Himachal Pradesh High Court
Mukesh Thakur vs State Of H.P. And Ors. on 26 December, 2005
Equivalent citations: 2006(1)SHIMLC134
Author: Deepak Gupta
Bench: Deepak Gupta
JUDGMENT Deepak Gupta, J.
1. The Himachal Pradesh Judicial Service is constituted under the H.P. Judicial Service Rules, 2004 (hereinafter referred to as the Rules). As per Rule 5 of the these Rules, the Civil Judges (Junior Division) are to be appointed on the basis of a competitive examination as well as viva-voce test to be conducted by respondent No. 2-H.P. Public Service Commission (hereinafter referred to as the Respondent No. 2).
2. The respondent No. 2 issued an advertisement inviting applications for filling up 13 vacancies of Civil Judges (Junior Division). The petitioner applied for the said post. The written test was conducted and only five candidates cleared the written test. The petitioner did not clear the written test and was not called for the interview. Thereafter the result of the examination was conveyed by respondent No. 2 to the petitioner. According to this result, he secured a total of 505 marks out of 1100. He had cleared all the subjects except the paper of Civil Law-II in which he has secured 89 marks out of 200 against the minimum pass marks of 90. It was only due to the fact that he had secured one mark less than the pass marks of 90 that he was not called for the interview.
3. The petitioner filed the present writ petition in which his contention was that his Civil Law-II paper has not properly been marked. He prayed that his paper may be called for and perused by the Court and that the respondent No. 2 be directed to get the paper re-evaluated by some examiner and in case the petitioner passes, he should be called for interview and appointed if found successful.
4. The respondent No. 2 in its reply has opposed this petition. The respondent No. 2 further took the stand that in the rules of the Commission there is no provision for re-evaluation and this Court has no jurisdiction to issue directions for re-evaluation of the answer book. Hence the writ petition should be dismissed.
5. We had called for the answer book of the petitioner and perused the same. We were, prima facie, satisfied that the petitioner had wrongly been deprived of his right of being called for the interview. Vide interim order dated 5.10.2005 we had directed the respondent No. 2 to arrange a special interview for the petitioner. This order was however challenged by the H.P. Public Service Commission (Commission for short) before the Supreme Court and there the parties agreed that the writ petition be heard and disposed of expeditiously and accordingly the Supreme Court ordered that our order dated 5.10.2005 need not be implemented by respondent No. 2.
6. We heard the matter in detail on 17.11.2005 and reserved the judgment. During the process of consideration and while perusing the answer book of the petitioner again and again, we formed an opinion and accordingly passed a detailed order on 22.11.2005 which reads as follows:
We had heard arguments in detail and reserved the judgment in the case on 17.11.2005. During the course of dictating the judgment, we again had to go through the answer book of the petitioner in the Civil Law-II paper. As we were in that process, we felt the need to pass the following short order before finally disposing of the matter:
The petitioner had applied for the post of Civil Judge (Junior Division) and had taken the examination conducted by the H.P. Public Service Commission. He secured 524 marks out of 900 in the written test and would have been entitled to be called for the interview but for the fact that in the Civil Law II paper, he has secured 89 marks out of 200, that is one mark less than the pass marks of 90. Therefore, he was not called for the interview.
7. On careful perusal of the answer book of the petitioner in the concerned Civil Law II paper, we prima facie felt that perhaps the style and pattern of marking of the examiner is inconsistent and erratic. On going through the marks awarded to the petitioner for various questions and various parts of various questions, we find that perhaps the examiner has not shown due consistency. With respect to some answers to some questions/parts of questions, the petitioner has been awarded higher marks even though the quality of these answers is inferior to some other answers to some other questions/parts of questions where the petitioner has been awarded lower marks and vice versa. We, prima facie, feel that perhaps in awarding marks there have been inconsistencies as well as error as well as perhaps non-application of mind. After all, we being what we are, it was not difficult for us to see through the marking pattern, inconsistencies and errors therein vis-a-vis the higher/inferior quality of answers attempted by the petitioner. After all, we were not dealing with a subject unknown to us. We were dealing with a subject with which we can claim to be quite well conversant. This is our prima facie and tentative opinion. In other words, our prima facie and tentative view is that the marking is erratic and inconsistent, which may have resulted in the petitioner being dealt with unfairly and unjustly.
