A.B. Natarajan and Others vs The Secretary Tamil Nadu Public Service Commission Government Estate and Others

P. Jyothimani, J.—In all the above writ petitions, the issue involved relates to the selection of candidates for Group-I Services by the Tamil

Nadu Public Service Commission (TNPSC) for the year 2000-01, the result of which was published on 25.8.2004. W.P. No. 30885 of 2004 has

been filed by one A.B. Natarajan, who appeared for Group I Examinations, having been selected in the preliminary examinations held in 2001 and

in the main examinations held in February, 2002, declared as not selected in the oral test conducted between 21.6.2004 to 24.6.2004 by the

TNPSC, challenging the selection as published on 25.8.2004. He has subsequently filed W.P.M.P. No. 218 of 2007 for impleading one of the

selected candidates viz., T. Jayaseelan and the said petition was ordered on 16.2.2007. Then, he impleaded other selected candidates as

respondents 3 to 92 as per order passed in WP.M.P. No. 789 of 2008 dated 22.4.2008. As per the direction of Court, he served notice on the

respondents 3 to 92 privately out of whom respondents 2, 4 to 6, 11, 14, 16 to 18, 20, 21, 23, 27, 33 to 36, 39, 43, 44, 46, 51 to 55, 57, 61 to

64, 67 to 70, 73 to 75, 78, 79, 90 and 91 were served and proof of affidavits were filed. However, in respect of remaining respondents, the

covers were returned.

Subsequently, by order passed in W.P.M.P. 187 of 2009 dated 11.6.2009, the prayer in the writ petition was amended to challenge the

abovesaid selection as published in the Tamil daily, ''Daily Thanthi'' dated 26.8.2004 and to direct the first respondent, TNPSC to redraw the

selection list in accordance with law and to consider the name of petitioner for selection and to appoint him.

The respondents 2 to 92, the selected candidates, who have been served have not chosen to appear.

W.P. No. 19851 of 2004 has been filed by 13 unselected candidates in the said Group-I examinations.

Likewise, W.P. No. 17969 of 2004 has been filed by another batch of 18 unselected candidates challenging the selection and the prayer in the

said writ petition was subsequently amended as per order in W.P.M.P. No. 2202 of 2007 dated 6.10.2007 to challenge the selection and for

direction to the respondent to consider the petitioners'' claim for appointment in Group-I Services. Out of the said 18 petitioners, except the first

petitioner S. Madhavan, all other petitioners have chosen to withdraw from the said writ petition which was ordered by this Court on 30.8.2007

and the writ petition was dismissed in respect of petitioners 2 to 18 and hence, the first petitioner S. Madhavan, alone is maintaining the said writ

petition.

The said S. Madhavan has subsequently filed another writ petition in W.P. No. 482 of 2005 impleading the Union of India represented by the

Central Bureau of Investigation/Special Police Establishment, New Delhi, as 4th respondent for a Mandamus directing the said 4th respondent to

comprehensively investigate into the alleged massive corruption and fraud in the examinations and recruitment conducted by the TNPSC over the

past decade since the introduction of multiple subject system and to set aside the selection effected by the third respondent, TNPSC over the past

decade, in the light of the views expressed by the Hon''ble Supreme Court in Krishan Yadav and another Vs. State of Haryana and others, .

In all the above said writ petitions, of course, except the last one viz., W.P. No. 4508 of 2008, as it is earlier stated, Group I examinations

conducted by the TNPSC for the year 2000-01 for which final results were published on 26.8.2004 in newspapers are challenged mainly on the

ground that scaling technic followed by the TNPSC for the purpose of valuation and selection is not proper, that the candidates who were selected

have committed breach of certain instructions issued by the TNPSC regarding the use of sketch pens, colour pencils, etc. and that while

transferring marks from the mark statements to mark sheets, mistakes have been committed by the staff of the TNPSC. The petitioners have also

alleged irregularities in granting dummy numbers. In W.P. No. 482 of 2005, the petitioner has also stated that the markings in some of the answer

papers of the selected candidates have been intentionally made to enable the staff of TNPSC to identify them and therefore, as per the judgment of

the Supreme Court reported in Karnataka Public Service Commission and others Vs. B.M. Vijaya Shankar and others, , such selected candidates

should be disqualified.

Further, he has given some of the instances stating that nearly 8 selected candidates have usurped the posts even though they got lesser marks.

The instances given by the petitioner are

(i) the candidate with roll No. 537915 who got 1240 marks, got selected by bribe while the candidate with roll No. 574504 who got 1280 marks

was not selected even though both fall under the same category viz., woman/general;

(ii) the candidate with roll No. 545588 who has scored 1278 marks was selected by illegal means while the candidate with roll No. 521364 who

got 1283 marks was not selected for the post of Commercial Tax Officer, even though both belong to BC General category;

(iii) the candidate with roll No. 574245 who scored 1231 marks got selected illegally while the candidate with roll No. 562047 who scored 1238

marks was not selected for the post of Deputy Registrar even though both belong to MBC general category;

(iv) the candidate with roll No. 519101 who scored 1186 marks was selected while candidate with roll No. 550621 who scored 1196 marks was

not selected;

(v) the candidate with roll No. 592685 who scored 1179 marks got selected while the candidate with roll No. 550621 who scored 1196 marks

was unable to be selected for the post of Deputy Registrar, though both are coming under the same category viz., Scheduled caste/General

Category.

(vi) the candidate with roll No. 502689 who scored 1164 marks was selected while the candidate with roll No. 526956 who obtained 1230

marks was not selected for the pose of Deputy Registrar though both are coming under the women general category;

(vii) the candidate with roll No. 523764 who scored 1198 marks was selected while the candidate with roll No. 585813 who scored 1217 marks

was not selected for the post of Deputy Registrar though both are coming under woman general category;

(viii) the candidate with roll No. 604980 who scored 1172 marks was able to be selected while the candidate with roll No. 523763 who scored

1216 marks was not selected for the post of Deputy Superintendent of Police though both are coming under woman general category.

As stated above, the writ petitioner in W.P. No. 30885 of 2004 with roll No. 510193 who has taken political science and sociology as optional

subjects was selected in the preliminary examinations held in 2001 and also selected in the main examinations held in 2002 and during the oral tests

he was awarded 150 marks while he scored 1045 marks in the written examination, both put together totalling 1195 marks. As it is seen in the

affidavit filed by the said writ petitioner, A.B. Natarajan, he is stated to have completed 30 years of age in October, 2004, accordingly, as on date,

he must have completed 35 years of age.

In the counter affidavit filed by the TNPSC, it is stated that the Commission has advertised by notification dated 27.12.2000 inviting

applications for direct recruitment to the posts under Group I services for the year 2000-01 in respect of 95 vacancies, which were subsequently

revised by the Government as 91 vacancies. There are two stages of selection viz., (i) written examination which consists of preliminary

examination and main examination and (ii) viva voice and oral interview. The preliminary examinations is stated to be a screening test and the marks

obtained therein would not be counted in the main written examinations for determining the final order of merit and the candidates to be admitted to

the main written examinations would be 10 times number of candidates to be recruited subject to the rule of reservation. The main written

examination consists of written papers. It is also stated that while preliminary qualifying examination consists of one paper and the main written

examination consists of six papers. It is also stated that if the number of vacancies notified/reserved to be filled up from any reservation category

like, SC/ST etc., the number of candidates to be admitted to oral test shall be two times the number of vacancies to be recruited against the said

reserved group based on the marks obtained by candidates in the main examinations. If the number of vacancies in any of the reservation groups of

the same recruitment is four and below, the number of candidates to be admitted to the oral test of the said particular reservation group shall be

three times the number of vacancies to be recruited against the said reservation group and the final selection would be made based on the marks

obtained in the main written examination and the oral test together. The appearance in the main written examinations and the oral test is

compulsory.

10(a). It is further stated that the writ petitioner in W.P. No. 30885 of 2004, A.B. Natarajan with registration No. 510193 was selected in the

preliminary examination and admitted to the main written examination, in which he has chosen ""Political Science and International Relations"" and

Sociology"" as the optional subjects in addition to the general studies which is a compulsory subject and language paper which is a qualifying

paper. The candidates were given the option to answer either in English in full or in Tamil in full while the question papers were said to be both in

English and Tamil. It is stated that the writ petitioner has obtained 1045.23 marks in the main written examinations after adopting scaling technic for

optional subjects. He has secured the following marks:

General studies ... 412.50

Political Science and

International Relations ... 293.23

Sociology ... 339.50

The said writ petitioner belongs to MBC category. He was admitted to oral test, in which he has obtained 150 marks and the total marks secured

by him is 1195.23. Since the cut-off mark for selection of candidates under MBC category was 1239.57, he was not selected.

10(b). It is stated that out of 778 candidates who have taken the main written examination, 109 have opted for the subject ""Political Science and

International Relations"" as one of the optional subjects, out of whom 76 candidates have answered the questions in Tamil. It is also stated that out

of 91 candidates selected for the appointment to the posts of Group I services in 2000-01, 12 candidates opted for ""Political Science and

International Relations"". Out of them, 5 candidates have answered in Tamil and therefore, it is denied that very few candidates who have opted for

Political Science and International Relations"" were selected. It is also stated that the experts in the subject having good knowledge in Tamil alone

were appointed for this recruitment to value the answer papers. The Commission has also followed the double valuation and triple valuation

processes. It is stated that at first the answer books are valued by two examiners and the average marks secured in the two valuation are taken

into account. If the difference of marks between two valuation is more than 15 percentage, the answer sheet is sent for third valuation to another

examiner and in such case, the average of nearest two marks is taken into account. Therefore, the allegations made against the examiners for their

valuation is denied.

