Madras High Court
M.Satheesh vs The Tamil Nadu Public Service ... on 30 April, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.04.2014 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.Nos.4996, 4770, 5625, 5626, 6683, 8784 & 11685 of 2014 and M.P.Nos.1, 1 & 2 of 2014 W.P.No.4996 of 2014 M.Satheesh .. Petitioner - Vs - The Tamil Nadu Public Service Commission, Rep. by its Secretary, Frazer Bridge Road, VOC Nagar, Park Town, Chennai - 600 003. ... Respondent Prayer:- Writ Petition has been filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus directing the respondent Commission to include the name of the petitioner herein with Roll No.00109261 in the list of candidates published on 30.01.2014 on the official website of the respondent Commission and consequently call the petitioner for certificate Verification/oral test and consider the petitioner for selection and appointment to the post included in the Combined Engineering Services Examination (2009-2010 to 2012-2013) vide Notification No.53/2012 dated 24.12.2012 based on the certificate verification. For Petitioner : Mrs.Dakshayani Reddy For Respondent : Mr.R.Muthukumarasamy, Senior Advocate Asst. by Ms.C.N.G.Niraimathi, Standing Counsel for TNPSC. - - - - - C O M M O N O R D E R
Since common issues are involved in all these writ petitions, they were heard together and they are disposed of by means of this common order.
2. The Tamil Nadu Public Service Commission (hereinafter referred to as TNPSC) issued Notification in No.53/12, inviting applications for direct recruitment to the posts included in the Combined Engineering Services Examination 2009-10 to 2012-13. There were as many as seven posts included in the advertisement viz., Sl.No. NAME OF THE POST NAME OF THE SERVICE POST CODE NO. OF VACANCIES 1 Assistant Engineer (Civil) in Water Resource Department, PWD Tamil Nadu Engineering Service (Service Code No.011) 1656 102* + 2 c/f BC(OBCM)-W-Deaf-1 SC-W-Deaf-1 2 Assistant Engineer (Civil) in Building Organisation, PWD Tamil Nadu Engineering Service (Service Code No.011) 3656 50* 3 Assistant Engineer (Electrical) PWD Tamil Nadu Engineering Service (Service Code No.011) 1657 28* 4 Assistant Engineer in the Rural Development and Panchayat Raj Department.
Tamil Nadu Panchayat Development Service (Service Code No.011) 1660 18 5 Assistant Inspector of Factories Tamil Nadu Factory Service (Service Code No.011) 1664 13 6 Junior Electrical Inspector Tamil Nadu Electrical Inspectorate Service (Service Code No.011) 1666 7 7 Junior Assistant Director of Boilers Tamil Nadu Boiler Service (Service Code No.022) 3008 2
3. All these petitioners made their individual applications. According to the prospectus, the selection process consists of main examination (objective type) and oral test. The scheme of examination is as follows:
Subject Duration Maximum Marks Minimum Qualifying Marks for selection SCs, SC(A)s, STs, MBCs/ DCs, BCs and BCMs Others MAIN EXAMINATION:
Single paper in any one of the following subjects in which the candidate has acquired his/her educational qualification (Degree Standard -200 questions each) (Objective Type) COMPUTER BASED TEST
(i) Civil Engineering (Code No.029)
(ii) Mechanical and Production Engineering (Code No.074)
(iii) Electrical and Instrumentation Engineering (Code No.042)
(iv) Textile Engineering (Code No.114)
(v) Electronics and Communication Engineering (Code No.044)
(vi) Chemical Engineering (Code No.025) Interview and Records 3 Hours
-300 40 102 136
Total 340
4. The written examination was held on 16.02.2013, the petitioners participated in the same. But the results of the written examination and the marks secured by the candidates were not published. The TNPSC, thereafter, in its official website, published the registration numbers of the candidates who were provisionally selected for entering the zone of consideration in the ratio of 1:3 for admission to the certificate verification on 04.10.2013. Admittedly, in the said list all these petitioners found a place. Thus, the petitioners were awaiting for their turn to participate in the certificate verification as per the above stated provisional list dated 04.10.2013.
5. But it did not happen. Instead, the TNPSC on 30.01.2014, published in its official website the amended list of candidates provisionally included in the zone of consideration for admission to the certificate verification. In the said amended provisional list of candidates, the petitioners were all omitted. No reason whatsoever was stated as to why the earlier list dated 04.10.2013 was amended; as to why the petitioners were all omitted from the original provisional list and as to why several candidates who did not find a place in the provisional list dated 04.10.2013 were all included. Alleging that the action of the respondent / TNPSC in amending the earlier provisional list as arbitrary and illegal the petitioners have come up with these writ petitions challenging the amended list.
