Kommaddi. Srutha Keerthi, vs Andhra Pradesh Public Service ...
2021 Latest Caselaw 3868 AP

                                1




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

 + WRIT PETITION Nos.11000; 10805; 10853; 10856; 10866;
 11005; 11011; 11026; 11033; 11034; 11078; 12914; 15062
                        and 16939 of 2021

                       % 1st October, 2021

W.P.No.11000 of 2021

# Rompalli Sankara Rao and 3 others             ... Petitioners..

AND

$ The State of Andhra Pradesh and 3 others.     ... Respondents.

! Counsel for the Petitioners : Sri T.D.Phani Kumar

^ Counsel for the 2nd respondent : Sri R.V.Mallkarjuna Rao Standing Counsel for APPSC

^ Counsel for the 3rd&4th respondents : Sri Madiraju Srinivasa Rao

< Gist:

> Head Note:

? Cases referred:

1. 1994 Supp (3) SCC 220

2. (1990) 3 SCC 157

3. (2010) 13 SCC 467

4. (2007) 3 SCC 720

5. AIR 1996 SC 11

6. (2010) 13 SCC 586

7. (2016) 3 SCC 417

8. 1996 AIR 11 = (1994) 6 SCC 651

9. (1974) 3 SCC 337

10. AIR 1966 Cal 290 (FB)

11. (2009) 7 SCC 647

12. (2013) 4 SCC 540

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

WRIT PETITION Nos.11000; 10805; 10853; 10856; 10866; 11005; 11011; 11026; 11033; 11034; 11078;

12914; 15062 and 16939 of 2021

COMMON ORDER:

With the consent of all the learned counsels the writ

petitions have been taken up for hearing.

PETITIONERS' SUBMISSIONS:

The lead argument in this batch of cases was

commenced in W.P.No.11033 of 2021 by Sri B. Adinarayana

Rao, learned Senior Counsel for the petitioners. Learned

Senior Counsel briefly touched upon the history of the case

and pointed out that in W.P.No.11033 of 2021 the crux of the

issue (as described in the Writ Petition) is the conduct of the

main examination, evaluation of answer scripts, which are

outsourced to an unknown entity, and a new concept of

'digital evaluation' being introduced by the A.P.Public Service

Commission. The learned Senior Counsel drew the attention

of this Court to the interim order that was passed in this

batch of cases on 16.06.2021. He points out that in the

interim order itself there was a discussion about the issues

raised and thereafter the order was passed. He points out

that in the interim order in page 10, this Court noticed that

the essential issue raised is about the appointment of the

third party to digitally evaluate the answer script, the

methodology that is adopted by them for the purpose of

selecting the agency and their experience in evaluation of

such papers. He next draws the attention of the Court to the

paragraph 1 of the part described as on "Consideration by the

Court" wherein it is mentioned that this Court prima facie

noticed that Clause 17 of the Notification is not complied

with. He also points out that in paragraph 2, this Court

commented upon the process by which the State or the State

instrumentality can award a contract and that no details

were forthcoming as to how the third party was selected and

what is the criteria of their selection. The prima facie opinion

expressed by this Court that the system of selection of this

third party is not disclosed and their qualifications, expertise,

their domain knowledge etc., is not spelt out is highlighted

now. He also points out that as per Clause 17 of the Rules

provides that any change in evaluation should be brought to

the notice of all the persons concerned, which includes the

applicants, for the examination. Whether the press

statement meets the rigor of Clause 17 is an issue

commented upon by this Court as per him. He submits that

the change in the method of evaluation, the questions

regarding examiner bias/variability, moderations etc., were

left open for further investigation. Relying upon the other

part of the paragraph he points out that this Court prima

facie came to a conclusion that it is not clear who evaluated

the papers. Their expertise was also not spelt out. He also

draws the attention of this Court to the order of the Jammu

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

06.08.2019), which is considered in paragraph 4 of the

judgment, and also the conclusion at the end of the para 4

where the following questions were posed -

(A) Whether the procedures and rules were followed in

"awarding the work" to a third party for evaluation;

(B) The evaluators' knowledge and expertise in

correction and

(C) The procedures followed for "evaluation" etc.,

The learned Senior Counsel took this Court to the entire

interim order and pointed out that this order was passed on

16.06.2021 but that even on date after the 2nd counter was

filed and the matter is argued the 3 questions mentioned are

not fully answered.

Before the interim order was passed the counters were

filed in Writ Petitions including a counter in W.P.Nos.10853

of 2021 and 10826 of 2021. This counter was verified on

09.06.2021. After the interim order was granted a common

counter was filed in many these matters. This was verified on

05.08.2021. Learned Senior Counsel points out that the

same deponent has signed both the counters. Thereafter he

took the Court through the second counter and argued that

none of the issues that were considered by this Court and the

issues which are left open for consideration are correctly or

satisfactorily answered in the second writ affidavit. He

submits that even after the second counter affidavit is filed, it

is not clear on what basis the third party was appointed to

evaluate the papers or to scan the papers and their expertise

in these subjects is also not clear. Drawing attention of this

Court to the detailed syllabus which has been prescribed for

this particular examination, learned Senior Counsel submits

that only persons with domain knowledge or expertise in

issues like Andhra History, Andhra Geography etc., can

evaluate these papers. He points out that even in the

subsequent counter that is filed these issues are not clarified.

It is also pointed out by the learned counsel that in the

second counter that has been filed the stand of the APPSC

has undergone a sea change. According to him, in the initial

counter and the documents that were filed it is asserted that

digital evaluation itself was given to the third party. However,

in the current counter that is filed it is stated that the

services of third party were taken to "aid the evaluators" who

have been employed by the APPSC. Their role is limited to

"scanning" the papers and forwarding them to the evaluators

in this second counter. Learned Senior Counsel points out

that this change in the method of evaluation is also borne out

from the records which were filed. He relies upon the press

cuttings etc., that were filed in the 1st writ petition, wherein it

is clearly spelt out that the evaluation itself was being done

by the third party. Learned counsel relies upon documents

which are certified and filed by the Nodal Officer of the APPSC

itself wherein it is clearly mentioned that the third party has

been hired to "set the question paper and to evaluate the

same". The statements clearly go to show, according to him,

that paper will be set by the third party and evaluation would

also be done by the third party. Learned Senior Counsel

argues that the variations in the counter are striking and

clear. He points out that even as on date respondents have

not disclosed the method by which the third party was

selected for valuation, paper setting or for digital scrutiny.

Learned Senior Counsel also draws the attention of this

Court to the counter filed by the Chairman of the APPSC in

W.P.No.12914 of 2021 and points out that the Chairman,

who was allotted certain clear powers in the examinations,

valuation etc., is totally bypassed and that the affidavit

contains very serious allegations about the functioning of the

APPSC. Hence he questions the authority of APPSC to award

any work of paper setting, evaluation etc., to 3rd parties.

Relying upon the rules, which are filed along with the

counter affidavit the learned Senior Counsel argues that it is

still doubtful if these rules of procedures have actually been

amended. He points out that the Chairman has stated on

oath that he was totally bypassed. He also argues that the

amended rules of procedure, which are filed as material

documents, are supposedly passed on 25.02.2020. Learned

Senior Counsel, therefore, argues that if these rules were

amended on 25.02.2020 they should have been filed or at

least clearly mentioned in the earlier counter which was

attested on 09.06.2021. Learned senior counsel points out

that no reason is forthcoming why these rules were not filed

with the first counter. Drawing the attention of the Court to

the earlier rules, which are filed with the counter affidavit,

learned Senior Counsel argues that these rules give powers to

the Chairman which are totally taken over. He also argues

that the rules cannot be amended to totally take over the

Chairman's power. He points out that the earlier rules were

notified and published in the gazette. Therefore, learned

Senior Counsel argues that there is a serious doubt if these

rules were actually amended or not. He also draws the

attention of this Court to Article 316 (1)(A) of the Constitution

of India to point out that if the office of the Chairman of the

Commission is vacant or if the Chairman is unable to perform

his duties, the duties of the Chairman shall be performed by

one of the Members of the Commission, who has been

appointed by the Governor of the State or the President of

India. It is, therefore, argued that in the case on hand even if

the Chairman was not functioning or acting; his place can

only be taken by a person "appointed" by the Governor of the

State. He concludes by stating these rules are also not valid

until and unless they are notified. The earlier instances

where the G.Os., were published were again highlighted by

the learned senior counsel. Relying upon Bihar Public

Service Commission and another v Dr.Shiv Jatan Thakur

and Others1 (para-32) he argues that the Chairman is a

constitutionally empowered authority who has an 'exclusive'

role to play in the PSC and is a "repository" of duties.

In conclusion learned Senior Counsel points out that -

(a) that the alleged change in the rules is not correct

and is only projected for the sake of this case;

(b) nobody can act in the place of the Chairman expect

an appointee of the Governor of the State; and that the rules

cannot be amended to take away the Constitutionally

guaranteed powers of the Chairman.

(c) the variations and improvements in the two counters

that are filed clearly show that the respondents are trying to

improve their case;

(d) the manner and method in which the third party was

chosen is still not disclosed;

(e) that it is not clear if the 3rd party was appointed for

scanning or evaluation or both. He states that procedural /

institutional integrity is lost and that lack of procedural due

process vitiates the case.

(f) the expertise, domain knowledge etc., of the

evaluators is still not disclosed.

1994 Supp (3) SCC 220

g) There is arbitrary action by APPSC; that they did not

act fairly and the much needed "fair play in action" is totally

absent.

He also points out that most of the issues which came

to the notice of this Court in the interim order are not

clarified even as on date. Hence he prays that the Writ

should be allowed and that a CBI enquiry should also be

allowed as the entire action in awarding the work; evaluation

etc., are arbitrary.

Sri G. Vidya Sagar, learned Senior Counsel continued

the arguments. Apart from adopting the arguments of Sri B.

Adinarayana Rao, learned Senior Counsel focused on

amendment to the rules and on the copy thereof which is filed

with the second counter. He points out that in the entire

counter filed there is no reference to the manner and method

in which these rules were amended. He also points out that

the amended rules which are filed with the second counter

are dated before the first counter itself, yet no mention is

made in the first counter about the existence of these rules

and in fact the APPSC relied upon the earlier rules only. He

also argues it is not clear when the meeting took place, who

participated and what is the resolution passed to change

these rules. He also relies upon the counter affidavit filed by

the 3rd respondent-Chairman, wherein it is mentioned that

since January, 2020 he was not allowed to participate in any

meeting. Therefore, learned Senior Counsel expressed a very

serious doubt about the meeting. He also relies on para 5A of

the counter affidavit filed by the Chairman, wherein the rules

issue is discussed. The Chairman has stated on oath that

the meeting was not conducted as per rules and the

chairman did not preside over the same nor did he authorize

the senior officer to preside over the meeting. The procedure,

which is stipulated in the paragraph, was not followed at all

by the Commission. Therefore, the learned senior counsel

argues that the amendments are not valid in law and the

Chairman was deliberately bypassed without any valid rules.

He also relies upon N.T.Devin Katti and Others v

Karnataka Public Service Commission and Another 2 and

State of Bihar and Others v Mithilesh Kumar 3 to argue

alternately that these rules are only prospective and cannot

affect the selection in the present Notification (December-

2018).

Sri Motupalli Vijaya Kumar, continued the arguments.

He points out that in W.P.No.10853 of 2021, particularly in

paragraphs 15 to 17, he has raised important issues about

the moderation, evaluation methods etc. He points out that

the valuation in this case was awarded to third party (TCS),

which may be a well-known software company, but they do

not have the expertise in the evaluation of examination

(1990) 3 SCC 157

(2010) 13 SCC 467

papers. It is his contention that some examiners are liberal

and some examiners are frugal in awarding the marks.

