Kommaddi. Srutha Keerthi, vs Andhra Pradesh Public Service ...
2021 Latest Caselaw 2003 AP

        HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                        I.A.No.1 of 2021
                               In
         W.P.Nos.11000, 11011 and 11026 of 2021;
                        I.A.No.2 of 2021
                               In
W.P.Nos.10853, 10856, 10866, 11005, 11033 and 11034 of
                         2021
                              And
         I.A.No.3 of 2021 in W.P. No.10805 of 2021


COMMON ORDER:


       A large number of candidates who appeared for the

Group-I examination in 2019-2020 have challenged the digital

evaluation system adopted for the evaluation of the main

examination papers of Group-I Services.

     In view of the urgency being expressed and as the results

are scheduled to be declared on 17.06.2021, the matter was

taken up for hearing the Interlocutory Application immediately

after reopening the Courts.

     Sri B.Adinarayana Rao, learned senior counsel led the

argument in WP.No.10853 of 2021.          He raised the principal

issue about the mode and manner in which the conventional

system of evaluation of marks has been replaced by the digital

method of evaluation.     He points out that disregarding the

conventional method, a new digital method of evaluation of

answer papers has been adopted, which according to him is

contrary to the statute and the law on the subject.
                                2




     Drawing the attention of this Court to Articles 315 to 319

of the Constitution of India, learned senior counsel argues that

Public Service Commission should be an independent and

autonomous body and that it should discharge its statutory

duties in a fair manner. He points out that the Chairman of the

Commission was not discharging his duties. Relying upon the

APPSC Rules and procedures, he argues that the examination

rules and schemes of examinations and syllabus can only be

allotted to a Chairman and one member. The appointment of

examiners and moderators can be done either by the Chairman

or by the Chairman and one member. He draws the attention of

the Court to the annexure to the Rules pursuant to Rule 17.

According to him, it is only the Full Commission that can

change the Andhra Pradesh Public Commission Regulations. He

argues that the procedure adopted in this case is totally

contrary to the rules and regulations as the Chairman was not

involved at all. He points out that when the examination was

announced, the candidates were informed that they would be

selected for appointment based on merit in the main written

examination (which is conventional) followed by oral interview.

He relies upon clause 15.2 of the notification dated 31.12.2018

for this submission.   Relying upon the subjects prescribed,

learned senior counsel argues that a very detailed syllabus was

given for the candidates. He draws the particular attention of

this Court to the syllabus in paper-II dealing with History,

Culture and Geography of India and Andhra Pradesh.           By

relying upon paper-II which deals with History and Culture of
                                  3




Andhra Pradesh (6.2 to 15), the learned senior counsel argues

that only a person with an in-depth knowledge of the History,

Culture of Andhra Pradesh can evaluate the paper which has

such subjects. He argues that "generalists" cannot correct the

paper. Similarly, even with regard to the Geography of India and

Andhra Pradesh, learned senior counsel argues that these are

papers which require correction by experts. He points out that

despite the letters written by candidates and the apprehensions

expressed by the candidates in the pleadings, absolutely nothing

is forthcoming in the counter to show that a transparent method

is adopted for selecting the third party evaluating company. He

also submits that the counter is absolutely silent about the

method in which the evaluators were selected and the manner in

which the evaluation was done.       The entire method of paper

evaluation etc., according to him were given to a third party

without any exercise being conducted about their expertise or

skill. He states that the Rules of the game were changed after

the games have begun. He relies upon K.Manjusree v. State of

Andhra Pradesh and another1.         He also points out that the

moderation of marks of people of the candidates who have

answered the examination in Telugu is also to be kept in mind

and the bias of the evaluators in their mother tongue should

also be eliminated.       He relies upon Central Board of

Secondary Education v. Aditya Bandopadhyay2. Therefore,

according to the learned senior counsel, it is not clear as on date

1
    (2008) 3 SCC 512
2
    (2011) 8 SCC 497
                                  4




even after the counter affidavit has been filed in W.P.Nos.10853

and 10856 of 2021 as to (a) the manner in which the third party

has been hired and (b) the expertise of the people who have been

hired to formulate the paper and (c) their expertise to evaluate

the same.   He points out that the decision making process is

thus very vague and opaque.