6. When the writ petition in W.P.No.6683 of 2014 came up for admission on 06.03.2014, this Court granted interim stay of the selection process for a period of two weeks. The said stay order has been time and again extended and the same is in force as of now.
7. The Joint Secretary to TNPSC has filed a common counter affidavit, wherein, inter alia he has stated as follows:
(i) The scheme of examination is objective type containing 200 questions each carrying one and half marks. The question papers were printed in four series. However, in the question paper booklets there were four indications indicating the difference, such as "?", "+", "?" and "?". The symbol "?" refers to 'A' series, the symbol "+" refers to 'B' series, the symbol "?" refers to 'C' series and the symbol "?" refers to 'D' series. The purpose of printing the question paper booklets in four series is to avoid mal-practice and copying in the examination hall.
(ii) According to the arrangement, though all the 200 questions were common to all the candidates, the order of questions in the question papers would differ from one series to the other.
(iii) It is further stated that valuation was conducted by the computer. Since the order of the questions differ between one series and the other, the order of key answers should also stand suitably arranged tallying with the order of the questions in the relevant series.
(iv) After the valuation through the computer was over, based on the marks secured by the candidates, the provisional list of candidates eligible for oral test was published on 04.10.2013.
(v) Subsequently, there were a number of representations from some of the candidates that though they had written the examination well, to their shock, they were not included in the provisional list. Thus, they questioned the correctness of the valuation.
(vi) It is further stated that according to Clause 5 (vii) of the instructions to candidates, the TNPSC has got power to get any answer book revalued if in its opinion there is sufficient/valid ground to do so.
(vii) Since there were number of representations in respect of valuation of OMR answer sheets relating to 'D' series question booklet, the TNPSC took a decision to check the evaluation process. It was found that the scanning of OMR answer sheets was in order. But a further probe revealed that out of the four versions/series answer keys used for evaluation process, two versions got interchanged ('B' and 'D') and that resulted in faulty merit list.
(viii) Since the above error was deducted, opinion from the Expert Committee constituted for the said purpose was obtained and based on the opinion, re-evaluation was undertaken by entering the correct key answers into the computer.
(ix) The computer re-evaluation was conducted on 'B' and 'D' series OMR answer sheets. Based on the said re-evaluation, the earlier provisional list dated 04.10.2013 was amended and accordingly the amended provisional list was published on 30.01.2014.
(x) According to the commission, the amended list dated 30.01.2014 is the correct merit list and the list published on 04.10.2013 is the faulty list.
(xi) It is further submitted that there was no bias, arbitrariness or unreasonableness on the part of the TNPSC in undertaking the above exercise and in publishing the amended list.
8. A reply affidavit was filed by the petitioner in W.P.No.4996 of 2014, in which, the above stand taken by the TNPSC is seriously disputed. It is further stated in the reply affidavit that there was no such series like A, B, C and D in the question paper booklet. It is also stated that it is wholly unbelievable that such an error was committed by the TNPSC. The very fact that the amended list was published on 30.01.2014, after a lapse of four months from the date of publication of the original list on 04.10.2013 would go to show the extent to which the respondent TNPSC is willing to go to make a statement that there were four series of question paper booklets. Thus, in essence, the contention of the petitioners all through was that no such error at all occurred and thus the original provisional list published on 04.10.2013 is the correct list.
9. The Joint Secretary to TNPSC has filed a re-joinder affidavit on behalf of the respondent dated 26.03.2014. In that counter, the TNPSC has explained as to why the TNPSC had not published the marks secured by the candidates in the main examination.
10. Yet another affidavit has been filed by the Joint Secretary to TNPSC, wherein in paragraphs 3 to 6 it has been stated as follows:
"3. The Committee craves leave of this Hon'ble Court to withdraw the averments made in para 12 of the Common Counter Affidavit and paras 10, 11, 14, 17, 19 & 24 of the rejoinder affidavit.
4. It is respectfully submitted that insofar as the inclusion of fresh candidates in the amended list dated 30.01.2014 and exclusion of certain candidates from the list dated 04.10.2013 is concerned, it is submitted that it was on account of the error that crept in entering in the data which has been rectified subsequently, pursuant to the representation dated 08.10.2013 received from certain candidates. This has also been explained in the common counter affidavit filed by the Commission.