Therefore, in order to strike a balance, a method of

moderation is to be adopted. He also points out that in a

subject like mathematics a candidate can score 100 out of

100, but in art subjects a person normally does not get 100%

marks. Therefore, these systems of moderation etc., are

scientifically designed to eliminate all kinds of biases that

may arise during the evaluation. Relying upon the judgments

of the Hon'ble Supreme Court of India, which are reproduced

in paragraph 16, learned counsel argues that methods like

moderation, scaling, normalization etc., are all being adopted

by various recruiting agencies. He points out to the judgment

of a three Judge Bench reported in Sanjay Singh and

Another v U.P. Public Service Commissioner, Allahabad

and another4 and argues that awarding marks by the

examiner is one stage of process of evaluation, moderation

becomes a part of the evaluation and the marks awarded on

moderation become the final marks of the candidate.

Learned counsel argues that many of the issues that are

raised by the petitioner in his writ affidavit are not answered

in the counter affidavit. It is also specifically argued that the

said method of evaluation described in paragraph 17 is not

followed and the same was done by the third party called

TCS. It is also argued by the learned Counsel that despite

(2007) 3 SCC 720

the specific issues being raised about the training, lack of

expertise etc., of the third party the counter affidavit is

absolutely silent.

Sri Sudheer Jonnalagadda continued the arguments.

According to him APPSC alone can answer about the

procedures to be followed and that the "implead petitioners"

cannot go into the merits of the matter. Apart from that he

argues that despite the passage of time, despite the interim

order passed, the counter affidavits filed did not specify or

clarify the manner in which the evaluation was done.

According to him the counters do not state about the

technical expertise of the third parties chosen to evaluate the

paper. The manner in which these third parties were chosen,

the manner in which they had evaluated the papers is not

clearly explained by the counter affidavit. Learned counsel

also points out that earlier the Commission chose the

examiners and paper setters, now they have entrusted the

entire work of examination, paper setting and evaluation to a

third party, whose expertise / knowledge etc., is not

disclosed. He argues that this is a clear case of "malice in

law" and that as a Constitutional authority (the APPSC)

unfairly treated the petitioners, they are before this Court.

Sri Goda Siva, learned counsel argues in line with what

is submitted by his predecessors and he also points out that

this is clear case of abdication of power and responsibility by

the constitutional authority. He also relies upon the change

in the counter and the variation in the stand of the APPSC. It

is argued that the newspaper reports were not fully

considered by this Court during the course of the interim

order. But the learned counsel points out that in the counter

affidavit that is filed it is mentioned that the newspapers,

press conferences are correct and the contents of the report

are correct. Therefore, he argues that the newspaper reports

are correct. He submits that the change in the stand of the

APPSC is clearly visible. Coming to the amendments of the

rules, learned counsel argues that this is the crux of the

defence. He points out that on the basis of amended rules it

is argued that a new method of evaluation is adopted.

However, he points out to the rules filed and more

particularly argues that the annexure of Rule 17 is totally

done away taking away the appointment of examiners (which

is a prerogative of the Chairman). This argument is made

without prejudice to his contention that the amendment is

not done properly. He also argues that even though alleged

change is an internal rule since it affects the functioning of

the APPSC and also candidates and their futures they have a

right to question the same. He also points out that the press

statements which are relied upon by the respondent APPSC

to justify the digital evaluation are of 2019 and by that time

pandemic had not set in for the respondents to justify the

method of digital evaluation as a method to avoid the

pandemic and its risk. He also relies upon the document

called the "Digital Evaluation Process" which is filed with the

earlier counter at page 106 which clearly shows that

evaluators are chosen from the pool belonging to the third

parties. By relying upon this document learned counsel

argues that it is clear that the entire process of evaluation

itself was passed on to third party. He relies on the press

clippings, which are certified by the Nodal Officers, are filed.

Therefore, learned counsel argues that this is clear case of

abdication of a constitutional duty by APPSC.

Sri T.D.Phani Kumar and Sri Siva Prasad Reddy

learned counsels adopted the arguments advanced by the

other learned counsels.

Sri Tandava Yogesh, learned counsel relies upon his

writ affidavit in W.P.No.11005 of 2021 to argue that the entire

exercise is a fraud. He points out that he has made the 5 th

respondent as party but they did not appear before this

Court. Apart from that he also argues that in his writ

affidavit he has raised number of important issues which are

not at all answered in the course of counter affidavit. Relying

upon the Commission's regulations, which are filed as

material papers, he also argues that the Rule 8 (a) states that

the Commission should be manned by a Secretary, Additional

Secretary etc., who are all appointed with the previous

approval of the Governor of the State. He points out that in

this case the current Secretary has been appointed without

following the process and the appointment order is given by

the Government and not by the Commission with the

previous approval of the Governor. Therefore, he submits

that the appointment of the current Secretary is itself is

violative of the law. He also argues that the application is

made under the RTI Act for providing data was refused and

that despite the case law on the subject the respondents have

refused to give the information. He also argues that as per

the annexure to Rule 17 of the Rules of procedure it is only

the Chairman who can approve and print the question

papers. The functions of the Chairman, according to the

learned counsel, are being taken over by the current

Members. He also states that it is very clearly averred that

the current Chairman is being prevented from discharging his

duties. This is specifically pleaded in the writ affidavit and

the learned counsel draws the attention of the Court to the

counter affidavit filed by the Chairman in W.P.No.12914 of

2021 wherein the Chairman himself has stated on oath that

he is being prevented from discharging his functions.

Learned counsel, therefore, argues that a constitutionally

appointed authority is being deprived of his powers by the

political hierarchy and that the current incumbent Secretary

does not have the power to take over the function of the

Chairman. He argues that the present incumbents /

members of APPSC have no authority to award the evaluation

of marks to 3rd party. He states that the entire exercise is

mala fide and is a "surgical strike" to denude the current

Chairman of his powers. He points out that the pleadings are

not at all answered in the counter and that an adverse

inference must be drawn. In other aspects he adopts the

arguments of the learned Senior Counsels.

Sri Goda Siva, learned counsel continuing his

arguments pointed out that normalization and the

requirement thereof which are spelt out specifically as

ground-G in his writ affidavit is also not answered in the

reply.

SUBMISSIONS OF A.P.PUBLIC SERVICE COMMISSION:

Sri Mallikharjuna Rao, learned standing counsel for the

APPSC argued the matter at length with great passion and

vigor. According to him before seeking a Writ of Mandamus

the petitioner should prove that they have a right and an

infringement of that right. He contends that in this case no

such right available to the petitioner has been infringed.

He points out very vehemently that the only change

brought about in this case is the method of digital evaluation.

It is this evaluation which is the subject matter of the

dispute. He points out that in the notification it is the

examination which has been notified as "conventional" and

not the evaluation. Even otherwise, the learned counsel

submits with considerable force that the petitioners like any

other candidate appearing in any competitive examination

does not have any intimation or knowledge about the paper

setters or the paper evaluators. Even in the conventional

method the question papers were set by an expert who was

selected by the APPSC from various academic and other

institutions. Neither the petitioners nor any other candidate

appearing for the examination had any role in this selection.

Similarly, even the correction / evaluation of written papers

was done by a pool of evaluators, who are chosen by the

APPSC from various sources. APPSC evaluates their

credentials, integrity and knowledge to evaluate the papers

and then selects them. The petitioners do not have a choice

in this. Learned counsel points out that in the present case

also except for digital evaluation the rest of the procedure has

been followed carefully. Therefore, he submits that the

petitioners cannot have a grievance about the same. As far

as the safeguards for digital evaluation are concerned,

learned counsel relying on the counter affidavit points out

that all the requisite safeguards were taken for scanning and

sending the papers to the evaluators. The question of any

variations / bias etc., during evaluation has also been

answered by providing for check evaluation; further

evaluation in the case of discrepancy in marks etc.

Apart from this learned counsel also points out that the

petitioners have never objected to this method or

methodology earlier. He points out that press releases were

given in December-2019, but the petitioner never questioned

the same till the writ petitions were filed. For the preliminary

examination also which was conducted in 26.05.2019 the

questions were set by a 3rd party and evaluated, in the digital

mode. Only after the results were announced for the mains

the present Writ Petition is filed and more particularly after

the petitioners had failed to clear the examination. Having

failed in the examination the petitioners are now before this

Court. He, therefore, submits that their conduct estops from

raising the present issues.

He also points out that the "rules of the game" or the

eligibility criteria were not changed at all. The eligibility

criteria for application, the minimum educational standards,

age and all other parameters have not been changed. Only

the method of evaluation of the papers has been changed.

Therefore, learned counsel argues that the rules of the APPSC

have not been changed.

Coming to the counter affidavit filed by the Chairman of

the APPSC, learned standing counsel submits that he has a

personal axe to grind against the Commission. He has

already filed a Writ Petition and as he was made a party in

his personal name in the present he has filed this present

counter affidavit stating that the rules of procedure has been

changed. In view of his personal dispute; the counter is filed

to support the petitioners. He submits that the counter

affidavit is filed by a disgruntled Chairman who has a

running feud with the APPSC and should not be given any

importance.

He also submits that what are changed are mere

procedural rules, which are not regulations. Regulations

have to be published in a gazette and the rules of procedures

need not be published in a gazette. He submits that the

change in the rules of the procedure has not affected the

petitioners in any way. The exam remains the same. The

syllabus remains the same. The standard of examination

remains the same and it is the only the method of evaluation

that has changed a little. Therefore, he submits that the

grievance of the petitioner does not give them a legal right to

seek for a Mandamus. Earlier also APPSC for the

conventional exam was chosen the evaluators from the

multiple sources, which were disclosed to them. In this case

also the same procedure was followed. As far as moderation

/ bias etc., he submits that the pleadings are not clear; do

not make out a case for looking into these allegations and

that these issues are mere apprehensions without any proof

of mala fides; arbitrariness etc. he relies upon the case law

filed by him (with a memo) i.e., Tata Cellular v Union of

India5 and W.P.No.4780 of 2021 and points out the need for

restraint by this Court in checking administrative decisions

AIR 1996 SC 11

apart from the limited scope of enquiry. Sri Ravender Rao,

learned senior counsel also argued at length for the

petitioners in W.P.No.11000 of 2021. He also submitted that

the facts pleaded do not make out a case for cancellation. He

argued on the basis of case law that a case for moderation

etc., is not made out. He points out that mala fides are not

proved and that fanciful allegations are made without basis.

SUBMISSIONS OF THE IMPLEADED PETITIONERS:

On behalf of the newly impleaded petitioners Sri Dr.K.

Lakshmi Narasimha, Ms. B.Rachana and Sri N.Ashwani

Kumar argued the matter.

Sri Dr.Lakshmi Narasimha argues that the entire case

is based upon the allegations of mala fides and improper

exercise of powers etc. He contends that the pleadings do not

give clear or categorical details necessary to set aside the

entire exercise. Learned counsel points out on the basis of

the case law that he relies upon that the cancellation of

examination is an extraordinary relief and it should only be

given on the basis of very clear and categorical submissions

and proof. He points out that the petitioners have not made

out a case of bias / mala fide and that their conduct estops

them from filing the writ and that they cannot approbate /

reprobate.

Continuing the argument Ms. Rachana appearing for

some more implead petitioners argues that the petitioners are

estopped from raising any plea before this Court since they

have participated in the examination after being aware that

the papers would be evaluated by the digital mode. She

points out that the press note is dated 25.11.2019 and the

exam was conducted in December, 2020. The decision taken,

according to the learned counsel, was spelt out in web note

dated 19.02.2021 itself. Therefore, she argues that the

petitioners are estopped from questioning the digital

evaluation, particularly as they unconditionally participated

in the examination. As far as the issue of the Chairman is

concerned learned counsel points out that the chairman is

supporting the case of the petitioners because he also has a

personal grievance against the present office bearers of the

APPSC and that the contents of the counter need not be

taken into consideration. With regard to normalisation and

other issues, learned counsel argues that since every

candidate has to answer all the papers, the syllabus of which

is given in Annexure-II, the question of normalisation etc., are

not really applicable or necessary in this case. Since the

averments that are made by the petitioners do not amount to

valid proof she submits that there is no need or necessity to

set aside the entire examination and that the implead

petitioners will suffer irreparable loss if such frivolous writ

petitions are entertained.

Sri N. Ashwani Kumar also appearing for some of the

implead petitioners also alleges that there is collusion

between the Chairman and the present set of petitioners. He

points out that when the writ petitioners were filed all the

respondents were not added. He points out that the

petitioners had a duty to bring on record all the candidates

who appeared and that this is not a curable defect either.

