Allahabad High Court
Jitendra Singh vs Union Of India And Another on 25 October, 2021
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 9 Case :- WRIT - C No. - 53877 of 2017 Petitioner :- Jitendra Singh Respondent :- Union Of India And Another Counsel for Petitioner :- Manoj Kumar,Suresh Kumar Maurya Counsel for Respondent :- A.S.G.I.,Surendra Prasad Sharma Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Suresh Kumar Maurya, learned counsel for the petitioner, Mr. Surendra Prasad Sharma, learned counsel for respondent no.2 and Mr. Asheem Mukherjee, learned Standing Counsel for the State-respondent.
2. This writ petition has been filed by the petitioner for following relief:
"(i) Issue a writ, order or direction in the nature of mandamus directing respondent no.2 to consider and decide the claim of the petitioner contained in representation dated 08.06.2017 (Annexure-5) for being re-evaluate the OMR sheet Paper-II and amended result will be declare.
(ii) Issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(iii) Award the cost of the petition in favour of the petitioner."
3. In the present writ petition, counter and rejoinder affidavits have been exchanged between the parties. Both the parties agree that this petition be disposed of at this stage without calling for any further affidavit.
4. In the present writ petition, the case of the petitioner is that he was pursuing study in Kashi Hindu Vishwavidyalaya, Varanasi and preparing for UGC/NET-2017. In connection with the same, he applied for UGC/NET and also appeared in the examination conducted by respondent no.2. The petitioner was allotted Role Number-84024171 and at the time of examination, in Paper-II of Hindustani Music, against the question no.32, as to how many Tantriyas (strings) are there in Alapini Vini,, the petitioner has given answer as option no.3 i.e. three tantriyas (strings), copies of the relevant part of the question paper being Paper-II of Hindustani Music as well as OMR sheet have been enclosed as Annexure-1 to the writ petition.
5. It is the further case of the petitioner that after the examination was over, the answer-key was published on the concerned website, wherein against question no.32, a wrong answer as option no. 1 i.e. two Tantriyas (strings), has been published, whereas the correct option was option no.3 i.e. three Tantriya (strings), a copy of the answer-key published on the website has been enclosed as Annexure-2 to the writ petition. Thereafter, the calculation/answer sheet was also prepared by the Central Board of Secondary Education, UGC-NET, wherein against the question no. 32 of Paper-II, wrong answer was mentioned and the answer of the petitioner was taken to be incorrect.
6. Further, in support of answer given by the petitioner against question no.32, he submitted documentary evidence like books written by respective writers, copies of relevant parts of the books have been enclosed as Annexure-4 to the writ petition. Thereafter, the petitioner has made an application before respondent no.2, namely, Director (UGC-NET), Central Board of Secondary Education, Gautam Buddha Nagar on 8th June, 2017, wherein he has disclosed all the facts and circumstances of the case and also made a request to re-evaluate the answer given by the petitioner against question no.32 of Paper-II of the Hindustani Music and thereafter declare the result accordingly, so that the future of the petitioner may be protected, a copy of the same has been enclosed as Annexure-5 to the writ petition.
7. In the petition, it has lastly been stated by the petitioner that the selection of the petitioner for J.R.F. has been obstructed as he secured 0.56% less mark in merit, although the petitioner had given correct answer against question no.32 of Paper-II of Hindustani Music, which was wrongly evaluated by the respondent, hence, the petitioner made a request to respondent no.2 by means of an application dated 13th July, 2017 for re-evaluating the OMR sheet of Paper-II qua question no.32 and declare the result, accordingly.
8. This writ petition was presented before the Court on 13th November, 2017 and no interim order has been granted in favour of the petitioner.
