Calcutta High Court (Appellete Side)
The West Bengal Central School Service ... vs Ujjal Mondal & Ors on 23 August, 2024
Author: Harish Tandon
Bench: Harish Tandon
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE PRASENJIT BISWAS
MAT 1847 of 2022
With
CAN 2 of 2023
The West Bengal Central School Service Commission & Ors.
Vs.
Ujjal Mondal & Ors.
Appearance:
For the Appellants Mr. Sutanu Kr. Patra, Adv.
(WBCSSC) : Ms. Supriya Dubey, Adv.
For the Writ Petitioners/Respondents :Mr. Debabrata Saha Roy, Adv.
Mr. Indranath Mitra, Adv.
Mr. Neil Basu, Adv.
Mr. Sankha Biswas, Adv.
Judgment On : 23.08.2024
Harish Tandon, J.:
The dispute pertains to the decision of the West Bengal Central Schools Service Commission in re-evaluating the answer scripts under the pretext of the scrutiny in terms of the resolution taken by the Committee constituted by the said Commission on 31st December, 2009. Before we 2 proceed to decide the points urged in the writ petition as well as in the instant mandamus appeal, it would be relevant to narrate the undisputed facts emerged from the respective pleadings of the parties and the submissions made thereupon.
The Education Department of the State of West Bengal published the notification dated 28.12.2011 notifying the vacancies to the post of an Assistant Teacher in several secondary schools in the respective Districts all over the State of West Bengal. The said recruitment process is commonly known as the 12th Regional Level Selection Test and a brochure was also published containing an exhaustive information relating to the manner, procedure and the scope of the selection of the person to such post in terms of the provision contained in West Bengal School Service Commission (Selection of persons for appointment to the Post of a Teacher) Rules, 2007 as amended from time to time. The petitioner offered his candidature and was issued a provisional admit card to appear in the written test in Section A and Section B on 29th July, 2012. The Commission uploaded the results in its website and it would appear therefrom that the respondent qualified in Section A (Part II) Examination by getting a qualifying marks. Despite having obtained the qualifying marks, the respondent was not called for the personality test which constrained him to cause a letter dated 12.08.2013 to the Chairman of the said Commission, Northern Region to intimate the marks awarded to the petitioner in Section B examination and also to hand over the answer scripts of the said examination. The aforesaid letter was issued under the Right to Information Act which was duly replied by the Commission that unless the merit list is finalised such information cannot 3 be given. Subsequently, another application under the Right to Information Act was taken out seeking an information in the form of a query which was duly replied to by the competent authority wherefrom it appears that the respondent got 16 marks in academic and 39 marks in subject test aggregating 55 marks whereas the last candidate who was called for personality test acquired 56 marks. Subsequently, the respondent applied for supply of the answer scripts upon deposit of the requisite fees in terms of the right conferred in the said notification and/or brochure and on perusal of the answer script so supplied, it is revealed that the marks awarded by the examiner was subsequently changed or there appears to be a overwriting without any signature or the initial which led the petitioner to approach this Court with the writ petition challenging the procedures so adopted.
A plea was taken by the Commission that in 396th Meeting of the said Commission held on 31st December, 2009, it was unanimously decided that the answer scripts of the candidate examined by the examiner shall be scrutinised by a scrutiniser for the purpose of checking the marks of each answer and its posting in the top sheet who was further authorised to make correction for any over-marking/under-marking to any answer, if so required. It was thus contended that by virtue of the said policy decision taken before the notification issued for 12th Regional Selection Test, the scrutiniser can re-evaluate the answers and may alter the marks awarded by the examiner and necessary corrections in the top sheet has been undertaken which would further be evident that the scrutiniser has put his signature on the front sheet of the answer script.
