Andhra HC (Pre-Telangana)
The Andhra Pradesh Public Service ... vs 1.Ch. Sreenivasa Rao, S/O. ... on 11 December, 2017
Author: M. Ganga Rao
Bench: M. Ganga Rao
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONOURABLE SRI JUSTICE M. GANGA RAO
W.P.Nos.35392 of 2017
11-12-2017
The Andhra Pradesh Public Service Commission, Rep. by its Secretary, Prathibha Bhavan, M.J. Road, Opp: Gagan Vihar, Nampa
1.Ch. Sreenivasa Rao, S/o. Veerasankara Rao, Occ: MMGS-II, Punjab National Bank, Vijayawada, Andhra Pradesh.2. The State of
Government, General Administration Department, Secretariat, Velagapudi, Guntur District. (respondent 2 is a formal party) Re
Counsel for the Petitioner in 5 W.Ps: Mr. M. Surender Rao
Sr.Counsel On behalf of
Mr. C. Srinivasa Baba
!Counsel for the Petitioner in 1 W.P : Mrs. P.K.Kalyani
Counsel for Respondents: G.P. for Services (A.P)
Mr. J. Sudheer
Mr. Siva
<GIST:
>HEAD NOTE:
? Cases referred
1. (2007) 1 JKJ 254
2. (2008) 4 SCC 273
3. (2013) 14 SCC 494
4. (2016) 2 SCC 495
5. (2007) 3 SCC 720
6. AIR 1989 SC 1642
7. AIR 2003 SC 3983
8. (2005) 1 SCC 625
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE SRI JUSTICE M. GANGA RAO
W.P.Nos.35392, 36544, 36549, 37000 and 37007 of 2017
and 40464 of 2017
COMMON ORDER:(per V. Ramasubramanian,J) While Andhra Pradesh Public Service Commission has come up with the first 5 writ petitions, 3 individuals have come up with the last writ petition challenging a common order passed by the Andhra Pradesh Administrative Tribunal directing the Public Service Commission, either to take the maximum marks in Paper-V of the examination for selection to Group-I Services as 108 instead of 150 or to conduct re-examination in Paper-V.
2. Heard Mr. M. Surender Rao, learned Senior Counsel appearing on behalf of Mr. C. Srinivasa Baba, learned Standing Counsel for the Public Service Commission and Mrs.P.K.Kalyani, learned Counsel appearing for the petitioners in the last writ petition and Mr. J. Sudheer and Mr. Siva, learned counsel appearing for the contesting respondents.
3. The Andhra Pradesh Public Service Commission issued two notifications, one bearing No.15/2011, dated 30-06-2011 and another bearing No.18/2011, dated 28-11-2011, inviting applications ONLINE for recruitment to various posts including posts in Group-I Services of the State. As per the procedure indicated in the notifications, all candidates applying for 312 posts in the Group-I Services of the combined State, were to be subjected to a screening test comprising of multiple choice questions. Persons short listed in the screening test were required to take a main written examination comprising of five papers followed by oral interview. Each of the five papers in the main examination was to carry a maximum of 150 marks and the interview was supposed to carry 75 marks. In other words, the aspirants were to be assessed for their comparative merit, in a written main examination comprising of five papers for a maximum of 750 marks followed by interview for maximum of 75 marks, with the grand total being 825.
4. Ever since the issue of the notifications, the Public Service Commission was bogged down by litigation and the process of selection has not yet been finalized despite a lapse of more than six years.
5. In the first round of litigation, which went up to the Supreme Court, the questions and key answers in the screening test formed the subject matter of litigation. In the second round of litigation, the questions in the main written examination has formed the subject matter.
6. Actually the screening test was held on 27-05-2012 and the results of the same were declared on 13-06-2012. The main written examination was scheduled to be held in September, 2012.
7. On 30-08-2012, the Public Service Commission published the key answers for the questions in the screening test pursuant to an interim order passed by the Administrative Tribunal. Objections were received after which the Service Commission published what was termed as second key on 2-9-2012.
8. After the publication of the key answers, a batch of applications came to be filed on the file of the Andhra Pradesh Administrative Tribunal complaining of wrong key answers. By an order dated 04-01-2013 passed in the said batch of cases, the Tribunal directed the Service Commission to refer four questions to an Expert Committee. The Tribunal also permitted the Service Commission, in the meantime, to complete the process of selection, subject to the report of the Expert Committee, since the main examinations had by then been completed from 03-09-2012 to 12-09-2012.
9. Two writ petitions arose out of the aforesaid interim orders of the A.P. Administrative Tribunal and in those writ petitions, an order was passed on 26-07-2013 by this court referring those questions in the screening test to the Union Public Service Commission and calling for a report from the UPPSC with regard to the correctness of the answers to Question Nos.4, 6, 61, 62 and 130 of D series.
10. As against the order of this Court dated 26-07-2013 in those two writ petitions, the Service Commission filed Special Leave Petitions in S.L.P.(Civil).Nos.25157 and 25209 of 2013. Eventually the Supreme Court, by an order dated 07-10-2013 held that the six questions, viz., 4, 43, 61, 62, 107 and 130 in D series were completely wrong and that therefore, the Service Commission may have to declare the results, afresh, after deleting these six questions from out of a total of 150 questions, thereby confining the results to a maximum of 144 marks in the screening test. The Supreme Court also directed the main written examination in all five papers to be conducted de novo.