The mere fact that they were added later will not cure the

foundational defect as per the learned counsel. With regard

to mala fides also he argues on the basis of case law cited by

him that the foundational facts are not laid out for mala fides

to be accepted as a ground. He also submits that the scope

of enquiry of a Court in such matters, which are decided by

experts, is limited and that the Court should not substitute

the experts' decision for its own decision, particularly in the

absence of any mala fides. He also submits that no

fundamental rights of the petitioners are affected and

frivolous disputes are raised. He also argues that the

decision of the Jammu and Kashmir High Court cited by the

AP Public Service Commission in its first counter is fully

applicable with the facts and circumstances of the case.

REJOINDER SUBMISSION OF PETITIONERS:

In rejoinder Sri B. Adinarayana, reiterates even as on

date it is not clear who "set" the question papers and who

actually "evaluated" the same. He points out that it is not

clear as to who exactly is the "third party" that was involved

and what was the extent of their involvement. He points out

whether it is TCS or AP Online is not clear. Learned senior

counsel submits that like Caesar's wife the APPSC's conduct

should always be above board. The importance of APPSC is

borne out by the judgments of the Hon'ble Supreme Court of

India, particularly in Bihar Public Service Commission

case (1 supra) and Mehar Singh Saini, Chairman,

Haryana Public Service Commission and Others, In Re 6

according to the learned counsel for the petitioner. He also

argued that the constitutional functions cannot be delegated

and that the actions of the Secretary-respondents in the case

are clearly vitiated. He points out that the Chairman of the

APPSC is kept out of all the meetings and the amended rules

are pressed into service to justify all these actions. It is his

contention that once the procedural due process is vitiated

this Court has to interfere and argued relying upon Bihar

Public Service Commission (1 supra) learned senior counsel

argues that the Chairman is like a Chief Justice of a Court,

as he has certain duties which have to be performed by him

alone. He submits that if there are differences the procedures

are stipulated. He points out that the Secretary, who is not

properly appointed as per the Constitution of India is taking

over the entire Board. Learned senior counsel submits that

the integrity of the exam and the institutional integrity are in

(2010) 13 SCC 586

question in this writ petition. He points out that reading of

the two counters makes it clear that even as on date APPSC

has not disclosed the true facts and that as there is manifest

arbitrariness, irrationality, this Court must interfere.

Sri Vidya Sagar, learned senor counsel also appearing

for the petitioners questions the manner in which the rules

were amended and also argues that the stipulations in the

employment notification were not followed. According to him

the press note filed with the counter does not meet the

stipulation of Clause I of the Notification. He also argues that

the minutes dated 28.10.2020 are not in accordance with the

rules. He points out that once the alleged meeting is not

validly held all the consequential decisions taken pursuant

therein also fall to the ground. The website of the APPSC to

which the attention of the candidates is always drawn has

not been updated according to the learned senior counsel.

Relying on the Chairman's affidavit learned senior counsel

submits that if the Chairman is not cooperating the APPSC

has to approach the governor of the State in accordance with

the Article 316 (1-A) and not to amend the rules.

Sri M. Vijay Kumar, learned counsel also argues on the

same lines and argues that the issue raised in this case goes

to very root of the matter. According to him the Public

Service Commission failed to answer clearly about the

method of evaluation, need for moderation, the hawk-dove

method etc. Therefore, he submits that this is a case where

the Court should interfere.

Sri J. Sudheer also argues on the same lines and points

out that even in the preliminary examination there were clear

errors in evaluation and because of the order passed by the

learned single Judge more candidates were permitted to

appear to the examination. He also submits that once there

is malice in law and glaring procedural irregularities are

clearly pointed out the Court must interfere and set aside the

examination.

Sri Goda Shiva argues on similar lines and submits that

the amendment to rules is totally incorrect. He also reiterates

that the rules have not been updated and the abdication is

clear. He points out that the change in the rules and the

current provisions are the crux for the defence of the APPSC.

Therefore, learned counsel argues that since the amendment

is not done as per the procedure, this Court should set aside

the entire action which is based on the meeting dated

28.10.2020. He points out that in the earlier instances for

amendment of the rules of procedure G.Os., were issued by

the State Government but in the present case no G.O. was

issued. Only in the counter affidavit filed in the second time

the amendment of rules are pressed into service and they are

not mentioned even in the 1st counter affidavit.

Lastly, Sri Tandava Yogesh argues that the implead

petitioners do not have a right to talk of the exam procedure

and to justify the actions of the APPSC. While arguing that

the petitioners have no right he points out that in majority of

the cases the counter is only filed by the APPSC and the State

Government did not try to rebut any of the allegations made.

The appointment of the 4th respondent, according to him, is

contrary to the law and constitutional mandate. It is only the

Governor of the State who can appoint the Secretary. He also

points out that, basing upon the case law, this is a fit case in

which the Court should interfere since the entire exercise has

been done contrary to the constitutional mandate and that

the rules of procedure are not actually amended. He points

out that the in some of the writ petitions challenge is made to

the minutes of the meeting dated 28.10.2020 and yet this

Court has not been privy to, the full minutes, agenda etc.

Relying upon the counter of the Chairman, he also argues

that there is no rebuttal to what is stated by the Chairman

and the meeting dated 28.10.2020 is not validly conducted.

Consequently, all decisions taken are wrong. He reiterates

that a "surgical strike" was carried out to deprive the

Chairman of his Constitutional duties.

Sri R.V.Mallikarjuna Rao, learned standing counsel for

the APPSC finally states that the petitioners are trying to

vindicate their individual rights and that this is not a PIL that

is being heard by the Court and that as no fundamental

right's of the petitioners are involved this Court cannot grant

any relief to the petitioners.

CONSIDERATION BY THE COURT:

1) This is a batch of 14 Writ Petitions. The prayers in the

Writ Petitions are being summarised hereunder:

 Sl.           W.P.No.                        Prayer
No.

1. 11000 of 2021 ; ...to declare the action of the 2nd

2. 11034 of 2021 ; respondent in getting the main

3. 16939 of 2021 ; examination answer sheets of the Group I

4. 10805 of 2021 ; Services recruitment vide Notification

5. 10853 of 2021; No.27/2018, dated 31.12.2018 by digital

6. 10856 of 2021 ; Evaluation and through third party, as

7. 11011 of 2021& illegal etc.,

8. 11033 of 2021 To direct the 2nd respondent to evaluate the answer sheets in a proper, transparent and conventional method.

9. 11026 of 2021 ...to declare the action of the respondent in evaluating the main exam answer scripts of Group-I Service held vide Notification No.27/2018, dated 31.12.2018 through digital evaluation mode as illegal and to set aside the decision for digital evaluation vide Minutes of the Meeting dated 28.10.2020 as illegal and arbitrary.

To declare the results of Group-I Service Main (Conventional Types) Exam vide Notification dated 28.04.2021 as illegal and consequently set aside the same.

To direct the respondents to re-

evaluate the answer sheets without the insistence of digital methods.

10. 12914 of 2021 ...to declare the action of the 2nd respondent in evaluating the main exam answer papers of Group - I Services through digital mode by a private agency as illegal.

Set aside the results dated 28.04.2021.

To direct the respondents to conduct the Group -I Main exams afresh.

11. 15062 of 2021 & ....to declare the action of the 1st and 4th

12. 11005 of 2021 respondents in misappropriating the powers of constitutionally independent 2nd respondent from the 3rd respondent without any authority; and sub-

delegating the Group-I mains exam

conduction process to TCS in the middle of the Exam process; and changing the process of Group-I Mains exams, thus changing the rules of Group-I examination after commencement of the exam; and evaluating the group-I mains answer sheets with unauthorised evaluators that too without awarding the marks on them; and not providing the answer sheets to the petitioners, who filed RTI applications; and changing the master record of mains results submitted by 5th respondent to the 2nd respondent on 01.04.2021 is illegal;

To set aside the Group-I Mains exam conducted on 14.12.2020 to 20.12.2020 and consequential results of Group I services main written (Conventional type) Examination (general recruitment) of Notification No.27 / 2018, dated 31.12.2018 released on 28.04.2021;

Direct the 2nd respondent to re-

conduct the mains examination under the active chairmanship of 3rd respondent without 4th respondent as secretary of APPSC within three months;

Direct the 6th respondent to investigate the illegalities and irregularities in the mains exam conduction process and pass such other orders.

13. 10866 of 2021 ...to declare the action of the 1st respondent in getting the main examination answer sheets of the Group I Services recruitment vide Notification No.27/2018, dated 31.12.2018 by digital Evaluation and through third party, as illegal etc., To direct the 1st respondent to evaluate the answer sheets in conventional method.

To direct R1 to subject the petitioners to interview on being found to have cleared the main exam (conventional type) and appoint them in suitable post.

Direct the 1st respondent to furnish the papers under the RTI Act to the petitioners.

14. 11078 of 2021 ...to declare the action of the respondent in evaluating the answer scripts by engaging the 3rd party evaluators in the examinations conducted vide Notification No.27/2018, dated 31.12.2018;

To direct the respondents to re-

evaluate the answer sheet of the petitioner and also provide the evaluated answer booklet of the petitioner and also publish the marks of all the candidates

who appeared for the APPSC main exam conducted from 14th to 20th December, 2020.

2) The issues raised in all these matters can be

summarised as follows:

a) The job/task of evaluation of the answer sheets being

given to a third party is illegal, contrary to rules;

b) The manner and method in which the work was

awarded to the third party for digitalisation,

scanning, 'evaluation' etc., is not disclosed and it is

not proper.

c) The manner in which evaluation was done: Whether

the evaluation was done by the regular examiners of

APPSC pool or by the third party's examiner's from

their pool?

d) The minutes of the meeting dated 28.10.2020 and

the decision to adopt digital evaluation procedure are

not correct and are illegal, being contrary to the

APPSC Rules of Procedure, 1988. The stipulated

method of holding a meeting is also not followed.

e) The Secretary/Members of the APPSC are not

authorised to act in the manner stated. The

Chairman is bypassed deliberately and this is

contrary to the Constitution of India and Rules of

Procedure. The rules of procedure are still not

amended and what are filed as amended rules are

only created for the purpose of this case to justify the

action.

3) DATES/TIMELINES:

The important dates and timelines are as follows:-

1) The recruitment notification No.27/2018 is dated

31.12.2018;

2) Preliminary examination was held on 26.05.2019;

3) The main written examination was held between

14.12.2020 and 20.12.2020;

4) The results of the main examination were declared on

28.04.2020.

5) Interviews were scheduled to be held on 17.06.2021.

4) MAIN EXAMINATION:

750 marks out of 825 marks in the main examination

are allotted to the written examination alone. Only 75 marks

are allotted to the interview. This underscores the

importance of the main examination. Even one mark can

make or mar a candidate's selection and thus; his or her

entire career. Even in the second counter affidavit filed it is

reiterated in the last part of para-6 at page 61 that the

difference between the candidates' marks is very less,

sometimes only fraction of marks makes a difference. It is

further specified that out of 6807 candidates, who attended

the Group-I examination only 326 were selected for the

interview. Thus the importance of examination is accepted by

respondents also.

5) NOTIFICATION - IMPORTANT CLAUSES:

The important clauses of the Notification dated

31.12.2018 which are relied upon and are relevant for

deciding this dispute are as follows:

"1.10: The applicant is required to visit the commission's website regularly to keep himself/herself updated until completion of the recruitment process. The Commission's website information is final for all correspondence. No individual correspondence by any means will be entertained under any circumstances.

11.3: The Main (Conventional Type) Examination will be held at the following Four Centres only. However, the Commissioner reserves the right either to increase or decrease the number of Centres.

1. Visakhapatnam 2) Vijayawada 3) Tirupati 4) Ananthapur

13.4 The Commission is empowered under the provisions of Article 315 and 320 of the Constitution of India read with relevant laws, rules, regulations and executive instructions and all other enabling legal provisions in this regard to conduct examination for appointment to the posts notified herein, duly following the principle of order of merit as per Rule 3 (vi) of the APPSC Rules of Procedure read with relevant statutory provisions and ensuring that the whole

recruitment and selection process is carried out with utmost regard to secrecy and confidentiality so as to ensure that the principle of merit is scrupulously followed.