8. Before we proceed any further in this matter, we, therefore, feel that it is necessary to get the answer book of Civil Law II of the petitioner re-evaluated by an independent and competent examiner. We, accordingly, direct that answer book of the petitioner along with the question paper of Civil Law II shall be sent in a sealed cover (double sealed) along with a copy of this order to the Controller of Examination, H.R University, Shimla 171 005 with a direction to him to get the same re-evaluated from a examiner of the rank of Professor of Law (if a Professor rank Examiner is not available, an examiner of the rank of Reader in law) in the Himachal Pradesh, University. The Controller of Examiner shall ensure masking of the marks already granted before sending the paper to the examiner. The Registry of this Court shall ensure that the Answer Book along with the question paper and a copy of the order is handed-over to the Controller of Examination, H.P. University on or before 23rd November, 2005 for its onward transmission to the Examiner.
9. We want to make it clear that this order has been passed in the process of the final decision of the case since we feel that before we take a final decision, we must get the answer book of the petitioner re-evaluated from an independent examiner. We have, therefore, yet not dealt with the rival contentions of the parties at the Bar, especially the arguments of Mr. R.L. Sood, learned Senior Counsel appearing for respondent No. 2 regarding the jurisdiction of this Court to have the answer book re-evaluated. The direction given in this order with regard to re-evaluation of the answer book would be without prejudice to the rights and contentions of the parties in this petition. The result of the re-evaluation is also subject to the final outcome of this case.
10. Before parting with this case at this stage, we wish to observe that the result of the petitioner in respect of Civil Law II paper was declared in the first week of September, 2005. The present writ petition was filed on 26th September, 2005. The first order on the petition was passed by us on 3.10.2005. More than 2-1/2 months have since elapsed. In a case of the present nature the period of 2-1/2 months is a long period to approach the Court especially keeping in view the fact that a fresh examination is also being held shortly for the post of Civil Judges (Junior Division) and the Law Graduates, especially Advocates, are supposed to be aware of their rights. It is only those who are diligent and approach the Court in time who can be given relief. For filling up the vacant posts of Civil Judge (Junior Division) fresh process of selection has already begun. Therefore, we direct that in future, under the above referred circumstances, no other petition on same and similar grounds shall be entertained by this Court.
11. The Controller bf Examination shall ensure that the re-evaluated answer book along with question paper is sent back to the Registry of this Court by or before 2nd December, 2005.
12. Let the matter now be listed on 2nd December, 2005.
13. In compliance of this order, the Controller of Examination got the answer-book of the petitioner re-evaluated by a Professor of Law of the H.P. University and on re-evaluation, he has been awarded 119 marks as aguinst 89 marks originally awarded to him. It would not be out of place to mention that the five selected candidates had obtained in aggregate 524, 493, 483, 471 and 494 marks. The petitioner, even prior to re-evaluation, had an aggregate of 505 marks and was second in the written merit. But for the fact that he had not obtained the minimum qualifying marks of 90 in Civil Law-II paper he would have been called for the interview. After re-evaluation, his aggregate goes to 535 marks placing him at number one in the merit list of written examination.
14. It is urged on behalf of Respondent No. 2 that re-evaluation or rechecking of answer books is not permissible and in support of its submission the respondent No. 2 has relied upon the following stipulation in the advertisement notice published by it. It reads as under:
Re-evaluation or rechecking of answer books (scripts) is not permissible nor the Commission enters into correspondence in this behalf.
15. It is the submission of respondent No. 2 that there is no provision in the Rules or the Regulations whereby any candidate is entitled for re-evaluation or rechecking of the answer sheets. In support of this submission, Mr. R.L. Sood, learned Senior Counsel appearing for respondent No. 2 places reliance upon a judgment of Supreme Court in the case of Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna and Ors. .
16. We have very carefully gone through the text of this judgment and find that in this judgment, based on the peculiar facts of that case, their Lordships of the Supreme Court have taken a view that under the relevant Rules of the Bihar Public Service Commission there being no provision entitling a candidate to have his answer-book re-evaluated, direction for the re-evaluation of the answer-book ought not to have been issued by the learned Single Judge of Patna High Court. We have also gone through para 9 of the aforesaid judgment in which the manner in which the learned Single Judge of the Patna High Court had dealt with the answer-book has not been approved by the Supreme Court. In para 5 of the judgment, their Lordships have also noticed that the answer-book in General Science Paper was shown by the learned Single Judge to the Standing Counsel for Patna University, who apparently had a science background and on seeing the answer-book he formed the opinion that the appellant deserves more marks. The answer-book was thereafter sent for re-evaluation by expert Teachers of Patna University through the Principal, Science College, Patna. Two expert Teachers in Physics and Biology belonging to Patna Science College re-evaluated the answer-book and increased the marks from 35 to 63.