11. The Service Commission, thereafter, filed interim applications in I.A.No.3, 4 etc., of 2013 in the disposed of civil appeals, Civil Appeal Nos.9140 to 9143 of 2013, seeking a modification of the order dated 07-10-2013. The modification that the Service Commission sought was to hold the main written examination only for 209 candidates, who came to be declared as successful after confining the valuation in the screening test to a maximum of 144 marks (after deleting six wrong questions).
12. By an order dated 20-01-2014 the Supreme Court modified the order permitting the Service Commission to restrict the participation in the fresh main written examination to approximately 16,000 candidates, who were declared passed, after excluding 7711 candidates, who had chosen not to appear in the main written examination even though they got qualified in the first round.
13. The Service Commission filed applications for review, after the dismissal of which they filed curative petitions, which also got dismissed.
14. In the meantime, the State got bifurcated adding to the confusion that already prevailed. Contempt Petitions were filed before the Supreme Court, in which the Supreme Court passed an order dated 29-06-2016 directing both the States of Telangana and Andhra Pradesh and the Public Service Commissions of both the States to conduct a fresh examination in terms of the final order passed on 07-10-2013 in Civil Appeal No.9140 of 2013.
15. In pursuance of the said order of the Supreme Court, the Service Commission issued a notification dated 04-08-2016 announcing the schedule for the conduct of main written examinations in all five papers. The examinations were scheduled to be conducted from 13-09-2016 to 23-09-2016.
16. Immediately after the publication of the notification dated 04-08-2016 announcing a schedule for the main written examinations, a group of persons rushed to the Tribunal and filed a batch of applications challenging the notification. By two separate orders dated 12-09-2016, the Tribunal dismissed all the applications. Questioning the orders of the Tribunal, some of those petitioners have filed writ petitions in W.P.Nos.31050, 31114, 31120, 31137 and 41257 of 2016. Fortunately there were no interim orders in those writ petitions.
17. Therefore, a fresh main written examination in five papers was held eventually by the Telangana State Public Service Commission from 14-09-2016 to 23-09-2016. The five papers, in which the main written examination was conducted, are (1) General Essay; (2) History and Indian Constitution; (3) Indian Economy and Andhra Pradesh Economy; (4) Science and Technology; and (5) Data Appreciation and Interpretation.
18. Immediately after the conduct of the fresh main written examination, objections were raised to the effect that there were defects in several questions in papers II, III and V. Upon receipt of the objections, the Service Commission constituted two Expert Committees, one with regard to papers I to IV and the other with regard to paper-V.
19. On the basis of the reports submitted by both the Expert Committees, the Public Service Commission took a set of seven decisions on 05-11-2016. The first two decisions related to paper-II, the third decision related to one question in paper-III and the remaining four decisions related to question Nos.2 (b), 3, 8 (a) (ii), 8(b) (iii), 9 (a) (i), 9 (a) (iii), 9 (a) (v) and 10 (a) (ii) in paper-V.
20. The aforesaid decision of the Public Service Commission dated 05-11-2016 was published in the website of the Commission. Thereafter, a spate of objections were received by the Public Service Commission and the objections were referred to an Expert Committee. The Expert Committee made its recommendations on 24-11-2016. After referring the recommendations of the Expert Committee to the Standing Counsel, the Public Service Commission took a final decision on 01-12-2016 to the following effect: -
After considering the above, it is decided that question Nos.2, 3, 8(a)(ii), 8(b)(iii), 9 and 10 in paper-V would be deleted and scaling up would be done after considering the marks for balance questions of Section-I and Section-II. The scaling will be separated for Section-I and Section-II, i.e., for 50 marks for each Section.
21. After taking the aforesaid decision, on 01-12-2016, the Public Service Commission issued a notification on 12-01-2017 informing the candidates that the results of the main written examination were displayed in the website of the Commission and that the verification of original certificates and interviews will be held from 13-02-2017 to 15-03-2017.
22. As usual, this notification was treated as an invitation to litigation and a batch of Original Applications in O.A.Nos.181, 272, 841, 874 and 1076 of 2017 came to be filed on the file of the A.P. Administrative Tribunal.
23. The reliefs sought by the applicants in four out of the above five Original Applications would fall under two categories, viz., (1) to quash the decision of the Service Commission dated 01-12- 2016 and to direct the Service Commission to conduct the main written examinations in papers II, III and V afresh; or (2) to direct the Service Commission to stick on to its decision dated 05-11-2016 and to prepare a fresh list of candidates eligible for oral interview. In one application, viz., O.A.No.272 of 2017, (out of which the last of the writ petitions in this batch arise namely W.P.No. 40464/17) the prayer was little different. The applicants in O.A.No.272 of 2017 sought to set aside the main examinations conducted in September 2016. What should be done after setting aside, was left either to the wisdom of the Tribunal or to that of the Public Service Commission.
24. Though the arguments before the Tribunal revolved around the mistakes that crept into the questions in papers II, III and V, the Tribunal virtually rejected the challenge to the decisions taken by the Commission at least with regard to papers II and III. In other words, the Tribunal did not interfere with the decision of the Public Service Commission with regard to the method of dealing with the mistakes that crept into papers II and III. The candidates have not come up with a challenge to the order of the Tribunal in so far as the mistakes relating to papers II and III are concerned.
25. However, in respect of the mistakes in paper-V, the Tribunal set aside the decision of the Commission dated 01-12-2016 and directed the Commission (1) either to delete the wrong questions in paper-V, which together carried 42 marks and confine the valuation only to the correct questions for a maximum of 108 marks; (2) or to conduct a fresh main examination for paper-V.