5. So far as releasing of marks is concerned the Commission is of the view that it is absolutely essential in public interest to avoid publishing the marks before the conduct of the oral interview proceedings and this stand of the Commission finds support from the Constitution Bench Judgment of the Supreme Court in A.K.Yadav's case.
6. The Commission is filing herewith the Minutes of the Commission's decision dated 16.04.2014 and craves leave of this Hon'ble Court to treat the same also as part and parcel of this affidavit."
Thus according to the respondent TNPSC the amended list is the correct merit list.
11. In the writ petition in W.P.No.6683 of 2014 a miscellaneous petition in M.P.No.2 of 2014 has been filed seeking a direction to publish the marks secured by the candidates before calling the candidates for oral test.
12. In the re-joinder affidavit filed by the TNPSC on 26.03.2014 and in the additional affidavit filed on 23.04.2014, it is stated that the marks of the candidates would be published only after the selection process is over as per the prospectus. According to the respondent TNPSC, this stand of the TNPSC finds support from the Constitution Bench Judgment of the Hon'ble Supreme Court in Ashok Kumar Yadav and others Vs. State of Haryana and Others reported in (1985) 4 SCC 417 and another judgment in Union of India Vs. Rajesh P.U., Puthuvalnikathu reported in 2003 (7) SCC 285. Thus, according to the learned senior counsel for the respondent the said writ petitions are liable to be dismissed.
13. I have heard the learned counsel on either side and perused the records carefully.
14. From the original records produced by the TNPSC, it is crystal clear that the question paper booklets were printed in four series, but there were no mention made on the question paper booklets such as 'A' series, 'B' series, 'C' series or 'D' series. Instead, there were symbols indicating that they are traceable to 'A', 'B', 'C' and 'D' question papers. This has been done only with a view to avoid malpractices and copying in the examination hall. Regarding this fact, absolutely there is no dispute.
15. The records produced by the TNPSC, including the reports of the Experts would go to prove the contention of the TNPSC that the key answers for 'B' series was by mistake, fed into the computer as against the 'D' series and vice versa. As a result, undoubtedly, the valuation was done as far as the 'B' series OMR answer sheets and 'D' series OMR answer sheets with faulty keys fed into the computer. Therefore, the valuation was manifestly erroneous. This fact has been clearly established by the TNPSC.
16. The original records further revel that there were number of representations from the candidates who have suffered because of the above erroneous valuation. The representations of the candidates of 'B' series and 'D' series were all considered by the TNPSC. One Expert by name Mr.C.Chandra Sekhar, Professor, Department of Computer Science Engineering, Indian Institute of Technology, Madras was nominated to examine the issue and to submit a report. Accordingly he submitted a report dated 05.11.2013, which reads as follows:
"The question papers, jumbling lists and the answer key tables used for evaluation have been checked by me for the following subject codes: CEGK, CHED, CLEG, ECCM, ELIN, MEDE and TXEG. For each of these subject codes, four jumbled version has been assigned a different symbol. It is found that the mapping between the series A, B, C and D for jumbled versions and the four symbols is uniformly the same in the question papers, jumbling list and answer key tables for CEGK. For all other six subject codes, it is found that the mapping between series B and D, and the two symbols is different in the question papers and in the answer key tables. It is noted that the answer key tables contain only the series (A, B, C and D) information and do not contain the symbols.
The jumbling list does not have the series (A, B, C, D) information, but has the symbols. The incorrect mapping between the series B and D, and the two symbols has led to wrong evaluation for series B and D in the six subject codes. The new answer key tables have been found to be correct key tables have been found to be correct. These may be used to reevaluate the OMR sheets of series B and D for these six subject codes."
17. The TNPSC with the help of experts found that there was interchange of key answers between 'B' series and 'D' series. The TNPSC as per Clause 5(vii) of the Instructions to the Candidates has got power to order revaluation with correct key answers and that is what has been rightly done by the TNPSC.
18. Yet another experts body consisting of Dr.S.Rajendra Boopathy, Professor and Director Entrance Examination, Anna University, Chennai - 600 025 and Dr.H.Khanna Neaemiah, Associate Professor, Ramanujan Computing Centre, Anna University, Chennai - 600 025 was appointed by the TNPSC who had submitted a report after revaluation conducted with proper key answers. The said report dated 03.01.2014 reads as follows:
"In continuation to our report dated 11.11.2013 and letter from your end dated 13.11.2013 the functional requirements were recorded and the database was designed using ORACLE 104. Based on the requirements recorded, procedures and triggers were developed for evaluating the response of the candidates.