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The petitioner challenged the said resolution being contrary to the law and the regulations governing the field on the premise that the Commission cannot alter the Rules or Regulations framed in conducting the examinations and adopt the procedure for recruitment to the post of an Assistant Teacher in the different secondary schools situated in several Districts of the State of West Bengal. The Single Bench in the impugned judgment and order held that the said resolution, more particularly, Clause 10 (a) thereof is contrary to the provisions contained in the relevant statute and the Rules i.e., the West Bengal School Service Commission Act, 1997 and West Bengal School Service Commission (Selection of persons for appointment to the Post of Teachers) Rules, 2007 and declared the same to be ultra vires. Since the petitioner initially secured more than 56 marks which was a cut off marks for the purpose of personality test passed various directions relating to the appointment of the Respondent no. 4 with the consequential effects in the following:
"46. In view of the foregoing discussions and reasons the respondent authorities/the appointing authorities are, therefore, directed to carry-out the following directions:
a. The petitioner shall receive an appointment to the Post of Assistant Teacher in the District at Malda, for the subject for which he had applied for.
b. The appointment shall be given to the petitioner w.e.f.
the same day when the last candidate had received his/her appointment as an Assistant Teacher at the District Malda for the subject the petitioner applied for 5 in the relevant selection process. Such appointment shall be made in accordance with law forthwith and positively within a period of three months from the date of communication of this judgment and order.
c. The petitioner must be granted all the service benefits w.e.f. his date of appointment in every respect and head attached with the service including all the arrear benefits in every respect relating to his service benefit taking into account that the appointment of the petitioner, as if, took place on and from the day when the last candidate was appointed as an Assistant Teacher for the subject at the District Malda under the relevant process for which the petitioner applied for. d. The entire arrear dues payable to the petitioner from the date of his appointment, as directed above, relating to his salary and allied monetary benefit with whatever enhancement, if any, took place from time to time till date as was applicable for the said last selected candidate in the said relevant selection process as stated above, shall be released and paid to the petitioner forthwith and positively within a further period of three months from the date of issuing the necessary appointment letter/confirmation to the petitioner.6
e. On account of any enhancement in respect of the financial benefits attached to the relevant service as was given to the said last candidate selected in the relevant selection process must be granted to the petitioner and must be reflected in his service record so that he becomes eligible to receive all such benefits and/or connected benefits at the time of his superannuation/retirement.
f. The current salary and all other benefits as applicable to the petitioner following the directions made above shall be released and paid to the petitioner regularly after his appointment, in accordance with law. All the necessary formalities before the statutory authorities relating to the employment of the petitioner connected with service, which are the responsibilities of the state employees shall immediately be carried out and completed simultaneously with his appointment. g. In the event no immediate vacancy is available in the District Malda at the post of Assistant Teacher for the subject the petitioner applied for, the respondent authorities shall be at liberty to appoint the petitioner as an Assistant Teacher for the subject he had applied for in any other District of the State preferably adjacent to District Malda, subject to the directions made above. 7 The West Bengal Central School Service Commission challenged the said order in the instant mandamus appeal taking a multiple ground including the scope and the manner in which the scrutiny is undertaken with an avowed object of adopting a fair, transparent and impartial decision in conducting the selection process.
