Himachal Pradesh High Court
Kavita Gupta And Another vs Of on 15 December, 2015
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4474 of 2015 Reserved on: 09.12.2015 .
Decided on: 15.12.2015 Kavita Gupta and another ...Petitioners.
Versus of Bharat Sanchar Nigam Limited and another ...Respondents.
Coram rt The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
For the petitioners: Mr. Ajay Mohan Goel, Advocate.
For the respondents: Mr. Sandeep Sharma, Senior Advocate, with Mr. Pankaj Negi, Advocate.
Mansoor Ahmad Mir, Chief Justice.
Challenge in this writ petition is to the order, dated 13.03.2015 (Annexure P12), made by the Central Administrative Tribunal, Chandigarh Bench (for short "CAT") in Original Application No. 1629/HP/2013 titled as Kavita Gupta and another versus Bharat Sanchar Nigam Limited and ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP : 2 : another, whereby the Original Application filed by the writ petitioners came to be dismissed (for short "the impugned .
order").
2. By the medium of this writ petition, the writ petitioners have sought writ of certiorari to quash order, dated of 13.03.2015 (Annexure P12) made by the CAT, result of the Limited Internal Competitive Examination (for short "the rt Competitive Examination") for the post of Junior Telecom Officer (for short "JTO"), dated 16.09.2013 (Annexure P7A) and memos (Annexures P7/B & P7/C) in terms of which the representations of the writ petitioners came to be rejected.
Further sought the writ of mandamus for rechecking and correction of mistake in answer to Question No. 99 in PartB of the Competitive Examination, on the grounds taken in the writ petition.
3. The respondents issued a circular on 20.02.2013 for conducting the Competitive Examination for promotion to the post of JTO under 35% quota and 15% quota for the vacancies upto 31.03.2012 in Himachal Pradesh Circle. The writ petitioners alongwith other candidates participated in the ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP : 3 : Competitive Examination for the post of JTO under 35% quota and the result was declared. The provisional answer key of .
the Competitive Examination was uploaded on 20.06.2013 and objections/representations were invited. Representations were filed and it was averred that fifteen wrong questions were of recorded, two questions were time consuming, twelve questions were out of syllabus and the provisional answer key rt qua three questions was wrong.
4. Respondent No. 2 examined the representations, High Power Expert Committee was constituted, some mistakes were found and accordingly, the mistakes were rectified.
However, the High Power Expert Committee categorically reported that answer to Question No. 99 in PartB of the Limited Examination was correct. The result was declared and the names of the writ petitioners were not figuring in the list of the selected candidates. They filed representations, which came to be rejected, constraining them to file Original Application before the CAT and it was pleaded that answer to Question No. 99 in PartB of the Competitive Examination was not correct and had the Examiner recorded the correct ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP : 4 : answer, the writ petitioners would have been able to make the grade.
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5. The Original Application was resisted by the respondents by the medium of reply and in the reply, it was stated that a High Power Expert Committee was constituted, of the mention of which has been made by the Tribunal in para 5 of the impugned order.
6. rt The CAT, after examining the report of the High Power Expert Committee and the pleadings, dismissed the Original Application in terms of the impugned order. Feeling aggrieved, the writ petitioners have questioned the impugned order by the medium of this writ petition.
7. The stand of the respondents before the CAT was that they have constituted the High Power Expert Committee and after finding some mistakes, rectified the same. But, it was reported that answer to Question No. 99 in PartB of the Competitive Examination was correct. Therefore, it would not lie in the mouth of the writ petitioners to plead that the answer was not correct. It is the domain of the Experts and the High Power Expert Committee was already constituted. It is ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP : 5 : beaten law of land that in the given circumstances, courts cannot interfere.
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8. This Court, after relying upon the various judgments rendered by the Apex Court on the issue, has laid down the same principle in CWP No. 4412 of 2014, titled as of Ekansh Kapil versus H.P. Public Service Commission, decided on 09.07.2014; CWP No. 9169 of 2013, titled as rt Vivek Kaushal & others versus Himachal Pradesh Public Service Commission alongwith other connected matters, decided on 17.07.2014; and CWP No. 6812 of 2014, titled as Arvind Kumar & others versus Himachal Pradesh Public Service Commission alongwith other connected matters, decided on 16.10.2014.