     Sri G.Vidyasagar, learned senior counsel continued the

argument. He adopted the arguments of Sri B.Adinarayana Rao

and further submitted that the minutes of the meeting dated

28.10.2020 make it clear that arbitrary decisions were taken.

He submits that certain directions were given by the high Court

in WP.No.536 and batch on 22.10.2020. A meeting was held on

28.10.2020 in which it is noted that the quotations were already

invited from A.P. Online and "Data Tech" to evaluate the papers.

Therefore, the learned senior counsel submits that even before

the meeting was held that a decision was taken to invite the

quotations for digital evaluation.   He further submits that Rule

17 of the APPSC Rules and the procedure is completely flouted.

Learned senior counsel relies upon Rule 17 read with the

annexure to argue that the Chairman has to allot the work to

the members.    The Chairman, according to the learned senior

counsel, also has the discretion to place the matter before all the

members of the committee. He submits that the minutes dated

28.10.2020 do not contain any reference whatsoever to the

allocation of subjects by the Chairman.      Therefore, he states

that the entire procedure adopted to shift the digital evaluation

is incorrect. He also relies upon Pranav Verma v. Registrar
                                       5




General of the High Court of Punjab and Haryana at

Chandigarh3 to support his submissions. He submits that the

entire procedure/decision making process to shift the digital

evaluation is flawed and the available material does not show

that the due procedure was followed.

         Sri   Vijay    Kumar.M    appearing      for   the   petitioner   in

WP.No.10853 of 2021 adopts the arguments of the learned

senior counsel who preceded him.                  He submits that the

fundamental aspect that the respondents have overlooked is the

question of examiner 'variable'. He submits that some

examiners may be liberal in awarding marks while others may

be very strict. Therefore, to neutralize this, the system of

moderation is adopted. He draws the attention of this Court to

the judgment of the Hon'ble Supreme Court in Sanjay Singh

and another v. U.P.Public Service Commission, Allahabad

and another4 and also relies upon the judgment of the high

Court of Manipur reported in Shalini Chingtham and others

v. The Manipur Public Service Commission and others5.

Learned counsel submits that approximately 6800

candidates appeared for the main examination which consists of

7 papers. According to him, approximately 19 to 20 lakh sheets

of papers are involved for evaluation. Relying upon the affidavit

in W.P.No.11033 of 2021, he argues that it was mentioned that

20.9 lakh sheets of papers are involved. He draws the attention

(2020) 15 SCC 377

(2007) 3 SCC 720

MANU/MN/0184/2019

of the Court to the fact that no details are provided as to how

the third party was selected for this huge gigantic task. It is his

contention that the entire system is flawed.

Sri J. Sudheer, learned counsel for the petitioners in

W.P.No.10805 of 2021 also adopted the arguments of the

learned senior counsels. He pointed out that even a small error

in evaluation can make or mar a candidate's future and even

one mark can decide whether a candidate will become a Police

Wala / Officer or a dabba wala. He points out that the expertise

of the third party, qualifications of the evaluators etc., are not

disclosed even now and that the power given to the APPSC is a

constitutional duty which cannot be delegated. He points out

that in the main examination, the written component carries

largest amount of marks while the interview carries a very small

percentage. Therefore, he submits that a greater duty was cast

on the APPSC to carryout the evaluation by itself. The

credibility of the third party and their capability to evaluate

these subjects is not disclosed as per him. He also points out

that the practical aspects of scanning etc., should be

safeguarded. He argues that an answer may end at a particular

part of the page and in the scanning it should be carefully

ensured that all the pages are properly scanned. Lastly, he

submits that if no interim order is granted and the proceedings

are stayed most of the candidates would also lose their chance

due to age bar and would be barred from the further

examinations if orders were not granted.

Sri G.V.Siva, learned counsel for the petitioners in

W.P.No.10866 of 2021 argues that language used in Article 320

of the Constitution is clear and it states clearly that it "shall be

the duty of the Public Service Commission to conduct the

examination". Therefore, he submits that this is not a duty that

can be delegated further. He also argues in the alternative that

by a mere press-note, which is disclosed, the entire

constitutional duty conferred upon the Public Service

Commission has been abdicated. This is a specific ground

which he relies upon apart from the other grounds raised by him

in line with the other submissions.

