(2012) 281 KLR 065

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

TUESDAY, THE 20TH DAY OF NOVEMBER 2012/29TH KARTHIKA 1934

WA.No. 1955 of 2012 ()

----------------------------------------

AGAINST THE ORDER/JUDGMENT IN WPC.NO.7309/2010 DATED 03/10/2012

........

APPELLANT/RESPONDENT:

------------------------------------------

THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS CHAIRMAN, PATTOM, THIRUVANANTHAPURAM-695 001.

BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC

RESPONDENT(S)/PETITIONER:

-----------------------------------------------

SHAIJU T.L., S/O.T.ISSAC, RESIDING AT THYTHOTATHU HOUSE, THOZHUKAL NEYYATTINKARA P.O. - 695 001, THIRUVANANTHAPURAM WEST.

BY ADV. SRI.R.RAJASEKHARAN PILLAI BY ADV. SMT.SABINA JAYAN

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss

MANJULA CHELLUR, C.J & A.M.SHAFFIQUE, J.

----------------------------------------------------

W.A. No. 1955 of 2012

---------------------------------------------------

Dated this the 20th day of November, 2012

Head Note:-

Kerala Public Service Commission Rules of Procedure, 1976 - Rule 11(v), 15A, 22 - Invalidation of the register number - included in the rank list was not on account of a mistake committed by the PSC - technical error - bubbling of the register number - when the instructions are clearly given which were not followed by the candidate he has to blame himself for the rejection of his OMR sheet and not being included in the rank list and the Commission has not arbitrarily exercised any power or authority to create any disadvantage to the applicant.

J U D G M E N T

MANJULA CHELLUR, C.J

Heard learned counsel for the appellant as well as the respondent-petitioner.

2. The writ petition was filed seeking the following reliefs: "(i) Issue a writ of certiorari or other appropriate writ order or direction, calling for the records leading to and culminating in Exts.P3 and P5 and quash the same as arbitrary, illegal, irrational, without the application of mind and unconstitutional; (ii) Issue a writ of mandamus or other appropriate writ order or direction, commanding respondents to maintain Ext.P4 and advise the petitioner to the post of Mechanical Assistant in accordance with his turn; (iii) Issue such other writ order or direction as this Hon'ble Court may deem fit and proper to meet the ends of justice".

3. According to the respondent-writ petitioner, he was an applicant to the post of Work Assistant in the service of the Kerala State Road Transport Corporation pursuant to the notification issued by the appellant - Commission on 12.3.2008. It is also not in dispute that he appeared for the written test (OMR test) with a register number allotted to him as 103195. According to the petitioner, he appeared for the written examination and the valuation has to be completed as per the instructions given in the OMR sheet. It is not at all disputed. He also admits that the candidate has to bubble the relevant portion of the answer sheet of the OMR indicating the register number in the hall ticket, besides writing the same in digits separately. According to him, he has done everything in accordance with the instructions. However, by Ext.P3 notification his answer sheet was rejected. Therefore, he protested against the same. Hence again Commission published another list awarding 50% marks against his name at serial No. 129. However, by Ext.P5 again his name was deleted. Therefore, he has approached the Court.

4. According to the writ petitioner, in spite of following the instructions in strict compliance, the entire mistake was at the hands of the appellant-Commission. For no fault of him his name was removed as per Ext.P5, therefore, he has sought for quashing Exts.P3 and P5 before the learned Single Judge. The learned Single Judge had the opportunity of seeing the original answer scripts as done by us and at paragraph 6 of the judgment, this fact was brought on record. The appellant-Commission, apart from explaining in the counter filed by them, how the examination or the test was conducted and how A and B Parts were to be filled in by the candidate and what was the mistake committed by the present candidate, they also filed an additional counter affidavit explaining with reference to the respondent-writ petitioner with register No. 103195, what exactly was the mistake done.

5. Paragraphs 6 and 7 of the counter and paragraphs 3 and 4 of the additional counter affidavit are very relevant. It is not in dispute that the valuation is computerized. Valuation is done with reference to the number marked with bubbling of Part A of the sheet. As we note from the Part A, though correct register No. 103195 is written in digits, while bubbling the number, the candidate has bubbled 103095 instead of 103195. It is also noticed from the counter and additional counter affidavit of the Commission, after verification, they found the candidate with register No. 103095 did not attend the examination. In other words, learned standing counsel for the Commission, during course of argument, submits that decoding of the answer script for valuation is done only with reference to the register number bubbled at Part A and not the register number written in digits. It is not just one candidate but about 129 candidates with deficits came to be noticed as per Ext. P3 dated 26.8.2009, a notification was issued giving all the details of the register numbers and the reason why their answer scripts are invalidated.

6. In so far as 103195 is concerned, it was on account of register number not either wrongly mentioned or wrongly bubbled. Unfortunately, while publishing the rank list, all the register numbers found at Ext.P3 that were invalidated also came to be included, therefore according to the appellant's counsel this was on account of technical error of the computer. After realizing the mistake, immediately they issued Ext.P5 why 129 candidates whose numbers figuring in the rank list again deserves to be deleted on account of the above deficits found as per Ext.P3. The invalidation of the register number of the respondent-writ petitioner is included in the rank list was not on account of a mistake committed by the appellant - Commission by way of rectifying the mistake at the instance of the writ petitioner, but it was a technical error which came to be rectified as per Ext.P5. Exts.P3 and P5 do not indicate any different reason for such opinion of the Commission. The reason for rejecting the candidature of the respondent-writ petitioner expressed at Exts.P3 and P5 are one and the same. The inclusion of names at Ext.P4 rank list is also explained in the affidavit and in the counter affidavit of the appellant-Commission. Originally, OMR sheet and Part A sheet which are produced before us clearly indicate the bubbling of the register number done by the respondent-writ petitioner pertains to 103095 and the actual candidate who was allotted Reg. No. 103095 never appeared for the test.

In that view of the matter when the instructions are clearly given which were not followed by the writ petitioner he has to blame himself for the rejection of his OMR sheet and not being included in the rank list and the Commission has not arbitrarily exercised any power or authority to create any disadvantage to the respondent-writ petitioner alone. Like him, there were 129 candidates whose names were included in the rank list and later deleted. In that view of the matter, we are of the opinion, there is no justification in the opinion of the learned Single Judge in the judgment impugned before us. Accordingly, the appeal is allowed. The judgment of the learned Single Judge is set aside.

(MANJULA CHELLUR, CHIEF JUSTICE)

(A.M.SHAFFIQUE, JUDGE)

rka