9. We deem it proper to reproduce paras 11 to 16, 20, 22 and 23 of the judgment in Arvind Kumar's case (supra) herein:
"11. The Apex Court in a case titled as Pankaj Sharma versus State of Jammu and Kashmir and others, reported in (2008) 4 Supreme Court Cases 273, has held that the decision of the Public Service Commission in deleting ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP : 6 : the defective/wrong questions and to allot those marks on prorata basis and to call the persons for interview if a candidate .
gets in after getting additional marks on prorata basis was legal one. It is apt to reproduce para 50 of the judgment herein:
"50. But there is an additional factor also which supports this view. It is clear from the fact that after the receipt of the complaints, the of Commission had issued Press Note on 672005 and assured the candidates that the Commission would look into the matter and no rt injustice would be caused to them. The Commission also obtained expert advice and thereafter suo motu decided to delete certain questions by allotting those marks prorata to remaining questions. It is, therefore, clear that even according to the Commission, some action was necessary, after the examination was over."
12. The Apex Court in other cases titled as Kanpur University, through Vice Chancellor and others versus Samir Gupta and others, reported in (1983) 4 Supreme Court Cases 309 and Abhijit Sen and others versus State of U.P. and others, reported in (1984) 2 Supreme Court Cases 319, has held that the Courts can pass appropriate directions in appropriate cases in order to avoid the delay and to avoid recurrence of such lapses.
13. The same view was taken by one of us (Mansoor Ahmad Mir, Chief Justice) while sitting in Single Bench as a Judge of ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP : 7 : the High Court of Jammu and Kashmir, in a case titled as Showkat Ahmad Dar & Ors. versus State & Anr., reported in .
2012 (4) JKJ 141 [HC].
14. It would also be profitable to reproduce paras 6 to 9 of the judgment rendered by the Apex Court in a case titled as The Secretary, West Bengal Council of Higher Secondary Education versus Ayan Das & Ors., reported in 2007 AIR SCW 5976, herein:
of "6. The permissibility of re assessment in the absence of statutory provision has been dealt rt with by this Court in several cases.
The first of such cases is Maharashtra State Board of Secondary and Higher Secondary Education & Anr. v. Paritosh Bhupeshkumar Sheth & Ors.
reported in (1984 (4) SCC 27). It was observed in the said case that finality has to be the result of public examination and, in the absence of statutory provision, Court cannot direct reassessment/reexamination of answer scripts.
7. The courts normally should not direct the production of answer scripts to be inspected by the writ petitioners unless a case is made out to show that either some question has not been evaluated or that the evaluation has been done contrary to the norms fixed by the examining body. For example, in certain cases examining body can provide model answers to the questions. In such cases the examinees satisfy the court that model answer is different from ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP : 8 : what has been adopted by the Board. Then only the court can ask the production of answer scripts to allow .
inspection of the answer scripts by the examinee. In Kanpur University and Ors. v. Samir Gupta and Ors. (AIR 1983 SC 1230) it was held as follows: "16. Shri Kacker, who appears on behalf of the University, of contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is rt wrong. We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it would not be held to be wrong by an inferential process of reasoning or by a process of rationalization. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged text books, which are commonly read by students in U.P. Those text books leave no room for doubt that the answer given by the students is correct and the key answer is incorrect.
17. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance Test for admission to the Medical Colleges in U.P. Certain books are ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP : 9 : prescribed for the Intermediate Board Examination and such knowledge of the subjects as the .
students have is derived from what is contained in those text books. Those text books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of of doubt, it would be unfair to penalize the students for not giving an answer which accords rtwith the key answer, that is to say, with an answer which is demonstrated to be wrong".
8. Same would be a rarity and it can only be done in exceptional cases.
The principles set out in Maharashtra Board' case (supra) has been followed subsequently in Pramod Kumar Srivastava v. Chairman Bihar Public Service Commission, Patna & Ors. (2004 (6) SCC 714), Board of Secondary Education v. Pravas Ranjan Panda & Anr. (2004 (13) 714) and President, Board of Secondary Education, Orissa and Anr. v. D. Suvankar and Anr. (2007 (1) SCC
603).
