualifications
scrutiny etc.,
14 Preparation of Annual One Member Approval of Rules, Sub-committee
Report concurrence of consisting of 3
temporary members, of
appointments and re- which one
allotment under rule atleast is a
52 of AP State and Member from
Subordinate Service Service
Rules
15 Approval of Rules, Sub-Committee Disciplinary cases and Sub-committee
concurrence of fixation of inter se consisting of 3
temporary seniority in judicial and members, of
appointments and re-
other services which one
allotment under rule
52 of AP State and atleast is a
Subordinate Service Member from
Rules Service
16 Disciplinary cases Sub-Committee Departmental Tests Sub-committee
and fixation of inter and recruitment by consisting of 3
se seniority in judicial transfer members, of
and other services
which one
atleast is a
Member from
Service
56
1988 2020
17 Departmental Tests Sub-Committee Approval of Counter- Sub-committee
and recruitment by affidavits consisting of 3
transfer members, of
which one
atleast is a
Member from
Service
18 Approval of Counter- Sub-committee System Development Chairman and
affidavits and other work two members
pertaining to technical
aspects of Data
Processing
19 System Development Chairman and one Individual Recruitment One Member
and other work Member
pertaining to
technical aspects of
Data Processing
20 Individual One member Audit of the Sub-committee
Recruitment examination process consisting of 3
for each notification members, of
which one
atleast is a
Member from
Service
The following functions shall be discharged by the full Commission;
1. Calling of candidates for interviews.
2. Approval of Results of Examinations and selections from valid lists.
3. Cases when there is disagreement among Members.
4. Proposals for amendments to A.P. Public Service Commission Regulations.
5. Proposals for exclusion from Commission's purview of extension of functions of the Commission.
6. Approval of Annual Report of the Commission.
7. Recognition of Qualifications The decision of a Member or the Committee shall be communicated to the Chairman before action is taken. The Chairman may thereupon direct that such decisions hall be referred to a meeting of the Commission for further consideration and decision; and where, no such direction is given by the Chairman, the decision of the Member or the Committee shall be deemed to be the decision of the Commission.
The two questions that arise here are -
(a) Do the disclosures / documents filed show that the 1988 rules are actually amended?
and
(b) Can the 1988 rules be actually amended in this manner particularly with reference to "The Chairman, APPSC".
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As far as question (a) is concerned the counsels appearing for petitioners have argued that modification of the rules of procedure should be done by issuing an appropriate Government order and after they receive approval of the Governor of the State. In fact, the amended rules mention the G.Os., issued to amend certain provision. Rule 3 was amended by G.O. No.388 dated 29.12.2003. Rule 6 was substituted by G.O.No.88, dated 22.2.2007. It was directed to be changed by the Government in G.O.Ms.No.81 dated 22.02.1997. The State Government gave a direction to APPSC to change its rules of procedure. Rule 7 was deleted by G.O.Ms.No.139, dated 28.07.2016. This is also visible from the 2020 rules filed by the respondents themselves. In the present case no G.O. is issued for the amendment. It is not clear why the said procedure was not adopted in the present case, particularly, when such far reaching changes are sought to be introduced by taking away the powers of the Chairman and reorganising the allocation of duties. Only a letter is filed in the sealed cover to show that these amendments were communicated to the State Government. The only argument advanced was that "APPSC Regulations"
need to amended through a GO etc., and that this procedure is not needed for amending the "Rules of Procedure". But the document filed as 2020 rules itself and prior GOs issued show the contrary position. If the GOs were published / notified they would have been in the public domain. 58
In the second annexure to Rule 17 (1988 Rules) there is a note to the following effect -
"The decision of a Member of the Committee shall be communicated to the Chairman before action is taken. The Chairman may thereupon direct that such decision shall be referred to a meeting of the Commission for further consideration and decision; and where, no such direction is given by the Chairman, the decision of the Member or the committee shall be deemed to be the decision of the Commission."
A reading of this rule would make it clear that any decision of a member or the committee shall be communicated to the Chairman before action is taken. The Chairman shall direct such a decision should be referred to the meeting of the full commission for further discussion or consideration. Only if such a direction is not given by the Chairman it shall be considered as the decision of the Commission. This procedure was not followed and the entire rule is deleted in the present document. The reply affidavit filed in W.P.No.11005 of 2021 also highlights many of these changes.
