Ajith Kumar, K.G vs K.P.S.C. and Another

P.N. Ravindran, J.—By a notification published in the Kerala Gazette Extraordinary dated 17-7-2006, the Kerala Public Service Commission, hereinafter referred to as the "Commission" for short, invited applications for appointment to the post of Last Grade Servants in various departments in all the districts including Kottayam District The Petitioner applied for appointment in Kottayam District. His application was entertained and he was called to appear for the written test held on 26-5-2007 at M.M.N.S.S. College, Kottiyam in Kollam District. The Petitioner was allotted Register No. K-113591.

Ext. P-1 certificate issued by the Superintendent of Medical College Hospital, Kottayam on 5-7-1995 establishes that the Petitioner suffers from cerebral palsy. The Superintendent of Medical College Hospital, Kottayam has in Ext. P-1 assessed the Petitioner''s disability as 60%. The Petitioner states that though on an earlier occasion, the District Officer of the Commission at Alappuzha had permitted him to have the assistance of a scribe, his request in Ext. P-5 letter for the assistance of a scribe was not granted and therefore in the examination held on 26-5-2007 he had to answer the questions by darkening the bubbles in the OMR answer script, himself. The Petitioner further states that though he had darkened the bubbles himself, using a pen, he could not correctly enter the register number on his own and therefore he sought the assistance of the invigilator to correctly enter the register number in the space provided for the purpose in the OMR answer sheet. He further submits that though the invigilator had assured him that he would enter the register number in the OMR answer sheet later, in the presence of officers of the Commission, the invigilator did not act as promised. After the written test was held on 26-5-2007, a short list was published on 10-6-2008. The Petitioner was not included therein.

The Petitioner had even before the short list was published, sent Ext. P-6 letter dated 25-3-2008 addressed to the Under Secretary to the Commission stating that as he did not get the assistance of a scribe he had darkened the bubbles in the OMR answer sheet on his own and that taking note of his disability, his name may be included in the ranked list. After the short list was published, he made another request in Ext. P-7 letter dated 23-6-2008 addressed to the Secretary of the Commission. He has in Ext. P-7 stated that he had requested the invigilator to enter his register number in the OMR answer sheet and that the Invigilator assured him that it will be done in the presence of officers of the Commission. He has also stated that he had done well in the examination, that he will become overaged shortly and that taking note of his disability, his answer script may be valued. He also requested that his name may be included in the ranked list at the appropriate place. The Commission considered the Petitioner''s request in Ext. P-7 letter and informed him by Ext. P-8 letter dated 2-7-2008 that as he did not enter his register number in the OMR answer sheet, his answer script was invalidated. Ext. P-8 is under challenge in this writ petition, wherein, the Petitioner seeks the following relief''s:

(i) To call for the records leading to Exhibit-P-8 and issue writ of certiorari or any other writ or order quashing Exhibit P-8 and the proceedings invalidating the Petitioner''s answer paper,

(ii) to issue a writ of mandamus or any other writ or order directing the Respondents to treat the Petitioner''s answer paper in the written test conducted on 26-5-2007 is valid and to value the same and publish the result in accordance of law;

The Commission has filed a counter-affidavit dated 14-10-2008 and an additional counter-affidavit dated 24-11-2008. In the counter-affidavit dated 14-10-2008, the Commission has denied having received the original of Ext. P-5. It is also stated that there is no provision enabling persons with disability to seek the assistance of the Invigilator or of any other person for filling up any of the columns in the answer script or for darkening the bubbles. Relying on the decision of the Apex Court in Karnataka Public Service Commission and others Vs. B.M. Vijaya Shankar and others, and of this Court in W.P. (C) No. 29243 of 2004, it is contended that the Commission was right in invalidating the Petitioner''s answer script. It is stated that in the special instructions issued to candidates along with the question paper booklet and the answer sheet, it had been stipulated that answer scripts of candidates who do not enter the register number or incorrectly enter the register number in the answer script and answer scripts of candidates who do not darken the bubbles completely or who mark the bubbles in a wrong manner, will be invalidated and that the candidate alone will be responsible for the consequences of such non-compliance with the instructions. It is contended that as the Petitioner did not enter his register number in the OMR answer sheet, his answer script was invalidated.

I heard Sri S.K. Balachandran, the learned Counsel appearing for the Petitioner and Sri Alexander Thomas, the learned standing Counsel appearing for the Kerala Public Service Commission. The fact that the Petitioner is a person with disability is not in dispute. Ext. P-3 discloses that on an earlier occasion the Commission had given the Petitioner the assistance of a scribe. Though the Petitioner has a case that he had requested the Commission in Ext. P-5 letter dated 18-5-2007 to provide him the assistance of a scribe, the Commission has denied having received Ext. P-5. The Petitioner has not been able to produce any cogent material to show that the original of Ext. P-5 was in fact sent to the Commission and received by the Commission in time. I am therefore proceeding on the basis that the original of Ext. P-5 was not received by the Commission.