Sri T.D.Phani Kumar and Sri T. Lokesh, learned counsels

for the other petitioners adopted the arguments of the learned

counsels who preceded them.

On behalf of Andhra Pradesh Public Service Commission,

(the main answering respondent) Sri Mallikarjuna Rao appeared

and argued the matter. He pointed out to this Court that this is

a case where the examinee is examining the examiner. His

preliminary point is that the candidates were aware of the

change to the digital mode and that it was published through a

web note in January, 2021; that they have appeared for the

examination in digital mode. Therefore, he prays that the

petitioners cannot change their stand/aprobate or reprobate to

question the same. He also points out that the issue of the

Chairman of the APPSC is being continuously raised, but he

points out that in view of the certain circumstances, the

Chairman is not attending the meetings and is absent in most of

the times. Therefore, learned counsel argues that the Full

Commission took a decision to outsource the work to a third

party, who has the necessary expertise and the capacity to

evaluate the paper. He points out that this decision as taken by

all the Members of the Committee and that the evaluators have

the necessary expertise. Even earlier, the learned counsel

submits that the APPSC has a pool of evaluators from which

they choose the persons to evaluate a particular examination.

The pool in the present case is created by the third agency,

which is a reputed agency, and is approved by the APPSC.

Therefore, he refutes the submissions of the petitioners'

counsels. Learned counsel took the Court through various steps

in the evaluation of the answer scripts; whereby the

confidentiality was kept and also pointed out that the input

safeguards to ensure that the evaluators did not have any

chance whatsoever to know about the candidates. Learned

counsel also submits that as per the scheme of examinations in

vogue for decades in this country candidates do not have a right

to know about their evaluators and their qualifications and that

even in the normal mode of examination examiner / examinee

anonymity is maintained in order to prevent the candidates from

meeting the evaluators and vice versa. He also submits that if

the rules are not been changed after the first ball has been

bowled. As per the learned counsel the judgment of the Jammu

and Kashmir High Court in W.P.No.2255 of 2019, dated

06.08.2019 is a complete answer to all the issues that are raised

by the petitioners in this case. He also argues that in view of the

Covid situation, the APPSC has taken a decision to streamline

the process and used the latest technology for evaluating the

answer scripts. He points out that the evaluators are qualified

and those of them who were not "tech savvy" were also given

training to use the tools that are provided. Learned counsel

therefore argues that the other issues raised about the

Chairman being present or not etc., and the allegations made

against the current Secretary are all not true or valid and that

they are needlessly raised in the current set of writ petitions. He

reiterates that adequate safeguards were taken, proper

procedures and protocols were followed and only thereafter the

results were announced. Learned standing counsel also argued

that in some of the writ petitions notices have to go to the

unofficial respondents and no interim orders can be granted.

In rejoinder, Sri D. Adinarayana and other learned counsel

argued and reiterated that many of the issues are submitted by

the learned counsel for the APPSC are not borne out by the

pleadings. In addition, they also submit that unless the Court

interferes at this stage and looks at the matter in greater depth,

the careers of many will be spoiled. Learned counsels also

argued that in a such situation an interim order can be granted

without ordering notice to the unofficial respondents.

CONSIDERATION BY THE COURT:

This Court is considering only the interim applications,

and prima facie opinions alone are being expressed. It is also

important to note that counter affidavits were filed in some

cases like W.P.Nos.10866, 10863 and 10856 of 2021.

1) The importance of the main examination and the written

component of this main examination is visible from the fact, that

out of 825 marks that are provided, 750 marks are allotted to

written examination itself and 75 marks only are allotted to

Interview. Paper-I to Pater-V are for 150 marks each, totaling

750 marks. Therefore, the marks secured in the written

examination will make or mar a candidate's entire future and

life. This importance is also highlighted by the passionate

arguments that were advanced by all the learned counsel.

2) The Group-I examination is the most important

examination in the State of Andhra Pradesh for recruitment of

Administrators and Officers, who aid and assist the Indian

Administrative Officers in the administration of the State. Thus

they form the very foundation of the administrative machinery in

every State.

These two facts cannot be lost sight of.

3) Articles 315 to 320 of the Constitution of India also

clothe the APPSC with great responsibility for recruiting this

Group of Civil Servants. It is a constitutional duty that has been

cast upon the APPSC in these matters and it cannot be said to

be a mere "routine" administrative duty.