10(c). It is also stated that the Commission has adopted the scaling technic for valuation of answer books in the optional subjects as it is

announced in the notification dated 27.12.2000. The purpose of using scaling technic is to minimise the subject bias and thus a fair chance is given

to every subject so as to give representation for candidates choosing any optional subjects. It is stated that the said technic was followed only after

obtaining experts opinion in the field and the same was followed by Rajasthan Public Service Commission. It is also stated that the scaling technic

has been followed by the TNPSC in cases where number of candidates appeared in the subject were more than 5. In respect of the subjects

where the candidates appeared are 5 or less than 5, the raw marks awarded were taken as scaled marks. It is also stated that there is no formula

for scaling of marks which was universally accepted. It is stated that the non-following of scaling technic for less than 5 candidates is not violation

of Article 14. The marks obtained through scaling technic in optional subjects are added with the raw marks in general subjects.

10(d). It is the case of the respondent Service Commission that the petitioner in the said writ petition while challenging the non-implementation of

scaling system in case where the candidates are less than 5 in number, has taken a contradictory stand saying that the non-implementation of the

scaling technic is violative of Article 14. It is also stated that even before the said selection, the TNPSC has used the scaling technic in the year

1999-2000 and some of the candidates who have objected to the said system have approached the Tamil Nadu Administrative Tribunal by filing

O.A. No. 1211 of 2002, etc. which were dismissed on 30.12.2002.

10(e). It is also the case of the TNPSC that the Supreme Court in U.P. Public Services Commission Vs. Subhash Chandra Dixit and Others, has

ruled that the adoption of scaling formula is not arbitrary or illegal. It is also stated that even this Court has approved the non-following of scaling

technic in respect of candidates who are less in number in another batch of writ petitions. It is stated that while there is no dispute about the marks

obtained by the said writ petitioner in his qualifying examinations, the same are not the factors to be considered in the competitive examinations. It

is also stated that following the instructions of the Commission, 48 answer books were invalidated for the reason that the candidates have used

colour pens, sketch pens, etc. for underlining and drawing in the answer books. It is also stated that in respect of valuation of answer books first

dummy numbers are given and only thereafter, the papers were handed over to examiners for valuation. After valuation, original numbers will be

restored in answer books. The answer books were valued twice by different examiners and the marks given by each examiner were entered

separately and totalled by the examiners themselves. The answer books were placed for third valuation in case the difference of marks awarded by

two examiners has exceeded 15% of total marks.

10(f). It is also stated that the role of Commission staff is restricted only to verify and to ensure that only the marks awarded by the examiners were

entered in the mark sheets and to scrutinse the answer books to confirm that all answers were valued and if any answer was left unvalued and there

is any discrepancy in awarding of marks, it is brought to the notice of the examiner concerned and the issue is settled then and there by the

Commission. Therefore, there is no scope for the staff of the TNPSC to commit any mistake. The allegation in respect of written entry made in

Group I Service Commission Examinations, 1999-2000 is denied. The main written examinations for Group I Service Commission, 1999-2000

were held from 9.2.2002 to 13.3.2002. There was a ban on recruitment issued by the Government in 2001 and the Government has confirmed the

vacancies only on 18.3.2004 and directed that the results of the main written examinations already held by the TNPSC be published and interview

to be completed after the Parliamentary Elections are over. Therefore, the results were published on 05.06.2004 and oral tests were conducted

from 21.06.2004 to 24.06.2004 and the selection was finalised in August, 2004 and therefore, there is no delay on the part of the Service

Commission in completing the same.

In the counter affidavit filed by the TNPSC in the writ petition filed by S. Madhavan in W.P. No. 482 of 2005 who is also the only writ

petitioner in W.P. No. 17969 of 2004, the TNPSC has stated that the said S. Madhavan who was selected in the preliminary examination has

appeared for the main written examinations conducted between 9.2.2002 and 13.3.2002 and he was found not eligible to be admitted to the oral

tests conducted between 21.6.2004 to 24.6.2004. While denying the allegations made against the officials of the TNPSC and reiterating the stand

in respect of the method of selection as stated in the counter affidavit filed in W.P. No. 30885 of 2004, it is stated that in respect of candidates

who have written the main written examinations, they were summoned for oral tests and their marks were hosted in the Commission''s web site

after publication of final results. In respect of OMR answer sheets which are used in the preliminary examinations originally, the shading by HB

pencil was allowed. Due to the reason that the candidates who have wrongly shaded in the column and erased the same and shaded in some other

column and due to the reason of improper erasing of the original shade it posed a problem for valuing the OMR answer sheets, the Commission

has substituted blue/black ball point pen in the place of HB pencil with the result, when answer is shaded it cannot be erased. This was effected

from the year 2000 to put an end to the difficulty of scanning OMR answer sheets.

11(a). It is stated that in paragraph-22 of the Commission''s instructions etc., to candidates appearing for the main written examinations, which in

the form of descriptive type, it was mentioned that the candidates who violate any one or more of the instruction(s) printed on the main answer

book or in the memorandum of admission will be rejected and their answer books will be invalidated and debarred for such period as the

Commission may consider fit. In the note annexed to the Memorandum of Admission it is stated that,

The candidates should not use colour pens, sketch pens, pencils except those permitted in the instructions etc. to candidates for any purpose

including drawing and highlighting.

It is explained that in the said note No. 5 in the expression, ''colour pens, sketch pens, pencils'' the term, ''colour'' should be taken as common

adjective and it should be read as colour pen, colour sketch pen, colour pencils. According to the respondent Commission, the said note does not

prevent the use of HB pencils for drawing, etc. as it would not reveal the identity of the candidates. Therefore, the candidates who have used HB

pencils for drawing, etc. in the written examinations for Group I were not invalidated while those who have used colour sketch pens for underlining,

highlighting, etc. have been invalidated.

11(b). It is stated that as per the representation received by the Commission from the petitioner and others on 23.2.2002, it was decided not to

take any action since 48 answer books of those candidates who have violated the instructions have been invalidated. It is also denied that any

paper chasing, manipulation of marks and records connected to the selections deceiving the judiciary have taken place. It is also stated that out of

741 candidates who have appeared for main written examinations for Group I Service in 1997-98, 255 candidates have given some markings and

fictitious names and they were invalidated and out of the remaining answer sheets evaluated, 252 candidates were selected for oral tests as per the

notification of the Commission dated 23.10.1999. After the election work was over, the answer books of 252 candidates which were invalidated

were re-scrutinised and found that 253 out of 255, there had been no revelation of their identity and consequently, the Commission has selected

139 candidates additionally for oral tests and the inclusion is only based on the principles of natural justice and fair play and cannot be termed as

mala fide.

11(c). It is also stated that in a batch of writ petitions in the order dated 28.2.2001, the High Court has rejected the contention of mala fide in

respect of 1999-2000 selection and directed the Commission to proceed with the interview. It is also stated that in respect of previous

examinations, from 1996 to 1999, on publication of selection list for admission to oral tests, some candidates who appeared for Tamil language

and literature have raised apprehension that keys provided by the examiners were not correct for large number of questions. It was in those

circumstances, the Commission has requested their experts to independently give the keys for the questions in the subjects Tamil language and

literature and after going through the keys, it was found that the key answers given by the examiners earlier in respect of few questions were

wrong. Therefore, the entire examinations were cancelled in the interest of fair play and justice.

11(d). When that was challenged before the Tamil Nadu Administrative Tribunal, the Tribunal has upheld the conduct of the Commission as bona

fide. The said cancellation for the earlier year in respect of those papers was in consonance with the Apex Court judgment. In respect of the

present selection for 2000-01, the main contention is that the candidates who have obtained lesser marks have been selected. In this regard, it is

stated that while selections are made it is not only the marks obtained in the written examinations and the oral tests, but also based on the

community and gender of the candidates and the communal roster apart from number of vacancies available for the post is taken into consideration

and in such event, it is possible that a person who secured less marks would be selected for the post of Deputy Collector and a person who

scored more marks would have been selected for the post of Deputy Superintendent of Police and therefore, marks have been taken into

consideration based on the availability of posts in each category. It is also possible that a person who secured higher marks would not get selected

at all to any post while the candidate with lesser marks would get selected to any of the posts. It is also stated that the petitioner has chosen to

make unwarranted remark against the constitutional functionary in respect of the complaint about 2 candidates in the year 1999-2000.

11(e). The respondent Commission has also given the difference between the raw marks and scaled marks. In the annexure to the counter, the

respondent Commission has explained the discrepancies pointed out by the petitioner in respect of some of the candidates.