These rules are the crux of the defence or the foundation of the defence. Yet the complete manner in which the agenda item was circulated, the discussion details original meeting minutes, agenda notes etc., are not placed before the Court. Details of how these changes were brought into the public domain are also not clear. The only other document available is the counter affidavit of the Chairman 59 where he states that the meeting was not properly held; that no valid agenda was circulated etc., and therefore the decisions are not valid. Paras 4 and 5 of the counter deal with these issues only. No reason is forthcoming for the failure to disclose all of these documents, more so in the light of the Chairman's counter affidavit. Nothing is filed / disclosed to show the need for the drastic change. ARTICLE 316 (1-A):
Apart from this and even if the amendments are true this Court notices that Article 316(1-A) of the Constitution of India states that if the Chairman is unable to perform his duties for any reason or if the office of the chairman becomes vacant the duties shall be performed by a Member of the Commission appointed by the Governor of the State. This is a constitutional mandate (the emphasis is supplied by this Court). Only a person nominated by the Governor shall perform the duties of a Chairman. The Hon'ble Supreme Court of India in the judgment of Bihar State Public Service Commission Case (1 supra) has held that the Chairman has a special place in the scheme of things due to the constitutional provisions. As per the Hon'ble Supreme Court of India he has an "exclusive role to play"; he is the "repository of duties" and he is compared to the Chief Justice of a Court. The decisions in State of Mysore V R.V.Bidap9 9 (1974) 3 SCC 337 60 and Dhirendra Krishna Biswas v Corporation of Calcutta and Others10 also to support the view that the Chairman of a PSC is given a separate and a special status. If there is a dispute between the Chairman and the members of the commission and if the chairman is not discharging his duties or is not cooperating at all as alleged by the respondents, the proper constitutional remedy is that the respondents should approach the Governor of the State for nominating one member to discharge the function of the Chairman. Instead of following this constitutional mandate the respondents are relying upon the amended rules to denude the existing Chairman of all his powers. In the sealed cover IV, there is a note sent to the Hon'ble Governor of Andhra Pradesh. It mentions that an "in charge" Chairman was appointed to take care of the administration. The only date visible on this is 10.01.2020. On 23.01.2020, in the meeting minutes it is asserted that the Chairman is the first among equals only and that powers are vested in him by the Rules of Procedure only (Sealed Cover IV). This Court also notices that this is not a case of a "urgent matter" as contemplated under Rule 19 which allows the senior most member to act as a Chairman for that urgent matter. This Court is of the opinion that in view of the mandate of the Constitution the powers given to a Chairman in these aspects (who is not merely a first among the equals) cannot be taken away by virtue of the proposed or 10 AIR 1966 Cal 290 (FB) 61 purported amendments to the rules or allotted to others.
Carrying the issue further a hypothetical question that arises is can the Chief Justice of a High Court be stripped of his powers by a Judge's resolution? Can the duties and powers given to a Chairman of the APPSC be taken away by a purported resolution? The status of the PSC is also highlighted in para 29 of the judgment in State of Uttaranchal v Alok Sharma and Others11 which is as follows:
"29. We may furthermore notice that in civil appeal arising out of SLP (C) NO.8708 of 2006, the post in which the respondent was working has to be filled up on the basis of the recommendations of the Public Service Commission. Public Service Commission being a constitutional authority, it cannot be bypassed by way of a circular letter of otherwise. It, furthermore, appears that the respondent was employed in another concern. In most of the other cases, orders had been passed ex parte. He had also been paid a huge amount pursuant thereto".
This Court has to hold on these two issues that -
(a) the available / disclosed material does not lead to a conclusion that the rules and procedures were actually and properly amended.
(b) that the rules of the procedures cannot also be amended like this in view of the mandate in Article 316 (1-A) which provides for the appointment of an acting Chairman by 11 (2009) 7 SCC 647 62 the Governor, who could have discharged the duties as per the rules.