15.2 The selection of candidates for appointment to the posts shall be based on the merit in the Main Written examination (Conventional) followed by oral test (Interview), to be held as per the scheme of examination enunciated at para 10 above.

17 COMMISSION'S DECISION TO BE FINAL:

The decision of the commission in all aspects and all respects pertaining to the application and its acceptance or rejection as the case may be, conduct of examination and at all consequent stages culminating in the selection or otherwise of any candidate shall be final in all respects and binding on all concerned, under the powers vested with it under Article 315 and 320 of the Constitution of India. Commission also reserves its right to alter and modify the terms and conditions laid down in the notification for conducting the various stages up to selection, duly intimating details thereof to all concerned, as warranted by any unforeseen circumstances arising during the course of this process, or as deemed necessary by the Commission at any stage." (Emphasis supplied)

6) CONSTITUTIONAL PROVISIONS AND THE DECISIONS:

The constitutional provisions which are relevant are

Articles 315 to Article 320 of the Constitution of India.

Article 316 (1-A) however has an important bearing on

the issues raised. It is as follows:

Article 316 (1-A): If the office of the Chairman of the Commission becomes vacant or if any such Chairman is

by reason of absence or for any other reason unable to perform the duties of his office, those duties shall, until some persons appointed under clause (1) to the vacant office has entered on the duties thereof or, as the case may be, until the Chairman has resumed his duties, be performed by such one of the other members of the Commission as the President, in the case of the Union Commission or a Joint Commission, and the Governor of the State in the case of a State Commission, may appoint for the purpose. (Emphasis supplied)

Article 320(1) is as follows:

320. Functions of Public Service Commissions. -

(1) It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively."

6 (a) POSITION OF THE CHAIRMAN:

As far as the position of a Chairman is concerned the

Hon'ble Supreme Court of India in the case of Bihar Public

Service Commission (1supra) held as follows:

"32.......... But, that does not mean that there is no difference between the office held by the Chairman and the office held by member of the Public Service Commission as regards functions to be performed by each of them in respect of his respective office. .......

Further, the Chairman and the member of the Public Service Commission cannot be treated as persons standing on the same footing in respect to every matter, when the Constitution in several of its Articles treats the Chairman and the members alike for certain purposes and in several other articles treats them differently for certain other purposes by use of the words "the Chairman and the member", and "other than the Chairman". Therefore, under the scheme of the provisions in the Constitution and the scheme of the

Regulations to which we have already adverted, Chairman of a Public Service Commission has an "exclusive role" to play in discharge of administrative duties of his office as a Chairman while a member cannot have any role to play in that regard unless otherwise required. As the Chief Justice of a High Court is made the repository of duties to be performed in respect of administration of a High Court under the Constitution, the Chairman of a Public Service Commission is made the "repository of duties" to be performed in respect of administration of the Public Service Commission under the Constitution. Chairman of a Public Service Commission is entrusted with the "discharge of administrative duties" of the Public Service Commission obviously for the reason that as high constitutional functionary he could be depended upon to discharge such functions justly and fairly." (Emphasis supplied)

6(b) In addition, the Hon'ble Supreme Court of India in the

case of Kerala Public Service Commission and Others v

State Information Commission and Another 7 has

reproduced with approval the view of the Kerala High Court

in Kerala Public Service Commission case:

"16. What, if any, is the fiduciary relationship of PSC qua the examinees? Performance audit of constitutional institutions would only strengthen the confidence of the citizenry in such institutions. PSC is a constitutional institution. To stand above board, is one of its own prime requirements."

(2016) 3 SCC 417

7) SCOPE OF ENQUIRY:

The learned standing counsel for APPSC relied on the

leading judgment of Tata Cellular v Union of India8 to

highlight the limited scope of the enquiry / limited grounds

for reviewing an administrative decision. In para 94 it was

held as follows:

"94. The principles deducible from the above are:

(1) The modem trend points to judicial restraint in administrative action.

(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.

Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.

(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be

1996 AIR 11 = (1994) 6 SCC 651

free from arbitrariness not affected by bias or actuated by mala fides.

(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."

Coming to the issue or reasonableness / fairness it was

held as follows:

"The administrative law test of reasonableness is not by the standards of the 'reasonable man' of the torts law. Prof. Wade says:

'This is not therefore the standard of "the man on the Clapham omnibus". It is the standard indicated by a true construction of the Act which distinguishes between what the statutory authority may or may not be authorised to do. It distinguishes between proper use and improper abuse of power. It is often expressed by saying that the decision is unlawful if it is one to which no reasonable authority could have come. This is the essence of what is now commonly called "Wednesbury unreasonableness", after the now famous case in which Lord Greene, M.R. expounded it." (emphasis supplied)

90. Referring to the doctrine of unreasonableness, Prof. Wade says in Administrative Law (supra):

"The point to note is that a thing is not unreasonable in the legal sense merely because the court thinks it is unwise."

91. In Food Corpn. of India v. Kamdhenu Cattle Feed Industries [(1993) 1 SCC 71] it was observed thus : (SCC p. 76, para 7)

"In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law : A public authority possesses powers only to

use them for public good. This imposes the duty to act fairly and to adopt a procedure which is 'fairplay in action." (Emphasis supplied)

8) CONSIDERATION BY THE COURT:

8 (a) EVALUATION:-

There are two counters filed in these cases. Initially in

W.P.No.10866 of 2021 and in a few other matters the

counters were affirmed and signed by the Assistant Secretary

and Nodal Officer (Legal). Interim Applications were heard

and disposed in the same Writ Petition No.10866 of 2021. A

common counter affidavit was later filed in a batch of 13

matters for the final hearing. This common counter affidavit

is affirmed and signed by the very same officer, who is

working as Assistant Secretary and Nodal Officer.

This Court passed interim orders dated 16.06.2021 in

this matter. A copy of the interim order is also filed as a

material paper by the respondents. The factors that weighed

with the Court at that stage are spelt out as "prima facie

conclusions" from page 11 of the said order.

(1) The rules and procedure of APPSC and in particular

Rule 17 and powers given to the Chairman of the

Commission.

(2) The award of work by the APPSC to a "third party".

(3) Whether the paper publication / press notes that

were given meets the rigour or the test of Clause 17

of the Notification and the candidates were fully

aware of digital evaluation.

(4) Whether the expectation of the students, who

appeared for the examination, that their papers were

evaluated properly or not is fulfilled.

(5) Lastly, the judgment of the Jammu & Kashmir High

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

These were the questions and issues which led this

Court to come to a prima facie conclusion that a further

detailed inquiry is necessary and therefore an interim order

was granted. After this order was passed the second counter

was filed in this batch of Writ Petitions including

W.P.No.10866 of 2021 as mentioned earlier.

The first issue that this Court has to decide is about the

appointment of a third party for evaluation of the answer

scripts. Prayers in various Writ Petitions were reproduced

earlier. The sum and substance of the challenge in all these

writ petitions is about the appointment of third party for the

purpose of evaluation of the answer scripts and about the

methodology adopted in going for digital evaluation. Since

counters were filed in W.P.No.10866 of 2021 twice these two

counters would be referred to as the 1stcounter and the 2nd

counter in this order. They were also so relied on by the

learned counsels.

With regard to "evaluation of the papers" it is stated in

the 1st counter affidavit filed that evaluation of papers is

always delegated to experts (para-4), the same was done in

this case also (para-4). In para-7 also it is reiterated that

evaluation is always been outsourced to the subject / domain

experts. In para-8 it is reiterated that "it was announced

widely through press that Group-I mains digital tabs would

be used and evaluation of answer scripts would be in the

digital mode" (para-8 of page-7). Again in paragraph 11 at

page 8 it is reiterated that "the decisions taken by the

Commission, including the opting of digital valuation process

was arrived at by a proper consultative process..... It is

reiterated in the last line that the Commission cannot / does

not evaluate answer papers, always gets it done by subject

experts, did the same this time through digital mode in view

of Covid.

However, in the second counter affidavit which was

affirmed and signed on 05.08.2021 the following statements

appear:

In paragraph 10, it is stated that digital evaluation was

undertaken with technical support by a reputed agency

following strict confidential protocols and procedures.

In para-11 at page 64 it is asserted as follows:

"The written scripts of all candidates are scanned by the agency chosen by the PSC in the presence of the staff

of PSC under strict security protocols and entered into separate files in the electronic systems.

The scripts are then transported to the evaluators speciality wise and subject wise for evaluation. These evaluators or examiners are not employees of the PSC but are chosen on the basis of their domain expertise and experience in valuing these type of answer scripts by the PSC after obtaining the details and credentials of these persons and after due verification of the same from that are furnished by reputed agencies. Even hither to in all recruitments the examiners are chosen (by every PSC) and this PSC also, by obtaining the details of the examiners from various organisations like Universities and reputed organisations. Hence since the syllabus of this examination is not an academic oriented one only such experts conversant with the present syllabus were picked up from the large pool of experts available to attend the task of evaluation. This is not peculiar to this PSC alone but many other PSC's like Karnataka, Gujarat, Tamil Nadu and Kashmir have already introduced this system and has been quite successfully implemented.

Hence alleging that tenders have not been called to choose the agency and the credentials and capacity of these examiners is doubtful is only a malicious after thought by the petitioners."

It is thus seen that in the 2nd counter it is asserted that

the written scripts of all the candidates only are 'scanned' by

an agency which is chosen by the APPSC and are not

evaluated. These scripts were transported to the evaluators

separately. These evaluators, according to the 2 nd counter,

are chosen after obtaining details and credentials of these

persons and after due verification from the information

furnished by the reputed agencies. It is also mentioned that

the experts were picked up from the larger pool of experts

who were available. Similarly, in page 65 continuation of

para 11 it is again stated that the services of the third party

agency were taken to aid and assist the evaluators. This is

reiterated in page 66 and para 14, in pages 67 and 68.

During the course of submissions it was categorically

asserted and reiterated that services of the third party were

only used for the purpose of scanning the papers and not for

evaluation.

Coming to the documents, which were disclosed in the

first counter:- a document called "Physical Evaluation

Process" is filed at page 100 of the counter. According to the

petitioners this is a document pertaining to the third party,

who evaluated the answer sheets, but the learned standing

counsel for APPSC argues that this is in the nature of report

submitted and is not part of any contract or other document.

A reading of this document indicates (under the heading

'Selection of Evaluators') that the evaluators are:

"from our pool of evaluators the evaluators are further shortlisted and picked up for digital evaluation".

It is also reiterated that the evaluators were subject

matter experts chosen based upon education background,

qualifications, experience, ability to handle digital evaluation,

interest in online evaluation. Lastly, it is mentioned for this

evaluation process for total 123 evaluations have been used

and a team of 26 members in quality control has been used.

The last line of this document under the heading of "report

generation" is as follows:

"The summary report is as per the format prescribed by APPSC wherein the total marks are allotted to the answer sheets".

This document filed with the counter, in the opinion of

this Court, is not a document pertaining to APPSC or

originating from APPSC. There is no reference to an office

bearer, member of the APPSC being involved in preparing

this. It is not signed by anyone. It is not referred to as an

extract etc. The selection of evaluators is described to be

from "our pool of evaluators". The last line also states that

the summary report is as per the "APPSC format" and not

"our" format-which should be the norm if it was an APPSC

report. The use of the words "APPSC format" and not "our

format" etc., makes this clear. The interesting part is that

there is no pleading or reference about this document in the

counter affidavit. It is merely an annexure to the counter of

APPSC.

The figure of 123 evaluators mentioned in this

document differs with the figure in the "abridged" list of

evaluators filed by APPSC in the sealed cover. Hence it is not

clear how "many" evaluators were used.