1) In respect of the selected candidate with register No. 537915 (T. Indra), she is stated to belong to MBC/DC (Woman), in respect of which the

cut-off mark was 1239.75 and she has secured 1239.75 marks (not 1240 as alleged by the petitioner) and she got selected as Commercial Tax

Officer (S). However, the candidate with roll no.574504 stated to have not been selected in spite of obtaining 1280 marks (J. Ananthi), it is stated

that she belongs to BC (Woman) and not MBC (Woman) and for BC (woman) community the cut-off mark for DRCS (S) is 1231.14, while she

got 1280.32 (not 1280 as stated by the petitioner) and was selected as Deputy Registrar of Co-operative Societies (S).

(2) In respect of the selected candidate with roll No. 545588 (M. Jeyaraman), he belongs to MBC(DC - General) and not BC-General as stated

by the petitioner) and he secured 1277.86 marks (not 1278 as alleged by the petitioner). While the cut-off mark required for MBC (DC-General)

was 1277.86, he was selected as Commercial Tax Officer (S). However, the candidate with register No. 521364 (V.M. Chandirasekaran) who

belongs to BC (G) and secured 1282.58 marks (not 1283 as stated by the petitioner) was selected as Deputy Registrar of Co-operative Societies

(S) for which community the cut-off mark was 1313.58 for the post of Deputy Registrar of Co-operative Societies while the cut-off mark for the

post of Commercial Tax Officer for that category was 1213.58 and therefore, he was not selected as Commercial Tax Officer.

(3) Likewise, in respect of the candidate with register No. 574245 (S. Yasodha Devee), she belongs to MBC (DC-woman) and not MBC (DC-

General) as stated by the petitioner. She has secured 1231.88 marks (not 1231 as stated by the petitioner) and the cut-off mark was 1200.09 and

she was selected as Deputy Registrar of Co-operative Societies (S). In respect of register No. 562047 (P. Balamurugan) stated to have been not

selected for the post of Deputy Registrar, he belongs to MBC (DC-General) and secured 1238.72 marks (not 1238 as stated by the petitioner)

and selected as Deputy Registrar of Co-operative Societies (RL) since the cut-off mark required as per the community status was 1239.57 for the

selection as Deputy Registrar.

(4) In respect of register No. 519101 (T. Vanitha) who belongs to SC(W) (not SC General, as stated by the petitioner), she secured 1186.62

marks (not 1186 as stated by the petitioner) and she was selected as Deputy Registrar of Co-operative Societies (S) for whom the cut-off mark

was 1163.70. The alleged non-selected candidate with register No. 550621 (S. Prakash) belongs to SC (G) and secured 1195.74 marks (not

1196 as stated by the petitioner) and selected as Deputy Registrar of Co-operative Societies (RL) and since the cut-off mark required for SC

(General) for the post of Deputy Registrar of Co-operative Societies (S) was 1197.23.

(5) In respect of register No. 592685 (G. Lakshmi Priya) she belongs to SC(W) and not SC (G) as stated by the petitioner and she secured

1179.36 marks (not 1179 as stated by the petitioner) and got selected as Deputy Registrar of Co-operative Societies (GT)(S) while the required

cut-off mark for the said post for the candidates belonging to SC(W) was 1163.70. On the other hand, in respect of the register No. 550621 (S.

Prakash) who is stated to have not been selected for the said post, he belongs to SC (G) and obtained 1195.74 marks (not 1196 as stated by the

petitioner) and he got selected as Deputy Registrar of Co-operative Societies (RL) while the required cut-off mark for SC(G) for DRCS (S) is

1197.23.

(6) In respect of register No. 502689 (G. Chitrapavai), she belongs to SC(W) and not Woman (G) as stated by the petitioner). She secured

1163.70 marks and not 1164 as stated by the petitioner and got selected as Deputy Registrar of Co-operative Societies (S) for which the cut-off

mark required was 1163.70. On the other hand, in respect of register No. 526958 (not 526956 as wrongly stated by the petitioner) (D.

Shanmugapriya) she belongs to a different category viz., BC(W) and secured 1229.27 marks and not 1230 as stated by the petitioner and she was

not selected due to the reason that for BC(W), the required cut-off mark is 1231.14.

(7) In respect of register No. 523764 while correct number is 523763 (P. Malathi) she belongs to BC(W) and obtained 1215.88 marks and not

1198 as stated by the petitioner. The required cut-off mark was 1231.14. While she has not opted for Deputy Superintendent of Police, it is stated

that she has already been selected as Deputy Registrar of Co-operative Societies in the previous recruitment. On the other hand, the register No.

585813 (K. Meena) who belongs to BC(W) and obtained 1216.91 marks (not 1217 as stated by the petitioner) was kept under Deputy

Superintendent of Police (RL) since the required cut-off mark was 1229.72 and 1231.14.

(8) In respect of register No. 604980 (Shyamaladevi), she belongs to MBC(DC-W) and not woman General as stated by the petitioner and she

secured 1171.96 marks and not 1172 as stated by the petitioner. She was selected as Deputy Superintendent of Police(S) for which the cut-off

mark was 1171.96. On the other hand, in respect of the register No. 523763 (P. Malathi), she belongs to BC (W) who secured 1215.88 and not

1216 as stated by the petitioner. The cut-off mark required was 1229.72 and she has not opted for Deputy Superintendent of Police as she was

already selected as Deputy Registrar of Co-operative Societies in the previous recruitment.

With the above said pleadings, the parties have approached this Court by filing the said writ petitions. This Court, by order dated 31.7.2007

made in W.P. No. 30885 of 2004, taking note of the fact that the learned Counsel for TNPSC Mr. R. Sureshkumar has brought the entire answer

scripts of Group I examinations 2000-01 in respect of 91 selected candidates, has appointed Mr. V. Stalin, advocate as advocate-Commissioner

to check the answer papers and file a report as to whether the candidates have used pencil or sketch pencil/colour pencil. After checking the

answer papers, the said advocate Commissioner has filed a report dated 16.8.2007. In the said report, the learned Advocate-Commissioner has

pointed out that in respect of each paper, the markings were written in pen and pencil and were used for diagram and graph. The pencil was used

for underlining sentences, graphs, etc. in respect of 60 papers in general studies, two papers in Geology, one paper in sociology, nine papers in

Political Science and International Relations, 12 papers in General English, 12 papers in General Tamil, 14 papers in Agriculture paper-I, 4 papers

in Forestry Paper-I, six papers in Mechanical Engineering Paper I, 28 papers in General studies Paper II, 30 in Tamil language and literature Paper

I, 6 papers in History Paper I, 47 in Geography Paper I, one paper in General English, 2 papers in General Tamil, 23 papers in General Studies

Paper I, 7 papers in History Paper II, 11 papers in History Paper I, 4 papers in Sociology Paper I, 4 papers in Sociology Paper II, and in all 283

papers.

The petitioners have filed objections to the said report raising doubt about the answer papers as to whether they relate to the impugned

examinations on the basis that the answer scripts have exceeded the total number of candidates who got selected and hence, the answer scripts

produced could have been for different examinations, that the answer scripts of candidates have been deliberately left in middle of pages, that the

Commissioner has not indicated about various markings made in the answer papers, that in respect of five answer scripts with dummy Nos.

007110, 007179, 007476, 0007501 and 0007533, the written numbers were corrected by the examiners which has not been considered by the

Commissioner, that the advocate-Commissioner has not checked the total number of answer scripts despite the request and that there has been

some factual errors regarding some of the dummy numbers.

After the said advocate-Commissioner''s report, when the matter was taken up for hearing, after elaborate arguments by the respective counsel

and taking note of the fact that the learned Counsel appearing for the TNPSC has produced 14 bundles of answer papers pertaining to 91

candidates who were selected in the competitive examinations 2000-01 viz., 637 answer scripts, this Court by order dated 23.1.2009 appointed

Mr. S.R. Sundar as advocate-Commissioner, directing to file a report after verifying 637 answer scripts in respect of 91 candidates produced by

the TNPSC indicating that the report shall be in respect of

(a) the use of sketch pen in answer papers;

(b) the use of pencils in answer papers;

(c) the use of two colours;

(d) making of some marks if used in the answer sheets like cross, crescent and Om;

(e) writing of name of candidate, if any, in the answer sheets; and

(f) writing question numbers wrongly in the answer sheets and then making alterations in that regard.

This Court has also suggested a format so that the advocate-Commissioner can make a proper verification.

The learned advocate-Commissioner has thereafter filed a detailed report dated 20.2.2009 in one volume containing annexure I and II. That

apart, the advocate Commissioner has filed three volumes running to 440 pages each, relating to annexure III by giving a detailed candidate-wise

report in respect of each paper. The Advocate Commissioner has also filed four CDs along with his report.

The learned Counsel for the writ petitioner in W.P. No. 30885 of 2004 has filed an objection to the said Commissioner''s report relating to

three sketch pen used papers and the objection is as follows:

Dummy Findings of the 1st Advocate TNPSC''s Remarks

No. Commissioner

______________________________________________________________________________

007410 Written in pen. Black sketch The candidate has used black colour ink

used for diagram. for writing and drawing. The material used

for drawing the diagram could not be

identified whether it is black sketch or

black pen.

________________________________________________________________________________

007426 Written in blue pen. Black The candidate has used blue colour ball

sketch used for underlining point pen for writing the answers and black

sentences. colour ink for underlining the headings.

The material used for unerlining could not

be identified whether it is black sketch or

black pen.

__________________________________________________________________________________

175351 Written in pen. Red sketch The candidates has used only Red sketch

used to mark places in dots and spot the places in the map.