The essential issues raised in this case are about the

appointment of a third party to digitally evaluate the answer

scripts; the methodology that is adopted by them for the purpose

of selecting this agency and their experience in evaluation of

such papers. It is also clear that as a State instrumentality,

"APPSC" has to act as mandated by law.

With these observations, the following prima facie

conclusions are being reached at this stage. These conclusions,

in the opinion of the Court, make it clear that they are seriously

triable issues and matters which need to be heard at greater

length.

1) Clause 15 (2) of the notification issued in this case on

31.12.2018 clearly specifies that the selection shall be on the

basis of merit in the main written examination followed by an

interview. It is specified that the main written examination will

be held in a "conventional method". Para-17 of the notification

dated 31.12.2018 makes it clear that the commission reserves

the right to alter the terms laid down in the notification by duly

intimating the details thereof to all the concerned. The first

point that arises, therefore, is whether this was followed in letter

and spirit. The rules and procedure of the APPSC are filed as a

material paper. Rule 17 specifies the various items of work

allotted to the Members by the Chairman as indicated in the

Annexure. The Chairman has been given the power to refer a

matter to one or more Members or to the full Members of the

Commission for their decision. The annexure to these rules

clearly states that the examination rules including the schemes

for examination and syllabus shall be determined by the

Chairman and one Member as per Clause 6 of the Annexure.

Clause 9 of the Annexure talks of the appointment of examiners

and moderators by the Chairman and one Member. The Full

Commission is also given the power to discharge duties

including the cases of disagreement among the members. The

disclosures made in the counter affidavit are the minutes of the

meeting dated 28.10.2020, in which it is spelt out that the entire

Committee decided to reschedule the Group-I examination and

in agenda Item No.3 to continue the system of digitalization by

enabling the evaluators to mark the scanned scripts. The

quotations were invited from AP Online and "Data Tech". This

Court is of the prima facie opinion that the digitalization and its

advantages are definitely apparent. However, the questions that

arise in this case are whether the procedure stipulated under

Clause 17 of the Rules mentioned above has been followed or

not. The counter affidavits filed do not disclose this. The

reasons for the absence of the Chairman is not clear from the

minutes (as on date).

2) Apart from this, the Rules with regard to awarding of

any work by the State or State instrumentalities is no longer res

integra. The decision making process can be examined by the

Court to see if State largese is properly allocated or given. No

details are forthcoming as of now to show how the third party

was selected and what was the criteria fixed for engaging their

services. It is not clear if the same was by open tender / or any

other lawful method. The name of the third party is disclosed

during the arguments, but the question that arises is if they

have necessary qualifications/expertise for evaluation this sort

of answer sheets. The procedure followed to assess the

"capability" of the evaluators, their domain knowledge, expertise

etc., is not spelt out even broadly. While it is true that the

complete details of the evaluators should not be disclosed in

such competitive examinations, this Court is of the prima facie

opinion that once an issue has been raised, the respondents

should disclose at least the overall qualifications, past

experience etc., and the method of selection of the evaluators in

such matters. Even a general statement giving the number of

evaluators for each subject, with their qualifications without

disclosing the names etc., is not done. The counter affidavits

are conspicuously silent in this aspect.

3) The other issue that requires further examination is,

whether the paper publication dated 08.01.2021 filed with the

counter affidavit meets the rigor of Rule 17, which is reproduced

earlier. This press note was given in January, 2021, whereas

the examinations were held on 14.12.2020. In addition, APPSC

has also relied upon a web note dated 12.12.2020 to argue that

information was given. This web note dated 12.12.2020 is after

the meeting dated 28.10.2020. There is no reference in this web

note to the fact that the system of digital evaluation is being

adopted. It is the system of digital evaluation that is the crux of

the issue now. Clause 17 clearly states that an alteration or

modification of the terms and conditions should be intimated to

all the concerned along with "details thereof". Whether this

press statement published in Indian Express etc., meets this

standard prescribed by the Commission deserves to be

investigated further. The change in the method of evaluation and

the various issues raised by the learned counsels including

examiner bias; the need to avoid examiner variability "the need

to adopt moderations etc.," were all raised in the writ affidavits

filed. The applicants will have a legitimate expectation that their

papers will be evaluated properly and by qualified people.