When this writ petition came up for hearing on 28-10-2008, this Court directed the learned standing Counsel appearing for the Commission to ascertain whether the answer scripts of candidates, who appeared for the written test held on 26-5-2007 at M.M.N.S.S. College, Kottiyam are kept separately and whether there is only one answer script in that bundle of answer scripts which does not bear the register number of the candidate. The Commission thereafter filed an additional counter-affidavit stating that the answer scripts of the candidates who appeared for the written test held on 26-5-2007 at M.M.N.S.S. College, Kottiyam are kept separately and that there is no other answer script in that bundle which does not bear the register number of the candidate, except that of the Petitioner. Thereafter, when the writ petition came up on 9-12-2008, this Court directed the District Officer of the Commission at Kottayam to produce the original of the Petitioner''s OMR answer sheet. Later, on 25-3-2009, the Commission was directed to produce the mark sheet relating to the Petitioner in a sealed cover. The mark sheet relating to the Petitioner and the Petitioner''s answer script were made available on 3-6-2009. This writ petition was thereafter adjourned to 9-6-2009. On 9-6-2009 the answer script of the Petitioner and the mark sheet were perused. It was then noticed that the Petitioner had secured 83 marks in the written examination. The learned standing Counsel for the Commission submitted that based on the marks awarded, the Petitioner is eligible to be included in the main list of the probability list that was published on 10-6-2008. When the answer script was perused, I noticed that the Petitioner had not entered his register number in the space provided for the purpose and that the bubbles had not been completely darkened. To me, it appeared that the Petitioner would have struggled to darken the bubbles himself. Though the bubbles have not been completely darkened, the choice of answers is clear.

Form the pleadings and the materials produced before me, it is evident that the Petitioner had not entered his register number in the OMR answer sheet. In paragraph 6 of the special instructions issued to candidates who appeared for the examination held on 26-5-2007 it was stipulated that answer sheets which do not bear the register number or in which the register number has been incorrectly entered, will be invalidated. It is relying on this stipulation that the Commission has invalidated the Petitioner''s answer sheet. On a perusal of the answer sheet, I am also satisfied that the Petitioner has not entered his register number in the OMR answer sheet. Ordinarily, in the case of a person without disability, in the light of the authoritative pronouncement of the Apex Court in Karnataka Public Service Commission and others Vs. B.M. Vijaya Shankar and others, and the decisions of this Court in W.P. (C) Nos. 29243 of 2004 and 34380 of 2008, I would have declined to interfere with Ext. P-8.

In Karnataka Public Service Commission and Ors. v. B.M. Vijaya Shankar and Ors. (supra), the Apex Court considered the question whether the decision taken by the Karnataka Public Service Commission not to value the answer scripts of candidates who had written their roll number not only on the front page of the answer script in the space provided for the purpose, but even In other places in disregard of the instructions issued by the Commission, is arbitrary, in the instructions issued in the said case it was specifically stipulated that the register number and other particulars should be entered only in the space provided for the purpose. It was also stipulated that the candidates should not write their name or register number or affix their signature any where in the answer script or on any loose sheet. These instructions were clearly printed on the first page of every answer script. In the general instructions, it was also stipulated that the candidates must abide by such instructions as are specified on the cover of the answer book or instructions which may be given by the Supervisor/Invigilator and that if the candidates fail to do so or indulge in disorderly or improper conduct, they will render themselves liable for expulsion from examination and/or such other punishment as the Commission may, deem fit to impose. The Apex Court held that the instructions are issued to ensure fairness in the examination and that in view of fast deteriorating standards of honesty and morality, the insistence by the Commission that no attempt should be made to identify the candidate by writing his roll number anywhere is in the larger public interest. The Apex Court noticed that first page of the answer book on which the roll number is written is removed and a fictitious code number is entered to rule out any attempt to identify the candidates. It was held that as the direction not to write the roll number was to ensure fairness in the examination and it was printed on first page of every answer book, if the said instruction is violated, the question whether it was a bona fide and honest mistake did not arise for consideration.

The effect of similar instructions was considered by this Court in W.P. (C) Nos. 29243 of 2004 and 34380 of 2008. In the first of the said cases, the candidate did not darken the bubbles showing the code of the question paper booklet. It was held that as he did not comply with the instructions, his answer script was rightly invalidated. In the second case, the candidate wrongly entered her register number. The register number had to be entered by darkening the bubbles in the space provided for the purpose. The Commission invalidated her answer script. It was held that as the register number was incorrectly entered, the answer script was rightly invalidated. In none of these cases, the question whether the instructions issued to candidates who do not have any disability and are able to comply with the instructions, apply with equal force to candidates who suffer from cerebral palsy and similar motor function disorders. Whether the instructions issued by the Commission in the matter of entering the register number correctly in the space provided for the purpose can apply with full force to candidates suffering from cerebral palsy and similar motor function disorders did not arise for consideration by the Apex Court and this Court. In none of the cases referred to and relied on by the learned Counsel for the Commission, a situation similar to the one in the case on hand had arisen for consideration. The question that arises for consideration in the case on hand is whether the Commission ought to have taken steps to ensure that candidates with disabilities like cerebral palsy are given assistance to correctly enter their register number in the space provided for the purpose in the answer sheet in order to facilitate the realisation of equal opportunity and full participation to persons with disability. Therefore it cannot be said that the issue involved in the case on hand is identical to the issues that were dealt with by the Apex Court and this Court in the decisions referred to above.