India Map.

__________________________________________________________________________________

Mr. Manikandan Vathan Chettiar, learned Counsel appearing for the petitioner in W.P. No. 30885 of 2004, W.P. No. 17964,2004 and W.P.

No. 482 of 2005 has submitted that even as per the second report of the advocate Commissioner, it is prima facie made clear that the answer

papers of the selected candidates are found to have been used sketch pens, pencils, markers, etc. against the instructions of the TNPSC and in

spite of the same, those answer scripts were not invalidated and those candidates were selected and therefore, it is a fit case for a detailed

investigation by CBI. He would also submit that the selection has to be set aside relying upon the judgment of the Supreme Court in Krishan

Yadav and another Vs. State of Haryana and others, . He would also refer to the conditions in the Hall Ticket as well as the notification issued by

the TNPSC and submit that on the face of it, there has been gross violation of the notification in respect of selected candidates.

17(a). By referring to the counter affidavit filed by the respondent in the said writ petitions, especially in W.P. No. 30885 of 2004 and W.P. No.

482 of 2005 he submitted that when the TNPSC has invalidated 48 answer scripts in respect of other candidates, similar act should have been

done in respect of 91 candidates inasmuch as the advocate Commissioner has found that the markings were made which are against the

notification. It is his submission that when the candidates have used any mark which is prohibited as per the instructions issued by the TNPSC, the

same should be construed as a malpractice as it is immaterial as to whether such markings was actually capable of making indications to the

examiners while valuation. It is his further submission that as TNPSC is performing constitutional functions, it is bound by its own instructions and

when such instructions are not followed by the candidates, it is mandatory duty of the TNPSC to invalidate those answer sheets and the

Commission cannot take a different stand in respect of those candidates on the basis that the markings are not in the nature of making indications to

the examiners for being influenced.

17(b). He would submit that the scaling technic which is stated to have been used in respect of main written examinations have not been followed

based on any sound expert''s opinion. Even otherwise, according to him, such technic should have been followed uniformly and it is not open to the

Commission to use such technic only in respect of certain cases and not to use the same in respect of other cases at its discretion. He would also

submit that as far as the petitioner in W.P. No. 30885 of 2004, A.B. Natarajan is concerned, he got selected upto oral interview and he belongs to

MBC category and he obtained 1195 marks with serial No. 125 while the last candidate selected with serial No. 76 got 1239 marks. He would

further submit that while S.Madhavan, petitioner in W.P. No. 17969 of 2004 and W.P. No. 482 of 2005 who is stated to have failed in final

written examination has got 368th rank with 952.27 marks.

17(c). He would rely upon the judgment of the Supreme Court in Union of India and Another Vs. N. Chandrasekharan and Another, to

substantiate his contention that violation of instructions issued by the Service Commission itself is sufficient to infer malpractice. He would also rely

upon the judgment of the Supreme Court in Karnataka Public Service Commission and others Vs. B.M. Vijaya Shankar and others, apart from

Dr. M. Vennila Vs. Tamil Nadu Public Service Commission, and Central Board of Secondary Education Vs. Vineeta Mahajan (Ms) and Another,

.

Mr. T.R. Rajagopalan, learned senior counsel appearing for the petitioner in other petition would submit that the TNPSC being a constitutional

authority must be more transparent. When it is found by the Advocate-Commissioner on fact that violations have been made in the selection of

candidates and the selected candidates have to suffer for the same and the valuers as well as Public Service Commission are also to be declared to

be guilty. He submits that when colour pencils or other markings are made, it should be treated as indications to the valuers. It is also stated by the

learned senior counsel that the conditions given by way of instructions by the Public Service Commission have to be followed as it is and no new

words can be included as conveniently done by the Service Commission. The valuation by giving more marks to the candidate who is not eligible

as per the instructions itself is sufficient to declare that the selection process is null and void and corrupt practice need not be proved and it has to

be inferred.

18(a). As far as the scaling method is concerned, he would submit that inasmuch as the Service Commission itself has not understood the method,

the use of such method was only detrimental to the interest of the candidates who have appeared for the examinations especially who were not

selected. He would submit that any system for the purpose of identifying the candidates for selection should be understandable. He would rely

upon the judgment of the Supreme Court in Sanjay Singh and Another Vs. U.P. Public Service Commission, Allahabad and Another, . According

to him, if the scaling of marks is taken into account as raw-marks obtained by the candidates, it is an illegal process and the selection has to be set

aside. It cannot be said that the scaling system was explained in the original notification itself in respect of final written examinations and only after

knowing that the candidates participated in the selection process and therefore, they cannot question the same later, since, according to the learned

senior counsel, the method itself as it was not known to the Service Commission, was not understandable to anyone including the petitioners and

only after they came to know about implication of the system, they are challenging the same which is well within their rights.

On the other hand, Mr. R. Sureshkumar, learned Counsel appearing for the TNPSC has submitted that it is not open to the petitioners to

challenge the selection process. He would submit that one paper in the preliminary examination is objective type and the candidates are selected

for main written examinations from the preliminary examination at the ratio of 1:10 based on the vacancies and therefore 922 candidates were

selected for appearing in the main examinations since at that time, the number of vacancies were identified as 92, which of course later on was

decreased to 91. Actually 832 candidates had written main examinations and 74 candidates had absented and out of the remaining 832

candidates, some of them had absented for some papers, with the result the actual number of persons who had written all the papers in the final

main examinations was 773. Out of the said candidates, candidates were called for oral tests on the basis of 1:2 ratio and accordingly, 182

candidates who had written final main written examinations were called for based on the marks obtained by them. Therefore, it is his submission

that there is no illegality in the selection process.

After considering the elaborate arguments made by the respective counsel, the following points are culled out to be decided in this case:

1) The objection raised by the petitioner S. Madhavan in W.P. No. 482 of 2005, especially relating to 8 instances as enumerated above wherein it

is stated that at least the said eight candidates were selected due to corrupt practice, while other corresponding 8 persons who have scored more

marks have been denied their rights of selection.

2) The introduction of scaling system in respect of optional subjects chosen by the candidates in the main written examinations as to whether the

same is arbitrary or resulting in impropriety in the process of selection.

3) The violation of instructions given by the TNPSC in answering the questions in the main written examination papers, as to whether such

violations can be treated as making indication to the examiners while valuing for any undue favouritism and consequently, as to whether such

selection should be interfered with, especially in the light of detailed report of second advocate-Commissioner.

On the broad principles formulated and based on the pleadings and contentions of the learned Counsel for the respective parties, I propose to

take each and every one of the above points for consideration one by one.

Point-(1)

The allegations about 8 candidates who were selected as it is referred to by the petitioner in W.P. No. 482 of 2005 are taken into consideration,

since the same pose a serious question about the alleged discrimination in making selection. It is no doubt true that if the said allegations in respect

of 8 selected candidates are found to be correct, there would be at least 8 other candidates remain unselected who are alleged to have got more

marks than the selected candidates and certainly it should be construed either as a corrupt or malpractice in the selection process and this Court

would not hesitate to interfere in the matter and set aside such selection ignoring the long lapse of time after the selection was made and the

selected candidates were appointed and are comfortable in service for a substantial period of nearly 4 or 5 years. But, as I have elicited above, in

respect of each and every one of the eight candidates as explained in detail by the TNPSC in the counter affidavit filed in W.P. No. 482 of 2005, it

is seen that those candidates were selected for the posts like, Commercial Tax Officer, Deputy Registrar of Co-operative Societies, Deputy

Superintendent of Police, etc. and it is not in dispute that out of 91 vacancies for which applications were called for by the respondent TNPSC on

27.12.2000 under Group I examinations, 2000-01, in the Tamil Nadu Civil Services in respect of the post of Deputy Collector, 24 vacancies were

notified. Likewise, in Tamil Nadu Police Service, for the post of Deputy Superintendent of Police (Category I) 20 vacancies were notified. In

Tamil Nadu Commercial Tax Service, for the post of Commercial Tax Officer, 10 vacancies were notified. In the Tamil Nadu Co-operative

Societies Service, for the post of Deputy Registrar of Co-operative Societies 33 vacancies were notified. In Tamil Nadu Panchayat Development

Service, for the post of Divisional Development Officer, 5 vacancies were notified. In Tamil Nadu General Service for the post of District

Employment Officer, 2 vacancies were notified, while for the post of Divisional Fire Officer in Tamil Nadu Fire Service, one vacancy was notified.

