V.Parthasarathy v. Tamil Nadu Public Service Commission

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.10.2009CORAM:THE HON’BLE MR. JUSTICE K.CHANDRUW.P.No.15644 of 2009& M.P.Nos.1, 2, 3 and 6 of 2009V.Parthasarathy.. PetitionerVs.1.The SecretaryTamil Nadu Public Service Commission Chennai 600 0022.The Controller of ExaminationTamil Nadu Public Service Commission Chennai 600 0023.The ChairmanTamil Nadu Public Service Commission Chennai 600 002(3rd respondent impleaded as perorder dated 21.8.2009 in M.P.No.4/2009) .. Respondents Prayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of Certiorarified mandamus calling for allrelevant records regarding the impugned rejection order in memorandumNo. 4867/ED-A3/2008 dated 1.7.2009 of the 2nd respondent andMemorandum No.559/ED-A1/2009 dated 4.8.2009 of the 3rd respondent inrejecting to revalue the petitioner's main examination answer papersin General studies paper I and paper II in the Group I examination2006-2007 conducted on 16.8.2008 and 17.8.2008 herein to quash thesame as arbitrary improper illegal against the rules and proceduresof the respondents due to unfair valuation thereby directing therespondents to revalue the petitioners main examination answer papersin the said examination by the examiners from reputed universitiesoutside the panel of examiners of the respondents and consequentlypublish the marks obtained by the petitioner.(Prayer amended as per the order dated 21.8.2009 in M.P.No.5 of 2009) https://hcservices.ecourts.gov.in/hcservices/ For Petitioner :: Mr.K.Venkataramani, Sr.counsel for M/s.P.K.Rajesh Praveen Kumar For Respondents :: Ms.C.N.G.NiraimathiO R D E RHeard Mr.K.Venkataramani, learned senior counsel appearing forMr.P.K.Rajesh Praveen Kumar, learned counsel for the petitioner andMrs.C.N.G.Niraimathi, learned counsel appearing for the respondentsand perused the records.2. The writ petitioner had earlier filed a Writ Petition beforethis Court in W.P.No.11391 of 2009 seeking for the revaluation of themain answer papers in General Studies Paper I and Paper II in theGroup I Main examination conducted by the Tamil Nadu Public ServiceCommission on 16.8.2008 and 17.8.2008 for the year 2006-2007 bycomparing the same with the last 3 candidates selected in thevacancies reserved for Scheduled Tribe Community. This Hon'ble Courtby relying upon para 5 (vii) of the Tamil Nadu Public ServiceCommission's instructions held that there was no legal impediment forthe respondents to revalue the answer papers and after holding so inparagraph 9, it was directed as follows:"9. For the aforesaid reasons, this Court is constrained toconsider the representation of the petitioner dated5.6.2009 seeking the relief of revaluation of the answerpapers of the petitioner relating to the Group-IExamination conducted by the respondent on 16.8.2008 and17.8.2008 in the light of the definite assertion made bythe petitioner in the affidavit filed before this Court inthis Writ Petition to the effect that he is havingreasonable expectation of securing more marks on the basisof his performance and the petitioner crossed the maximumage limit prescribed for competitive examinations and as aresult, he may not have any more chance to compete in theGroup I Examination, and dispose of the said representationdated 5.6.2009 on merits and in accordance with law withina period of four weeks from the date of receipt of a copyof this order. (Emphasis added)"3. Even while the matter was pending, the petitioner had sent arepresentation dated 5.6.2009 to the Tamil Nadu Public ServiceCommission. The Tamil Nadu Public Service Commission acting upon thesaid representation informed the petitioner by an order dated1.7.2009, which is as follows: https://hcservices.ecourts.gov.in/hcservices/ "Thiru V.Parthasarathy, is informed that his request forrevaluation of the answer papers is inadmissible and cannotbe complied with as per para 19(v) of the Commission'sInstructions, etc.., to candidates.He is also informed that his answer paper has alreadybeen valued twice by two different examiners.Any further representation in this regard will receiveno attention."4. The petitioner has now come forward to challenge the saidcommunication dated 1.7.2009 followed by the communication dated4.8.2009 (it was passed after the direction of this Court). In thefirst impugned order dated 1.7.2009, the petitioner was informed thatas per the Commission's Instructions contained in para 19(v), thereis no scope for revaluing the answer papers. Subsequent to thedirection issued by this Court, the Commission once again reiteratedthe same view in the subsequent order dated 4.8.2009. This time, theCommission placed reliance upon the judgment of the Supreme Court inMaharastra State Board of Secondary and Higher Secondary Educationand others vs. Paritosh Bhupeshkumar Sheth and others reported in AIR1984 SC 1543 and stated that since the petitioner's answer papershave already been valued twice by two different groups of examiners,the request for revaluation of the answer paper again cannot beconsidered. Since the petitioner had already filed the WritPetition against the earlier order dated 1.7.2009, he filed aMiscellaneous Petition in M.P.No.5 of 2009 for amendment of theprayer seeking to challenge the latest order dated 4.8.2009 and thesame was ordered. By M.P.No.4 of 2009, he has also impleaded theChairman of the Tamil Nadu Public Service Commission.5. Mr.K.Venkataramani, learned senior counsel appearing for thepetitioner submitted that since this Court had already held