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Judgment
Chitambaresh, J
One of the questions posed in the written test conducted by the Kerala Public Service Commission ('PSC' for short) on 26.11.2015 for recruitment to the post of Food Safety Officer and the optional answers were as follows:
"In a standard Fruit Jam, content of total soluble solids should not be less than:
(a) 68% W/W (b) 45% W/W
(c) 65% W/W (d) 70% W/W."
The correct answer going by the provisional answer key published on 1.12.2015 and the final answer key published on 28.1.2016 is '(a)' whereas the respondents would contend that the correct answer is '(c)' indicated above.
The respondents rely on the query dated 16.5.2016 and the answer dated 3.6.2016 elicited under the Right to Information Act, 2016 from the Food Safety and Standard Authority of India.
The answer refers to Regulation No.2.3.31 of Food Safety and Standards (Food Product Standards and Food Additives) Regulations, 2011 wherein standards of Jam are prescribed. The Regulation aforesaid indicates that the total soluble solids in a standard Fruit Jam should not be less than 65% W/W which is the biological requirement the product needs to conform. The respondents maintain that answer (c) of 65% W/W has been opted by them in the written test whereas the PSC has adopted answer (a) of 68% W/W as the correct one. The shortlist of eligible candidates was published on 30.3.2016 and the interview commenced on 22.6.2016 and the final ranked list published on 9.9.2016 by the PSC. It is thereafter did the respondents prefer the original applications before the Kerala Administrative Tribunal ('Tribunal' for short) seeking to publish a revised ranked list. The respondents contend that they would go up in the ranked list if the correct answer (c) of 65% W/W is accepted for awarding marks to the candidates in the written test. The respondents however did not choose to implead any one in the ranked list at least in a representative capacity after paper publication though many in the ranked list would be prejudicially affected.
The Tribunal by common order dated 13.1.2017 impugned in these original petitions directed the PSC to take appropriate measures to effect changes in the ranked list accepting answer (c) as the correct one. The common order is challenged by the PSC in these two original petitions wherein respondents 1 and 2 ('respondents' for short) were the applicants before the Tribunal. The PSC in the meantime obtained an expert opinion from Dr.Mini Joseph, Head & Assistant Professor, Department of Home Science, Government College for Women, Thiruvananthapuram. The following is the extract of the report:
"The Food Safety & Standards Authority of India (FSSAI) & Food & Agricultural Organisation (FAO) has clearly indicated that the total soluble solids (TSS) should not be less than 68%.
The Food Safety Standards Regulation however notes that the TSS should not be less than 65%.
Hence both are options that is (a) 68% W/W and (c) 65% W/W can be considered as acceptable as correct answer."
The report of the expert was made available to court at the time of final hearing as directed by the common interim order dated 21.2.2018 in these original petitions in order to help us to decipher the correct answer.
The Supreme Court after surveying the case law on the point has in this regard concluded in Ran Vijay Singh and others v. State of Uttar Pradesh and others [(2018) 2 SCC 357] as follows:
"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions: They are:
30.1.If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;
30.2.If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed.
30.3.The court should not at all re-evaluate or scrutinise the answer sheets of a candidate-it has no expertise in the matter and academic matters are best left to academics;
30.4.The court should presume the correctness of the key answers and proceed on that assumption; and
30.5.In the event of a doubt, the benefit should go to the examination authority rather than to the candidate." (emphasis supplied)
Thus the court should presume that answer (a) of 68% W/W furnished in the answer key is correct and proceed on that assumption and that the benefit should go to the PSC in the event of any doubt on that issue.