21(a). Out of the above vacancies as it is seen in the notification issued by the TNPSC the said vacancies were distributed as follows:

1 Deputy Collector SC .. 5 (2-W)

__________________

ST .. Nil

__________________

MBC/DC .. 5 (2-W)

__________________

BC .. 7 (2-W)

__________________

GTS .. 7 (2-W)

__________________

Total .. 24 (8-W)

______________________________________________________

2 Deputy Superintendent of Police SC .. 4 (1-W)

(Category-I) __________________

ST .. Nil

__________________

MBC/DC .. 4 (1-W)

__________________

BC .. 6 (2-W)

__________________

GT .. 6 (2-W)

__________________

Total .. 20 (6-W)

______________________________________________________

3 Commercial Tax Officer SC .. 2 (1-W)

__________________

ST .. Nil

__________________

MBC/DC .. 2 (1-W)

__________________

BC .. 3 (1-W)

__________________

GT .. 3 (1-W)

__________________

Total .. 10 (4-W)

______________________________________________________

4 Deputy Registrar of Co-operative SC .. 7 (2-W)

Societies (DRCS) __________________

ST .. Nil

__________________

MBC/DC .. 7 (2-W)

__________________

BC .. 9 (3-W)

__________________

GT .. 10 (3-W)

__________________

Total .. 33 (10-W)

______________________________________________________

5 Divisional Development Officer SC .. 1

__________________

ST .. Nil

__________________

MBC/DC .. 1

__________________

BC .. 1

__________________

GT .. 2 (1-W)

__________________

Total .. 5 (1-W)

______________________________________________________

6 District Employment Officer SC .. 1

__________________

ST .. Nil

__________________

MBC/DC .. Nil

__________________

BC .. Nil

__________________

GT .. 1

__________________

Total .. 2

______________________________________________________

7 Divisional Fire Officer SC .. Nil

__________________

ST .. Nil

__________________

MBC/DC .. Nil

__________________

BC .. Nil

__________________

GT .. 1

__________________

Total .. 1

______________________________________________________

The distribution was arrived at based on the roster system applicable in the concept of reservation in the State of Tamil Nadu, about which there is

no dispute. On the basis of the said particulars, it is clear that the vacancies in respect of each category including woman category are to be filled

up by roster. It goes without saying that the cut-off marks in respect of various posts in various categories of reserved communities will differ even

though the posts are coming under the same Group I category.

21(b). In all eight incidents given in the above writ petition, the case of the writ petitioner is that the persons who have got higher marks in the same

category were denied respective posts while the persons with less marks were selected. As it is explained above, the said allegation made in the

affidavit filed by the petitioner is totally false and baseless. It is not as if the candidates who are stated to have been deprived were not selected, but

they were selected for a different post which may be, according to the petitioner, lower in status and that cannot be decided in this case, since the

affected persons are not before this Court. That apart, the said persons are not at all affected. The entire facts stated in the counter affidavit would

show that in almost all cases the candidates who are stated to have been affected have got more marks but they belong to different categories

under communal system. For example, in respect of first complaint regarding the register No. 545588 relating to one M. Jeyaraman, he was

selected and he belongs to MBC/DC (G) category, whereas the petitioner has chosen to compare the selected candidate with the register No.

521364 relating to one V.M. Chandirasekaran, who belongs to BC(G) category for whom there is different cut-off mark which is more. Due to

that reason, he was not selected for Commercial Tax Officer but he was given the next post of Deputy Registrar of Co-operative Societies. In fact,

in respect of other two cases, the candidates were already selected in the previous selection as Deputy Registrar of Co-operative Societies and in

the present selection for the year 2000-01, they were offered Deputy Superintendent of Police on the basis of the marks obtained by them for

which they refused to opt. In the circumstances, when this is not repudiated, it is not possible to accept the first contention raised by the learned

Counsel for the petitioner. As stated earlier, the abovesaid issue was taken up firstly for the reason that it was the most grave allegation.

Point-(2)

In respect of scaling system, in the notification issued originally, as noticed above, in Clause No. 10, Note:(iv), it is stated as follows:

The scaling technic for evaluation of answer papers will be adopted in the main written examination.

The contention is that the said system adopted for the written examination is improper. An attempt is made as it is explained in para-10 of the

affidavit filed by the petitioner in W.P. No. 30885 of 2004 that the said scaling technic is used contrary to the explanation given in the book on

Scaling Techniques by V. Natarajan and K. Gunasekaran in the preface. The grievance does not appear to be that the scaling technic as such

should not be used, but the complaint is that if the scaling technic is used, it must be used uniformly in respect of all papers, whereas the TNPSC

has taken a stand that where the number of candidates are less than 5, scaling technic is not used and instead, the average of raw marks is taken

into consideration. Therefore, according to the petitioner, the using of scaling technic in all cases expect where the number of candidates is less than

5, is a discrimination.

22(a). In this regard, it is stated in the counter affidavit filed by the TNPSC that the fact that the scaling technic will be used for optional subjects

has been intimated in the original notification dated 27.12.2000 and the purpose is to minimise the subject bias and to give a fair chance to every

subject so that the representation by the candidates choosing different optional subjects can be more. It is stated that only after obtaining necessary

expert''s opinion, the technic is put to use and it is also enforced in Rajasthan Public Service Commission and the respondent Commission is using

it with slight modification to the effect that the scaling technic has to be used in respect of cases where the candidates are more than 5 in number. It

is also stated that in case the number of candidates is less than 5, in the absence of any statistical proven formula to scale such small size of

candidates, the raw marks awarded are taken as scaled marks. The concept of scaling as per expert''s opinion is explained by the TNPSC stating

that in the said system of scaling the arithmetic mean and standard deviation of marks in each subject is calculated and then, the individual marks

are scaled up or scaled down using the formula with reference to the participation in the particular subject by which the bias is minimised and fair

chance is given to each subject giving opportunity to the candidates to choose any optional subject. Therefore it is stated that scaling marks

depends upon the number of candidates appeared for the optional subject, arithmetic mean of the subject and standard deviation of the subject. It

is stated that after arriving at the scaling marks in respect of optional subjects, the same is added with raw marks which are the marks on general

papers and therefore, the merit is not given a go bye. It is also stated that even prior to the present recruitment, the scaling technic had been used

for valuation during the year 1999-2000 and when the candidates who were not selected for oral interview, questioned the system, the

Administrative Tribunal dismissed the same by order dated 30.12.2002 in O.A. Nos. 1211 of 2002, etc.

22(b). In the valuation system of examinations, it has been an universally approved formula, in cases where different subjects are given as optional

subjects and there is a possibility for disparity among the candidates in awarding marks in each subject and therefore, to give opportunity to all

subjects to be considered fairly and on equal basis, the technic of scaling is followed throughout. In fact, as correctly submitted by the learned

Counsel for the respondent/TNPSC, in U.P. Public Services Commission Vs. Subhash Chandra Dixit and Others, , the Supreme Court, while

dealing with the rule brought in by way of an Amendment Act, 1976, by which the U.P. Public Service Commission has been vested with the

power to eliminate the variation of marks in various subjects, held as follows:

There is a vast percentage difference in awarding marks between each set of examiners and this was sought to be minimised by applying the

scaling formula. If scaling method had not been used, only those candidates whose answer sheets were examined by liberal examiners alone would

get selected and the candidates whose answer sheets were examined by strict examiners would be completely excluded, though the standard of

their answers may be to some extent similar. The scaling system was adopted with a view to eliminate the inconsistency in the marking standards of

the examiners. The counsel for the respondents could not demonstrate that the adoption of scaling system has in any way caused injustice to any

meritorious candidates. If any candidate had secured higher marks in the written examination, even by applying the scaling formula, he would still

be benefited.

The Division Bench of the High Court observed that the process of scaling was done examiner-wise only and the scaling formula did not take

into consideration the average of Mean of all the candidates in one particular paper but took mean of only that group of candidates which has been

examined by one single examiner. The counsel for the U.P.P.S.C. submitted that the observation made by the High Court is incorrect. The scaling

formula was adopted to remove the disparity in the evaluation of 14 examiners who participated in the evaluation of answer sheets and the details

have also been furnished as to how the scaling formula was adopted and applied. Therefore, we do not think that the observation of the Division

Bench that the Commission did not take care of varying standards which may have been applied by different examiners but has sought to reduce

the variation of the marks awarded by the same examiner to different candidates whose answer sheets had been examined, is correct. The Division

Bench was of the view that as a result of scaling, the marks of the candidates who had secured zero marks were enchanced to 18 and this was

illegal and thus affected the selection process. This finding is to be understood to mean as to how the scaling system was applied. 18 marks were

given notionally to a candidate who secured zero marks so as to indicate the variation in marks secured by the candidates and to fix the mean

marks.

22(c). That apart, in respect of exactly a similar contention which has been raised in this case, that the non-adopting of scaling system in cases

where the number of candidates is less than 5 will create disparity among the candidates, this Court in W.P.M.P. No. 19520 and 28605 of 2004

in W.P. No. 16516 of 2004, held as follows:

It is the grievance of the petitioners that a person who writes a paper, for which there are not many students, is likely to have an advantage of raw

marks. This is also answered by respondent (Tamil Nadu Public Service Commission) who explains the reason why the individual marks are not

scaled up or scaled down, where there are 3 or 4 students for a particular paper.

22(d). There is one more aspect to be considered in this case that there is absolutely no proof to show that by following the scaling technic, the

petitioners were affected. Further, it is also not proved that by applying the scaling technic or restricting the application of the same in cases where

the number of candidates are more than 5, there is any discrimination or damage caused to the prospects of the petitioners. In fact, placing reliance

on the judgment of the Supreme Court cited supra, Prabha Sridevan, J. in the above order which has become final, has extracted the counter

affidavit of TNPSC explaining the scaling technic in the following words:

The Following is the Scaling formula:- (Generally) (If total marks 100 for subject)

X = 50% + 10% X-X = 50+10

X = The scaled marks in percentage

X = Raw marks obtained by the candidate in the subject.

X = Mean marks obtained by the candidates in the subject.