26. Aggrieved by the directions so issued by the Tribunal, the Public Service Commission has come up with the first 5 writ petitions, contending that the decision taken by the Service Commission on 01-12-2016 was a scientific policy decision taken on the basis of the ground realities and that therefore, the Tribunal ought not to have interfered with the same. Contending that the entire fresh main examination ought to have been scrapped, the applicants in O.A.No.272 of 2017 have come up with the writ petition W.P.No. 40464 of 2017.
27. Therefore, the only question that arises before us for consideration in the writ petitions filed by the Service Commission is as to whether the decision taken by the Public Service Commission to scale up, was capable of being interfered with by the Tribunal or not ? Similarly, the only question arising for consideration in the last writ petition filed by the individuals, is as to whether the Tribunal was right in not setting aside the entire process of main written examination.
28. Before finding an answer to the above questions, we must take note of one fact namely that the impugned decision of the Public Service Commission dated 01-12-2016 was actually in modification or supercession of the previous decision of the Public Service Commission dated 05-11-2016. At least the applicants in two out of five Original Applications prayed before the Tribunal for restoration of the decision dated 05-11-2016. The Tribunal, even while setting aside the decision of the Service Commission dated 01-12-2016, did not restore the decision dated 05-11-2016, but gave two other alternatives. In such circumstances, it may be useful to present in a tabulation, (1) the decision of the Public Service Commission dated 05-11-2016 with regard to paper-V; (2) the decision of the Public Service Commission dated 01-12-2016; and (3) the two alternatives proposed by the Tribunal in its impugned order.
Decision of the PSC taken on 5.11.2016 with regard to paper-V alone Decision of the PSC taken on 01.12.2016 with regard to paper-
V alone 2 alternatives proposed by the Tribunal In paper-V, question 2(b) and question 3 are found to be out of syllabus. Therefore, to all candidates who attempted question 2 and question 3, full marks would be awarded as a measure of fairness.
In paper-V, Questions 8(a)(ii) and 8(b)(iii) are found to be incorrect. Hence, they would be removed and the marks for the balance portions of question 8 would be increased equally so that the marks meant for question 8 remain intact.
In paper V, question 9(a)(i), 9(a)(iii) and 9(a)(v) are found to be incorrect. In view of this to all candidates who attempted question 9, full marks would be awarded as a measure fairness.
In paper-V, Question 10(a)(ii) is found to be incorrect whereas other portions of question 10 are correct. Here also, as a measure of fairness, to all candidates who attempted question 10, full marks would be awarded.
After considering the above, it is decided that question Nos.2, 3, 8(a)(ii) / 8(b)(iii), 9 & 10 would be deleted and scaling up would be done after considering the marks fro balance questions of Section-I & Section-II. The scaling will be separate for Section-I and Section-II, i.e., for 50 marks for each Section.
The Service Commission is directed to take a decision either to consider Paper-V for 108 marks only to finalise the selections with 708 marks in total or conduct re-
examination for question paper-V as expeditiously as possible.
29. The respondents in the writ petitions filed by the Service Commission can be classified into 3 groups. The first group of persons, want a reexamination to be conducted afresh in Paper-V. The second group of persons, want the decision of the Public Service Commission, dated 01-12-2016 to be set aside and the first decision of the Service Commission dated 05-11-2016 to be restored. The third group of persons, want the order of the A.P. Administrative Tribunal to be confirmed as such. Apart from the respondents in the writ petitions filed by the Service Commission who can be classified into 3 groups, there is the fourth group of persons, who are petitioners in the last writ petition who want the entire main written examination held in September 2016 to be set aside
30. Let us first examine the viability of the 3 options sought by the 3 groups of persons who are respondents in the writ petitions filed by the service Commission.
Option-1
31. The option of conducting a fresh examination in Paper-V alone, does not appear to be a viable alternative. As we have indicated in the early part of this order, the notifications for recruitment were issued way back on 30-06-2011 and 28-11-2011. The preliminary examination in the form of a screening test was held on 27-05-2012 and the correctness of at least six questions in the screening test became the subject matter of the first round of litigation that went up to Supreme Court. By the time the Supreme Court decided the issue relating to the correctness of six questions in the screening test out of a total of 150 questions, by its judgment dated 20-01-2014, the main written examination in five papers had already been held from 18-09-2012 to 28-09-2012. The candidates, who were short listed in the main written examinations held in September, 2012, were invited for interview and the interviews were held from 28-01-2013 to 22-03-2013. A select list was also prepared, but the judgment of the Supreme Court dated 20-01-2014 set at naught the main written examination held in September, 2012 and the interviews held from January to March 2013.
32. As a consequence, fresh main written examinations in all five papers were held in September, 2016. By this time more confusion had accumulated due to the bifurcation of the State on 02- 06-2014 and the question as to how the selections are to be conducted, becoming the subject matter of another set of Original Applications and Writ Petitions. This became the second round of litigation. Fortunately, neither the Tribunal nor this Court granted any interim order, resulting in the conduct of main written examination in five papers in September 2016.
33. The correctness of a few questions in papers II, III and V of the main written examination became the subject matter of the next round of litigation. We should call this as the third round of litigation, since the very schedule of the main written examination proposed to be held in September, 2016 became the subject matter of one round of litigation, which we have labelled as the second round.