that thepetitioner's case deserves revaluation, the respondents ought to haveconsidered the said prayer. In any event, the Chairman of the TamilNadu Public Service Commission had acted mala fide. Therefore, thepetitioner's case should be considered in the light of theobservations made in the earlier case. 6. According to the petitioner, he had earlier filed W.P.No.2088of 2009 with reference to the question of his age being barred forconsideration by the TNPSC. Since the petitioner resorted tolitigations earlier, the respondents have deliberately wanted tovictimise the petitioner and therefore, he has come up with theprayer that his answer papers should be revalued by the examinersfrom reputed Universities outside the panel of examiners of therespondents Tamil Nadu Public Service Commission and consequently https://hcservices.ecourts.gov.in/hcservices/ publish his marks as per the said revaluation.7. In the affidavit filed in support of the Writ Petition,except narrating the previous litigation in respect of the Group IIexamination taken by the petitioner, there is no specific allegationagainst any member of the Commission including the impleaded 3rdrespondent Chairman. In fact in his sworn affidavit, he has statedthat in the Group II Examination, he became successful and he hasbeen also appointed as Assistant Commercial Tax Officer in theCommercial Tax Department where he is still working. In the absenceof any specific allegation of mala fide, this Court is not inclinedto consider his contention that since he had already filed a WritPetition against the Commission, the Commission has been actingvindictively against the petitioner.8. On the contrary, it must be stated that the State PublicService Commission is a constitutional body appointed as per Article315 of the Constitution and the tenure of service of the members arefully protected in terms of Articles 316 and 317 of the Constitution.Therefore, when the allegation of mala fide is made in respect of theCommission, which is admittedly a multi member body, the petitionerhas to make a specific allegation so that the allegation can be metby any member or Chairman or the Commission as a whole.9. On notice from this Court, the respondents have filed acounter affidavit dated nil (2009). In the reply affidavit, apartfrom relying upon the Supreme Court judgment in Maharastra StateBoard of Secondary and Higher Secondary Education and others vs.Paritosh Bhupeshkumar Sheth and others's case referred to above, theyhave also relied upon the judgment of the Division Bench of thisCourt in W.P.No.25622 of 2008 (Miss V.Lavanya vs. Deputy Secretary,TNPSC and 2 others), wherein the scope for revaluation by the TamilNadu Public Service Commission at the instance of the examinee hasbeen ruled out. 10. In page 2 of the counter affidavit, it is stated asfollows:"As per the existing procedure in vogue, the answer paperswere dummy numbered and placed for valuation. Sincequestion papers of both the subjects (Paper-I and Paper-II) contain questions from 10 and 13 subjectsrespectively, the papers were valued by the examiners ofthe subjects concerned. That is, Paper-I was valued by 10examiners and Paper-II was valued by 13 examiners. Theanswer papers were valued twice by two different groups ofexaminers. https://hcservices.ecourts.gov.in/hcservices/ After First and Second valuations, the marks obtainedby the petitioner in the General Studies Paper-I andPaper-II are as follows:Name of the paperMarks obtainedin FirstvaluationMarks obtainedobtained insecond valuationAverageGeneralStudies Paper-I137153145GeneralStudies Paper-II125135130Total marks275Based on the marks obtained by the petitioner, he wassummoned for oral test. In oral test,he has obtained 54marks. He has secured 329 marks in total.The petitioner in his representation dated 5.6.2009,addressed to the Secretary, had requested to revalue hisanswer papers of the above said examination, since themarks awarded is less than his performance andexpectations."11. The petitioner's reliance upon Clause 5(vii) of the TamilNadu Public Service Commission's instructions as a source forrevaluing the answer papers cannot be countenanced by this Court.That power is vested with the Tamil Nadu Public Service Commission incase there was any suspicion over an evaluation so that they can sendthe answer papers to a panel of examiners of the respondent TamilNadu Public Service Commission. But, this power is not available toan examinee like the petitioner, who has come forward to file thepresent Writ Petition solely on the ground that he had reasonableexpectation of securing more marks on the basis of his performance.12. The Supreme Court vide judgment in Maharastra State Boardof Secondary and Higher Secondary Education and others vs. ParitoshBhupeshkumar Sheth and others's case cited supra held as follows:"The process of evaluation of answer papers or ofsubsequent verification of marks does not attract theprinciple of natural justice since no decision makingprocess which brings about adverse evil consequence to theexaminers is involved. The Principle of natural justicecannot be extended beyond reasonable and rational limitsand cannot be carried to such absurd lengths as to make itnecessary that candidates who have taken in public https://hcservices.ecourts.gov.in/hcservices/ examination should be allowed to participate in theprocess of evaluation of their performance or to verifythe correctness of the evaluation made by the examiners bythemselves conducting an inspection of the answer booksand determining whether there has been proper and fairevaluation of the answers by the examiners.".... Any draw back in the policy incorporation in arule or regulation will not render it ultravires and theCourt cannot strike it down on the ground that in itsopinion, it is not a wise or prudent policy but is even afoolish one and that it will not really serve toeffectuate the purpose of the Act.""