= Standard Deviation

as the optional subject contains two papers each of 300 marks and totally 600 marks, the Commission has adopted the following formula.

X = A + B x-x

Where,

X = Scaled mark of the candidate in the subject

X = Raw mark of the candidate in the subject

X = Mean marks of all candidates in the subject

= Standard Deviation of the marks in the subject.

Where A and B are constant. A being 50% of total marks in the subject i.e. 50% of 600 + 300 and B being 10% of total marks i.e. 10% of 600 =

60.

22(e). Considering the similar submission which has been raised in the present case it was held in paragraph-6, which is as follows:

The T.N.P.S.C. does not resort to scaling technique where the students, who have appeared for the particular subject are less than 5, for those

students,l raw marks are awarded. Learned Counsel for the petitioners pointed out in Option No. 1, the students, who have obtained 442 marks,

will get scaled marks of 364.15. In option No. 2, the students, who have obtained 442 marks, will get the scaled mark of 356.93, where as if the

students who have written the examination is only four, he will get his raw marks of 442. According to the petitioners this will cause injustice,

because the students who have obtained higher marks as in Options 1 & 2, will have all their marks scaled down. The students who have

appeared in certain subjects, for which there are not many students will get the advantage of raw marks, totally the aggregate marks will be higher

than others.

22(f). The learned Judge, while extracting the details of scaling technic as explained by Allahabad High Court in S.C. Dixit v. State of U.P. Public

Service Commission 2003 (2) AIC 191 in paras 8, 9, 10 and also referring to the judgment of the Supreme Court in Union of India v.

Chandrasekaran AIR 1995 SC 795, held that the petitioners having appeared for written examinations based on the contents of instructions issued

by the Public Service Commission, cannot subsequently raise objections against the contents of notification about the scaling system. In any event,

the scaling system which may be purely mathematical in its sense cannot be said to be arbitrary, especially when it is the case of the respondent and

that the same is not in dispute that in respect of compulsory papers the raw marks are added and therefore, the balance is being maintained. In

cases where the number of students writing a particular paper is minimal, certainly there is no possibility for equating the candidates with others and

in such circumstances, taking the raw marks alone into consideration along with the compulsory subjects cannot be stated to be detrimental to the

very concept of valuation. In such view of the matter, I do not agree with the contention raised by the learned Counsel for the petitioners in this

regard. In the result, the contention against the scaling system that is followed by the Public Service Commission in cases where the candidates are

more than 5 in number has to be rejected, and accordingly, rejected.

22(g). The concept of scaling system which is differently called as, ''stanine grade'' which is in existence in number of Universities in the world,

defined as, ''star scale'' was initiated to normalise two standard courses for grouping and percentile the ranks and the same has been prescribed as

a method of selection in the University of Alberta, Indiana, University of Persi where 9 scale stanine is being adopted. That apart, Ohio State

University has also recognised the method of stanine as a mode of selection. In fact, the standard grading system like, stanine has been followed by

the Indian School of Certificate External Examination, New Delhi for the international assessment. The said stanine and the standard grading

system of selection which was for the purpose of equalising the candidates from various disciplines by way of grades has been proved to be an

intrinsic mathematical method and it stood the test of time, since the arbitrariness in such selection has been found to be very minimal. In fact, the

said method of selection came to be approved by this Court in respect of admission process in the Christian Medical College, Vellore in a batch of

writ appeals in W.A. Nos. 494, 812 and 495 of 2007 in P. Arunkumar and Anr. v. State of Tamil Nadu rep. By its Secretary to Government,

Education Department, Fort St. George, Chennai 9 and Ors. 2007 WLR 965, the Division Bench consisting of the then Hon''ble Chief Justice

(A.P. Shah, J.) and myself, held as follows:

Therefore, it cannot be said that the Stanine Grade System is unknown in the method of selection for the reason that it is complicated and

requires mathematically trained mind to understand. That itself cannot be a ground to brush aside the said method of selection, which can never be

stated to be either prejudicial or discreminatory between the candidates.

22(h). The scaling system which has been adopted as it was found in the original notification in the selection process of the TNPSC cannot be said

to be a method which should be disapproved. As far as the application of the said system in the cases where the number of candidates are more

than 5 and resorting to following raw mark system in cases where the number of candidates are less than five is concerned, it is for the authorities

to decide as to which system they have to follow and it is not for this Court to interfere with the same, at this stage. In any event, by applying the

said scaling system, the petitioners in the writ petitions especially Mr. A.B. Natarajan and Mr. S. Madhavan are not at all affected. On the other

hand, as it is submitted by the learned Counsel for the TNPSC, both the petitioners got the benefit of the scheme in the sense that by the

application of scaling system, their marks have in fact increased.

22(i). It is seen that in respect of the petitioner in W.P. No. 30885 of 2004 viz., A.B. Natarajan, he has appeared in the main written examinations

by selecting Sociology and Political Science apart from compulsory paper general studies. It is stated that each subject was having two papers and

each paper was having the maximum 300 marks. In the said subjects viz., Political Science, Sociology and general studies, the answer scripts were

sent for second valuation and the average of both the valuations was taken into consideration as the final mark obtained by him. The following are

the marks stated to have been obtained by A.B. Natarajan in the first and second valuation:

Main Examination 1st Valuation 2nd Valuation

____________________________________________________

Political Science � I 128 160/300

____________________________________________________

Political Science � II 125 158/300

____________________________________________________

General Studies - I 172 145/300

____________________________________________________

General Studies - II 265 243/300

____________________________________________________

Sociology - I 139 155/300

____________________________________________________

Sociology - II 149 160/300

____________________________________________________

Total 978 1021/300

____________________________________________________

The marks obtained by him in the first and second valuations and the average of the two and also the raw marks are as follows:

General Studies Paper I 172 + 145 = 317/2 = 158.50

_____________________________________________________

General Studies Paper II 265 = 243 = 508/2 = 254.00

_____________________________________________________

412.50

_____________________________________________________

Political Science Paper I 128 = 160 = 288/2 = 144.00

_____________________________________________________

Political Science Paper I 125 = 158 = 283/2 = 141.50

_____________________________________________________

= 285.50

_____________________________________________________

Sociology Paper I 139 + 155 = 294/2 = 147.00

_____________________________________________________

Sociology Paper II 149 = 160 = 309/2 = 154.50

_____________________________________________________

= 301.50

_____________________________________________________

22(j) It is stated that the Political Science and Sociology selected by the said candidate were subject to scaling technic. While the raw marks

obtained by him in political science as stated above was 285.50, after applying scaling technic, he was awarded 293.23. Likewise, in Sociology,

the raw marks obtained by him as stated above was 301.50 and after applying the scaling technic, he was awarded the marks 339.50. It was

based on the said scaling technic, the marks of the petitioner in W.P. No. 30885 of 2004, A.B. Natarajan, who originally obtained 1021 marks

out of 1800 on the basis of raw marks, was enhanced to 1045.23 out of 1800 and thereby he secured more marks than his original raw marks.

After adding the marks awarded to him in the oral tests, viz., 150, his marks has become 1195.23, but the last candidate selected had scored

1239.57 marks under M.B.C. category to which he belongs.

22(k). Likewise, in respect of S. Madhavan, the writ petitioner in W.P. No. 17969 of 2004, he selected Geography and History as optional

subjects. It is stated that his papers were sent for third valuation since the difference between first and second valuations was more than 15% and

after third valuation, the nearest two marks were taken into consideration by which he obtained the following marks:

General Studies I : 173.50

General Studeis II : 156.50

Geography I : 187.50

Geography II : 140.00

History I : 174.00

History II : 120.00

The total marks which the petitioner S. Madhavan secured was 951.50 out of 1800 and after applying the scaling system, he secured 952.27

marks. But, the last person selected under B.C. Category got 1032.94 marks whereas the petitioner S. Madhavan who also belongs to Backward

Community, obtained 952.27 marks and stood at 360th rank. Therefore, in respect of the above candidates it cannot be said that by scaling

system they were affected, as they were originally far below in the zone of selection in their respective reserve categories and there is no scope for

them to contend that the scaling system caused prejudice to them.

Point (3):

In respect of other more important point viz., because of irregularities in the answer papers, particularly the answer papers of selected

candidates, the selection has to be rejected for the reason that they contained various marks which are against the notification as well as the

instructions given to the candidates, it is relevant to state the following factual aspects before going into the merits of the same.

23(a). In the instructions to candidates appearing for competitive examinations issued by the TNPSC, in Clause No. 9, it is stated as follows:

Candidates are required to provide themselves with their own pens, ink, blotting paper and instrument boxes. They are permitted to use only

Fountain pen, steel pen and ball point pen using blue or black or blue black inks only.

x x x x x

23(b). In Clause 10 of the instructions it is stated that the candidates shall write answers either in English or in Tamil and should not answer partly

in English or partly in Tamil except in cases of explanation and abbreviations. It is also stated that the answer books of the candidates who write

partly in English and partly in Tamil will be invalidated. Clause 11 of the instructions states as follows:

Candidates should write their answers on both the pages of the answer books supplied to them.

The register numbers should be written only on the front page of the first sheet of the main answer book in the space provided for that purpose.

They should not write their Register number in the additional answer books, graph sheets, maps or in the journal sheets supplied to them two

marks from the total marks will be deducted for violation of this instruction.