9. In view of the settled position in law, the orders of learned Single Judge and the Division Bench cannot be sustained and stand quashed."
15. This Court in a case titled as Mukesh Thakur and another versus Himachal Pradesh Public Service ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP : 10 : Commission, reported in 2006 (1) Shim. LC 134, interfered and quashed the result made by the Commission, was subject .
matter of Civil Appeals No. 907 and 897 of 2006 before the Apex Court, titled as Himachal Pradesh Public Service Commission versus Mukesh Thakur and another, reported in (2010) 6 Supreme Court Cases 759. It is apt to reproduce paras 23 to 26 of the judgment herein:
of "23. The situation will be entirely different where the court deals with the issue of admission in mid rt academic session. This Court has time and again said that it is not permissible for the courts to issue direction for admission in mid academic session. The reason for it has been that admission to a student at a belated stage disturbs other students, who have already been pursuing the course and such a student would not be able to complete the required attendance in theory as well as in practical classes.
Quality of education cannot be compromised. The students taking admission at a belated stage may not be able to complete the courses in the limited period. In this connection reference may be made to the decisions of this Court in Pramod Kumar Joshi (Dr.) v. Medical Council of India, (1991) 2 SCC 179; State of U.P. v. Dr. Anupam Gupta, 1993 Supp (1) SCC 594 : AIR 1992 SC 932; State of Punjab v. Renuka Singla, (1994) 1 SCC 175 : AIR 1994 SC 932, Medical Council of India v. Madhu Singh, (2002) 7 SCC 258;
::: Downloaded on - 15/04/2017 19:31:18 :::HCHP: 11 : and Mridul Dhar v. Union of India, (2005) 2 SCC 65.
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24. The issue of revaluation of answer book is no more res integra. This issue was considered at length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkurmar Sheth, (1984) 4 SCC 27 : AIR 1984 SC 1543, wherein of this Court rejected the contention that in the absence of the provision for revaluation, a direction to this effect can be issued by the Court. The rt Court further held that even the policy decision incorporated in the Rules/ Regulations not providing for rechecking/ verification/revaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Court held as under:
(SCC pp. 3940 & 42, paras 14 & 16) "14. .........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...
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16. .......The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP : 12 : 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 drawbacks 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, of 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 rt purposes of the Act."
25. This view has been approved and relied upon and reiterated by this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission, (2004) 6 SCC 714, observing as under: (SCC pp. 71718, para 7) "7. ... Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for revaluation 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 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 ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP : 13 : absence of any provision for revaluation of answer books in the relevant rules, no candidate in an .
examination has got any right whatsoever to claim or ask for revaluation of his marks."
(emphasis added) A similar view has been reiterated in MuneebUlRehman Haroon (Dr.) v. Govt. of J&K State , (1984) 4 SCC 24 of : AIR 1984 SC 1585; Board of Secondary Education v. Pravas Ranjan Panda, (2004) 13 SCC 383; rt Board of Secondary Education v. D. Suvankar, (2007) 1 SCC 603; W.B. Council of Higher Secondary Education v. Ayan Das, (2007) 8 SCC 242 : AIR 2007 SC 3098; and Sahiti v. Dr. N.T.R. University of Health Sciences, (2009) 1 SCC 599.
26. Thus, the law on the subject emerges to the effect that in the absence of any provision under the statute or statutory rules/ regulations, the Court should not generally direct revaluation."
16. The Apex Court, after discussing the authorities, which were governing the field till the date of the decision in the case, has used the words : "......the Court should not generally direct revaluation". Meaning thereby, it suggests that if there is some mistake apparent on the face of it, the Court may interfere and may direct for revaluation."
10. Applying the test to the instant case, at the best, ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP : 14 : the Expert opinion could have been sought, which has already been sought in the present case.
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11. Having said so, no case for interference has been carved out by the writ petitioners and the Tribunal has rightly dismissed the Original Application in terms of the impugned of order, merits to be upheld.
12. Having glance of the above discussions, the rt impugned order is upheld and the writ petition is dismissed in limine.
(Mansoor Ahmad Mir) Chief Justice (Tarlok Singh Chauhan) Judge December 15, 2015 ( rajni ) ::: Downloaded on - 15/04/2017 19:31:18 :::HCHP