17. The following observations in para 7 of the judgment are apposite and we quote :
We have heard the appellant (writ petitioner) in person and learned Counsel for the respondents at considerable length. The main question which arises for consideration is whether the learned Single Judge was justified in directing re-evaluation of the answer-book of the appellant in General Science Paper. Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re-evaluation of his answer-book. There is a provision for scrutiny only wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totaling of marks of each question and noting them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science Paper. In the absence of any provision for re-evaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks. This question was examined in considerable detail in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth . In this case, the relevant rules provided for verification (scrutiny of. marks) on an application made to that effect by a candidate. Some of the students filed writ petitions praying that they may be allowed to inspect the answer-books and the Board be directed to conduct re-evaluation of such of the answer-books as the petitioners may demand after inspection. The High Court held that the rule providing for verification of marks gave an implied power to the examinees to demand a disclosure and inspection and also to seek re-evaluation of the answer books. The judgment of the High Court was set aside and it was held that in absence of a specific provision conferring a right upon an examinee to have his answer-books re-evaluated, no such direction can be issued. There is no dispute that under the relevant rule of the Commission there is no provision entitling a candidate to have his answer-books re-evaluated. In such a situation, the prayer made by the appellant in the writ petition was wholly untenable and the learned Single Judge had clearly erred in having the answer book of the appellant re-evaluated.
18. Whether, in a given fact situation where in the course of hearing of a Writ Petition when the High Court comes across a answer-book of a candidate and on carefully going through the answer-book and the marks awarded to various answers for various questions and various sub-questions the High Court prima-facie finds that the candidate has been unjustly dealt with, in the sense that in the process of awarding marks against each question and sub-question the examiner has acted recklessly, carelessly or irresponsibly and the High Court also in the process of going through the answer sheet finds that on bare perusal of the answers there has been inconsistency in the marking of questions by the examiner, merely because in the Rules or Regulations there is no stipulation for re-evaluation or rechecking of the answer-sheet, is the High Court precluded from ordering the re-evaluation of the answer-sheet? Nowhere in the aforesaid judgment have their Lordships held that in a situation where the High Court is itself satisfied that a case for re-evaluation is made out and the High Court is also satisfied that if the re-evaluation is not done, injustice would be meted out to the Writ Petitioner, merely because the Rules or the Regulations do not contain a stipulation about re-evaluation, the High Court should not order such re-evaluation. If the High Court notices that the petitioner has been dealt with unjustly and there is arbitrariness leading to injustice in the marking of the paper should the High Court be a mute spectator and not intervene in the matter? The ratio in Pramod Kumar Srivastava (supra) does not suggest the aforesaid line of thinking but it clearly suggests that a candidate of his own is not entitled to ask for re-evaluation. Not only that, the manner in which the Single Judge of the Patna High Court in the aforesaid case dealt with the re-evaluation process, especially the facts which have been spelt out in paras 5 and 9 of the judgment clearly lend credence to our view that their Lordships were not dealing with the aspect relating to the exercise of jurisdiction by the High Court in a given fact situation where the High Court itself is convinced that the ends of justice would be defeated if re-evaluation is not ordered.
19. There can be situations where the High Court after carefully perusing the answer sheet is of the firm opinion that the examiner has not been fair to the examinee and that the answers have ex-fade not been properly marked or evaluated and that by applying the well established norms of fair play the answer sheet requires re-evaluation by another examiner or two or three examiners to do justice to the examinee-petitioner.
20. In the present case what we found on a perusal of the answer book with reference to the question paper was that indeed the examiner has been inconsistent in the style of his marking and awarding marks to various parts of the questions. Actually we can categorically state that the respondent No. 2 perhaps itself was not very careful and did not exhibit a reasonable sense of responsibility in ensuring that even the question paper was properly set up. We have seen in the question paper various errors and mistakes including printing errors and found ourselves dismayed by the situation. For example, we quote hereinbelow certain parts of the question paper to clearly demonstrate the manner in which the examiner showed his irresponsibility in drafting the questions and the Commission showed its indifference in ignoring the patent mistakes or printing errors in the question paper.
Just a few examples :
Q.5(c) Rohit files a suit against Mohit for recovery of possession of house 'X' on the ground that he is the owner of the House 'X'. While the suit is pending, Gautam transfers house 'X' to Baldev. Ultimately, the Court grants a decree in favour of Rohit. Is this decree binding on Baldev ? Discuss.
Q.8 (a) Describe the various modes of vacancy of building under H.P. Urban Rent Control Act.
(b) State the circumstances when a tenant can be exonerated from his liability of ejectment on the suit of a landlord on the ground of default in the payment of rent.
21. A perusal of Question No. 5 (c) above clearly shows that the question is incomplete. The question itself makes no sense since it is not shown in what capacity Gautam has dealt with the house "X". In question 8 (a) it is clear that the language used is incorrect. There is no question of vacancy of building but the question if properly framed should have read as follows :
Describe the various modes of eviction of a tenant from a building under the H.P. Tenancy and Land Reforms Act?