9. The learned counsel for the petitioner submits before this Court that in the entrance examination of UGC/NET-2017 conducted by respondent no.2, the petitioner applied and appeared in the examination. Against question no.32 of Paper-II of Hindustani Music, he has given answer as option no.3 i.e. three tantriyas (strings), which is the correct answer, whereas in the answer-key published on concerned website by respondent no.2, against question no.32 of Paper-II, the answer was given as option no.1 i.e. two tantriyas (strings), which is a wrong answer. In support of the said submission, learned counsel for the petitioner has referred to the relevant part of the books in the name and style of "Bhartiya Sangeet Vaadh" written by Dr. Lal Mani Mishra, Bhartiya Sangeet ke Trantivaadh written by Vidyavilashi Pandit, Sangeet Ratanakar (Hindi Anuvad) written by Subhadara Chaudhary, copies of which have been brought on record at page nos. 27 onwards. He, therefore, submits that the selection of petitioner for J.R.F. had been obstructed only due to less mark by 0.56% whereas the petitioner had given correct answer against question no.32 of Paper-II, thus this Court, while allowing the present writ petition, may direct respondent no.2 to re-evaluate the OMR sheet of Paper-II qua question no.32 and declare the result of the petitioner accordingly.
10. On the other than, Mr. S.P. Sharma, learned counsel for respondent no.2 and Mr. Asheem Mukherjee, learned Standing Counsel for the State-respondent submit that the relief as prayed on behalf of the petitioner cannot be granted by this Court while exercising its power under Article 226 of the Constitution of India.
11. Learned counsel for respondent no.2 states that the request of the petitioner for re-evaluation of OMR sheet qua question no.32 of Paper-II of Hindustani Music cannot be granted because with regard to correctness of option given in answer-key, the expert opinion has been obtained and in the opinion of the subject expert, the correct answer of question no. 32 is option no. (2) i.e. Two Tantriyas (strings). Since the answer key has been examined by the subject expert and it is not the case of the petitioner that there is mala fide attributed to the respondents, as such, no judicial review would lie and the writ petition is liable to be dismissed.
12. Learned counsel for respondent no.2 further submits that the relief prayed on behalf of the petitioner pertains to direction upon respondent no.2 to consider and decide the representation of the petitioner dated 8th June, 2017 for OMR sheet of Paper-II being re-evaluated and thereafter result being amended on the ground that in Paper-II of Hindustani Music of NET,2017, the answer attempted by him is correct, whereas the same is said to be incorrect. For ready reference, the representation of the petitioner dated 8th June, 2017 read as follows:
"सेवा में, निर्देशक (UGC-NET) केंन्द्रीय माध्यमिक शिक्षा बोर्ड प्लाट नं० 149, ब्लाक H सेक्टर 63, गौतम बुद्ध नगर नोएडा ऊ०प्र० 201305 विषयः राष्ट्रीय पात्रता परीक्षा (नेट) जनवरी 2017 के हिन्दुस्तानी संगीत विषय के पुनर्मूल्यांकन के सम्बन्ध में।
महोदय, मैं प्रार्थी जीतेन्द्र सिहं पुत्र श्री भोलाशंकर सिंह नेट परीक्षा जनवरी 2017 में पिछडी जाती का अभ्यर्थी हूँ। घोषित परीक्षा परिणाम में मेरा .57% से जे०आर०एफ० अवरूद्ध हुआ है, आपके जारी उत्तर पत्रक के द्ववितीय प्रश्न पत्रक के द्ववितीय प्रश्न पत्र में मेरा प्रश्न संख्या 32 सही है जबकी आपने इस प्रश्न को गलत घोषित किया है। इस एक प्रश्न के सही होने से मेरा जे०आर०एफ० प्रश्स्त हो जाएगा। इसकी सत्यता के सन्दर्भ मे मेरे पास अनेक प्रमाणिक पुस्तकों के प्रमाण है। आपके विशेष रूप से सूचित करते है कि यह मेरे जे०आर०एफ० के योग्यता का अंतिम वर्ष है।
अतः आपसे सविनय निवेदन है कि प्रार्थी के हित में पुनर्मूल्यांकन कर मेरा संशोधित परीक्षा परिणाम घोषित करें। यह मेरे भविष्य से जुडा गंभीर विषय है।
इस सन्दर्भ में समस्त अपेक्षित प्रपत्र प्रार्थना पत्र के साथ संलग्न है।
धन्यवाद ओ०एम०आर सीट एवं कल्युकलेशन सीट भी चाहिए जिसके लिए पांच सौ रू० का ड्राफ्ट सलंग्न है।
प्रार्थी जीतेन्द्र सिंह अभ्यर्थी नेट परीक्षा जनवरी 2017 अनुक्रमांक - 84024171 जन्म तिथि- 07.07.1986 परीक्षा विषय- हिन्दुस्तानी संगीत विषय कोड- 16 ग्राम- सावठ पो० दुर्गावती जिला कैमूर बिहार (821105) शिक्षण स्थल - काशी हिन्दू विश्वविद्यालय (वाराणसी)"
13. Learned counsel for respondent no.2 further submits that the dispute is with regard to question no.32 of 2nd paper of Hindustani Music of Net, 2017, which is "आलापिनी वीणा में कितनी तंत्रियां थी". The option ticked by the petitioner in the OMR sheet is option no.2 i.e. three tantriyas (strings) , whereas, option no.1 is the correct answer i.e. two tantriyas (strings), as per the answer key.
