IN THE HIGH COURT OF KERALA AT ERNAKULAM

B.P. Ray, J.

Shaiju I.L.

 Vs.

Kerala PSC

W.P.(C) No. 7309 of 2010

Decided On: 03-Oct-2012

Head Note:-

Kerala Public Service Commission Rules of Procedure – Rules 11 (v), 15 A & 22 - Valuation of OMR sheet – Incorrect bubbling of register numbers -  If the answer script has not been bubbled properly, it has to be rejected in terms of the OMR guidelines.

Held:- But, in, the instant case, in pursuance to the objection filed by the petitioner, his answer scripts have been valued. Therefore, the plea of the Commission that the petitioner's answer scripts have to be rejected since he has not complied with the OMR guidelines, cannot be accepted. After examining the rival contentions in the judgment relied upon and after hearing the learned counsel for the parties, I hold that the Commission is not justified in rejecting the answer script of the petitioner, particularly when it was valued after entertaining the objection of the petitioner. Therefore I have no hesitation to quash Ext.P5 so far as the petitioner is concerned and direct the Commission to include the petitioner's name in the select list for appointment in accordance with law within a period of two weeks from the date of receipt of a copy of this judgment.

For Petitioner: R. Rajasekharan Pillai, R. Sreedharan Nair & Sabina Jayan

For Respondent: P.C. Sasidharan (SC)

J U D G M E N T

B.P. Ray, J.

1. Petitioner applied for the post of Work Assistant under the Kerala State Road Transport Corporation, hereinafter referred to as the 'Corporation', in pursuance to the notification issued by the respondent Kerala Public Service Commission, hereinafter referred to as the 'Commission', inviting applications for about 1800 vacancies. Petitioner appeared in the written examination as per Ext.P1. The valuation was in the form of Optical Mark Reader for which Ext.P2 instruction was provided. The candidates have to bubble the relevant portions of the answer sheet of the OMR indicating the register number on the hall ticket besides writing the same in digits separately. The case of the petitioner is that even though he has done everything correctly and answered the questions, vide Ext.P3 notification his answer sheet was rejected. The petitioner protested it in the office of the respondent Commission and the answer script of the petitioner was valued by Optical Mark Reader and was awarded 50 marks and his name was published as Sl.No.129. As the matter stood thus, the Commission published a list on 19.2.2010 deleting the petitioner's name from the list of successful candidates vide Ext.P5 notification. Therefore, the petitioner filed this writ petition with the following prayers:

"i) issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to and culminating in Ext.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; and

iv) award costs to the petitioner."

2. A counter affidavit has been filed on behalf of the respondents wherein in paragraph 6 of the counter it is specifically admitted that the computer has valued the petitioner's answer sheet essentially because the bubbling and entry of his register number was correct and thereby he found place in the ranked list. It was also submitted that in the valuation process the "B" part of the answer script will be valued first if the alpha code is correctly bubbled. The said "B" part does not contain register numbers or any details to reveal the identity of .the candidate. "A" part of the answer scripts are scanned in the next step. If the register number was wrongly bubbled, the scanning of "A" part will show error. The merging of "A" & "B" parts will also be difficult due to this incorrect bubbling of register numbers. The wrongly bubbled scripts like that of the petitioners will be identified by the machine and later sorted out by the officials manually. Tedious and time consuming process will be there only for tallying the results. If such scripts are admitted after making correction from the office, allegation of manipulation and tampering with the script will arise from many corners. After all, this is against the basic principle of OMR valuation which is fully done by the machine with the help of specified software developed by the experts and found fool proof and hence approved by the Commission. It is further submitted that as per Rule 15A of the KPSC Rules of procedure, the Commission has the power to correct any clerical, typographical, arithmetical or other mistakes in the ranked list, advice list or short lists etc. or errors arising therein from any accidental slip or omission at any time, either on its own motion or on the application of any of the parties concerned. Hence, mere inclusion of name in the ranked list will not confer on the candidate any vested right for appointment. Therefore, the contention of the petitioner that Rule 22 does not provide any invalidation of answer script is untenable. It is further submitted on behalf of the Commission that Rule 11(v) of the KPSC Rules of Procedure empowers the commission to do so.