Similarly, Question 8(b) is also not couched in proper language. There are many other mistakes in the question paper itself.
22. We perused answer to Questions No. 5 (a) and 5(b) and found that the petitioner has attempted both these answers correctly and the answer to Question No. 5(b) was as complete as it could be. Despite the petitioner having attempted a better answer to Question No. 5(b) than the answer to Question No. 5(a), the petitioner has been awarded 6 marks out of 10 in answer to Question 5(b) whereas he has been awarded 8 marks in answer to Question No. 5(a). Similarly in answer to Questions No. 8(a) and 8(b) the petitioner has fared better in attempting an answer to Question No. 8(b) rather than answer to Question No. 8(a) and yet he got 4 marks out of 10 marks in answer to Question No. 8(b) whereas he got 5 marks out of 10 marks in answer to Question No. 8(a).
23. It was only after noticing these glaring mistakes and inconsistencies in the marking that we passed the order dated 22.11.2005 quoted hereinabove. After the re-evaluation, the petitioner has been awarded 30 more marks in Civil Law-II paper. This is a very substantial increase. This has also fortified our prima facie view that the petitioner was dealt with in unjust and arbitrary manner and the marking done by the First Examiner was erratic. Now in answer to question 5(a), the petitioner has been awarded 9 marks and in answer to question 5(b), he has been awarded 8 marks. The petitioner had been deprived of his chance to appear in the interview only by reason of the fact that he had secured one mark less than the pass percentage. On going through the answer book, we had formed the prima facie opinion that he deserved more marks. Unlike the facts in Pramod Kumar Srivastava's case (supra), here we are dealing with a paper of Civil Law II. We think that we ourselves also, on our own, are reasonably equipped and trained to gauge and assess the answers attempted by the petitioner yet we only formed a prima facie opinion as has been reflected in our earlier order and decided to send the paper for re-evaluation to a fresh examiner. The massive increase in marks during the course of re-evaluation has strengthened our initial opinion.
24. The apex Court in L. Chandra Kumar v. Union of India and Ors. , held that the power of judicial review vesting in the High Courts under Article 226/227 of the Constitution and in the Supreme Court under Article 32 is part of the basic structure of the Constitution. When the power of judicial review is the part of the unalterable basic structure of the Constitution and a glaring error is pointed out which is apparent on the face of the record, then can the jurisdiction of the Court be shut out by a mere stipulation in an advertisement issued by the Commission (stipulation not originating from any statutory rule or regulation) that re-evaluation or re-checking is not permitted? This stipulation may be binding between the petitioner and the respondent No. 2, if at all, but when it comes to the Court, the Court has the right to get the paper re-evaluated. Obviously this cannot be done in every case on the mere asking of the petitioner. Each case will have to stand on its own footings and if in any given situation the petitioner can show that apparently the marking is inconsistent or erratic then the Court can interfere. Therefore, the contention of the respondent No. 2 that this Court has no jurisdiction to order re-evaluation of the paper is rejected.
25. In view of the above discussion and in view of the fact that now the petitioner after re-evaluation has qualified in the paper of Civil Law-11 also the writ petition is allowed and we direct that the respondent No. 2 shall interview the petitioner on or before 10.1.2006. In case, the petitioner is successful, the respondent No. 2 shall issue his order of appointment. It has been brought to our notice that our order dated 22.11.2005 is under challenge before the Apex Court. However, no stay order has been produced till date and we heard this matter in view of the earlier order of the Supreme Court that the writ petition should be disposed of as expeditiously as possible. Keeping in view the fact that the order dated 22.11.2005 is under challenge in the Apex Court, we direct that respondent No. 2 shall not issue the appointment letter to the petitioner in case he is successful till 20th January, 2006, so as to permit the respondent No. 2 to obtain necessary orders from the Apex Court, in the meanwhile.
26. Before parting with the case we may record that Mr. Rajiv Sharma, Senior Advocate on instructions of the petitioner who was present in person at the time of hearing has undertaken that in the event of the petitioner being appointed to the H.P. Judicial Service as Civil Judge (Junior Division) he would not claim seniority or any other benefit over and above the five candidates who already stand selected and appointed by respondent No. 2 Commission and have already joined service. We accept this undertaking and order accordingly.
27. The original answer sheet, the question paper and the other record, including the fresh marking done through the Controller of Examinations, Himachal Pradesh University are returned to Mr. K.L. Sood, learned Senior Counsel appearing for the Commission with the directions to the Commission to keep this record in safe custody at least for a period of one year from today or longer if required or directed by any Court.
28. With these aforesaid directions, the writ petition is disposed of. No costs.