Since it was inferred that, there was a swap in the jumbling sequence during the previous evaluation, the correct jumbling sequence and master keys, certified by the Deputy Secretary and Section Officer were received and the database was constructed.
The candidates responses were also loaded in the database and using the procedures and triggers developed, the evaluation was carried out at TNPSC premises.
The evaluated marks were compared with OMRs for all probable test cases and found to be correct.
The software developed using ORACLE 104 can be tuned as per changing requirements for future evaluations."
From the above report of the experts it is crystal clear that the reevaluation has been done properly and therefore the amended list is the correct list reflecting the meritorious candidates.
19. In this regard, the action of the TNPSC to use its power to rectify the error and to revalue the answer sheets with correct key answers fed into the computer needs to be appreciated. But for the swift action taken by the TNPSC the meritorious candidates would have suffered because of the above erroneous valuation done earlier. Fortunately, the TNPSC had realised its own mistake and had corrected the same so as to do justice to the meritorious candidates. Therefore, I do not find any reason to find fault with the said action of the TNPSC as the saying goes "To err is human".
20. But at the same time, I cannot say that the TNPSC is absolutely blameless. The TNPSC has, of course, stated that the officials who were responsible for the above error committed in feeding the key answers in the computer have been placed under suspension and action has been taken against them. But at the same time, after having found out that error had occurred in the previous valuation and therefore the provisional list published on 04.10.2013 was erroneous, the TNPSC should have owned up the error and should have made it public in the official website stating the reasons for revaluation and the publication of the amended list of provisionally selected candidates for oral test. But, unfortunately the TNPSC had failed to make it public that there was revaluation done due to the above error occurred and that the amended list is as per the fresh valuation conducted based on the correct key answers. Had this information been made public, I am sure that many of the petitioners herein would not have rushed to this Court with these writ petitions. Since no reason was stated by the TNPSC as to why the earlier provisional list was amended by the subsequent list, the persons who were earlier included in the list and subsequently omitted were kept in dark and quite naturally, therefore, they had to rush to this Court. The learned senior counsel Mr.R.Muthukumarasamy, appearing for the TNPSC would fairly concede that the TNPSC should have made the reasons public for publication of the amended list. To this extent, I have to express my displeasure over the action of the TNPSC.
21. But in the rejoinder affidavit filed by the respondent Joint Secretary in paragraphs 10, 11, 14, 17, 19 and 24 and in paragraph 12 of the common counter affidavit, the TNPSC had made scathing remarks against the candidates as though the candidates have rushed to this Court with false allegations without there being any foundation for such allegations. As I have already pointed out, had the TNPSC made the reasons for revaluation and the publication of the revised list public, there would have been no occasion for the petitioners to make remarks against the TNPSC. When this was pointed out, an additional counter affidavit dated 23.04.2014 was filed by the Joint Secretary to TNPSC, thereby withdrawing the averments made in paragraph 12 of the common counter affidavit and the paragraphs 10, 11, 14, 17, 19 and 24 of the rejoined counter affidavit. Therefore, I do not want to express my views on the allegations and counter allegations made by the petitioners and the TNPSC as they have been withdrawn.
22. Now turning to the request for publication of the marks before the candidates were called for certification verification, the TNPSC has stated in paragraph 10 of the rejoinder counter affidavit dated 26.03.2014 as follows:
10. It is respectfully submitted that since the Hon'ble Supreme Court was pleased to express its desire that there should be uniformity in the selection process throughout the country, the Tamil Nadu Public Service Commission continued to ensure that neither the marks nor the community of the candidates short-listed for oral test is disclosed prior to the oral test. This non-disclosure ensures purity in the selection process. At this juncture, the Service Commission wishes to submit that there is a vital difference between purity and unbiased approach and transparency in selection process. The question of transparency will arise only after the completion of the selection process. If the result of the written examination which constitutes one stage of the selection process is made known before the completion of selection process it will not amount to transparency but lead to impurity in the conduct of the selection process. It will tend to promote unrest and rivalry among the candidates giving room for real likelihood of bias, fear or likelihood of corruption, favouritism, nepotism and finally each and every selection will be the subject matter of challenge before the Hon'ble Court and thereby Government machinery and consequently administration of the State will get jeoparidized, at the cost of unsuccessful candidates. In paragraph 5 of the affidavit dated 23.04.2014, in this regard, it has been stated as follows:
"5. So far as releasing of marks is concerned the Commission is of the view that it is absolutely essential in public interest to avoid publishing the marks before the conduct of the oral interview proceedings and this stand of the Commission finds support from the Constitution Bench Judgment of the Supreme Court in A.K.Yadav's case.