(c) The language of the Article 316(1A) and the pre- emptory language used therein makes this clear:- The Chairman APPSC is not merely a 'first amongst equals'. As held by the Hon'ble Supreme Court of India he is the "repository of duties" and has an "exclusive role" in the administration [Bihar Public Service Commission case (1 supra)] As rightly submitted by the learned counsel for the respondents, amendment of the rules is not a solution and approaching the Hon'ble Governor for appointment of an acting Chairman and the discharge of the duties by the said acting Chairman is the solution, if the present Chairman was not co-operating with the respondent APPSC "for any reason". The procedure adopted and consequently the meeting convened are thus not correct or as per the law. 8 (d) DOCTRINE OF NON-TRAVERSE / NON-DENIAL OF FACTUAL ASPECTS:
The main defence of the respondent APPSC is that the procedure / process for digital evaluation of papers was taken in the meeting dated 28.10.2020 (Page 117 of 1st counter). This is in fact an incomplete document but the full text is disclosed in a sealed cover letter. This forms the very foundation of the defence. In all the writs the prayer is to set 63 aside this decision of adopting the digital evaluation. In W.P.No.11026 of 2021 the prayer is to "declare the action for digital evaluation.... vide minutes of meeting dated 28.10.2020 as illegal and arbitrary." The rules of procedure, 1988 of the APPSC are filed in many Writ Petitions as a material paper (Eg.W.P.Nos.11005 of 2021; 11033 of 2019;
12914 of 2021). They are relied upon and expressly referred to in the Writ affidavits also eg., W.P.11005 of 2021 paras 7 to 12; para 18 (g); para 19, 20 and 21. Rule 17 (Annexure) is specifically printed in para 21 (b) at page No.51 of the Writ affidavit (Appointment of Examiners is entrusted to Chairman / Chairman and One Member - Clause - 9). In W.P.No.11033 of 2019 the rules of procedure are mentioned in para 13, 16 and 17. There is an express reference to Rule 17 and the clear power of the Chairman to appoint examiners. Similarly, in para 13 of the Writ affidavit (in W.P.No.12914 of 2021) the Rules of Procedure are mentioned including rule 17. It is specified that the chairman / chairman plus one member have the power to appoint an examiner.
In the light of these specific averments and as the petitioners filed the 1988 rules as enclosures a greater duty was cast on APPSC to reply to these averments with clarity.
Unfortunately, a reading of the two counters filed does not -
(a) disclose or specify the stand that the 1988 rules are not applicable to the present dispute;
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(b) disclose or specify that the rules of procedure were actually modified in 2020;
(c) that the modified rules dated 25.02.2020 were modified by following a stipulated procedure; in a properly convened meeting. Complete details of the meeting / agenda are not given;
(d) that the present amendments (25.02.2020) are thus governing all the issues raised in the writ petitions;
(e) that the Chairman or the Chairman plus one Member do not have the power to decide / appoint evaluators power to decide scoring and scaling / moderation.
(f) that approval / printing of question papers is no longer allotted to the Chairman.
Neither in the first counter (filed in June, 2021 / affirmed on 09.06.2021) or in the second counter (filed in August, 2021 and affirmed on 05.08.2021) is there specific clear pleading about the meeting of 28.10.2020; that the procedures were followed in convening the meeting etc. It is pertinent to note that in the interim order passed on 16.04.2021 there is a clear discussion about Rules and Procedures of APPSC; about Rule 17; Clause 6 / 9 of Annexure and appointment of examiners by chairman etc. 65 (pages 11 / 12). This Court posed the following query in the interim order -
"Whether the procedure stipulated under Clause
17 of the rules has been followed or not?"
Despite these observations the 2nd counter (filed almost after two months after the interim order in 08.08.2021) does not answer this question or query, let alone the averments in the Writ Affidavits.
In paras 8, 10, 12, 21 of the 2nd counter there is a reference to the "Rules of Procedure" but they do not mention if these are the 1988 or the 2020 rules. The 2020 rules are simply filed without any mention about the same in the counter affidavit. In fact, in para 12 of the 2nd counter and particularly in page 65 there is a reference to S.No.9 of rule 17 (Annexure) which as per them empowers the commission to enjoy exhaustive powers of discretion in appointing examiners / moderators. However, page 117 / 118 of the 2 nd counter and the Annexure Rule 17 does not contain a clause 9 which empowers the commission to appoint examiners / evaluators. Clause 9 of this document deals with approval and printing of question papers. (The same is the case in the booklet filed along with a letter in the sealed cover for this Court's perusal). There does not appear to be any specific power conferred on anyone to appoint examiners / evaluators. How such an important function was not 66 conferred on anyone is beyond this Court's comprehension. The old clause 9 of Rule 17 and the new clause 9 of Rule 17 are printed hereunder:-
1988 2020
9 Appointment of Chairman/Chairman Approval and printing Chairman or any
Examiners and and one Member of Question papers Member
Moderators nominated by
the commission
The law is too well settled. A failure to reply to the
factual averments of the Writ affidavit can lead to only one conclusion - that the contention of the petitioners are deemed to be admitted. The conspicuous silence of the respondent on these specific averments is starkingly clear and striking. This coupled with the other reasons leads to the final conclusion.