14. Learned counsel for respondent no.2 further submits that the opinion of the subject expert was obtained again about the correctness of the answer of question no.32 and the subject expert opined that the correct answer of question no.32 is option no.(2) i.e. two tantriyas (strings). Due to secrecy, the details of the subject expert cannot be disclosed, but the Court will be apprised about the same as and when required. It is further contended that the report of the subject expert has been brought on record at page no.11 onwards, of the counter affidavit, along with relevant page of book, namely, Sangeet Bodh (page no.138).
15. Learned counsel for respondent no.2 further submits that on the representation made by the petitioner, the respondent called for expert opinion about the question No.32 of Paper-II of Hindustani Music and as per the opinion of the subject expert, the correct answer of the question no. 32 of Paper-II of Hindustani Music of Net, 2017 is option no. (1), which means that there are two Trantriyas in Alapini Veena. Therefore, it is not true that in answer key, incorrect answer was published. Learned counsel for respondent no.2 further submits that the OMR sheet of the petitioner is examined/evaluated properly and no mistake in any manner is committed. The answer key has been prepared by the body of subject experts and again opinion of the subject experts qua question no.32 of Paper-II of Hindustani Music has been obtained. Therefore, it cannot be said that the answer given by the petitioner as option no. (3) against question no.32 is correct. The petitioner did not approach the authorities concerned, as per the instructions of the examination bulletin. He also did not fulfill the requirements for examining genuineness of his claim, as per circular/notification issued for this purpose. The petitioner did not avail the remedy provided for this purpose.
Even otherwise, there is no provision of re-evaluation of answer-sheets provided under any law.
On the cumulative strength of the aforesaid, learned counsel for respondent no.2 submits that the present writ petition is not maintainable and the same is liable to be dismissed.
16. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present writ petition.
17. Learned Counsel for the petitioner has not brought to this Court's attention any rules, regulation or any guidelines framed by the respondent, notification or circular, bulletin issued by the respondent or any authority of law that may permit re-evaluation.
18. Even otherwise, in paragraph-12 of the counter affidavit filed on behalf of respondent no.2, it has been stated as follows:
"12. That in reply to the contents of paragraph no.9 of the writ petition, it is submitted that the OMR sheet of the petitioner is examined/evaluated properly. No mistake, in any manner, is committed and there is no provision of reevaluation."
Whereas, in reply to the aforesaid averments, in rejoinder affidavit learned counsel for the petitioner has not rebutted or controverted the same.
19. For ready, reference, paragraph-8 of the rejoinder affidavit filed on behalf of the petitioner, reads as follows:
"8.That the contents of para 12 of the counter affidavit are not admitted as stated hence denied. In reply thereto the contents of para-9 of the writ petition are reiterated. It is further submitted that the OMR sheet of the petitioner was wrongly examined, which requires re-evaluation of the same."
20. The issue of re-evaluation of answer book or sheet is no more res integra. This issue was considered at length by the Apex Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupesh Kurmarsheth & Ors., reported in AIR 1984 SC 1543, wherein the Apex Court rejected the contention that in absence of provision for re-evaluation, a direction to this effect can be issued by the Court. The Apex Court further held that even the policy decision incorporated in the Rules/Regulations providing for rechecking/ verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Apex Court held as under:-
"In our opinion, this approach made by the High Court was not correct or proper because the question whether a particular piece of delegated legislation - whether a rule or regulation or other type of statutory instrument - is in excess of the power of subordinate legislation conferred on the delegate as to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the Statute.