The lower part of the left hand pages or if necessary a page or pages of the answer book may be used for any rough work. The rough work

should be crossed through afterwards.

23(c). Clause 14 which prohibits the candidates from writing the register number in any other places, states as follows:

Candidates should not write the register number anywhere except in the space provided for it. They should not write their names or initials

anywhere. While answering order, judgemnt or letter writing questions they should use only the names and addresses given in the question or

general instructions at the top of the question paper Two marks will be deducted for violation of this instruction.

Candidates should not write any irrelevant or impertinent remarks of any appeal or any marks or irrelevant matter including an appeal to the

Examiner for higher marks. The answer books of the candidates who violate this instruction will be invalidated.

23(d). Clause 15 which is relevant is as follows:

Candidate should give the correct numbers of the question or sub-division in their answers. If they fail to indicate the correct question number

or sub-division of a question or if they give the question number in correctly they are, liable to lose marks.

23(e). Clause 22 which is also relevant is as follows:

The application of the candidate who violates any one or more of these instructions or instructions printed on the main answer book or in the

memorandum of admission, will be rejected and or his answer books will be invalidated and or he/she will be debarred for such period as the

Commission considers fit.

23(f). In addition to the above said instructions which are circulated to each of the candidates, certain instructions are given along with hall tickets

in the form of notes which are as follows:

Notes:

The candidates should bring with him/her identification Certificate along with the memorandum of admission (Hall Ticket) to the examination hall

and affix his/her Signature on the backside of the identification certificate on each day of the examination. The identification certificate should be

returned to the invigilator at the end of the last day of the examination.

The candidate''s application has been admitted provisionally subject to verification of the veracity of claims in the application in regard to age,

educational qualification, community, etc. If the information furnished by him/her is found to be not correct his/her application will be liable for

rejection.

Question papers other than language papers will be set both in Tamil and in English except the subjects viz., Agriculture, Animal Husbandry and

Veterinary Science, Anthropology, Civil Engineering, Electrical Engineering, Forestry, Geology, Management, Mechanical Engineering and

Medical Science for which the question papers will be set in English only. The candidates will have the option to answer all the question papers

either in Tamil or in English but no partly in English and partly in Tamil. Any of the answer books written partly in English and Partly in Tamil will be

invalidated. However, the candidates are allowed to specify the technical words wherever necessary in either of the languages. The language

papers should be answered in the respective languages.

Question papers other than language papers will be set both in Tamil and English except in subjects where the medium of instruction is normally

English.

The candidates should not use colour pens, sketch pens, pencils except those permitted in the instructions etc. to candidates for any purpose

including drawing, underlining and high lighting. They should not write their Register numbers anywhere (including additional answer books) except

in the place provided at the top of the front page of the main answer book.

Pagers and cellular phones are not allowed inside the examination hall.

Candidates are not allowed to change the optional subjects chosen in his/her application.

Candidates are allowed the use of battery operated pocket calculator for answering papers of essay type where necessary but they are strictly

prohibited from using them for answering the papers of objective type questions.

23(g). A combined reading of the said instructions along with the notes annexed to the hall tickets makes it clear that Clause 5 of the notes, which

states,

the candidates should not use colour pens, sketch pens, pencils, except those permitted in the instructions, etc. to candidates for any purpose

including drawing, underlining and highlighting

is not actually forming part of the instructions to candidates circulated earlier, but it was given to the candidates at the time of appearing for written

examinations. In the instructions to candidates, except stating in Clause No. 9 that the candidates should themselves provide with their own pens,

ink, blotting papers and instrument box and that they are permitted to use only fountain pen, steel pen and ball point pen using blue or blue-black

inks only, there are no other indications about the use of pencils. In case the candidates fail to indicate correct question number or sub-division of

the question or if he gives incorrect question number, it is stated that they will lose marks as per Clause 15 of the instructions. Therefore, there is no

difficulty to conclude that the notes annexed to the hall ticket particularly, Clause 5 can only be construed to have been included in order to avoid

any unwanted indications to the examiners at the time of valuing the answer books.

23(h). In fact, in Clause 14 of the instructions to candidates, it is made clear that if any irrelevant or impertinent marks or appeals are made to the

examiners, the answer books would be invalidated. In the absence of any prohibition against the using of ordinary pencil, it cannot be said that the

use of pencil for the purpose of drawing or indicating any maps or tables can be construed to be prohibited or to have the effect of invalidating the

answer papers. On the other hand, Clause 5 of the notes which is intended against giving unwanted indications to the examiners can only be read

to mean that it prohibits colour pens, sketch pens and colour pencils. In such view of the matter, the contention of the respondent/TNPSC in the

counter affidavit that the Clause 5 of the notes in respect of use of pens and pencils should be read as dealing with colour pens and colour pencils,

certainly deserves merit and such view cannot be held to be alien or antithesis to the very concept of permitting pens or pencils in the written

examinations. Therefore, the contention that merely because the Clause 5 of the notes to the candidates given along with the hall ticket only states

about ''colour pens and pencils'' and it does not specifically have the word ''colour'' prefixed to the word ''pencils'', and therefore use of pencils

would invalidate the answer papers is not a correct interpretation, and in my considered view, it should be interpreted that the clause prohibits the

use of colour pens and colour pencils and sketch pens.

It is in this background, we have to refer to the report of the second advocate Commissioner. Since in the writ petitions the challenge is in

respect of ultimate selection of 91 candidates, the learned advocate Commissioner was directed to go through the answer papers of 91 selected

candidates and accordingly, he perused 637 answer books. In his report, the learned advocate Commissioner has stated that the candidate with

register No. 519920 has written certain words such as, ''(sic)'' which means '' please turn over (PTO)''. It is also stated by the learned advocate

Commissioner that the word ''PTO'' has also been written. It is seen that the said candidate has made a symbol of ''half moon, cross, Ohm''. The

said candidate has also written answers in blue ink in one paper, Geography-I, it was underlined in black. In one paper, General studies-I, the said

candidate has written the question number wrongly and thereafter altered the same. In the paper, History-I, the first part was written and

subsequently cancelled. The word, ''(sic)'' or ''PTO'' found in the end of each paper cannot be said to be irrelevant or an appeal made to the

Examiner, by construing Clause 14 of the instructions to candidates.

Likewise, under Clause 15 of the instructions to candidates it is only said that if correct question number is not written and incorrect number is

written, the candidate will lose the mark and it does not invalidate the entire answer papers. In one of the papers, the said candidate as stated

above has originally written the wrong question number and subsequently he has altered it. It can never be said to be any indication to the

examiners and it is only a mistake corrected subsequently in respect of question number and the same cannot come under Clause 15 of the

instructions to the candidates. That apart, in respect of the violation about mentioning symbols viz., ''cross, Ohm, half moon'', I am of the view, by

applying Clause 14, the same cannot be construed to be irrelevant marking inasmuch as the candidate has put only the symbols of all religions and

the same cannot be said to be either irrelevant or impertinent marking which is likely to appeal the examiners. The only other defect as seen in the

advocate Commissioner''s report is that the said candidate has written in blue ink and underlined in black ink. It is also clear that this candidate has

not used colour pencil or any other colour pen. In such circumstances, it is not possible to accept the contention of the learned Counsel for the

petitioners that there are violations of instructions to candidates in respect of the said register number and on that ground, the answer scripts ought

to have been invalidated.

The learned advocate Commissioner has indicated that in respect of one register No. 502369, in the answer papers for General Studies-I, he

has left one of the pages as blank and written the word, ''mani'' and one page has been struck off by the candidate and in some of the papers, he

has used pencil. I do not think that there is any gross violation in the said paper.

Again, in respect of register No. 509082, it is stated that the candidate has left the first page blank and he has written in blue ink and

underlined in black ink. As it is stated earlier, in the absence of any bar against using pencil, it cannot be said that in respect of the said answer

paper, the candidate has committed gross violation of the instructions to candidates. In respect of one other candidate with register No. 501827, it

is stated that a mark was found in the answer sheet and again in Mechanical Engineering papers also, at the end of the papers the mark is found.

Again, I do not think that it can be termed as impertinent or irrelevant mark so as to attract the examiner.

On a consolidated and overall reading of the advocate Commissioner''s reports, especially with reference to the paper-wise report that was

given in annexure-II, it is clear that in almost all papers in respect of above said candidates, there was no use of 2 colour pencils or no name of

candidate was written or no marking/margin note was made. In respect of the markings which have been made by him which I have dealt with

earlier, it is found that in some cases, pencils were used and in some of the papers especially in General Studies and General Tamil papers, two

colours were used that is, writing was made in blue or black ink pens and underlining was made with blue or black ink. It is seen that in few cases,

the candidates have written wrong question number first and thereafter, struck it off and written the correct question number. For the reasons I

have stated earlier, there is no prohibition for the use of pencil. The instructions to candidates and the notes annexed to the hall ticket should be

construed to mean that they restrict against the use of colour pencils and any such marking must be treated as impertinent or irrelevant, made with a

view to attract the examiner while valuation and applying the said principle on the facts of the case, based on the exhaustive report submitted by the

learned advocate-Commissioner, I do not see any illegality which would tend to make the entire valuation untenable. The use of ''I'' is common for

the purpose of striking off a line or a page or a paragraph and that cannot be stated to be revealing the identity of the candidate.