34. In other words, the first round of litigation, which started in 2011 and which culminated in the judgment of the Supreme Court, dated 20-01-2014, related to the screening test. The second round of litigation started in 2016 when a fresh list of candidates was prepared for participation in the main written examination proposed to be held in September, 2016. After the completion of the conduct of the main written examination in September, 2016, the present round of litigation, viz., third round, has started with regard to the correctness of the questions in Papers II, III and V.
35. In the above circumstances, if we accept the contention of one group of respondents and direct the Public Service Commission to conduct a fresh examination in Paper-V, there is no guarantee that the question paper will be set without any mistakes and there is no guarantee that even if the question paper is set right, the unsuccessful candidates will not come up with any litigation. Therefore, instead of adopting an option, which will pave the way for fourth round of litigation, we would like to seal further litigation, by making this third round as a knockout round.
36. Therefore, the prayer made by one group of respondents before us, seeking a direction to the Public Service Commission to conduct a fresh examination in respect of Paper-V, cannot be accepted. At any rate, the A.P. Administrative Tribunal itself has given the option to the Public Service Commission either to confine the valuation of Paper-V to a maximum of 108 marks or in the alternative to conduct a fresh examination in Paper-V. Therefore, we do not wish to direct the Public Service Commission that they should adopt only one out of the two alternatives given to them by the Administrative Tribunal. If the Public Service Commission is prepared to dig its own grave by choosing the second alternative of conducting an examination in Paper-V afresh, we do not think we can save them. Therefore, the prayer of one set of individuals before us, seeking a direction to Public Service Commission to conduct an examination afresh in Paper-V is rejected.
Option-2
37. The second option suggested by another group of individuals before us is to set aside the order of the Tribunal in so far it quashed of the decision of the Public Service Commission dated 05-11-2016. In other words this group of individuals want only the decision of the Public Service Commission dated 01-12-2016 alone to be set aside and the previous decision of the Service Commission dated 05-11-2016 to be restored.
38. But we do not think that the same is feasible at this point of time. As can be seen from the decision dated 01-12-2016, which was impugned before the Tribunal, the decision of the Public Service Commission dated 05-11-2016 was hosted in the website of the Public Service Commission. Several objections were received to the decision dated 05-11-2016, forcing the Public Service Commission to refer the matter again to the Expert Committee. The Expert Committee gave its recommendations on 24-11-2016. The recommendations were referred to the Standing Counsel for legal opinion, and thereafter, the decision dated 01-12-2016 was taken.
39. In other words, much water has flown after the decision dated 05-11-2016 and it is not possible now to dump (1) the objections raised to the decision dated 05-11-2016; and (2) the recommendations of the Expert Committee dated 24-11-2016. Hence the second option is also not viable.
Option-3
40. The third option is either to confirm the order of the A.P. Administrative Tribunal or to set aside the order of the Tribunal and allow the Public Service Commission to implement its decision dated 01-12-2016. What the Public Service Commission now wants is to set aide the decision of the A.P. Administrative Tribunal and to allow them to proceed with the further process of selection on the basis of the decision taken by the Service Commission on 01-12-2016.
41. The contention of Mr. M. Surender Rao, learned Senior Counsel appearing for the Public Service Commission, is that Paper- V comprised of 3 Sections, each of which had 5 questions, all of which were required to be answered by the candidates. In other words, there were 15 questions, in Paper-V, with 5 questions under every one of the 3 Sections. Each of these 15 questions carried 10 marks, totalling to a maximum of 150 marks for Paper-V.
42. In Section-I, two questions, viz., Question Nos.2 & 3, were found to be defective. In Section-II, two questions were found to be fully defective and one question partly defective. In Section-III, by default or design, no question was found defective.
43. In other words, two questions carrying a maximum of 20 marks had to be deleted from Section-I, two questions carrying a maximum of 20 marks and one question carrying 2 marks had to be deleted from Section-II. Thus four full questions and one question in part, which carry a maximum of 42 marks had to be deleted from Paper-V carrying a maximum of 150 marks. This is how the maximum marks in Paper-V came down from 150 to 108.
44. What the Public Service Commission had done, as gathered from the submissions made by Mr. M. Surender Rao, learned Senior Counsel, and also as gathered from the list submitted by the learned Senior Counsel, was (1) to scale up the marks for the three correct questions in Section-I proportionately from 30 to 50; (2) to scale down the marks in respect of Question No.8 in Section-II from 10 to 8 and then to scale up the marks for the fully correct questions in section 2 proportionately from 28 to 50 to make the maximum marks in Section-II as 50. In other words, the Public Service Commission adopted scaling down in respect of one question, which was partially wrong and then scaled up the fully correct questions proportionately, but Section wise, to make the maximum marks for Sections I, II and III at 50 each so as to make the total maximum as 150 marks.
45. As could be seen from paragraph-36 of the judgment of the A.P. Administrative Tribunal, the Tribunal framed three issues for consideration, the first of which was whether the method of scaling adopted by the Service Commission in respect of Sections-I and II of Paper-V was just, fair and reasonable or not. After finding that Paper-I comprised of General Essay, Paper-II was on History and Indian Constitution, Paper-III was on Indian Economy and Andhra Pradesh Economy, Paper-IV was on Science and Technology and Paper-V was on Data Appreciation and Interpretation, the Tribunal agreed with the contention of the Public Service Commission that they had a right to revise the decision taken on 05-11-2016. But the Tribunal rejected the contention that the decision so taken on a policy matter was beyond the pale of the judicial review.