In our opinion, the aforesaid approach made by the High Court is wholly incorrect and fallacious. The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any draw-backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution."
21. This view referred to above has been approved, relied upon and reiterated by the Apex Court in the case of Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission, Patna & Ors, reported in J.T. 2004 SC 380 observing as under:
"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 each question and nothing 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."
22. In view of the above, the case stands squarely covered by the aforesaid judgment of the Hon'ble Supreme Court and this Court does not see any ground to interfere in the matter.
23. Undoubtedly, conduct and holding of examinations in a most appropriate and fair manner is imperative and it is solemn duty of the examining body to provide for fair procedure, rules, regulations, or bye-laws for the same as career of students depends upon the result of the examinations.
24. A Constitution Bench of the Apex Court in the case of University of Mysore Vs. C.D. Govinda Rao & Anr., reported in AIR 1965 SC 491, has held that where the decision under challenge has been taken by the Committee of Expert, "normally the Courts should be slow to interfere with the opinion expressed by the experts" unless there are allegations of mala fide against any of the Members of the Expert Committee. The Court further observed as under:-
"........It would normally be wise and safe for the Courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than Courts........"
25. Similar view has been taken by the Apex Court in State of Bihar & Anr. Vs. Dr. Asis Kumar Mukherjee, AIR 1975 SC 192; M.S. Gupta etc. Vs. A.K. Gupta & Ors., (1979) 2 SCC 339; Rajendra Prasad Mathur Vs. Karnataka University & Anr., AIR 1986 SC 1448; Dr. Umakant Vs. Dr. Bhikha Lal Jain & Ors., AIR 1991 SC 2272; The Chancellor & Anr. Vs. Dr. Bijay Nanda Kar & Ors., (1994) 1 SCC 169; State of Orissa & Ors. Vs. Prajnaparamita Samanta & Ors., (1996) 7 SCC 106; Chairman, J & K State Board of Education Vs. Fayaz Ahmed, (2000) 3 SCC 59; and The Dental Council of India Vs. Subharti K.K.B. Charitable Trust & Anr., AIR 2001 SC 2151.
26. Similarly, with regard to the issue of re-evaluation, the Apex Court in the case of Ran Vijay Singh and others vs. State of Uttar Pradesh and Others, reported in (2018) 2 SCC 357, specially in paragraph nos. 30 to 33, has observed as follows:
"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are:
30.1. If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;
30.2. If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed;
30.3. The court should not at all re-evaluate or scrutinise the answer sheets of a candidate--it has no expertise in the matter and academic matters are best left to academics;
30.4. The court should presume the correctness of the key answers and proceed on that assumption; and 30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse -- exclude the suspect or offending question.
32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination -- whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers."
27. Thus, it is settled law that when a decision is taken by the Committee of Expert having high academic qualifications and long experience in the specialised field, the Courts should not normally probe the matters unless there are compelling circumstances for doing so.
28. The aforesaid issue is also well settled in view of judgment of Apex Court in case of Bihar Staff Selection Commission vs. Arun Kumar, reported in (2020) 6 SCC 362. There are otherwise catena of judgments of Supreme Court holding that in the competitive selection test, prayer for re-evaluation of marks cannot be accepted unless a rule for it exist.
29. With the aforesaid observations, this Court would also like to keep in mind the question against which objection has been raised but keeping in mind the ratio propounded by the Apex Court in the case of Ran Vijay Singh (supra) and more specifically para 30 of the said judgment quoted above, the Court is to presume the correctness of answer key and proceed on that assumption. In the event of any doubt, benefit should go to the examination authority rather than to the candidate. It is with a rider that the Court should not re-evaluate or scrutinize the answer-sheet of the candidate as it has no expertise in the matter. The academic matters are best left to the academics.
30. In the result, considering the submissions made by the learned counsel for respondent no.2 and the law laid down by the Apex Court referred to herein above, this Court finds no good ground to interfere in the present writ petition. The same is accordingly dismissed.
(Manju Rani Chauhan, J.) Order Date :- 25.10.2021 Sushil/-