However, it is not yet clear "who" has evaluated the papers.

Their expertise is also not spelt out. The judgments of the

Hon'ble Supreme Court of India were also reproduced in the writ

affidavits filed. In the opinion of this Court, these are all

matters, which have to be examined later when the other

interlocutory applications are determined.

4) Coming to the judgment of the Jammu & Kashmir High

Court (W.P.C.No.2255 of 2019, dated 06.08.2019) relied upon by

the learned counsel for the APPSC, this Court notices that the

judgment was passed on merits of the matter after counter

affidavits were filed and the entire material was produced before

the Jammu & Kashmir High Court. In paragraph 26 of the

judgment, the points raised by the petitioners were condensed

and reproduced by the Court. The answers given by the Jammu

& Kashmi Public Service Commission were reproduced from

para-27 to para 33. The Commission in that case has

highlighted all the safeguards that had taken including the

selection of the agency/service provider for evaluation.

Paragraph-29 onwards of the judgment deals with these issues.

In fact, it is clearly highlighted that the first and most important

task for the commission was the selection of agency/service

provider. It is stated in the affidavit that the Commission after a

due consultation and of being satisfied about the creditability of

the consultancy, it opted for the same. It is also specified in

paragraph-34 and other paragraphs of the advantages that were

found by the Commission in hiring a third party. Whether all

such procedures and safeguards to enlist the services / to award

the work to the third party were followed is to be examined in

greater detail as the counter affidavits filed do not set out the

same in detail. Even otherwise, paragraphs-65 of the Jammu &

Kashmir judgment makes it clear that the Commission only

outsourced the "scanning and electronic transportation" of the

answer scripts to an examiner engaged by the Commission itself.

It is also specified that the Commission itself engaged 150

examiners for this purpose. In the present case, the available

material indicates that the evaluation was also given to the third

party. This one fact makes a "difference" to the applicability of

the judgment to this case. While this Court agrees that the

electronic evaluation and digital correction have certain

advantages, the question that is not yet clear in this case is (a)

whether the procedures and rules were followed in awarding the

work to the third party for evaluation; (b) the evaluators

knowledge and expertise in correction; (c) the procedures

followed for evaluation etc.,

5) That even in digital evaluation some mistakes have

occurred earlier cannot be doubted and the same is borne out

by the judgments of this Court, also which are filed by the

petitioners as material papers too. In fact, in some judgments,

this Court directed the reevaluation of the papers by the digital

mode in view of the mistakes committed during the course of

digital evaluation. Prima facie, this Court holds that the "rules of

the game" were changed after the game has begun.

6) The last question that survives for consideration at this

stage is, whether any interim order should be given or not.

As mentioned by this Court, the petitioners have made out

a case for further investigation and detailed hearing. If the

interviews that are scheduled from tomorrow are held, there may

be a chance that genuine candidates may be deprived of the

right to go for the interview/further selection. The procedure in

this case started with the notification for recruitment in

December 2018. This Court is, therefore, of the opinion that the

petitioners have made out a prima facie case and the balance of

convenience is in their favour. Greater harm will be caused to

them if the interviews are allowed to go ahead. The loss will

definitely be "irreparable". As rightly pointed out by the learned

counsel for the petitioners a difference of one mark may mar a

person's entire life and career. Hence, this is irreparable loss.

Postponing the interviews for now will not cause irreparable loss

to the short listed candidates. This is the "stitch in time" that is

needed in this case. In the opinion of the Court, the long

submissions about the 'Secretary' of the APPSC are not really

made out through the pleadings and the material filed. He is

also not a eo nominee party. In his absence and as details are

not furnished, this Court opines that these issues need not be

dealt with in the order.

Therefore, there shall be an interim order in favour of the

petitioners as prayed for staying all further proceedings

including the interviews scheduled to be held from 17.06.2021

pursuant to the notification dated 31.12.2018 for a period of

four weeks. Respondents are directed to file their counters in

the applications which have been filed for producing the answer

sheets before the Hon'ble Court and other similar applications.

__________________________ D.V.S.S.SOMAYAJULU, J

Date : 16.06.2021 KLP/SSV