5.We note that answer (a) of 68% W/W provided in the answer key is not far off the mark particularly when the expert report opines that both 68% W/W and 65% W/W can be considered as acceptable and correct. A genuine doubt arises as regards the correctness of the answer key and the court in that event should give the benefit of doubt to the examination authority - PSC. It is submitted that about 90 candidates have already been advised on 3.10.2016 by the PSC even before the preferment of the original applications by the respondents before the Tribunal. None of those who are in the ranked list have been impleaded even as eo nomine parties in the original applications which are bad for non-joinder of necessary parties. The decision in Rajesh Kumar and others v. State of Bihar and others [(2013) 4 SCC 690] is distinguishable inasmuch as the challenge therein was well before the appointment. A revision of the ranked list without those included therein being impleaded as party respondents at least in a representative capacity is impermissible in law. The Tribunal ought to have presumed the correctness of the answer key and should have extended the benefit of doubt to the PSC and dismissed the original applications for non-joinder as well.
6.The impugned common order is set aside and O.A.Nos.2378/2016 and 805/2016 on the file of the Tribunal are dismissed in the circumstances.
The original petitions are allowed. No costs.
APPENDIX OF OP(KAT) 90/2017
PETITIONERS' EXHIBITS:
EXHIBIT P1:
TRUE COPY
OF
THE OA 2378 OF 2016 WITH
ANNEXURES.
EXHIBIT P2:
TRUE COPY
OF
THE JUDGMENT IN OP(KAT)NO.8 OF
2017 DATED 2.3.2017.
EXHIBIT P3:
TRUE COPY
OF
THE JUDGMENT IN OP 2378 OF
2016.
RESPONDENTS' EXHIBITS:
EXHIBIT R1(A)
TRUE COPY
OF
LETTER NO.IDSI(2) 8370/2016 GW
DATED 19.10.2016.
EXHIBIT R1(B)
TRUE COPY
OF
ORDER IN O.A.709/2016 DATED
28.10.2016.
EXHIBIT R1(C)
TRUE COPY
OF
RELEVANT PAGE IN FSSAI
REGULATIONS 2011
EXHIBIT R1(D)
TRUE COPY
OF
STATUS REGARDING ADVISES
ISSUED TO
VARIOUS CATEGORIES OF CANDIDATES
OBTAINED FROM PSC WEBSITE.
EXHIBIT R1(E)
TRUE COPY
OF
THE COMMUNICATION DATED
12.06.2017 OBTAINED UNDER RTI FROM THE
PETITIONERS.
APPENDIX OF OP(KAT) 99/2017
PETITIONERS' EXHIBITS:
EXHIBIT P1
TRUE COPY
OF
THE O.A (EKM) NO. 805 OF 2016
WITH ANNEXURES
EXHIBIT P2
TRUE COPY
OF
THE REPLY STATEMENT FILED ON
BEHALF OF
THE COMMISSION
EXHIBIT P3
TRUE COPY
OF
THE JUDGMENT IN OP(KAT) 8 OF
2017.
EXHIBIT P4
TRUE COPY
OF
THE ORDER IN OA (EKM) NO. 805
OF 2016 DATED 13/01/2017.
RESPONDENTS' EXHIBITS:
EXHIBIT R1(A)
TRUE COPY
OF
THE LETTER DATED 16.11.2016
ADDRESSED
TO
THE APPELLANT.
EXHIBIT R1(B)
TRUE COPY
OF
THE REPLY DATED 5.12.2016.
EXHIBIT R1(C)
TRUE COPY
OF
ORDER IN O.A.709/2016 DATED
28.10.2016
EXHIBIT R1(D)
TRUE COPY
OF
RELEVANT PAGE IN FSSAI
REGULATIONS 2011.
EXHIBIT R1(E)
TRUE COPY
OF
STATUS REGARDING ADVISES
ISSUED TO
VARIOUS CATEGORIES OF CANDIDATES
OBTAINED FROM PSC WEBSITE.
EXHIBIT R1(F)
TRUE COPY
OF
THE COMMUNICATION DATED
12.06.2017 OBTAINED UNDER RTI FROM THE
PETITIONERS.
EXHIBIT R1(G)
TRUE COPY
OF
RTI APPLICATION AND REPLY.