8) (e) WEB NOTES / ESTOPPEL:
Coming to the web notes dated 09.12.2020 and 12.12.2020, they do not deal with the "evaluation" of the answer papers. These web notes are addressed to the candidates who were provisionally qualified for the Group I main examination after the preliminary examination.
This web notes and press statements are relied upon by the respondents to argue that the petitioners had been informed of the changes being affected. In the interim order passed, these web notes were discussed in paragraph 3 of the consideration by the Court. After referring to the web note dated 12.12.2020 this court posed a question whether these 67 web notes, press statements etc., meet the requirement of clause 17 of the notification. Clause 17 of the notification is as follows:
"17 COMMISSION'S DECISION TO BE FINAL:
The decision of the commission in all aspects and all respects pertaining to the application and its acceptance or rejection as the case may be, conduct of examination and at all consequent stages culminating in the selection or otherwise of any candidate shall be final in all respects and binding on all concerned, under the powers vested with it under Article 315 and 320 of the Constitution of India. Commission also reserves its right to alter and modify the terms and conditions laid down in the notification for conducting the various stages up to selection, duly intimating details thereof to all concerned, as warranted by any unforeseen circumstances arising during the course of this process, or as deemed necessary by the Commission at any stage."
This is to be read with along with the clause 1.10 of the notification which is as follows:
"1.10: The applicant is required to visit the commission's website regularly to keep himself/herself updated until completion of the recruitment process. The Commission's website information is final for all correspondence. No individual correspondence by any means will be entertained under any circumstances."
Reading of this clause 1.10 and clause 17 makes it clear that these two clauses deal with the stage till the completion of the recruitment process / various stages of selection and not merely the written examination. It is clear that completion of the recruitment process would include the 68 written examination, oral interview and publication of results / selected candidate list. Clause 1.10 states that the applicant is required to visit the Commission's website regularly to keep himself / herself updated until "completion" of the recruitment process. The Commission's web site/ information is final for all correspondence. No individual correspondence will be entertained. Para 17 talks of the power of the APPSC to alter and modify the terms and conditions laid down in the notification for various stages upto the selection duly intimating the details thereof to all concerned as warranted by any unforeseen circumstances, during the course of this process or as deemed necessary by the Commission at any stage. Therefore, a conjoint reading of these two provisions makes it clear that (a) the Commission can alter or modify the terms and conditions of the notification for conducting the various stages upto selection
(b) that the details of such alterations and modification must be brought to the notice of all the concerned as warranted by any unforeseen circumstances during the course of "this process". This Court is, therefore, of the opinion while it is the prerogative of the Commission to change or to alter or to modify the terms and conditions (subject to the law of course) the same must be brought to the notice of all concerned by updating the website of the commission. There is a duty to make a disclosure which was not done. Such a duty was not there in the Jammu and Kashmir case. Rule 1.10 states that 69 the commission's website information is final for all correspondence and the applicant is directed to visit the web site regularly. Why this procedure was not adopted is not explained. The website was in the control of APPSC and they should have updated the same and mentioned the details in the counter affidavits.
What is good for the goose is good for the gander too. APPSC without stating anything about the award of work of "evaluation" cannot argue about estoppel etc. Even after the prolonged arguments are completed till date it is not clear if the same has not been done. The Notification is the bedrock /basis of the entire scheme and it prescribes the method of communication. As the web site is the sole repository of the information and of communications; and a duty is cast upon the respondents to communicate; they should update their web site and disclose the information that digital evaluation is being carried out. The same is not done. Therefore, this Court holds the candidates are not estopped from raising these issues on the basis of the press clippings etc. In some cases, there is a mention of a post-main examination open house meeting about which strong allegations are made. It is clear that these cannot be construed as disclosure about digital evaluation which could support the plea of estoppel etc. A larger question also arises - if there is a fundamental flaw in the procedure which may vitiate the entire scheme can the case be thrown out on the plea of estoppel etc.? 70 8 (f) OTHER ISSUES RAISED:
As far as the issue of moderation, evaluators bias etc., case law was cited and a lot of arguments were advanced. But in the opinion of this Court the foundational facts necessary for this Court to interfere and direct the respondents to incorporate these issues in the evaluation has not been laid in the present set of Writ Petitions. While these problems may occur during in evaluations, the question of directing the respondent-APPSC to follow these methods is not warranted by the present record. Unless there is adequate material; no direction can be given in these cases for incorporating methods to avoid 'hawk-dove'; moderation etc. As far as the non-joinder of necessary parties is concerned, the argument of the learned counsel for the implead petitioners is that it is a fatal fault and not curable. This Court is conscious of the distinction between a necessary party and a proper party. The presence of the successful candidates is not really necessary for a complete disposal of this case. The issue raised is about the digital evaluation process. For deciding this dispute the presence of the candidates selected for interview is not completely necessary. In addition, genuine attempts have been made to include the maximum number of candidates as respondents even with hall ticket numbers etc. Later APPSC supplied the 71 information and the candidates were also included. In many cases, these candidates/respondents were added at the very outset. They were represented by the learned counsels, who argued the matter. Therefore, no prejudice is caused.