3. Learned counsel for the petitioner submitted that the petitioner personally objected to Ext.P3 notification and the respondent had assured that in case the inclusion of name in Ext.P3 is incorrect, the computer would value the petitioner's answer sheet and if the entry of the petitioner's register number is correct in Ext.P3, the computer would not value his answer sheet. But, considering the objection raised by the petitioner, the answer script of the petitioner was valued and the petitioner found place at Sl.No.129. Therefore, the respondent Commission is estopped from publishing Ext.P5 list deleting the petitioner's name from the rank list, particularly when his answer script has admittedly been valued. The next contention of the petitioner is that the violation of a technical rule which is not likely to result in violation of justice or affect public interest, particularly when his result has been published will not prejudice anybody as he admittedly holds 129th position in the rank list. The object of O.M.R. valuation is to facilitate the computer valuation in correct manner. In the instant case, the petitioner's answer scripts have been valued properly. Petitioner has relied upon the following decisions in favour of his case.

4. Tiju Thomas Vs. Principal, St.Stephen's College, ILR 1991 (3) Ker. 832; Rajendra Prasad Mathur Vs. Karnataka University, AIR 1986 SC 1448; A. Sudha Vs. University of Mysore, AIR 1987 SC 2305; Ashok Chand Singhvi Vs. University of Jodhpur, AIR 1989 SC 823; Parmender Kumar Vs. State of Haryana, (2012) 1 SCC 177 & Sanatan Gauda Vs. Berhampur University, AIR 1990 SC 1075.

5. It was subsequently contended that the learned single Judge of this Court validated the Rule on the basis of which the petitioner's case has been rejected and therefore this Court should not interfere in the process of evaluation of the respondent Commission. In view of the rival submissions, the question for determination is whether the respondent Commission is correct in rejecting the petitioner's answer scripts, particularly when it was valued. In order to appreciate the contentions of the parties, the relevant portion of the OMR guidelines is quoted hereunder for ready reference:

"5. The A part of the answer sheet will be register number and coding paper and B part is the OMR answer sheet. Please see the instructions on the reverse of the answer sheets.

6. There shall be alpha code in the question booklet given for the examination. In order to evaluate the answer sheet Alpha code is necessary. The question booklet alpha code will be shown with reference to the seat allotted to you under the register number and also in the address list. The candidates has to mark the code on the space allotted to them on the top of the answer sheet and they have to darken the bubbles. The answer sheet will be declared invalid if the alpha code is incorrectly written, bubbling is done wrongly or entries are incorrect or incomplete. The question booklet Alpha code and the register number are to be understood correctly and it has to be properly entered or bubbled failing which the candidate will be solely responsible.

7. After the completion of the duration of examination, Part A and Part B be torn at the proper place and both halves should be entrusted to the Assistant Superintendent failing which the answer sheet will be declared invalid.

6. While dictating judgment, I find that by order dated 14.3.2012 this Court directed to produce answer scripts of the petitioner in this Court, which was not produced. Therefore, I listed the matter for to be spoken to on 4.9.2012. On query as to why the petitioner's answer scripts were rejected as per Ext.P3 notification and how could the name of the petitioner found place in Ext.P4 rank list, it was submitted by the learned counsel for the petitioner that on the complaint being made by the petitioner, the answer script was valued and the Commission condoned the laches, if any, and published the rank list wherein his name was found in the rank list. Learned counsel for the petitioner has relied upon the judgment of this Court contending that petitioner's answer scripts have been valued on the objection being made by the petitioner. The Commission is estopped from again rejecting the answer script and deleting the name of the petitioner from the rank list, particularly when same has been valued.

7. Learned counsel for the respondent Commission filed an affidavit enclosing OMR sheet as Ext.R1(c). He has relied upon the decisions in Asha Manju Vs. K.P.S.C. and another, ILR 2010 (1) Ker. 675 and Susheela Vs. Kerala Public Service Commission, 2010 (4) KLT 986 contending that the procedure given in the O.M.R. valuation is to be strictly followed. Any deviation in bubbling numbers as directed in the answer scripts, bubbling of roll number or registration number in the answer script has to be rejected and the Commission is adopting uniform method. Therefore, no fault can be found out with the action of the Commission basing on the decisions relied above. There is no dispute to the proposition laid by this Court that if the answer script has not been bubbled properly, it has to be rejected in terms of the OMR guidelines. But, in, the instant case, in pursuance to the objection filed by the petitioner, his answer scripts have been valued. Therefore, the plea of the Commission that the petitioner's answer scripts have to be rejected since he has not complied with the OMR guidelines, cannot be accepted. After examining the rival contentions in the judgment relied upon and after hearing the learned counsel for the parties, I hold that the Commission is not justified in rejecting the answer script of the petitioner, particularly when it was valued after entertaining the objection of the petitioner. Therefore I have no hesitation to quash Ext.P5 so far as the petitioner is concerned and direct the Commission to include the petitioner's name in the select list for appointment in accordance with law within a period of two weeks from the date of receipt of a copy of this judgment.

Writ petition is allowed as above.