46. The A.P. Administrative Tribunal then took up for consideration from paragraph-50 onwards of its decision as to whether the impugned decision of the Service Commission dated 01-12-2016 was just and reasonable. Taking note of the decision of the Supreme Court in Sunil Kumar v. Bihar Public Service Commission ((2016) 2 SCC 495), which put a seal of approval on the method of moderation in certain situations, the Tribunal found that the situation contemplated in Sunil Kumar was different from the situation on hand. After so holding, the Tribunal took note of the decision in Sanjay Singh v. U.P. Public Service Commission ((2007) 3 SCC 720), and found from a statement of marks relating to two candidates by name Suneetha and Suvarna that the method of scaling adopted by the Service Commission had distorted the results.
47. It was argued before the A.P. Administrative Tribunal that what was done by the Service Commission was not actually scaling but only pro rata upgradation and that since the same was applied uniformly, no exception could be taken to the same. But the Tribunal found that the method adopted by the Service Commission had the potential of edging out the more meritorious candidates and that therefore, the same could not be accepted. In that view of the matter, the A.P. Administrative Tribunal allowed the batch of Original Applications and issued a direction to the Service Commission either to restrict the maximum marks in Paper-V to 108 or to conduct re- examination in Paper-V.
48. The judgment of the A.P. Administrative Tribunal is assailed by Mr. M. Surender Rao, learned counsel for the Public Service Commission, on the short ground that when different methods of valuation are available to an expert body like the Service Commission, one of which is chosen by the expert body, it was not open to the Tribunal to interfere with the same and that scaling or pro-rata upgradation is necessary in cases where the comparative merits of thousands of candidates is sought to be assessed in different subjects, with the proficiency in each subject being granted a level playing field and that the Tribunal erred in not appreciating the decision of the Supreme Court in Kuldeep Kumar and others v. State of Jammu & Kashmir (2007 (1) JKJ 254), which was confirmed by the Supreme Court in Pankaj Sharma v. State of Jammu & Kashmir (2008 (4) SCC 273).
49. As we have pointed out earlier, the Public Service Commission conducted the main written examination in five papers, each carrying a maximum of 150 marks, totalling to 750 marks. The maximum marks for viva voce has been fixed as 75 (10% of the maximum marks in main written examination).
50. The main written examination was conducted in five different subjects about which we have already made a mention. The contention of the Service Commission is that if the proficiency of the candidates are assessed for a maximum marks of 150 in each of the other four papers viz., General Essay, History and Constitution, Indian and Andhra Pradesh Economy and Science and Technology, the assessment of the proficiency of the candidates in one paper viz., Data Appreciation and Interpretation alone for maximum 108 marks will distort the ultimate results. Therefore, the Service Commission contends that they would like the maximum marks in paper-V also to be upgraded or scaling up to 150.
51. In support of their contention that such scaling up or upgradation has already been approved by the Courts, the learned senior counsel for the petitioner relied upon several judgments, which we shall now deal with.
52. In Kuldeep v. State of Jammu & Kashmir , the dispute related to the conduct of an examination by the Jammu & Kashmir Public Service Commission for selection to the various posts in the combined Civil Services of the State. After the conduct of the examination, disputes arose with regard to some questions. The Commission resolved to delete the wrong questions and to add the marks for such deleted questions, pro-rata to the rest of the questions, which were correct. When the said decision was questioned, the Service Commission took a stand that by the distribution of the marks of the deleted questions, pro-rata to the correct questions, no prejudice whatsoever was caused to candidates.
53. In the light of such a stand, the J & K High Court framed a few questions for consideration, the first of which, as reflected in para-13 of the judgment was as to whether there was any violation of the examination rules in the conduct of the examination. The J & K High Court found that the impugned decision was taken by the Service Commission comprising of one Chairman and three Members, two of whom dissented and the third member was incompetent. The net result was that the decision of the Chairman was sought to be projected as the decision of the Commission. The dissenting members went to the extent of filing supporting affidavits before the J & K High Court. But the Service Commission took a stand that in a subsequent meeting, the decision to add marks pro- rata was taken by the Full Commission. In the light of the said fact, the first question was answered in favour of the Commission. Thereafter, the J & K High Court took up for consideration the next question relating to the correctness of the methodology adopted by the Service Commission with regard to the deleted questions.
54. In paragraph 63 of its decision, the J & K High Court formulated the question as to whether the methodology adopted by the Commission in deleting the wrong questions and distributing the marks was correct or not. The J & K High Court found that in the subject of Animal Husbandry, 37 questions out of 120 questions went wrong and these 37 questions carried 2.50 marks each totalling to 92.50. These 92.50 marks were distributed among the remaining 83 questions, resulting in the marks for each correct question getting increased to 3.61.
55. After taking note of the above, the J & K High Court analysed from paragraphs 64 to 67, a hypothetical case, as projected by the writ petitioners and came to the conclusion that the methodology could not be considered unfair. This conclusion was reached on two premises, as seen from the Paragraphs 65 and 68 of the decision. They are (a) that the methodology adopted met the tests of fairness and reasonableness; and (b) that as per the probability factor, a candidates rate of performance for undeleted questions can reasonably be taken as his rate of performance for deleted questions as well.
56. The decision of the learned Single Judge of the J & K High Court in Kuldeep Kumar was confirmed on appeal by the Division Bench and the matter was carried to the Supreme Court. In its decision in Pankaj Sharma v. State of Jammu & Kashmir , the Supreme Court confirmed the decision of the J & K High Court. While doing so, the Supreme Court pointed out in Paragraph 40 of its decision that the Service Commission had not taken any decision in favour of or against any individual candidate, but had taken a policy decision, with a view to ensure that no candidate suffered for no fault of him/her.