..... It is in public interest that the results ofpublic examinations when published should have somefinally attached to them. If inspection, verification inthe presence of the candidates and revaluation are to beallowed as of right, it may lead to gross and indefiniteuncertainty, particularly in regard to the relativeranking etc. of the candidates, besides leading to theutter confusion on account of the enormity of the labourand time involved in the process."13. Therefore, in the absence of any power available to theexaminee like the petitioner and there being no mala fides allegedand proved against the respondents, this Court is not inclined toentertain the Writ Petition. 14. Since the right of an examinee like the petitioner was madeonly on the basis of the allegation made in the affidavit, it isnecessary for this Court to record that when such allegation of malafides are pleaded, it is also essential to make the personsconcerned as necessary parties to the Writ Petition for proving suchallegations of mala fide. Further, the burden of proving theallegation of mala fide solely rests on the petitioner as held by theSupreme Court in E.P.Royappah vs. State of Tamilnadu reported in1974 (4) SCC 3. The relevant passages found in para 91 and 92 arereproduced below:"91. .... The only question before us is whether theaction taken by the respondents includes any component ofmala fides; whether hostility and malus animus against thepetitioner were the operational cause of the transfer ofthe petitioner from the post of Chief Secretary.92. Secondly, we must not also overlook that theburden of establishing mala fides is very heavy on theperson who alleges it. The allegations of mala fides are https://hcservices.ecourts.gov.in/hcservices/ often more easily made than proved, and the veryseriousness of such allegations demands proof of a highorder of credibility. Here the petitioner, who washimself once the Chief Secretary, has flung a series ofcharges of oblique conduct against the Chief Minister.That is in itself a rather extraordinary and unusualoccurrence and if these charges are true they are bound toshake the confidence of the people in the politicalcustodians of power in the State, and therefore, theanxiety of the Court should be all the greater to insiston a high degree of proof. In this context it may benoted that top administrators are often required to doacgts which affect others adversely but which arenecessary in the execution of their duties. These act maylend themselves to misconstruction and suspicion as to thebona fides of their author when the full facts andsurrounding circumstances are not known. The Court would,therefore, be slow to draw dubious inferences fromincomplete facts placed before it by a party, particularlywhen the imputations are grave and they are made againstthe holder of an office which has a high responsibility inthe administration. Such is the judicial perspective inevaluating charge of unworthy conduct against ministersand other high authorities, not because of any specialstatus which they are supposed to enjoy, nor because theyare highly placed in social life or administrative set up– these considerations are wholly irrelevant in judicialapproach-but because otherwise, functioning effectivelywould become difficult in a democracy. It is from thisstandpoint that we must assess the merits of theallegations of mala fides made by the petitioner againstthe second respondent."15. If the test for proving mala fide as laid down by theSupreme Court is applied, the allegation of mala fides raised in theWrit Petition does not measure up to the said test. Therefore, thisCourt is not inclined to accept the allegation of mala fide and nofindings are required to be rendered by this Court. Even otherwise,only because the petitioner had filed the Writ Petitions earlier,that itself cannot be a ground to hold that the respondents werehostile to the petitioner.16. The Supreme Court in more than one occasions has held thatan unsuccessful candidate after participating in a selection processcannot challenge the selection process. It is necessary to refer tothe latest judgment of the Supreme Court in K.A.Nagamani vs. IndianAirlines reported in (2009) 5 SCC 515 in this regard. In the presentcase, under the guise of asking for a revaluation, the petitioner'scontention that his answer papers should be compared with the last https://hcservices.ecourts.gov.in/hcservices/ three candidates selected in the vacancies in the quota meant forScheduled Tribe Community as contended in the earlier Writ Petitioncannot be countenanced. 17. In the light of the above factual matrix and the legalprecedents, the writ petition stands dismissed. However, there willbe no order as to costs. All the Miscellaneous Petitions stand closed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarajrTo1.The Secretary Tamil Nadu Public Service CommissionChennai 600 0022.The Controller of ExaminationTamil Nadu Public Service Commission Chennai 600 0023.The ChairmanTamil Nadu Public Service Commission Chennai 600 002+1 cc to Mr.P.K.Rajesh Praveen Kumar, Advocate, SR.No.57279W.P.No.15644 of 2009TP/28.10.2009.