Mr. Sanyal, the learned advocate for the appellant vehemently submits that the Commission in its resolution dated 31 st December, 2009 resolved to make scrutiny of the answer scripts by the scrutiniser who was further empowered to re-evaluate the answer scripts and correct the marking of the examiner which in fact, has been done in the instant case. It is further submitted that the said policy decision was in vogue at the time of the notification dated December 28, 2011 and, therefore, it was within the competence of the Commission to adopt such procedure which cannot be impinged. Mr. Sanyal would further submit that Rule 14 of the said Rules, 2007, containing the provisions relating to duties of the Central Commission in regard to the selection of the persons to the post of teachers conferred right upon the Commission to render necessary assistance to the Regional Commissions in the evaluation of the written examination and the academic qualification. The corresponding obligation of the Regional Commission would be evident from Rule 15 thereof conferring the duties to make necessary arrangement not only for conducting the examinations but also evaluation of the answer script as directed by the Central Commission. Taking a shelter under the aforesaid provisions of the Rules, Mr. Sanyal would further submit that the manner, procedure and the mechanism in conducting the said selection test was adopted in the meeting dated 8 31.12.2009 wherein Clause 10 (a) contained the exhaustive mechanism to review the process of the examinations and the answer scripts to be re-
evaluated through a scrutiniser which cannot be said to be contrary to the Rules or the powers conferred therein and, therefore, the finding of the Single Bench warrants interference. Mr. Sanyal further submits that the scrutiniser has meticulously gone into the answers and the marks given to each of the questions and found in some cases an over-marking and in some cases under-marking and accordingly, awarded the marks on re-evaluation which would be reflected in the top score sheet of the answer scripts duly signed by the said scrutiniser. Mr. Sanyal vociferously submits that the absence of an initial in every alteration in the marks cannot be said to be fatal if the top score sheet contained such altered marks duly signed by the scrutiniser. Mr. Sanyal arduously submits that the notification dated 28 th December, 2011 eventually reflects that the qualification and the procedure in conducting the examination shall be in accordance with the provisions contained in the recruitment Rules as amended from time to time and, therefore, such procedure having adopted by the Central Commission in its meeting dated 31st December, 2009 cannot be said to be beyond the scope of the provisions of the relevant Rules and, therefore, there is an infirmity in the impugned judgment in holding that the said resolution is contrary to the Act as well as the Rules applicable in this regard. Lastly it is submitted that the Writ Court cannot substitute itself in place of an examiner who has the academic qualification and expertise in the field and should have rejected the writ petition.
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Per contra, Mr. Saha Roy appearing for the writ petitioner/respondent submits that the said resolution dated 31 st December, 2009 taken by the Central Commission is apparently and evidently contrary to the provision of the statutes and the Act framed by the State Government and there is no infirmity in the impugned judgment in arriving at the conclusion that the same is ultra vires. Mr. Saha Roy vociferously submits that Section 7 of the Act 1997 makes imperative on the Regional Commission to select the person for appointment to the post of teachers in the school within its territorial jurisdiction and the manner, procedure and the scope of the selection of the persons shall be such as may be prescribed by regulations. According to Mr. Saha Roy, the Central Commission was entrusted to monitor, supervise, control and coordinate with of the Regional Commission and to advice the State Government on such matter as may be referred and, therefore, the Regional Commission has to act as subservient to the Central Commission and no power has been conferred to take an independent decision de hors the Central Commission. Section 17 is the repository of the powers to make Rules by the State Government in relation to the manner and the scope of selection of the persons for appointment to the post of a teacher and in exercise of such power, the Rule of 2007 was promulgated. According to Mr. Saha Roy, the said Rule of 2007 has a statutory force and, therefore, the authorities cannot act contrary thereto or transgress the provisions contained therein in conducting the examination and adopt a procedure inconsistent therewith. By referring Rule 12 (vi) of the Rules, 2007, Mr. Saha Roy would submit that the moment the evaluation of the answer sheet of the written examination is complete, it is obligatory on the part of the Regional 10 Commission to prepare a subject wise, medium wise, category wise and gender wise list of the candidates who are qualified to undergo with the personality test on the basis of the marks obtained in the written examination and thereafter, the final merit list shall be published, which does not provide for any review and/or re-evaluation of the answer by the scrutiniser. Mr. Saha Roy strenuously submits that the purported resolution taken by the Central Commission for scrutiny of the answer scripts through a scrutiniser is directly and substantially in violation of Rule 12 and, therefore, the Single Bench has rightly held that the said resolution is ultra vires to the Act as well as the Rules. It is further contended that the purported resolution taken by the Central Commission is manifestly infirm in view of Rule 3 (4) (c) of the Act 1997 providing for an inclusion of the Chairman of the Regional Commission as an Ex-officio member which does not appear to be so from the purported resolution. Mr. Saha Roy relies upon a judgment of the Apex Court in case of S.L. Sachdev & Anr. vs. Union of India & Ors. reported in (1980) 4 SCC 562 for the proposition that if any directions or the decision taken by an authority appears to be inconsistent with the recruitment Rules it shall be regarded as bad having taken beyond the said statutory provision. It is thus submitted that the stand of the authorities does not confirm to the statutory provisions contained in the Act as well as the Rules and, therefore, there is no illegality committed by the Single Bench in declaring Clause 10 (a) of the said resolution as ultra vires.