57. A careful look at the judgment of the Supreme Court in Pankaj Sharma would show that the Supreme Court did not test the correctness of the methodology adopted by the Service Commission, but upheld the decision of the J & K High Court by classifying the decision of the Service Commission as a policy decision, which was not hit by unfairness or unreasonableness.
58. There is a difference between the decision in Kuldeep Kumar (as confirmed in Pankaj Sharma) and the batch of cases on hand. In Kuldeep Kumar, the decision was taken by the Service Commission on the basis of the recommendations of an Expert Committee. In this case also, the first decision dated 05-11-2016 was taken on the basis of the recommendations of an Expert Committee. But again objections were received and the matter went to a second Expert Committee, whose report was referred for legal opinion. Thereafter, the decision dated 01-12-2016 was taken. It means that there was no consistency of views between the 2 expert committees. This should be kept in mind when a comparison is sought to be made with the fact situation in the Kuldeep Kumar.
59. In Vikas Pratap Singh v. State of Chhattisgarh , the Supreme Court was concerned with a selection to the posts of Subedars, Platoon Commanders and Sub-Inspectors. It was found on facts that eight questions in Paper II were incorrect and that the model answers for eight other questions were also incorrect. The incorrect questions were deleted and their marks were distributed pro-rata. But this was done on the basis of Clause 14 of the Examination Conduct Rules. This particular Rule provided for distribution of the marks for the deleted questions pro-rata to the correct questions. The contention raised by the appellants before the Supreme Court in Vikas Pratap Singh was that the methodology of distributing the marks for the deleted questions to the correct questions should also be applied to questions for which model answers went wrong. In so far as these questions for which model answers went wrong, the Service Commission decided to revaluate the answers. But the petitioner contended that the benefit of Rule 14 should be made available even to the second category. This was what was rejected by the Supreme Court.
60. In Sunil Kumar v. The Bihar Public Service Commission , the Combined Competitive Examinations, 2011 held by the Bihar Public Service Commission, was the subject matter of the dispute. The High Court went into the question of moderation applied by the Public Service Commission and it was urged before the Supreme Court that the moderation ordered by the High Court was in breach of the earlier order passed by the High Court. Heavy reliance was placed upon the decision of the Supreme Court in Sanjay Singh v. U.P. Public Service Commission, Allahabad . In Sanjay Singh, a Three Member Bench of the Supreme Court was concerned with recruitment to the post of Civil Judges (Junior Division). The main written examination, which comprised of five papers, was taken by a total of 5,720 candidates. Therefore, the answer scripts were distributed to several examiners for valuation and the marks assigned by the examiners were subjected to statistical scaling. This methodology was what was under
challenge before the Supreme Court in Sanjay Singh. The Supreme Court framed four questions for consideration, the second of which was whether the scaling of marks was contrary to the relevant rules. The third question was whether the scaling system adopted by the Commission was arbitrary and irrational. There was a specific rule in Rule 51 of the Public Service Commission Procedure Rules, which empowered the Service Commission to adopt any method, device or formulae for the purpose of elimination of variation in the marks awarded to the candidates. But in so far as judicial service is concerned, there was a separate rule in Rule 20 in Judicial Service Rules. After noting the interplay between the general rule and special rule with regard to the judicial service, the Supreme Court pointed out in para-22 of the judgment that the scaling system adopted by the Commission contravened Rule 20. While dealing with the third question, the Supreme Court noted that when more than one examiner evaluated the answer scripts relating to a subject, the subjectivity of the respective examiner will creep into the marks awarded by him. The Court also noted that there could be a hawk-dove effect, otherwise known as examiner variability. After referring extensively to research material available on the subject, the Supreme Court overruled in Sanjay Singh, its earlier decision in Subhash Chandra Dixit and held that the scaling system adopted by the Commission led to irrational results and hence the same had to be set aside.
61. In Sunil Kumar, the Supreme Court noted the decision in Sanjay Singh and came to the conclusion that the decision of Bihar Public Service Commission to apply moderation was not is irrational.
62. From a careful analysis of all the decisions of the Supreme Court that we have referred to above, it could be seen that the Courts were confronted with two different scenarios. One related to moderation, on account of the examiner variability and the other related to pro-rata distribution of the marks for deleted questions among the correct questions. We are not concerned in this batch of cases with the hawk or dove effect, as the problems in this case, arose out of the wrong questions that had to be deleted. Therefore, the only test to be applied in the batch of cases on hand is to see whether the decision of the Service Commission to distribute the marks in respect of deleted questions pro-rata to the correct questions was irrational or arbitrary or unfair.
63. While we may not be able to call the decision of the Public Service Commission as arbitrary or unfair, it is not possible for us to hold that the decision was not irrational. This is on account of a few admitted facts, to which we may now have to revert back at the cost of repetition.
64. As we have pointed earlier, the original decision of the Public Service Commission taken on 05-11-2016 was (a) to award full marks to candidates, who attempted Question Nos.2 and 3, on account of the Question No.2 (b) and Question No.3 being found to be out of syllabus; (b) to delete Question No.8 (a) (ii) to 8 (b) (iii), which were found to be incorrect and consequently to increase the marks for the other portions of Question No.8 so as to retain the marks meant for Question No.8 in tact; (c) to award full marks to candidates, who attempted Question No.9, since Questions No.9
(a)(i), 9 (a) (iii) and 9 (a) (v) were found to be incorrect; (d) to award full marks to candidates, who attempted Question No.10, since 10
(a) (ii) was found to be incorrect.