Apart from this a number of press cuttings have also

been disclosed. In the interim order that has been passed by

this Court, this Court touched upon press statements vis-a-

vis Clause 17 of the procedure. In the 2nd counter that is

filed it is reiterated in paragraph 26 at page 75 that these

statements are issued by a responsible officer, the Secretary

of APPSC. As per the settled law on the subject, news paper

reports amount only to hearsay evidence. However, in view of

the reiteration in the counter affidavit that these statements

are made by the Secretary APPSC and as the counter and

these documents are filed by a responsible official in a Writ

proceeding under Article 226 of the Constitution of India this

Court is looking into the same. The headline itself reads

"APPSC hires third party for Group-I Mains". All the press

statements interestingly are countersigned by the Nodal

Officer (Press) of the APPSC and are filed by APPSC only as

evidence. At Page 110 it is reiterated in a public daily called

'Eenadu' that preparation of the question paper, printing, the

ranking etc., duties were entrusted to a reputed agency. It is

stated that this agency has "international reputation" in this

aspect and an "agreement" was entered into with the said

organisation. Since secrecy has to be maintained about the

name of the third party the details are not being given. In the

next statement, which is dated 31.12.2019, the heading itself

states that the "APPSC would be a spectator". However, it is

reiterated in this press statement that a decision on the

evaluation of the papers in the digital mode or manual mode

are yet to be taken. This press clipping reads as follows:

(Translation by Court). "After the examination - should be

answer sheets be corrected manually or after digital

scanning, is a matter on which a decision is to be taken". In

the next paragraphs it is mentioned that henceforth the duty

of conducting all examination will be entrusted to an

"internationally" reputed and trusted organisation. The date

relating to the recruitment, syllabus, the model question

paper, reservation etc., were all furnished to the said

organisation. This press cutting is dated 31.12.2019 and is

signed by the Nodal Officer. Similarly, in the press cutting of

Indian express at page 115, dated 08.01.2021, which is in

English, it is stated that the third party has been hired to

"set" the question paper and to "evaluate" the same. It is

reiterated that the evaluation will be done digitally. The

statement reads as follows:

"The company hired for the job is well recognised. We have given them the entire syllabus and few patterns for the question paper on the basis of which they set the paper. It has trained those who will evaluate the papers"

In the press statement dated 19.12.2019 (page 109 -

2nd counter) clarifications were also given that because the

accusation of one candidate getting more and another

candidate getting less are reduced. The examiner mood and

bias etc., are reduced and that two evaluators would first

correct the paper and if there is a difference of more than

50% the same would be sent to a third evaluator.

Therefore, a reading of all these press disclosures would

show that the APPSC had also taken a decision to get the

papers "evaluated" by a third party.

In the arguments it is reiterated that whether it is the

manual examination or the digital mode of evaluation, the

APPSC alone has an authority to choose the evaluators. This

statement in the opinion of this Court is partially correct. If

the APPSC by itself chooses the evaluators from its pool of

evaluators available either from reputed institutions,

universities, etc., there cannot be a ground for complaint.

But when the press statements, documents and the 1st

counter show that the evaluation is being entrusted to a third

party the question is, can this argument be accepted? The

headlines of the newspapers are clear (spectator) hires 3rd

party for mains etc. An agreement (which is not disclosed) is

also entered into. What is interesting is that during the

course of the submissions it is reiterated by the respondents

more than once that the services of a third party was only

utilised for the purpose of "scanning" the papers and for

digitally transmitting them. It is reiterated more than once in

the course of submissions that the evaluators were chosen by

the APPSC only and not by a third party.

This Court in the course of its interim order has also

talked about the issue of a third party evaluator being

chosen, about the expertise of evaluators, the capability of

their evaluators etc. This Court also held in that order that a

complete details of the evaluators cannot be disclosed in a

competitive examination. But once the issue has been raised

the respondents should have at least disclosed some details

to allay the doubts. In paragraph 2 of the "Consideration by

the Court" (the interim order) at page 13 of the order it is

clearly stated that even a general statement giving the

number of evaluators for each subject with their

qualifications, without disclosing their names etc., is not

done. The remark at the end of paragraph 2 is that the

counter affidavits are conspicuously silent in this aspect.

Despite this comment by the Court in the interim order even

in the second affidavit no details are forthcoming. Even

broad details are not given. That the APPSC was

contemplating the digital methods is seen from the counter

affidavit and the sealed cover documents but the question is

when and how were these decisions actually taken.

Additional information and certain documents were

disclosed in a sealed cover by the APPSC. One of the

documents is a typed tabular statement which is called an

"Abridged list of examiners". Nothing more was disclosed

other than this abridged list. Why the entire list was not

disclosed even to this Court in the sealed cover is not clear.

This Court does not have any grievance with the avowed need

to keep the examiner / evaluators details secret. If the

examiner's details are disclosed there is a likelihood that

candidates may approach them, try to influence them etc.

This was also noticed by the Hon'ble Supreme Court of India.

But the fact is that the petitioners have come to a Court with

a clear case that a third party called TCS was appointed.

They are named in the pleadings and in the array of parties

with specific allegations being made that the evaluators do

not have the domain knowledge. This Court is of the opinion

that a duty was cast upon the respondents after the point

was raised and prima facie opinions expressed to disclose the

method in which they have chosen the evaluators. They

could have simply said that they could have approached 'X'

number of institutions, universities, shortlisted "Y" number of

candidates based on their domain knowledge and then

trained them in digital evaluation methods from X date to Y

date and thereafter entrusted them the duty of evaluation.

Nothing was done. The disclosures in the sealed covers given

to Court do not disclose the full details except a work order /

letter given to AP Online Ltd., for scanning of the answer

booklets.

The averment in para-11 at page 64 of second counter

that the written scripts of the candidates were scanned by the

"agency chosen by the APPSC" also runs contra to the press

statements etc., given over a period of time. In the opinion of

this Court, there was no need for secrecy or for reticence in

disclosing the manner of awarding the work of the scanning

of scripts or the clear details with costs etc. The affidavit is

conspicuously silent about the "scanning work details" also.

Only one document is given in the scaled work as mentioned

earlier. The "agreement entered into with" this reputed

international company as per the press reports is not detailed

anywhere nor is it disclosed even in the sealed covers. There

may be a need for secrecy with reference to "evaluators" but

not for the work of scanning. The judgment of the Jammu

and Kashmir High Court relied on by APPSC shows that the

Commission in that case made elaborate and clear

disclosures before the High Court unlike in this case. The

other data and averments in the counter also talks of a "third

party" being appointed to evaluate. The contention that a

third party was utilised to "Scan" the answer scripts only is

not borne out by the record.

8 (b) MEETING DATED 28.10.2020 AND AWARDING OF WORK:-

In the minutes dated 28.10.2020 (which is filed to

justify the system of digital evaluation), agenda item No.3

deals with digitalisation for enabling the evaluators to mark

these scanned scripts on the computer screen itself. As per

this document quotations have been called for from (a) AP

online and (b) Datatec. On the other hand, it is argued that

confidentiality prevents the respondent APPSC from

disclosing the name of the agency but this document is filed

by the respondents themselves. It is not clear if these two

organisations are the reputed organisations which are

referred to in the press conferences earlier. What is

interesting is that this meeting was held on 28.10.2020 and

these minutes are the basis on which further action is taken

as per the respondents. But prior to that on 31.12.2019 itself

the Chairman has announced that digital evaluation is being

entered into and that the APPSC would only be a spectator.

An order is placed on AP Online (whose name is disclosed as

above) and the letter of award is filed in the sealed cover. As

it is for scanning only it is not clear why the same could not

be pleaded and described in the counter affidavit with clarity.

No details are forthcoming in the counter. In the meeting

dated 28.10.2020, Agenda Item 3 is "digital evaluation".

Quotations were also invited as mentioned above. Why and

how this was converted to "mere scanning" as asserted now

in counter-II is not clear. The group of members who

attended this meeting cannot also take the said decision as

per this Court in the absence of a Chairman / Acting

Chairman as per Article 316 (1A) is clear. This is discussed

later.

This Court also commented in the course of its interim

order that digitalisation does have advantages and that

despite this in the course of argument or in the 2nd counter

affidavit the respondents did not disclose what were the

quotations obtained from AP Online, Datatec etc. Even in the

matters disclosed to the court in a sealed cover by the APPSC

these issues are not fully disclosed. The name of the firm is

disclosed in the minutes filed with the counter and one work

order for scanning is sent in the sealed cover. This Court is

unable to find any justification for the failure of the

respondents to disclose the complete details of the manner in

which the agreement was concluded, at least with the agency

for "scanning" as they now say in the 2nd counter affidavit.

The counter affidavits are conspicuously silent on many of

these aspects. Without a foundation in the counter affidavit

some papers are enclosed in a sealed cover. The judgments

of the Jammu and Kashmir High Court is clearly not

applicable. In that case the Commission filed affidavits;

supplementary affidavits etc., with elaborate details of the

procedures for selection; the infrastructure, the meetings; the

training, the safeguards etc. The Jammu and Kashmir High

Court had more than adequate pleading / counter affidavits

and material to come to its own conclusion. This meeting is

further discussed in the next paragraphs. The lack of these

details leaves very little option to this Court.

8 (c) RULES OF PROCEDURE:

A larger issue that has been raised in all these writ

petitions is about the rules of procedure. In the second

counter that is filed the "updated" Rules of Procedure are

disclosed. These amended rules of procedure were

supposedly approved as per the meeting dated 25.02.2020

and were relied on for the important meeting of 28.10.2020.

The first counter was attested and filed on 09.06.2021.

At that point of time these rules were not filed. They are not

even mentioned in the 1st counter affidavit. In the second

counter affidavit that these rules are filed and pressed into

service. They are not pleaded/mentioned or discussed in

detail. The dispute between the Chairman and the Members

of the APPSC is now in public knowledge and a Writ Petition

No. 20789 of 2019 is already filed by the Chairman. By these

rules of procedure many of the powers vested in the

Chairman were taken away. Some of the important rules

which underwent a change are -

(1) Rule 3, two new rules have been added as explanation to Rule 3.

(2) In Rule 3 (6), (7), (8) Secretary has been authorised to exercise certain powers.

(3) Rule 9(a), Rule 3 (10)(a) & (b) were added.

(4) In Rule 10 a note has been appended stating that list of examiners shall be approved by the Commission.

(5) Rule 11 underwent fundamental change.

(6) Rule 13 also underwent a change;

(7) Note is added to Rule 15.

(8) Rule 16 is also changed.

(9) The allocation of duties among the members is

under Rule 17. This is a very important rule dealing with

allocation of important duties which have a bearing on the

case on hand. This rule has undergone a very fundamental

change. The annexure to Rule 17 which shows the allocation

of business among the members of the Commission has

undergone fundamental changes. The powers that were given

to the Chairman are altered. Particularly, the old serial No. 9

which permitted the Chairman / Chairman and one member

to appoint examiners and moderators has been totally

removed (Rule-9). The Chairman was exclusive authority for

the approval and printing of question papers (Rule 17 Item

No.10 annexure). Now it is given to the Chairman or any

member nominated by the Commission. The important parts

of the 988 Rules and the 2020 Rules are reproduced here:

                     1988                                                 2020

  THE A.P. PUBLIC SERVICE COMMISSION                  THE A.P. PUBLIC SERVICE COMMISSION
          RULES OF PROCEDURE                                  RULES OF PROCEDURE

The Andhra Pradesh Public Service Commission        The Andhra Pradesh Public Service Commission
hereby makes the following Rules regulating its     hereby makes the following Rules regulating its
procedures in relation to performance of its        procedures in relation to performance of its

functions in super session of the Rules issued in functions in super session of the Rules issued in Proceedings 348-B/61, dated 31-7-1962 and Proceedings 348-B/61, dated 31-7-1962 and amended from time to time. amended from time to time.

TITLE                                               TITLE:
Rule 1 : These Rules shall be called the Andhra     Rule 1: (i) These Rules shall be called the
Pradesh Public Service Commission Rules of          Andhra Pradesh Public Service Commission
Procedure and shall come into force on and from     Rules of Procedure and shall come into force on
1-1-1988.                                           and from 1-1-1988.

(ii) Transaction of business of the Commission - The business of the APPSC shall be transacted in accordance with the provisions of APPSC Regulations and the provisions of these Procedure Rules.