Before we proceed to determine the point urged in the instant mandamus appeal, it is profitable to recapitulate the various provisions of 11 the Act and the Rules framed thereunder as applicable in the instant matter.
The West Bengal School Service Commission Act, 1997 was enacted to provide for the Constitution of the Regional School Service Commission and Central School Service Commission in the State not only for managing and administering the schools imparting educations within the State of West Bengal but also recruitment and the selection of the eligible candidates including the mode of selection thereof in fair and reasonable manner. The Central Commission is an apex body under the said Act to supervise and monitor the duties and the functions of the Regional Commission divided into 7 regions. So far as the appointment of the teachers in the different schools set up in the regions, it is obligatory on the Regional Commission to select the persons for appointment to the post of the teachers and the schools situated within its territorial jurisdiction. Section 8 of the said Act provides for the manner and the scope of the selection of the persons to such posts as may be prescribed and the procedure in conducting such business of the Commission shall be on the basis of the provisions contained in the Regulations. Section 17 conferred power upon the State Government to make Rules which includes manner and scope of selection of persons for appointment to the post of the teachers under sub-Section (1) of Section 8. The power to make regulation is further evident under Section 18 thereof. Pursuant to the Rules making powers conferred under Section 17 of the said Act, the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers), Rules, 2007 was framed and notified in the Calcutta Gazette (Extraordinary) on 26th September, 12 2007. Rule 3 of the said Rules, 2007 mandates the appointment of the person to the post of a teacher by way of selection through a Regional Commission in terms of Rule 7 thereof which further provides thus:
7. Manner of selection of Teacher. - (1) Selection to the post of the Teacher shall be made on the basis of the results of the Regional Level Selection Test comprising written examination conducted by the Central Commission, evaluation of qualifications and personality tests of the candidates in the manner as specified in Schedule II.
(2) The Cențral Commission may, in its discretion, fix qualifying marks, to be scored by the candidates, in written examination or in aggregate or, in both and relax the qualifying marks on reasonable grounds for reasons to be recorded in writing.
Rule 12 of the said Rules which has assumed a seminal seat in the arguments advanced by the respective Counsels are quoted under:
12. Selection of candidates and preparation of panel for the posts of Assistant Teacher. - (1)The Secretary of every Regional Commission shall arrange for proper custody of all form of applications which may be received by it against the vacancies within its territorial jurisdiction (2)All Regional Commissions shall prepare a list of eligible candidates and shall forward a copy each of the application forms received by them within their territorial jurisdiction to the Central Commission for the purpose of preparation of a computer generated database of all the candidates of the State and issuance of admit cards for written examination.
(3) The Regional Commission shall arrange written examination under the supervision and control of the Central Commission. (4) The Central Commission shall determine number of papers for written examinations, contents of each paper, duration of examination and other matters relating to the Regional Level Selection Test.
(5) The Central Commission shall decide the procedure and the manner of conducting the Regional Level Selection Test by the respective Regional Commissions, and shall issue detailed instructions in this regard in accordance with the provisions of the Act and the rules made thereunder:
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Provided that the Central Commission shall hold a meeting with the Chairpersons of the Regional Commissions before the instructions are issued.