65. But the said decision dated 05-11-2016 was not carried into effect and in our opinion rightly so. If one or two sub-questions within a question alone are found to be incorrect, it would not be rational to award full marks to candidates who merely attempted that question in entirety. But this is what the decision dated 05-11-2016 sought to do. Hence, the same was not struck to by the Service Commission.
66. But in the decision dated 01-12-2016 impugned before the Tribunal, the Service Commission took a decision to delete Question Nos.2, 3, 8 (a) (ii), 8 (b) (iii), 9 and 10 and to adopt scaling up in respect of Section-I and II alone. To test whether the said decision dated 01-12-2016 was rational or irrational, a set of working sheets were presented to the Tribunal, according to the learned counsel appearing for the respondents. Those working sheets were also passed on to us. These working sheets showed very clearly that what was done eventually by the Service Commission was not just scaling up. The Service Commission had actually done something more than or something contrary to scaling up. This can be seen from a tabulation sheet relating to two candidates by name Suneetha and Suvarna. What the Service Commission had done could be better understood if the results of these two candidates are presented in a tabulation, separately for Section-I and II. Section-I Name Total marks secured for the correct questions viz., Questions 1, 4, 5 in Section-I for a total of 30 marks Scaling up marks in Section-I for a maximum of 50 (50 X (A)/30)
1. Suneetha 12 20
2. Suvarna 10 16.67 Section-II Name Total marks secured for fully correct questions viz., Questions 6 & 7 for a maximum of 20 marks Marks secured for a partly correct question viz., Question 8 Scaled up marks for a maximum of 50
1. Suneetha 14 7.5 35.71
2. Suvarna 16 5 35.71
67. It may be observed from the above tabulation that the scaling up adopted in respect of Sections-I and II are at variance. In so far as Section-I is concerned, there were three fully correct questions and two fully wrong questions. Therefore, the formula 50 X (A)/30 was applied.
68. But in respect of Section II, there were two fully correct questions, one partly correct question and two fully wrong questions. Therefore, even according to Mr. M. Surender Rao, learned senior counsel for the Public Service Commission, the marks secured by all candidates for the partially correct question viz., Question No.8 was first scaled down from a maximum of 10 to 8 and thereafter the formula of 50 X (A)/28, instead of 50 X (A)/30 was applied.
69. Though the Tribunal did not articulate the case in the above fashion, the Tribunal found irrationality in the above approach, since a plan arithmetical model is much better than a complicated statistical scaling model. While the Service Commission had scaled up the marks secured by the candidates in all the three correct questions in Section I from a maximum of 30 marks to a maximum of 50 marks, the Service Commission did not and could not adopt the same in respect of Section II. This was due to the fact that in Section II there was one question viz., Question No.8, which was partially correct. The partially correct portion of Question No.8 carried 8 marks and the incorrect portion carried 2 marks. Therefore, the Service Commission first scaled down the marks secured by candidates in Question No.8 from a maximum of 10 to 8 and thereafter the Service Commission scaled up the marks in Section II from a maximum of 28 to 50.
70. Therefore, the Tribunal was right in setting aside the decision of the Service Commission on account of this irrationality. The irrationality in the decision taken by the Service Commission on 01-12-2016 was actually a scientific or mathematical incongruity.
71. Mr. M. Surender Rao, learned senior counsel appearing for the Public Service Commission invited our attention to the decisions of the Supreme Court in Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay , Union of India v. International Trading Co and Bannari Amman Sugars Ltd., v. Commercial Tax Officer and others to drive home the point that a policy decision of an Expert body like the Service Commission cannot be very lightly interfered with.
72. We have no quarrel with the above submission, as a proposition of law. But Expert bodies quite often prove to lack expertise in the matter of conduct of competitive examinations, forcing them to go back to super experts for the rectification of the problems. Therefore, the policy decisions taken by them also become the subject matter of the judicial review. To what extent this court can go, in respect of such policy decisions, has already been explained in detail in Sanjay Singh.
73. In the case on hand, it is clear that the Tribunal had to intervene on account of the irrationality in the said decision taken by the Service Commission. As a matter of fact, the Tribunal did not issue any dicta to the Service Commission as to which way they should proceed. The Tribunal gave two alternatives, giving a leverage to the Service Commission to chose any one of the two.
74. The methods suggested by the Service Commission do not appear to be unfair or unreasonable or irrational. Even if the maximum for all the five questions is fixed at 708, the total marks fixed for interview viz., 75 will not exceed 11%. Paper-V is also not a paper the results of which when valued for a maximum of 108 will distort the ultimate selection.
75. Therefore, we are of the considered view that the order of the Tribunal does not call for any interference. Hence, all the writ petitions filed by the Public Service Commission are liable to be dismissed.