(iii) Disposal of the business by the APPSC

a) The APPSC may, regulate the procedure for transaction of its business as also of its business amongst the Chairman and other Members

b) Save as provided in sub-section (a), all business shall as far of procedure as possible be transacted unanimously

c) Subject to provisions of Sub-section (b) if there is difference of opinion among the members on any matter, such matter shall be decided according to the opinion of the majority.

DEFINITIONS                                         DEFINITIONS

Rule 2 : In these Rules                             Rule 2: In these Rules

i) Commission' means Andhra Pradesh Public

(i) 'Commission' means Andhra Pradesh Service Commission.

Public Service.

(ii) 'Member' means a Member of the (ii) Member' means a Member of the Commission Commission and includes the and includes the Chairman thereof. Chairman thereof.

Rule 13: The Secretary shall place before the Rule 13: All the items shown in the schedule to Commission all matters which it has to decide the Annexure shall be placed before the along with the subjects suggested by the Commission by the Secretary with memorandum Members with agenda notes, wherever and notes. Further if any Member/ Members-s necessary. The agenda and notes shall be proposes in writing for inclusion of any subject, circulated to the Chairman and Members of the the Secretary shall place the same before the Commission at least one day in advance. Commission. The agenda and notes shall be circulated to the Chairman and Members of the Commission atleast one day in advance.

Rule 14: Every question at a meeting of the Rule 14: Every question at a meeting of the Commission shall be determined by a majority of Commission shall be determined by a majority of the votes of the Members present and voting on the votes of the Members present and voting on the question, and in case of an equal division of the question, and in case of an equal division of votes, the Chairman shall have a second or votes, the Chairman shall have a second or casting vote. casting vote.

Rule 15: All decisions of the Commission shall Rule 15: All decisions of the Commission shall be recorded in such manner as the Commission be recorded and all the Members have to affix may direct. It shall be open to any member who their signatures. If any member is in dissents from a decision to record his dissent disagreement with any of the decision, he is at and if he thinks fit, also his reasons for such liberty to record the same but he has to sign the dissent. proceedings. If any member present at the meeting has to sign the proceedings within a period of not exceeding 7 days, failing which it will be deemed that he is in agreement with the decisions taken and the proceedings will be recorded. Such proceedings shall be kept by Secretary and each decision ill be sent to the concerned wing under his signature for implementation.

NOTE: the commission shall function as a unit. The Members of the Commission shall not question the validity or correctness of the function performed or duties discharged by the Commission as a body. A member is regarded as the party to the function performed or duties discharged by the Commission even though the member concerned might have been a dissenting member of a member in minority or a member who abstained from participation in the function performed or duty discharged.

Rule 16: Where the Chairman is absent on leave Rule 16: The Commission meetings are presided or is unable to be present at a meeting of the over by the Chairman. Where the Chairman is Commission, the Chairman shall authorise the absent on leave or is unable to be present at a senior most Member to preside over the meeting meeting of the Commission, the senior most and perform the functions of the Commission : Member shall preside over the meeting and Provided that a list of cases on which decisions perform the functions of the Commission: have been arrived at and those in respect of which action has been taken during his absence on leave shall be placed before him immediately on his return from leave, by the Secretary.

ALLOCATION        OF      BUSINESS      AMONG       ALLOCATION        OF     BUSINESS       AMONG
MEMBERS                                             MEMBERS

Rule 17: The various items of the work of the       Rule 17:

Commission shall be allocated to Members by the Chairman as indicated in the Annexure. Any (a) The powers for conduct of business rests with matter not covered in the Annexure may also be the Commission and the decisions will be taken allocated to one or more Members by the in the meetings of the Commission. However, for Chairman. Not withstanding any allocation administrative convenience, items of work will be made in the Annexure, Chairman may, in any allocated by the Commission to the Members particular case, direct that the matter be placed and to Sub Committee of members. The various before all the Members of the Commission for items of the work of the Commission shall be the decision. allocated to Members by the Chairman as indicated in the Annexure. Notwithstanding any allocation made in the Annexure, Chairman may, in any particular case, direct that the matter be placed before the Commission for the decision.

(b) However nothing in these rules shall prevent the Secretary, if majority members request in

writing, to send the file/files to all the members, for decisions.

(c) All the relevant files have to be submitted first to the Members in the order of seriatim and then to the Chairman.

Rule 18: The decisions of any sub-committee to Rule 18:The decisions of Members and Sub- which powers have been allocated under Rule 17 Committee to which subjects have been shall be reported to the Commission. Lists of allocated under Rule 17 shall be reported to the such cases shall be prepared and circulated by Commission in the next meeting. If all the the Secretary to the Chairman and the Members members have seen the files in which decisions at least one day prior to each meeting of the are taken, such decisions need not be reported Commission. to the Commission in the Commission's meeting.

Lists of such cases shall be prepared and circulated by the Secretary to the Chairman and the Members at least one day prior to each meeting of the Commission.

Rule 19: The Chairman, or in his absence, the Rule 19: The Chairman, or in his absence, the senior most Member may deal with any urgent senior most Member may deal with any urgent matter within the purview of the Commission matter within the purview of the Commission. but appearing to him to require immediate which require immediate action. Such action action. Such action shall be reported by the shall be reported by the Secretary to the Secretary to the Commission immediately. Commission immediately and be placed before the next meeting of the Commission for ratification.

ANNEXURE (Rule 17) Statement showing allocation of business among member of the Commission 1988 2020 S.No. Functions Allocations Functions Allocations 01 Administration Chairman Administration as per Chairman the provisions of (during Chairman's APPSC Regulations (during absence on leave or Chairman's tour the Senior most absence on leave (Member present). or tour the Senior most (Member present).

 2      Co-ordination     of       Chairman                Matters not specifically     Commission
        commission's work                                  allotted to members

 3      Matters              not   Chairman                Conferences          of      Chairman
        specifically allotted to                           Chairmen,        Public
        Member                                             Service   Commissions
                                                           and     correspondence
                                                           with    Union    Public
                                                           Service Commission or
                                                           State Public Service
                                                           Commissions         on
                                                           important matters of
                                                           Policy

 4      Conferences        of      Chairman                Selection of Advisers        Commission
        Chairmen,      Public                              for Interview Boards
        Service Commissions                                and constitution of
        and correspondence
                                                           Interview Boards
        with Union Public
        Service Commission
        or     State   Public
        Service Commissions
        on important matters
        of Policy
 5      Selection of Advisers      Chairman                Constitution            of   Commission
        for Interview Boards                               Interview Boards
        and constitution of
        Interview Boards
 6      Examination     Rules      Chairman and one        Examination    Rules         Sub-committee
        including schemes of       Member                  including schemes of         consisting of 3
        Examination      and                               Examination      and         members,        of
        syllabus                                           syllabus                     which         one
                                                                                        atleast   is     a
                                                                                        Member       from
                                                                                        Service





                       1988                                               2020
7    Creation   of  new Chairman and one                Creation of new centres Chairman   and
     centres and physical Member                        and            physical one Member
     arrangements                                       arrangements

8    Appeals           from     Appeals         from    Appeals            from     Appeals     from
     candidates       whose     candidates     whose    candidates        whose     candidates
     applications        are    applications      are   applications         are    whose
     rejected                   rejected
                                                        rejected                    applications are
                                                                                    rejected

9    Appointment          of    Chairman/Chairman       Approval and printing       Chairman or any
     Examiners          and     and one Member          of Question papers          Member
     Moderators                                                                     nominated    by
                                                                                    the commission

10   Approval and printing      Chairman                Preparation          of     Sub-committee
     of Question papers                                 guidelines,    manuals,     consisting of 3
                                                        etc.,                       members,        of
                                                                                    which         one
                                                                                    atleast   is     a
                                                                                    Member       from
                                                                                    Service

11   Preparation       of       Chairman and one        Scoring and Scaling /       Sub-committee
     guidelines, manuals,       Member                  Moderation                  consisting of 3
     etc.,                                                                          members,        of
                                                                                    which         one
                                                                                    atleast   is     a
                                                                                    Member       from
                                                                                    Service

12   Scoring and Scaling /      Chairman and one        Matters       pertaining    Sub-committee
     Moderation                 Member                  recruitments,               consisting of 3
                                                        qualifications scrutiny     members,        of
                                                                                    which         one
                                                        etc.,
                                                                                    atleast   is     a
                                                                                    Member       from
                                                                                    Service

13   Matters      pertaining    Chairman and one        Preparation of Annual       One Member
     recruitments,              Member                  Report
     qualifications
     scrutiny etc.,
14   Preparation of Annual      One Member              Approval   of  Rules,       Sub-committee
     Report                                             concurrence        of       consisting of 3
                                                        temporary                   members,        of
                                                        appointments and re-        which         one
                                                        allotment under rule        atleast   is     a
                                                        52 of AP State and          Member       from
                                                        Subordinate   Service       Service
                                                        Rules

15   Approval of Rules,         Sub-Committee           Disciplinary cases and      Sub-committee
     concurrence       of                               fixation of inter se        consisting of 3
     temporary                                          seniority in judicial and   members,        of
     appointments and re-
                                                        other services              which         one
     allotment under rule
     52 of AP State and                                                             atleast   is     a
     Subordinate Service                                                            Member       from
     Rules                                                                          Service

16   Disciplinary      cases    Sub-Committee           Departmental   Tests        Sub-committee
     and fixation of inter                              and recruitment by          consisting of 3
     se seniority in judicial                           transfer                    members,        of
     and other services
                                                                                    which         one
                                                                                    atleast   is     a
                                                                                    Member       from
                                                                                    Service





                      1988                                            2020
17   Departmental  Tests Sub-Committee                 Approval of Counter- Sub-committee
     and recruitment by                                affidavits           consisting of 3
     transfer                                                               members,        of
                                                                            which         one
                                                                            atleast   is     a
                                                                            Member       from
                                                                            Service

18   Approval of Counter-     Sub-committee            System     Development      Chairman    and
     affidavits                                        and      other    work      two members
                                                       pertaining to technical
                                                       aspects     of    Data
                                                       Processing
19   System Development       Chairman and one         Individual Recruitment      One Member
     and     other   work     Member
     pertaining        to
     technical aspects of
     Data Processing
20   Individual               One member               Audit       of        the   Sub-committee
     Recruitment                                       examination      process    consisting of 3
                                                       for each notification       members,        of
                                                                                   which         one
                                                                                   atleast   is     a
                                                                                   Member       from
                                                                                   Service

The following functions shall be discharged by the full Commission;

1. Calling of candidates for interviews.

2. Approval of Results of Examinations and selections from valid lists.

3. Cases when there is disagreement among Members.

4. Proposals for amendments to A.P. Public Service Commission Regulations.

5. Proposals for exclusion from Commission's purview of extension of functions of the Commission.

6. Approval of Annual Report of the Commission.

7. Recognition of Qualifications

The decision of a Member or the Committee shall be communicated to the Chairman before action is taken. The Chairman may thereupon direct that such decisions hall be referred to a meeting of the Commission for further consideration and decision; and where, no such direction is given by the Chairman, the decision of the Member or the Committee shall be deemed to be the decision of the Commission.

The two questions that arise here are -

(a) Do the disclosures / documents filed show that the

1988 rules are actually amended?

and

(b) Can the 1988 rules be actually amended in this

manner particularly with reference to "The Chairman,

APPSC".

As far as question (a) is concerned the counsels

appearing for petitioners have argued that modification of the

rules of procedure should be done by issuing an appropriate

Government order and after they receive approval of the

Governor of the State. In fact, the amended rules mention

the G.Os., issued to amend certain provision. Rule 3 was

amended by G.O. No.388 dated 29.12.2003. Rule 6 was

substituted by G.O.No.88, dated 22.2.2007. It was directed to

be changed by the Government in G.O.Ms.No.81 dated

22.02.1997. The State Government gave a direction to

APPSC to change its rules of procedure. Rule 7 was deleted

by G.O.Ms.No.139, dated 28.07.2016. This is also visible

from the 2020 rules filed by the respondents themselves. In

the present case no G.O. is issued for the amendment. It is

not clear why the said procedure was not adopted in the

present case, particularly, when such far reaching changes

are sought to be introduced by taking away the powers of the

Chairman and reorganising the allocation of duties. Only a

letter is filed in the sealed cover to show that these

amendments were communicated to the State Government.