(6) After the evaluation of the answer sheet of the written examination, each Regional Commission shall prepare a subjectwise, mediumwise, categorywise and genderwise list of the candidate, who shall be qualified for personality test on the basis of the marks obtained by him in the written examination and evaluation of academic qualification (to be calculated on the basis of statement made in regard to academic qualification by a candidate at the time of submission of the application form) taken together:
Provided that the number of qualified candidate to be called for the personality test shall not exceed 1.5 times the nụmber of actual vacancies published at the time of declaration of the result of written examination Provided further that if the marks at the last position of the qualified list of candidates shall be same for more than one candidate, all such candidates at that position shall be called for the personality test. (7) After preparation of the list of qualified candidate, each Regional Commission shall call the candidates for personality test through registered post or speed post mentioning the date, time and venue of personality test:
Provided that the candidate can also obtain such information through the website of the Commission and from the Offices of Central Commission and the concerned Regional Commissions। (8) Each Regional Commission shall, on the basis of the marks obtained in the written examination, evaluation of the academic qualification as stated in sub-rule (6) and marks obtained in the personality test, all added together, and on the basis of the guidelines issued by the Central Commission prepare-
( a) a panel of candidates found fit for appointment to the posts of Assistant Teacher, strictly in order of merit and each such panel shall include names equal to the number of vacancies referred to in sub-rule (1) of rule 8. and
(b) a waiting list:
Provided that there may be separate mediumwise, subjectwise, categorywise or genderwise sets of panel or waiting list, as may be necessary, for Pass or Honours/Post-Graduate category of vacancies, as may be decided by the Central Commission from time to time. (9) If more than one candidate obtain the same aggregate (total marks) the merit position of the candidates shall be determined 14 according to their date of birth, i.e. candidates with earlier date of birth shall be preferred and if the aggregate and date of birth shall also be same, the candidates obtaining higher academic score shall be preferred and if the aggregate, date of birth and academic score shall be same, the candidates obtaining higher marks in written examination shall be preferred.
(10)The Central Commission shall publish such panel and waiting list of candidates in the website of the Commission, the Offices of the concerned Regional Commissions as well as the Offices of the respective District Magistrates. 13. Selection.
Sub-rule (6) of Rule 12 makes imperative that after the evaluation of the answer sheet of the written examination, the list in the manner as intended therein is required to be prepared by the Regional Commission for the purpose of personality test by calling the qualified candidates 5 times for each vacancy as published. The Commission was taking a shelter under Rule 14(2) Clause (v) conferring a power upon the Central Commission to render assistance to the Regional Commission in evaluation of the written examinations and academic qualifications which is binding upon the Regional Commission under Rule 15 (iii) thereof. Rule 14 and 15 are quoted as under:
14. Duties of the Central Commission in regard to selection of persons to the posts of Teachers. - Save as otherwise provided under these rules, the Central Commission shall, in the process of the written examinations and personality tests to select persons for appointment to the posts of Teachers, determine the scheme and syllabus of the examination, prepare question papers and distribute it to the examination venues through the custodian appointed by the concerned Regional Commissions and for the purpose, it shall
(i) appoint paper-setters, moderators and observers:
(ii) approve the lists of regionwise examiners and experts on the basis of the recommendations of Regional Commissions or otherwise;
(iii) fix the rates of remuneration for paper-setters, moderators, experts, co-ordinators and all other persons concerned with the conduct of examinations;15
(iv)determine the format of application along with brochure and mode of distribution thereof;
(v)render necessary assistance to Regional Commissions in the evaluation of written examination and academic qualifications including professional qualifications:
(vi) render assistance in the preparation of final lists for personality test as and when found necessary;
(vii) determine the language or languages in which the candidates shall write answers in any written examination;
(viii) do such other act as may be necessary for proper conduct of written examination.