23. As a matter of fact, the learned counsel appearing for the petitioners took much pains in an attempt to persuade me for issuance of a direction to the TNPSC to publish the marks. According to them transparency has become the order of the day and the same has been recognised as a Fundamental Right. Therefore, according to the petitioners the marks should be published before the candidates are called for oral test.
24. But the learned senior counsel Mr.R.Muthukumarasamy appearing for the TNPSC would submit that in Ashok Kumar Yadav and others Vs. State of Haryana and Others reported in (1985) 4 SCC 417 the Hon'ble Supreme Court has held that publication of the marks can be withheld until the entire selection process is over in order to avoid possible allegations of favouritism, nepotism or corruption. The learned senior counsel for the TNPSC also relied on yet another judgment of the Hon'ble Supreme Court in Union of India Vs. Rajesh P.U., Puthuvalnikathu reported in 2003 (7) SCC 285 and another judgment of this Court in Dr.M.Vennila Vs. Tamil Nadu Public Service Commission reported in 2006 (3) CTC 449.
25. The learned counsel appearing for the petitioners would submit that all these judgments are prior to the advent of The Right to Information Act, 2005. According to them, after the advent of the RTI Act, the right to know the marks of the candidates has been recognised as a Fundamental Right and therefore there is no justification on the part of the TNPSC in declining to publish the marks.
26. The learned senior counsel for the TNPSC would refer to the decision of the TNPSC taken on 16.04.2014, wherein, the following decision has been taken:
The Commission discussed the subject in depth on 10.4.14, 15.4.14 & 16.4.14 and reviewed the existing policy regarding publication of written examination marks and Oral Test marks after the Oral Test is conducted. The Commission decided to stick on to the policy regarding disclosure of the written examination marks and oral test marks after the oral test is concluded. Referring to the same, the learned senior counsel would submit that it is not the case as though the marks would not be disclosed forever. It is only postponement till the final selection list is published. Thus, according to the learned senior counsel, the same is not a violation of the Fundamental Rights of the petitioners.
27. In my considered opinion, any discussion on the above submissions of the learned counsel on either side would be only irrelevant in so far as the present writ petitions are concerned as in none of the writ petitions there is a prayer for mandamus for publication of the marks secured in the written examination before the candidates are called for oral test. Such a direction is sought for only in a miscellaneous petition in one of the writ petitions. Since, I have found already that the amended provisional list of the candidates is the valid list and the earlier list is a faulty list and since on that score, I am inclined to dismiss all the writ petitions resolving the dispute, there is no need to examine the question as to whether the respondent TNPSC is legally right in declining to publish the marks before the candidates are called for oral test. In other words, when the main dispute in the writ petitions could be resolved independently without granting the relief sought for in the miscellaneous petition, the relief sought for in the miscellaneous petition cannot be granted. Had there been any writ petition filed seeking Mandamus to the TNPSC to publish the marks secured by the candidates in the written examination before the candidates are called for oral test, then the above interesting debate on the stand taken by the TNPSC that such marks can be published only after the entire selection process is over could have been examined in detail with reference to the Constitutional provisions as well as the judgments of the Hon'ble Supreme Court relied on by the learned counsel on either side. Therefore, the said question as to whether TNPSC is justified in withholding the publication of marks obtained in the written examination until the final selection is completed is left open and no opinion is expressed in respect of the said question in these writ petitions as the same is unnecessary for the disposal of these writ petitions.
28. In view of the foregoing discussions, the writ petitions fail and accordingly all the writ petitions are dismissed. Consequently, the connected miscellaneous petitions are closed. No costs.
30.04.2014 Index : Yes / No Internet : Yes / No kk S.NAGAMUTHU.J., kk To The Secretary, Tamil Nadu Public Service Commission, Frazer Bridge Road, VOC Nagar, Park Town, Chennai - 600 003. ? PRE-DELIVERY COMMON ORDER IN W.P.Nos.4996, 4770, 5625, 5626, 6683, 8784 & 11685 of 2014 and M.P.Nos.1, 1 & 2 of 2014 30.04.2014