Coming to the issue of a direction to the CBI to investigate the matter, this Court is of the opinion that the foundational facts to refer the matter to a specialised agency are not made out. Therefore, this Court is of the opinion that entrusting the present case to the CBI is not really called for.
In view of the decision on the methods of evaluation, rules of procedure etc., this Court is of the opinion that this is a matter which can be decided on the basis of the available material. There is no need or necessity to pass further orders on the various individual prayers/petitions.
As far as the case in the Jammu and Kashmir High Court is concerned this Court is of the opinion that in view of the clear disclosures made; the elaborate counter affidavits / supplementary affidavits and the facts noticed by the Jammu and Kashmir High Court they came to a conclusion as they did. The counter and additional counters filed by the State Commission were referred in more than one place of the order. The Commission in that case consulted with different Public Service Commissions and then opted to give the assignment to a consultancy of an international standard. A supplementary affidavit was filed for arranging certain 72 facilities (para-29). Further measures for scanning which were taken are described in Paragraph Nos. 30 to 33. In para 33 the various steps taken, including the identification of faculty members, is described. Conferences were held with the coordinators and the reviewers under whose supervision the evaluators "appointed by the Commission" had to work.
The entire paragraph 33 describes the various steps taken in great detail in sub paras 1 to 19. Similarly, in Paras 40 and 41 it is disclosed as to how the training was conducted and mock drill was conducted for the evaluators. Ultimately, it is clarified that the evaluated answer book is still available for rechecking to the candidate through RTI link. It is also specified that 150 examiners were engaged "by" the Commission (para 65). In the light of this clear and elaborate counter and disclosures of the Commission, the Jammu and Kashmir High Court held that the petitioners are not entitled to the relief. Apart from that they also considered the "rule" position and gradual inclusion of the electronic evaluation system. Thus the Jammu and Kashmir High Court concluded that due procedures were followed for only entrusting the work of "scanning" of answer scripts and not the actual evaluation. In the present case the counters do not contain such clear data / averments etc., at all.
It was also argued that as the eligibility criteria; age etc., were not changed the "rules of the game" did not change. The learned standing counsel for APPSC pointed out except 73 for the evaluation method nothing else has changed. Interestingly, the judgment reported in Tej Prakash Pathak and Others v Rajasthan High Court and others12 has been cited by a counsel for the petitioner and a learned counsel appearing for the implead petitioners. In this case three Judges of the Hon'ble Supreme Court of India referred the matter to the Hon'ble the Chief Justice of India for an authoritative pronouncement. In this judgment the issue about the changing of the rules of the game were discussed. In paragraph 1 itself the Hon'ble Judges after considering the "rules of game" principle held as follows:
"Whether such of principle of law is immutable; what are the rules of the game which cannot be changed after the game is commenced or not requires an authoritative pronouncement of a larger Bench of this Court.
In the case before the Hon'ble Supreme Court of India, 13 posts of translators were sought to be filled up by a notification. After the examination was conducted the CJI ordered that it should be treated as a competitive exam and only those candidates who secured 75% of marks would be called for interview and selection. This requirement of securing 75% qualifying mark is not a stipulation of the service rules. The appellants challenged the selection on the ground of new stipulation of 75% would amount to changing 12 (2013) 4 SCC 540 74 of the rules of the game. The three Judges of the Hon'ble Supreme Court of India after examining the other judgments on the subject were of the opinion that whether a more rigorous scrutiny of the selection amounts to change of the rules of the game or not is to be decided by an authoritative pronouncement from a larger bench. The basic requirements for selection were not changed. Only during the process of correction a new standard which is not stipulated were sought to be introduced for securing a minimum of 75%. If this rule was not there the candidates with highest marks would have been called for the interview etc. The earlier cases where the State sought to alter the eligibility criteria and the method and manner of making selection were considered by the Hon'ble Supreme Court of India before coming to conclusion that more authoritative pronouncement is necessary, on the issue of what exactly amounts to changing the rules of the game. Unfortunately, this matter was not listed before the appropriate Bench for orders to be passed, and the last listing in this case as per the web site was on 20.04.2021 with a direction to list the matter in August, 2021. Therefore, till date there is no authoritative pronouncement on this issue.