Writ Petition filed by the individuals W.P.No.40464 of 2017
76. As we have pointed out earlier, the writ petition W.P.No.40464 of 2017 has been filed by the persons, who are the applicants in O.A.No.272 of 2017 before the Tribunal, which also got disposed of by the very same common order dated 13.09.2017, out of which the writ petitions filed by the Public Service Commission arise. In their Original Application O.A.No.272 of 2017, the petitioners herein made a very peculiar prayer. The only prayer made by them before the Tribunal reads as follows:
For the reasons stated above and for the reasons urged at the time of hearing the Honble Tribunal may be pleased to set aside the re-mains conducted by the Andhra Pradesh State Service Commission and Telangana State Public Service Commission, in September 2016 pursuant to the recruitment notification No.18/2011 dated 28.11.2013 as the same are illegal, irregular and contrary to the directions of the Supreme Court and the principle laid down by the Honble Supreme Court in Pitta Naveens case and pass such other order and orders.
77. In other words the petitioners sought the main written examination conducted in September 2016 to be set aside. But they did not seek any consequential prayer or consequential direction as to what should be done by the Public Service Commission. This ground was sufficient to dismiss their Original Application, since if the main written examinations held from 14.09.2016 to 24.09.2016 are merely set aside without any further direction, then the Service Commission will be compelled to adhere to the results of the main examinations conducted in September, 2012 and the viva voce conducted from January to March, 2013. Doing this will be completely contrary to the orders of the Supreme Court dated 07.10.2013, 20.01.2014 and 29.06.2016.
78. Smt. P.K. Kalyani, learned counsel for the petitioners contended that the Service Commission was completely wrong in not conducting separate examinations for the States of Telangana and Andhra Pradesh and that this affected serious constitutional rights conferred on the petitioners. Her contention is that after the bifurcation of the State, the Service Commissions of both the States should have conducted main written examinations on different dates to enable the candidates to take part in the examinations conducted in both the States. According to her, the candidates of the composite State of Andhra Pradesh had the benefit of local area reservation in terms of the Presidential order issued in exercise of the power conferred by Article 371D, and that therefore, the petitioners could have participated in one State as local candidates availing the benefit of 80% reservation for the locals and they could have participated in the examinations conducted in the other State as non-locals, under the 20% quota available for non-locals.
79. But the above contention is contrary to paragraph-5 of the recruitment notification dated 28.11.2011, which reads as follows:
Reservation for local candidates is not applicable as per concerned Departmental Special Rules for Pc. Nos. 01 to 18 except PC.No.19 For Pc.No.10 State wide Selection, allotment will be Zone wise I to VI zones.
For Pc.No.11 to 17 State wide Selection and allotment will be Multi-zone I & II For Pc.No.18 State wide Selection and allotment will be Multi-zone I, II & III For Pc.No.19 Zonal Selection with Local Candidates reservation.
For Pc. No.16 (MPDO): Clarification is awaited regarding Local Reservation.
80. But let us give the benefit of doubt to the petitioners and let us proceed on the basis that there was reservation for local candidates and that the petitioners lost a very valuable constitutional right, due to the conduct of the main written examinations by both the Service Commissions on the same day at the same time.
81. Even then, the petitioners cannot assail the conduct of the examinations on the same day by both the Service Commissions at the same time. This is for the reason that when applications for impleadment and intervention were allowed by the Supreme Court, after the disposal of C.A.Nos.9140 to 9143 of 2013, the Supreme Court was apprised of the bifurcation of the State and the creation of two different Service Commissions. The candidates, who went before the Supreme Court in applications for impleadment and intervention, raised only one issue at that time, viz., that the State of Telangana should not change the syllabus, in view of the formation of the new State. The Supreme Court accepted the same and issued a direction to the State of Telangana and the Telangana State Public Service Commission to conduct the examination only on the basis of the syllabus as notified initially.
82. The petitioners in this W.P.No.40464 of 2017 should have also gone before the Supreme Court, got impleaded and sought a prayer for the conduct of the examination on different dates. They failed to do so.
83. At least after the issue of the revised examination schedule on 04.08.2016, the petitioners should have gone to the Supreme Court and sought modification of the order dated 29.06.2016 or at least a clarification of the order dated 29.06.2016, to enable both the Service Commissions to conduct the examinations on different dates. Instead the petitioners went before the Tribunal.
84. Let us assume for a minute that the Tribunal had allowed the Original Application in O.A.No.272 of 2013 and directed both the Service Commissions to conduct examinations on different dates. Then the Tribunal would have been guilty of either modifying the order of the Supreme Court or at least clarifying the order of the Supreme Court. Neither the Tribunal nor this Court is competent to add, delete, modify or improve upon the order of the Supreme Court dated 29.06.2016.
85. It is pertinent to note that the notifications for recruitment were issued in 2011, when the State was a combined State. The bifurcation of the State could not have come as a bonanza for the petitioners to seek opportunities in two States on the basis of the very same notification. It was always open to the petitioners to appear for the written examination in the State in which they were locals, so as to claim the benefit of 80% reservation, if in law these posts had been classified into local cadre. After having failed to do so, it is not open to the petitioners to seek such a relief before this Court.
86. It must be remembered that the Supreme Court directed the Service Commission by its order dated 29.06.2016 to conduct the main written examination and complete the process within three months. This order was passed on a contempt petition. Therefore neither the Tribunal nor this Court is entitled to pass any order, which will put the Public Service Commission into a second threat of contempt. Therefore, W.P.No.40464 of 2017 is also liable to be dismissed.
87. Therefore, in fine, all the writ petitions filed by the Public Service Commission and the writ petition filed by the individuals are dismissed. As a sequel, miscellaneous petitions, if any, pending in these writ petitions shall stand closed. There shall be no order as to costs.
_______________________ V.RAMASUBRAMANIAN, J ________________ M. GANGA RAO, J Date: 11-12-2017