The fact that the Petitioner suffers from cerebral palsy is not in dispute. The fact that the Commission had on an earlier occasion provided him the assistance of a scribe is also not in dispute. A mere look at the answer script of the Petitioner would show that it was with great difficulty that he had attempted to darken the bubbles while answering the questions. ''Cerebral Palsy'' is a motor function disorder caused by a permanent, non-progressive brain defect or lesion present at birth or shortly thereafter. It affects the gait and movement of fingers. Quite often, the fingers are also spastic. It causes involuntary movement of the face and the hands. Section 2(c) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 defines the term "cerebral palsy" to mean a group of non-progressive conditions of a person characterised by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, peri-natal or infant period of development. The very same definition is given in Section 2(e) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. A person suffering from cerebral palsy will have no control over his movements or his hands. Resultantly, it would be virtually impossible for him or her to enter his or her register number in the boxes provided for the purpose correctly and without committing any mistake as stipulated in the instructions issued by the Commission. The stand of the Commission is that answer scripts in which the register numbers are not entered or are incorrectly entered are liable to be rejected. Likewise, it is stated that answer scripts wherein the bubbles have not been properly darkened or are incomplete are also liable to be invalidated. These instructions can, in my opinion, apply only to persons without disability, who are in a position to comply with them and not to persons with disability, why by the very nature of their disability would find it impossible to correctly enter their register number within the boxes provided for the purpose or to properly darken the bubbles in the answer script, themselves.

The Parliament enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 more than 14 years back. Section 31 of the said Act provides that all Educational Institutions shall provide or cause to be provided, amanuensis to blind students and students with low vision. Though there is no provision in the said enactment regarding examinations conducted by the Public Service Commissions, having regard to the admitted fact that the Petitioner is a person with disability namely cerebral palsy, the Commission cannot, in my opinion, strictly enforce the special instructions issued by them to invalidate his answer script. Candidates who are blind and candidates with disabilities like cerebral palsy will not be able to perfectly darken the bubbles themselves or to correctly enter the register number in the OMR answer sheet. The stipulation is that if the register number is not entered or is incorrectly entered or if the bubbles are not properly darkened or are incomplete or are wrongly darkened, the answer script will be invalidated. This Court can take judicial notice of the fact that persons with cerebral palsy who cannot hold their hands steady, cannot darken the bubbles perfectly and in the manner prescribed by the Commission or enter the register number in boxes without any error. Therefore, the Commission cannot in my opinion, strictly enforce the special instructions in paragraph 6, in the case of blind candidates or candidates with cerebral palsy. The Commission has not issued any guidelines governing candidates with cerebral palsy though more than a decade has passed after the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted and brought into force. The Commission cannot in my opinion apply the general standards laid down by them in respect of candidates without disability, in the case of candidates with disability. Otherwise, it will not facilitate tine realisation of equal opportunity and full participation to persons with disability in the selection process. Candidates with disability cannot in my opinion, be treated at par with candidates without disability. I accordingly hold that paragraph 6 of the special instructions issued by the Commission cannot operate with full force in the case of blind candidates and candidates with other types of disabilities, who by reason of their disability are not in a position to correctly darken the bubbles or correctly enter their register number on their own, in the answer sheet.

Since the guidelines which apply in normal situations cannot govern persons with disabilities like cerebral palsy, the Commission ought to have in my opinion issued instructions to invigilators to help such candidates to correctly enter their register number in the OMR answer sheet. For correctly entering the register number in the OMR answer sheet, if the Commission provides assistance to candidates with such disabilities or provides them, the assistance of a scribe to answer the questions, it will only be a step in furtherance of the Will of "We the people of India", expressed through the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. In such circumstances, especially having regard to the fact that the Petitioner has secured very high marks, I hold that the stand taken by the Commission in Ext.P-8 cannot be sustained.

In the result, I allow the writ petition and set aside the decision taken by the Kerala Public Service Commission to invalidate the Petitioner''s answer script and the decision communicated to him in Ext. P-8. The Kerala Public Service Commission is directed to include the name of the Petitioner at the appropriate place in the ranked list, if based on the marks secured by him in the written examination and the weightage marks for which he is eligible, he is entitled to be included in the ranked list. If after such inclusion it is found that his turn for advice has already arisen, he shall be advised against the next arising vacancy, subject to the condition that the advices already made need not be disturbed. However, the petitioner shall in that event be given the benefit of first effective advice. Ithis turn for advice has not arisen, he shall be advised when his turn arises, as per the Rules.