In Krishan Yadav and another Vs. State of Haryana and others, it was found on facts that the selection was with dishonest intention for undue

advantage and it was a fraud played by the selection authorities. In fact, the Supreme Court has found that it was a systematic fraud and even a

plea of destruction of records was made. In such circumstances, the Supreme Court while setting aside the entire selection, held as follows:

It is highly regrettable that the holders of public offices both big and small have forgotten that the offices entrusted to them are sacred trusts.

Such offices are meant for use and not abuse. From a Minister to a menial everyone has been dishonest to gain undue advantages. The whole

examination and the interview have turned out to be farcical exhibiting base character of those who have been responsible for this sordid episode.

It shocks our conscience to come across such a systematic fraud. It is somewhat surprising the High Court should have taken the path of least

resistance stating, in view of the destruction of records, that it was helpless. It should have helped itself. Law is not that powerless.

In the above circumstances, what are we to do? The only proper course open to us is to set aside the entire selection. The plea was made that

innocent candidates should not be penalized for the misdeeds of others. We are unable to accept this argument. When the entire selection is

stinking, conceived in fraud and delivered in deceit, individual innocence has no place as ""fraud unravels everything"". To put it in other words, the

entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly, we hereby set aside the selection of Taxation

Inspectors.

On the facts and circumstances of the present case, which I have enumerated above, especially after taking note of the report of the advocate-

Commissioner, it is seen that this is not a case of favouritism, nepotism or corruption and it is a case where instructions are stated to have been

violated. As far as some of the violations of instructions which are in fact found on the facts of the case, there is no reason to decide that those

violations had the tendency of giving any improper or impertinent indications to the examiners.

In Dr. M. Vennila Vs. Tamil Nadu Public Service Commission, , the Division Bench of this Court consisting of P. Sathasivam, J. (as he then

was) and J.A.K. Sampathkumar, J., was dealing with the effect of contents of the prospectus on a candidate and held that the same are binding. If

the prospectus makes it clear that the candidate should make a declaration by signature and if such signature is not made, it was held that such a

mistake cannot be condoned and there is no question of any modification or relaxation of such conditions by this Court while exercising the powers

under Article 226 of the Constitution of India. The Division Bench after exhaustively discussing about various judgments on the issue especially

relating to the legal effect of the contents of prospectus, has ultimately held as follows:

21.... It is clear from the above discussion that it is imperative for either a candidate or a tenderer or a person concerned to furnish full information

as required in order to verify the same by the authority concerned. In the case on hand though particulars have been furnished as pointed out

earlier, in the absence of proper authentication by the persons concerned by affixing their signatures, their applications are liable to be rejected.

The judgment of the Supreme Court in Central Board of Secondary Education Vs. Vineeta Mahajan (Ms) and Another, , which relates to a

case of alleged use of unfair means, the Supreme Court has held that when there is no distinction between mala fide and bona fide possession of

the incriminating material by candidate, candidate found in possession of such papers relevant to such examination which was written on the said

day, inference can be drawn as if the materials were used for unfair means. It has further held that the allegation that the candidate has not actually

used the incriminating papers, is not relevant. The supreme Court has held as follows:

We do not agree with the reasoning of the High Court. The High Court fell into patent error in reading a rebuttable presumption in the language

of the rule. The Rule clearly defines ""the use of unfair means at the examination"" and lays down in simple language that a candidate having in

possession, papers relevant to the examination in the paper concerned, shall be deemed to have used unfair means at the examination. The sine qua

non, for the misconduct under the rule, is the recovery of the incriminating material from the possession of the candidate. Once the candidate is

found to be in possession of papers relevant to the examination, the requirement of the Rule is satisfied and there is no escape from the conclusion

that the candidate has used unfair means at the examination. The Rule does not make any distinction between bona fide or mala fide possession of

the incriminating material. The High Court reasoning, that the candidate having not used the material � in spite of the opportunity available to her

� the possession alone would not attract the provisions of the Rule, in our view, is not borne out from the plain language of the Rule. May be,

because of strict vigilance in the examination hall the candidate was not in a position to take out the papers from the pencil box and use the same.

He very fact that she took the papers relevant to the examination in the paper concerned and was found to be in possession of the same by the

invigilator in the examination hall is sufficient to prove the charge of using unfair means by her in the examination under the Rule.

The said judgment which relates to the use of unfair means has no application to the case on hand since no candidate is stated to have been

involved in unfair means for the purpose of obtaining unjust benefit in the written examinations. The allegations are that in the papers as found to be

against the instructions by the learned advocate Commissioner, certain marks were used and different inks were used and underlining was made

and pencil was used. In the absence of any concrete material to show that the stray instances of using pencils and markings as stated above had the

tendency of influencing the examiners or giving room to say that they were the means for identifying the candidates for the purpose of unjust benefit,

it is not possible to accept the contention of the learned Counsel for the petitioner that the entire selection process should be set aside. It is also

relevant to point out that the selection process in respect of appointment for the year 2000-01 having been commenced much earlier viz., in the

year 2004 and in the absence of very grave situation against the said selection process, it is improper for this Court at this later point of time to

interfere with the selection process. Therefore, there is no difficulty to conclude that the writ petitioners have failed in proving all the points raised

by them.

Now, turning to the relief to be given to the two petitioners viz., A.B. Natarajan in W.P. No. 30885 of 2004 and S. Madhavan in W.P. No.

17969 of 2004, even on that score, they have to fail for the reason that the marks obtained by the selected candidates in the respective categories

and the marks obtained by the said petitioners are nowhere near and consequently, the petitioners are not in the zone of consideration at all and

therefore, this Court is unable to give any relief to the petitioners by way of direction to the TNPSC to consider their case for appointment. It is

true that one of the petitioners viz., A.B. Natarajan got selected in the preliminary examinations and main written examinations and he was called

for oral tests and he also secured 150 marks in the oral tests. Nevertheless, as stated by the learned Counsel appearing for the

respondent/TNPSC, the last candidate selected in the category of MBC viz., T. Jeyaraman scored 1239.57 marks and stood in 76th position in

the overall ranking, while the petitioner A.B. Natarajan, even after applying scaling system only obtained 1195.23 marks with 125 rank. Likewise,

in respect of S. Madhavan who was not even called for oral tests and not selected in the second stage of written examinations got the total marks

of 952.27 after applying the scaling system while he scored 951.50 raw marks. He stood in 360th rank. In the BC category to which he belongs,

the last person selected with serial No. 175 got 1032.94 marks. Therefore, the petitioner S. Madhavan is nowhere near the zone of consideration

in respect of selection for that year. It is therefore not possible to give direction to the TNPSC to consider the said petitioners for appointment.

However, when it is stated by the respondent/TNPSC that at least 48 answer papers of the candidates who have violated the instructions have

been invalidated on the basis that they have used extensively the colour pens, sketch pens and colour pencils in order to identify them to the

examiners, especially in the circumstances that the learned advocate-Commissioner has found that some marks which are not expected to be made

in the answer papers have been made, the respondent/TNPSC should have taken care to prevent such use of signs even though the same may not

be termed as irrelevant. Nevertheless, the TNPSC being the constitutional functionary, entrusted with the avowed object of selecting candidates

for public service ought to be more careful because, it is those candidates selected by the TNPSC who are going to be the valuable officers in the

governance of the State. Certainly, even a minor fault on the part of the TNPSC can have adverse repercussion on the governance of the State in

future. The report of the learned advocate-Commissioner makes it clear that at least in few number of cases the answer papers were not in

accordance with the instructions given and in spite of the same, the TNPSC has taken its own stand that such markings formed no basis for

attracting the examiners.

Needless to state that the TNPSC should be very strict in implementing the instructions given to the candidates since the law is well settled that

the instructions given by the authorities in respect of examinations and selection process including the one given in the prospectus are not only

binding on both the parties, but they are the basis for the selection process and certainly it is not open to one of the parties to turn around and

construe the words in the prospectus in a different manner.

It is also found that the two petitioners, A.B. Natarajan and S. Madhavan have by this time crossed the age limit in participating the

competitive examinations, since the matter has been pending in this Court for nearly five years. Taking note of the same, it is for the TNPSC to give

one more opportunity to the said petitioners to appear for next competitive examinations to be held for Group I by giving necessary relaxation in

respect of age, if so desired by the said candidates and such request for relaxation, if made, should be favourably considered by the TNPSC to

enable them to participate in the examinations once again.

It is not possible to take into consideration the contention of the learned Counsel for the petitioner in W.P. No. 482 of 2005 that presumption

should be drawn that the examinations have been done in improper manner which requires investigation by an authority like, CBI. In the absence of

any relevant material and prima facie case, it is not possible to grant such a relief. Hence, the writ petition in W.P. No. 482 of 2005 filed by the

same candidate for the purpose of investigation and to set aside the selection cannot considered.

In such view of the matter, all the writ petitions are dismissed, however, with direction to the TNPSC to consider the case of the petitioners in

W.P. No. 30885 of 2004 and W.P. No. 17969 of 2004 viz., A.B. Natarajan and S. Madhavan, if they so desire, to permit them to participate in

the next Group I examinations to be conducted by the TNPSC giving necessary relaxation of age limit. No costs.