15. Duties of the Regional Commission in regard to selection of persons in the posts of Teachers. - Save as otherwise provided in other provisions of these Rules, each Regional Commission shall, in the process of selection of Persons for appointment to the post of Teachers, perform the following functions:
(i) to select the examination centres;
(ii) to appoint Officer-in-Charge for examination centres, custodian of confidential papers, supervisors, venue-in-charge, invigilators and examiners;
(iii) to make necessary arrangements for the conduct of examinations and evaluations of answer-scripts as may be directed by the Central Commission;
(iv) to constitute Personality Test Boards consisting of the members as specified in Schedule IV for interviewing candidates declared qualified for personality test;
(v) to recommend the name of one candidate along with his details to the appointing authority for appointment against each vacancy reported on the basis of the final merit list and after selection of a School or Madrasah, as the case may be, by the candidate through counselling;
(vi) to do such other act as may be directed by the Central Commission.
Such being the relevant provisions of the statute whether the Resolution dated 31st December, 2009 taken by the Central Commission, in adopting the mechanism of scrutinising the answer scripts by a scrutiniser in the garb of a re-evaluation runs counter to the duties and powers 16 conferred upon the respective Commissions, is required to be determined upon the aforesaid provisions. For the purpose of record, we have made it clear that though Mr. Saha Roy has taken a plea that the resolutions taken by the Central Commission is bad, invalid and infirm because of the coram non judice or defect in the coram but we do not find any foundation in the pleading in this regard. It was contended by Mr. Saha Roy that Section 3 (4)
(c) of the Act provides that one of the members should be from amongst the Chairman of the Regional Commission but we do not find from the members present in the said meeting any such designation shown to the members present therein and, therefore, in absence of any specific pleading we do not delve to go into such aspect and treating the said resolution to have taken by the Central Commission within its competence.
The combined reading of Section 7 and 8 of the Act, 1997 leaves no ambiguity in our mind that it is a primary duty and the function of the Regional Commission to select the persons for appointment to the post of a teacher in the schools within its territorial jurisdiction and while embarking the journey in discharging such solemn duty and the function, the Section 8 has to be strictly followed which relates to the manner and the scope of selection of the persons to the post of a teacher as may be prescribed. Section 17 is the rule making power and sub-Section (1) (d) relates to the manner and scope of selection of a person for appointment to the post of a teacher. Thus, it is evident that the manner and the scope of selection to such posts is the statutory duty of the Regional Commission but on the basis of the Rules framed by the State Government in this regard. The 17 moment the Rule is framed in exercise of a rule making power, it has a statutory force and the provisions made therein are to be strictly adhered to.
The Rule 2007 was framed by the State Government containing the exhaustive provision relating to the manner and the scope and selection of the teachers in the respective schools on the basis of a regional level selection test comprising of written examination, evaluation of the qualifications and the personality test of the teachers, strictly in terms of scheduled II appended thereto. It is quite evident that the notification for the said regional level selection test dated 28th December, 2011 expressly indicated that the said test would be conducted as per the Rules of 2007 as amended from time to time and, therefore, the authorities cannot wriggle out of the provisions of the said Rules. Rule 12 of the said Rules, 2007 exhaustively contained the manner and the procedure of such said selection test wherein the sub-Rule (6) provides for the evaluation of the answer scripts and the follow up action to be done by the Regional Commission. Our endeavour has failed to find out any powers conferred upon the Central Commission as well as Regional Commission either in the Act or in the Rule as referred above to contain the provision relating to a re-evaluation or a scrutiny after the evaluation of the answer sheets by the examiner appointed and/or selected by the Central Commission. We find that in absence of any power conferred upon the Central Commission or the Regional Commission to adopt the procedure of re-evaluation or scrutiny under the relevant statute, any act or thing done contrary thereto is liable to be impinged and, therefore, there is no infirmity or incongruity in the decision of the Single 18 Bench in declaring such resolution ultra vires to the Act of 1997 and the Rules 2007.