The only argument advanced was that "APPSC Regulations"

need to amended through a GO etc., and that this procedure

is not needed for amending the "Rules of Procedure". But the

document filed as 2020 rules itself and prior GOs issued

show the contrary position. If the GOs were published /

notified they would have been in the public domain.

In the second annexure to Rule 17 (1988 Rules) there is

a note to the following effect -

"The decision of a Member of the Committee shall be communicated to the Chairman before action is taken. The Chairman may thereupon direct that such decision shall be referred to a meeting of the Commission for further consideration and decision; and where, no such direction is given by the Chairman, the decision of the Member or the committee shall be deemed to be the decision of the Commission."

A reading of this rule would make it clear that any

decision of a member or the committee shall be

communicated to the Chairman before action is taken. The

Chairman shall direct such a decision should be referred to

the meeting of the full commission for further discussion or

consideration. Only if such a direction is not given by the

Chairman it shall be considered as the decision of the

Commission. This procedure was not followed and the entire

rule is deleted in the present document. The reply affidavit

filed in W.P.No.11005 of 2021 also highlights many of these

changes.

These rules are the crux of the defence or the

foundation of the defence. Yet the complete manner in which

the agenda item was circulated, the discussion details

original meeting minutes, agenda notes etc., are not placed

before the Court. Details of how these changes were brought

into the public domain are also not clear. The only other

document available is the counter affidavit of the Chairman

where he states that the meeting was not properly held; that

no valid agenda was circulated etc., and therefore the

decisions are not valid. Paras 4 and 5 of the counter deal

with these issues only. No reason is forthcoming for the

failure to disclose all of these documents, more so in the light

of the Chairman's counter affidavit. Nothing is filed /

disclosed to show the need for the drastic change.

ARTICLE 316 (1-A):

Apart from this and even if the amendments are true

this Court notices that Article 316(1-A) of the Constitution of

India states that if the Chairman is unable to perform his

duties for any reason or if the office of the chairman becomes

vacant the duties shall be performed by a Member of the

Commission appointed by the Governor of the State. This is

a constitutional mandate (the emphasis is supplied by this

Court). Only a person nominated by the Governor shall

perform the duties of a Chairman. The Hon'ble Supreme

Court of India in the judgment of Bihar State Public Service

Commission Case (1 supra) has held that the Chairman has

a special place in the scheme of things due to the

constitutional provisions. As per the Hon'ble Supreme Court

of India he has an "exclusive role to play"; he is the

"repository of duties" and he is compared to the Chief Justice

of a Court. The decisions in State of Mysore V R.V.Bidap9

(1974) 3 SCC 337

and Dhirendra Krishna Biswas v Corporation of Calcutta

and Others10 also to support the view that the Chairman of a

PSC is given a separate and a special status. If there is a

dispute between the Chairman and the members of the

commission and if the chairman is not discharging his duties

or is not cooperating at all as alleged by the respondents, the

proper constitutional remedy is that the respondents should

approach the Governor of the State for nominating one

member to discharge the function of the Chairman. Instead

of following this constitutional mandate the respondents are

relying upon the amended rules to denude the existing

Chairman of all his powers. In the sealed cover IV, there is a

note sent to the Hon'ble Governor of Andhra Pradesh. It

mentions that an "in charge" Chairman was appointed to take

care of the administration. The only date visible on this is

10.01.2020. On 23.01.2020, in the meeting minutes it is

asserted that the Chairman is the first among equals only

and that powers are vested in him by the Rules of Procedure

only (Sealed Cover IV). This Court also notices that this is not

a case of a "urgent matter" as contemplated under Rule 19

which allows the senior most member to act as a Chairman

for that urgent matter. This Court is of the opinion that in

view of the mandate of the Constitution the powers given to a

Chairman in these aspects (who is not merely a first among

the equals) cannot be taken away by virtue of the proposed or

AIR 1966 Cal 290 (FB)

purported amendments to the rules or allotted to others.

Carrying the issue further a hypothetical question that arises

is can the Chief Justice of a High Court be stripped of his

powers by a Judge's resolution? Can the duties and powers

given to a Chairman of the APPSC be taken away by a

purported resolution? The status of the PSC is also

highlighted in para 29 of the judgment in State of

Uttaranchal v Alok Sharma and Others11 which is as

follows:

"29. We may furthermore notice that in civil appeal arising out of SLP (C) NO.8708 of 2006, the post in which the respondent was working has to be filled up on the basis of the recommendations of the Public Service Commission. Public Service Commission being a constitutional authority, it cannot be bypassed by way of a circular letter of otherwise. It, furthermore, appears that the respondent was employed in another concern. In most of the other cases, orders had been passed ex parte. He had also been paid a huge amount pursuant thereto".

This Court has to hold on these two issues that -

(a) the available / disclosed material does not lead to a

conclusion that the rules and procedures were actually and

properly amended.

(b) that the rules of the procedures cannot also be

amended like this in view of the mandate in Article 316 (1-A)

which provides for the appointment of an acting Chairman by

(2009) 7 SCC 647

the Governor, who could have discharged the duties as per

the rules.

(c) The language of the Article 316(1A) and the pre-

emptory language used therein makes this clear:- The

Chairman APPSC is not merely a 'first amongst equals'. As

held by the Hon'ble Supreme Court of India he is the

"repository of duties" and has an "exclusive role" in the

administration [Bihar Public Service Commission case (1

supra)]

As rightly submitted by the learned counsel for the

respondents, amendment of the rules is not a solution and

approaching the Hon'ble Governor for appointment of an

acting Chairman and the discharge of the duties by the said

acting Chairman is the solution, if the present Chairman was

not co-operating with the respondent APPSC "for any reason".

The procedure adopted and consequently the meeting

convened are thus not correct or as per the law.

8 (d) DOCTRINE OF NON-TRAVERSE / NON-DENIAL OF FACTUAL ASPECTS:

The main defence of the respondent APPSC is that the

procedure / process for digital evaluation of papers was taken

in the meeting dated 28.10.2020 (Page 117 of 1st counter).

This is in fact an incomplete document but the full text is

disclosed in a sealed cover letter. This forms the very

foundation of the defence. In all the writs the prayer is to set

aside this decision of adopting the digital evaluation. In

W.P.No.11026 of 2021 the prayer is to "declare the action for

digital evaluation.... vide minutes of meeting dated

28.10.2020 as illegal and arbitrary." The rules of procedure,

1988 of the APPSC are filed in many Writ Petitions as a

material paper (Eg.W.P.Nos.11005 of 2021; 11033 of 2019;

12914 of 2021). They are relied upon and expressly referred

to in the Writ affidavits also eg., W.P.11005 of 2021 paras 7

to 12; para 18 (g); para 19, 20 and 21. Rule 17 (Annexure) is

specifically printed in para 21 (b) at page No.51 of the Writ

affidavit (Appointment of Examiners is entrusted to Chairman

/ Chairman and One Member - Clause - 9). In W.P.No.11033

of 2019 the rules of procedure are mentioned in para 13, 16

and 17. There is an express reference to Rule 17 and the

clear power of the Chairman to appoint examiners. Similarly,

in para 13 of the Writ affidavit (in W.P.No.12914 of 2021) the

Rules of Procedure are mentioned including rule 17. It is

specified that the chairman / chairman plus one member

have the power to appoint an examiner.

In the light of these specific averments and as the

petitioners filed the 1988 rules as enclosures a greater duty

was cast on APPSC to reply to these averments with clarity.

Unfortunately, a reading of the two counters filed does not -

(a) disclose or specify the stand that the 1988 rules are

not applicable to the present dispute;

(b) disclose or specify that the rules of procedure were

actually modified in 2020;

(c) that the modified rules dated 25.02.2020 were

modified by following a stipulated procedure; in a

properly convened meeting. Complete details of the

meeting / agenda are not given;

(d) that the present amendments (25.02.2020) are thus

governing all the issues raised in the writ petitions;

(e) that the Chairman or the Chairman plus one

Member do not have the power to decide / appoint

evaluators power to decide scoring and scaling /

moderation.

(f) that approval / printing of question papers is no

longer allotted to the Chairman.

Neither in the first counter (filed in June, 2021 /

affirmed on 09.06.2021) or in the second counter (filed in

August, 2021 and affirmed on 05.08.2021) is there specific

clear pleading about the meeting of 28.10.2020; that the

procedures were followed in convening the meeting etc. It is

pertinent to note that in the interim order passed on

16.04.2021 there is a clear discussion about Rules and

Procedures of APPSC; about Rule 17; Clause 6 / 9 of

Annexure and appointment of examiners by chairman etc.

(pages 11 / 12). This Court posed the following query in the

interim order -

"Whether the procedure stipulated under Clause

17 of the rules has been followed or not?"

Despite these observations the 2nd counter (filed almost

after two months after the interim order in 08.08.2021) does

not answer this question or query, let alone the averments in

the Writ Affidavits.

In paras 8, 10, 12, 21 of the 2nd counter there is a

reference to the "Rules of Procedure" but they do not mention

if these are the 1988 or the 2020 rules. The 2020 rules are

simply filed without any mention about the same in the

counter affidavit. In fact, in para 12 of the 2nd counter and

particularly in page 65 there is a reference to S.No.9 of rule

17 (Annexure) which as per them empowers the commission

to enjoy exhaustive powers of discretion in appointing

examiners / moderators. However, page 117 / 118 of the 2 nd

counter and the Annexure Rule 17 does not contain a clause

9 which empowers the commission to appoint examiners /

evaluators. Clause 9 of this document deals with approval

and printing of question papers. (The same is the case in the

booklet filed along with a letter in the sealed cover for this

Court's perusal). There does not appear to be any specific

power conferred on anyone to appoint examiners /

evaluators. How such an important function was not

conferred on anyone is beyond this Court's comprehension.

The old clause 9 of Rule 17 and the new clause 9 of Rule 17

are printed hereunder:-

                     1988                                     2020

 9   Appointment     of   Chairman/Chairman   Approval and printing   Chairman or any
     Examiners     and    and one Member      of Question papers      Member
     Moderators                                                       nominated    by
                                                                      the commission




     The law is too well settled.               A failure to reply to the

factual averments of the Writ affidavit can lead to only one

conclusion - that the contention of the petitioners are deemed

to be admitted. The conspicuous silence of the respondent on

these specific averments is starkingly clear and striking. This

coupled with the other reasons leads to the final conclusion.

8) (e) WEB NOTES / ESTOPPEL:

Coming to the web notes dated 09.12.2020 and

12.12.2020, they do not deal with the "evaluation" of the

answer papers. These web notes are addressed to the

candidates who were provisionally qualified for the Group I

main examination after the preliminary examination.

This web notes and press statements are relied upon by

the respondents to argue that the petitioners had been

informed of the changes being affected. In the interim order

passed, these web notes were discussed in paragraph 3 of the

consideration by the Court. After referring to the web note

dated 12.12.2020 this court posed a question whether these

web notes, press statements etc., meet the requirement of

clause 17 of the notification. Clause 17 of the notification is

as follows:

"17 COMMISSION'S DECISION TO BE FINAL:

The decision of the commission in all aspects and all respects pertaining to the application and its acceptance or rejection as the case may be, conduct of examination and at all consequent stages culminating in the selection or otherwise of any candidate shall be final in all respects and binding on all concerned, under the powers vested with it under Article 315 and 320 of the Constitution of India. Commission also reserves its right to alter and modify the terms and conditions laid down in the notification for conducting the various stages up to selection, duly intimating details thereof to all concerned, as warranted by any unforeseen circumstances arising during the course of this process, or as deemed necessary by the Commission at any stage."

This is to be read with along with the clause 1.10 of the

notification which is as follows:

"1.10: The applicant is required to visit the commission's website regularly to keep himself/herself updated until completion of the recruitment process. The Commission's website information is final for all correspondence. No individual correspondence by any means will be entertained under any circumstances."