It is also argued that no fundamental rights of the petitioners were infringed. Under Article 226 of the Constitution of India this Court has the power to grant orders not merely for enforcing a fundamental rights but for any 75 "other purpose" also. Apart from that when allegations of arbitrary state action, lack of fairness etc., are alleged, this Court is of the opinion that it has necessary power and jurisdiction to look into and decide the matter. This Court also has a "duty" to decide such issues. A larger issue of the powers of a Chairman of the commission being denuded by resolutions is also being considered. Therefore, the argument that this Court does not have jurisdiction or that it can only interfere where the petitioners' fundamental rights are involved is rejected.
9) CONCLUSIONS:
(1) This Court is carrying out a "performance" audit of a constitutional body. The test of 'reasonableness in action' is evolved basing on the virtually mythical 'man on the virtually mythical' 'man on the Clapham bus'. However, today this Court is dealing with 'young men/women on a red RTC bus' who blindly believe and hope that their answer scripts are correctly and truly evaluated. Whether this was done?
Whether there is fair play in action? whether there are 'arbitrary' State decision's whether the power is exercised for public good or for extraneous reasons and the procedures adopted are fair are the issues in this case.
(2) It is also clear that due to the constitutional provisions and law; APPSC like Caesar's wife should be blemishless and above board. Not even the slightest hint of a 76 wrong doing can be attributed against it. It should be pure as driven snow.
(3) Against this backdrop and after considering all the documents, pleadings and submissions this Court has to hold as follows:
a) That the change in the method of evaluation for the present Notification is not correct. The submission that the scripts were merely scanned and not evaluated is not borne out by the record.
b) The change of evaluation was also not communicated to "all" the concerned as required under Clause 1.10 and Clause 17 of the Notification.
c) That the powers / duties of the Chairman cannot be taken away by amending the Rules of Procedure and if the Chairman is not cooperating for "any reason"
with the Commission, the proper method is to request the Hon'ble Governor to appoint an "Acting Chairman" as per Article 316 (1-A) of the Constitution and to proceed further. The available material does not prove that the "Rules of Procedure"
were legally and actually amended in 2020.
d) The minutes of the meeting dated 28.10.2020 show that "7" Members and the Secretary have taken certain decisions including a decision for digital 77 evaluation. This is impermissible legally. It is contrary to the applicable Rules of Procedure and the constitutional mandate.
e) Since the lives and futures of many aspirants are involved, the APPSC is directed to immediately get the papers of the main examination evaluated manually and in the conventional mode. This exercise should be completed within three months. After this is completed the successful candidates should then be called for the oral interview etc., and the further selection should be completed as quickly as possible.
f) All the stakeholders / officeholders are requested to keep in mind the young aspirants who have toiled and are toiling with the dreams of a Government job in mind while taking all the decisions for the future. With great power comes great responsibility. It is hoped that public authorities / APPSC will use their powers for public good alone / only.
g) This order will not preclude the APPSC from adopting digital or any other such advanced modes for the future evaluation / future examinations. However, the decisions to adopt these new / emerging methods should be taken strictly as per the law.
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With these observations the Writ Petitions are partially allowed directing the APPSC to get all the answer scripts of the main examination of Notification No.27/2018, dated 31.12.2018, evaluated manually by the conventional method and within the timeline mentioned above. All other reliefs are negatived.
Lastly, the sealed cover filed as Cover-I is returned with its contents to the APPSC. They are directed to take the same under proper acknowledgment. Sealed Covers II, III and IV are directed to be kept in the custody of the Registrar Judicial, High Court of Andhra Pradesh, till time stipulated for filing an appeal is over. The contents of the Cover-I are the answer scripts of some candidates produced as per this Courts request. They do not contain any marks/markings to show how they were evaluated. The stand of APPSC is that they are digitally evaluated by scanning and that the marks are on a separate sheet etc. This issue is left open, more so in view of the finding in this case that the meeting convened and procedure adopted is not correct. There shall be no order as to costs.
Consequently, all the Miscellaneous Applications pending, if any, shall stand closed.
__________________________ D.V.S.S.SOMAYAJULU, J Date: 01.10.2021.
Note: LR Copy be marked.
B/o Ssv