Even the Apex Court in S.L. Sachdev (supra) held that any decisions or the directives which is inconsistent with the Rules is invalid and be termed as having done in excess of the jurisdiction in the following:
"13. Apart from this consideration, we are unable to understand how the Director General could issue any directive which is inconsistent with the Recruitment rules of 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution. Those Rules do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new Organisation. It may be recalled that the recruitment Rules only provide for a classification on the basis of the length of service in the new Organisation. Any directive which goes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction. No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309. That is elementary. We are unable to accept the learned Attorney-General's submission that the directive of the Director General is aimed at further and better implementation of the Recruitment Rules. Clearly, it introduces an amendment to the Rules by prescribing one more test for determining whether UDCs drawn from the Audit offices are eligible for promotion to the Selection Grade/Head Clerks Cadre."
For the argument's sake if we consider that the said resolution is in fact a policy decision and there is no embargo in the Act or the Rules framed 19 therein in adopting such mechanism, let us test whether the scrutiny as contemplated therein would invite the course adopted by the Commission. There is no definition of the "scrutiny" nor the language used in Clause 10
(a) (iii) defines the word "scrutiny" and therefore, its meaning has to be gathered from the context in which it is used. In an identical situation, the Apex Court in Promod Kumar Srivastava vs. Chairman, Bihar Public Service Commission, Patna & Ors. reported in (2004) 6 SCC 714, discussed the scope of scrutiny vis-a-vis the re-evaluation of the answer scripts. It is held that the scrutiny cannot be equated with re-evaluation of the answer scripts but should be restricted only to check whether all the answers have been given a marks and there is any mistake on the part of the examiner in not giving marks to any such answers and all the marks have been correctly reflected in the top score sheet and the total aggregate have been correctly done in the following:
"7. 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 totalling of marks of 20 each question and noting them correctly on the first cover page of 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 and another V. Paritosh Bhupesh Kurmarsheth and others AIR 1984 SC 1543. 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 21 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." It is thus evident from the above report that in absence of any provision for re-evaluation, the scrutiny has to be restricted only to the extent of verifying whether all the answers have been evaluated and the marks awarded by the examiner is correctly incorporated in the top score sheet and there is no mathematical error in arriving at a aggregate marks/total marks. The scrutiny cannot be stretched too far to achieve the re-evaluation and/or review of the answers given by the respective candidates and the marks awarded by the examiner. The Commission being conscious of the evaluation of the answers by the different examiners and there may not be any disparity in evaluation thereof and possibility of a human error in assessing the same, adopted a policy of providing the answer keys to each of such examiners in order to bring a uniformity and/or symmetry in evaluation of the answers by different examiners. The moment the examiners have taken the answer keys as a benchmark in awarding the marks, it eradicates the inconsistency or lack of uniformity in assessing the answers of each of such candidates. In absence of any provision for re- evaluation or review of the answer scripts, the scrutiny cannot achieve the same purpose and on such score as well the interpretation of the Commission that the scrutiny means "re-evaluation" is unacceptable. Even a language employed in 10 (a) (iii) i.e., "checking of marks of each answer and its posting in the top sheet be done by scrutiniser and he/she be authorised to make correction of any over-marking/under-marking to any 22 answer, if so required" has to be understood in the meaningful manner. The contention of the Commission that the expression "over-marking/under- marking" invites the re-evaluation of the answer script is unacceptable but to be read in the context where the examiner has marked the answer beyond the maximum marks which cannot be perceived to be a power conferred upon the scrutiniser to re-evaluation and/or review the answers assessed by the examiner. Furthermore, the notification dated December 28, 2011 clearly indicates that the selection test shall be conducted strictly in terms of the provisions contained in the Rule 2007 as amended from time to time and, therefore, any departure therefrom cannot be sustained under Judicial Scrutiny.
We thus do not find any infirmity and/or illegality in the order of the Single Bench.
The appeal is thus dismissed.
No order as to costs.
Urgent Photostat certified copies of this judgment, if applied for, be made available to the parties subject to compliance with the requisites formalities.
(Harish Tandon, J.) I agree.
(Prasenjit Biswas, J.)