Reading of this clause 1.10 and clause 17 makes it

clear that these two clauses deal with the stage till the

completion of the recruitment process / various stages of

selection and not merely the written examination. It is clear

that completion of the recruitment process would include the

written examination, oral interview and publication of results

/ selected candidate list. Clause 1.10 states that the

applicant is required to visit the Commission's website

regularly to keep himself / herself updated until "completion"

of the recruitment process. The Commission's web site/

information is final for all correspondence. No individual

correspondence will be entertained. Para 17 talks of the

power of the APPSC to alter and modify the terms and

conditions laid down in the notification for various stages

upto the selection duly intimating the details thereof to all

concerned as warranted by any unforeseen circumstances,

during the course of this process or as deemed necessary by

the Commission at any stage. Therefore, a conjoint reading of

these two provisions makes it clear that (a) the Commission

can alter or modify the terms and conditions of the

notification for conducting the various stages upto selection

(b) that the details of such alterations and modification must

be brought to the notice of all the concerned as warranted by

any unforeseen circumstances during the course of "this

process". This Court is, therefore, of the opinion while it is

the prerogative of the Commission to change or to alter or to

modify the terms and conditions (subject to the law of course)

the same must be brought to the notice of all concerned by

updating the website of the commission. There is a duty to

make a disclosure which was not done. Such a duty was not

there in the Jammu and Kashmir case. Rule 1.10 states that

the commission's website information is final for all

correspondence and the applicant is directed to visit the web

site regularly. Why this procedure was not adopted is not

explained. The website was in the control of APPSC and they

should have updated the same and mentioned the details in

the counter affidavits.

What is good for the goose is good for the gander too.

APPSC without stating anything about the award of work of

"evaluation" cannot argue about estoppel etc. Even after the

prolonged arguments are completed till date it is not clear if

the same has not been done. The Notification is the bedrock

/basis of the entire scheme and it prescribes the method of

communication. As the web site is the sole repository of the

information and of communications; and a duty is cast upon

the respondents to communicate; they should update their

web site and disclose the information that digital evaluation

is being carried out. The same is not done. Therefore, this

Court holds the candidates are not estopped from raising

these issues on the basis of the press clippings etc. In some

cases, there is a mention of a post-main examination open

house meeting about which strong allegations are made. It is

clear that these cannot be construed as disclosure about

digital evaluation which could support the plea of estoppel

etc. A larger question also arises - if there is a fundamental

flaw in the procedure which may vitiate the entire scheme

can the case be thrown out on the plea of estoppel etc.?

8 (f) OTHER ISSUES RAISED:

As far as the issue of moderation, evaluators bias etc.,

case law was cited and a lot of arguments were advanced.

But in the opinion of this Court the foundational facts

necessary for this Court to interfere and direct the

respondents to incorporate these issues in the evaluation has

not been laid in the present set of Writ Petitions. While these

problems may occur during in evaluations, the question of

directing the respondent-APPSC to follow these methods is

not warranted by the present record. Unless there is

adequate material; no direction can be given in these cases

for incorporating methods to avoid 'hawk-dove'; moderation

etc.

As far as the non-joinder of necessary parties is

concerned, the argument of the learned counsel for the

implead petitioners is that it is a fatal fault and not curable.

This Court is conscious of the distinction between a

necessary party and a proper party. The presence of the

successful candidates is not really necessary for a complete

disposal of this case. The issue raised is about the digital

evaluation process. For deciding this dispute the presence of

the candidates selected for interview is not completely

necessary. In addition, genuine attempts have been made to

include the maximum number of candidates as respondents

even with hall ticket numbers etc. Later APPSC supplied the

information and the candidates were also included. In many

cases, these candidates/respondents were added at the very

outset. They were represented by the learned counsels, who

argued the matter. Therefore, no prejudice is caused.

Coming to the issue of a direction to the CBI to

investigate the matter, this Court is of the opinion that the

foundational facts to refer the matter to a specialised agency

are not made out. Therefore, this Court is of the opinion that

entrusting the present case to the CBI is not really called for.

In view of the decision on the methods of evaluation,

rules of procedure etc., this Court is of the opinion that this

is a matter which can be decided on the basis of the available

material. There is no need or necessity to pass further orders

on the various individual prayers/petitions.

As far as the case in the Jammu and Kashmir High

Court is concerned this Court is of the opinion that in view of

the clear disclosures made; the elaborate counter affidavits /

supplementary affidavits and the facts noticed by the Jammu

and Kashmir High Court they came to a conclusion as they

did. The counter and additional counters filed by the State

Commission were referred in more than one place of the

order. The Commission in that case consulted with different

Public Service Commissions and then opted to give the

assignment to a consultancy of an international standard. A

supplementary affidavit was filed for arranging certain

facilities (para-29). Further measures for scanning which

were taken are described in Paragraph Nos. 30 to 33. In para

33 the various steps taken, including the identification of

faculty members, is described. Conferences were held with

the coordinators and the reviewers under whose supervision

the evaluators "appointed by the Commission" had to work.

The entire paragraph 33 describes the various steps taken in

great detail in sub paras 1 to 19. Similarly, in Paras 40 and

41 it is disclosed as to how the training was conducted and

mock drill was conducted for the evaluators. Ultimately, it is

clarified that the evaluated answer book is still available for

rechecking to the candidate through RTI link. It is also

specified that 150 examiners were engaged "by" the

Commission (para 65). In the light of this clear and elaborate

counter and disclosures of the Commission, the Jammu and

Kashmir High Court held that the petitioners are not entitled

to the relief. Apart from that they also considered the "rule"

position and gradual inclusion of the electronic evaluation

system. Thus the Jammu and Kashmir High Court

concluded that due procedures were followed for only

entrusting the work of "scanning" of answer scripts and not

the actual evaluation. In the present case the counters do

not contain such clear data / averments etc., at all.

It was also argued that as the eligibility criteria; age

etc., were not changed the "rules of the game" did not change.

The learned standing counsel for APPSC pointed out except

for the evaluation method nothing else has changed.

Interestingly, the judgment reported in Tej Prakash Pathak

and Others v Rajasthan High Court and others12 has been

cited by a counsel for the petitioner and a learned counsel

appearing for the implead petitioners. In this case three

Judges of the Hon'ble Supreme Court of India referred the

matter to the Hon'ble the Chief Justice of India for an

authoritative pronouncement. In this judgment the issue

about the changing of the rules of the game were discussed.

In paragraph 1 itself the Hon'ble Judges after considering the

"rules of game" principle held as follows:

"Whether such of principle of law is immutable; what

are the rules of the game which cannot be changed after the

game is commenced or not requires an authoritative

pronouncement of a larger Bench of this Court.

In the case before the Hon'ble Supreme Court of India,

13 posts of translators were sought to be filled up by a

notification. After the examination was conducted the CJI

ordered that it should be treated as a competitive exam and

only those candidates who secured 75% of marks would be

called for interview and selection. This requirement of

securing 75% qualifying mark is not a stipulation of the

service rules. The appellants challenged the selection on the

ground of new stipulation of 75% would amount to changing

(2013) 4 SCC 540

of the rules of the game. The three Judges of the Hon'ble

Supreme Court of India after examining the other judgments

on the subject were of the opinion that whether a more

rigorous scrutiny of the selection amounts to change of the

rules of the game or not is to be decided by an authoritative

pronouncement from a larger bench. The basic requirements

for selection were not changed. Only during the process of

correction a new standard which is not stipulated were

sought to be introduced for securing a minimum of 75%. If

this rule was not there the candidates with highest marks

would have been called for the interview etc. The earlier

cases where the State sought to alter the eligibility criteria

and the method and manner of making selection were

considered by the Hon'ble Supreme Court of India before

coming to conclusion that more authoritative pronouncement

is necessary, on the issue of what exactly amounts to

changing the rules of the game. Unfortunately, this matter

was not listed before the appropriate Bench for orders to be

passed, and the last listing in this case as per the web site

was on 20.04.2021 with a direction to list the matter in

August, 2021. Therefore, till date there is no authoritative

pronouncement on this issue.

It is also argued that no fundamental rights of the

petitioners were infringed. Under Article 226 of the

Constitution of India this Court has the power to grant orders

not merely for enforcing a fundamental rights but for any

"other purpose" also. Apart from that when allegations of

arbitrary state action, lack of fairness etc., are alleged, this

Court is of the opinion that it has necessary power and

jurisdiction to look into and decide the matter. This Court

also has a "duty" to decide such issues. A larger issue of the

powers of a Chairman of the commission being denuded by

resolutions is also being considered. Therefore, the argument

that this Court does not have jurisdiction or that it can only

interfere where the petitioners' fundamental rights are

involved is rejected.

9) CONCLUSIONS:

(1) This Court is carrying out a "performance" audit of a

constitutional body. The test of 'reasonableness in action' is

evolved basing on the virtually mythical 'man on the virtually

mythical' 'man on the Clapham bus'. However, today this

Court is dealing with 'young men/women on a red RTC bus'

who blindly believe and hope that their answer scripts are

correctly and truly evaluated. Whether this was done?

Whether there is fair play in action? whether there are

'arbitrary' State decision's whether the power is exercised for

public good or for extraneous reasons and the procedures

adopted are fair are the issues in this case.

(2) It is also clear that due to the constitutional

provisions and law; APPSC like Caesar's wife should be

blemishless and above board. Not even the slightest hint of a

wrong doing can be attributed against it. It should be pure

as driven snow.

(3) Against this backdrop and after considering all the

documents, pleadings and submissions this Court has to

hold as follows:

a) That the change in the method of evaluation for the

present Notification is not correct. The submission

that the scripts were merely scanned and not

evaluated is not borne out by the record.

b) The change of evaluation was also not communicated

to "all" the concerned as required under Clause 1.10

and Clause 17 of the Notification.

c) That the powers / duties of the Chairman cannot be

taken away by amending the Rules of Procedure and

if the Chairman is not cooperating for "any reason"

with the Commission, the proper method is to

request the Hon'ble Governor to appoint an "Acting

Chairman" as per Article 316 (1-A) of the

Constitution and to proceed further. The available

material does not prove that the "Rules of Procedure"

were legally and actually amended in 2020.

d) The minutes of the meeting dated 28.10.2020 show

that "7" Members and the Secretary have taken

certain decisions including a decision for digital

evaluation. This is impermissible legally. It is

contrary to the applicable Rules of Procedure and the

constitutional mandate.

e) Since the lives and futures of many aspirants are

involved, the APPSC is directed to immediately get

the papers of the main examination evaluated

manually and in the conventional mode. This

exercise should be completed within three months.

After this is completed the successful candidates

should then be called for the oral interview etc., and

the further selection should be completed as quickly

as possible.

f) All the stakeholders / officeholders are requested to

keep in mind the young aspirants who have toiled

and are toiling with the dreams of a Government job

in mind while taking all the decisions for the future.

With great power comes great responsibility. It is

hoped that public authorities / APPSC will use their

powers for public good alone / only.

g) This order will not preclude the APPSC from adopting

digital or any other such advanced modes for the

future evaluation / future examinations. However,

the decisions to adopt these new / emerging methods

should be taken strictly as per the law.

With these observations the Writ Petitions are

partially allowed directing the APPSC to get all the answer

scripts of the main examination of Notification No.27/2018,

dated 31.12.2018, evaluated manually by the conventional

method and within the timeline mentioned above. All other

reliefs are negatived.

Lastly, the sealed cover filed as Cover-I is returned

with its contents to the APPSC. They are directed to take the

same under proper acknowledgment. Sealed Covers II, III

and IV are directed to be kept in the custody of the Registrar

Judicial, High Court of Andhra Pradesh, till time stipulated

for filing an appeal is over. The contents of the Cover-I are

the answer scripts of some candidates produced as per this

Courts request. They do not contain any marks/markings to

show how they were evaluated. The stand of APPSC is that

they are digitally evaluated by scanning and that the marks

are on a separate sheet etc. This issue is left open, more so

in view of the finding in this case that the meeting convened

and procedure adopted is not correct. There shall be no order

as to costs.

Consequently, all the Miscellaneous Applications

pending, if any, shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date: 01.10.2021.

Note: LR Copy be marked.

B/o Ssv