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Punjab-Haryana High Court

Anuj Kumar Jain vs State Of Haryana & Another on 2 May, 2013

Author: Hemant Gupta

Bench: Hemant Gupta, Ritu Bahri

                                                                                            1


                          IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                            CHANDIGARH



                                                        Date of Decision : 02.05.2013

                                                        C.W.P.No.9040 of 2013 (O&M)

            Anuj Kumar Jain                                                ...Petitioner

                                                    Versus

            State of Haryana & another                                     ...Respondents

            CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
                   HON'BLE MS. JUSTICE RITU BAHRI

            Present :          Mr. Rajiv Atma Ram, Senior Advocate, with
                               Mr. Arjun Pratap Atma Ram, Advocate, for the petitioner.



            HEMANT GUPTA, J.

The petitioner applied for the post of Additional District & Sessions Judge in the State of Haryana pursuant to an advertisement dated 02.01.2012 to fill up 14 posts of Additional District & Sessions Judges including 7 posts for General category.

The condition of advertisement was that a candidate will not be qualified in the Haryana Superior Judicial Services Examination unless he/she obtains 50% marks in the aggregate out of the total marks fixed for the written examination and viva voce and that a candidate was required to obtain 40% or more marks in each paper to be called for viva voce.

The petitioner appeared in the main examination consequent to revision of result of the preliminary examination. The result of the main examination was declared on 11.10.2012. The petitioner obtained 346.5 marks in aggregate in the main written examination and was not called for viva voce as he has not obtained 40% marks i.e. 80 in Civil Law - I. The Kumar Vimal 2013.05.04 12:45 I attest to the accuracy and integrity of this document Chandigarh 2 petitioner has obtained 79.5 marks in Civil Law - I out of maximum marks i.e. 200, as against the minimum required marks of 80 i.e. 40%.

The petitioner submitted representation dated 10.12.2012 for re- checking of the marks of Civil Law - I paper with a prayer to round off 79.5 marks to 80 marks and to call him for viva voce. After re-checking, it was communicated that previous result stands. The petitioner submitted another representation on 09.01.2013, which was declined vide communication dated 31.01.2013. The Petitioner again submitted representation that the answer to one of the question has been wrongly marked. He has given correct answer but the examiner has wrongly treated the answer as incorrect. It is, thereafter, the petitioner has filed the present writ petition.

The grievance of the petitioner is that question No.1(C) of Civil Law - I paper was as to whether a power of attorney executed in good state of health and mental understanding, but subsequently, the executant had become old, infirm, week and incapable of understanding due to incapacity, does the power of attorney executed become worthless and redundant in the eyes of law. The petitioner has answered such question correctly that due to change in the state of health and incapacity, the power of attorney is unable to do any further act. In support of such reply, the petitioner in the writ petition has referred to the text books on Indian Contract Act, 1872 written by Dr. R.K.Bangia and Dr. Avtar Singh and also on judgment reported as Mahendra Pratap Singh Vs. Padam Kumari Devi AIR 1993 All. 143. It is contended that only half mark has been given to the petitioner, whereas he would secure 10 marks in the said question. It is, thus, contended that the petitioner could not have been awarded half mark for the said question for correct answer. Thus, this Court in exercise of judicial review should direct the correct marking of the answer sheet.

2013.05.04 12:45 I attest to the accuracy and integrity of this document Chandigarh 3

The petitioner also claims that his marks i.e. 79.5 should be rounded off to 80 and, thus, he would be eligible to be called for viva voce. Since he has not been called for viva voce, the entire selection process is vitiated.

The question; to what extent the Courts in exercise of judicial review can examine the decision of the Examiner in evaluating the answer given in a subjective question; is not res integra. Even in respect of objective type questions, the Courts have observed time and again that the Courts are extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It is also held that if a candidate is allowed the right to ask for revaluation, the inevitable consequence would be that there will be no certainty at all regarding the results of the competitive examination for an indefinite period of time until all such requests have been complied with and the results of the verification and revaluation have been brought into account.

In another judgment, the Court has said that many candidates may like to take a chance and pray for re-evaluation of their answer-books. The re-evaluation will unduly delay declaration of final result and vacancies will remain unfilled for a long time.

The issue of revaluation of answer-sheets came up for consideration before the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education & another Vs. Paritosh Bhupeshkumar Sheth & others (1984) 4 SCC 27. The Supreme Court has Kumar Vimal 2013.05.04 12:45 I attest to the accuracy and integrity of this document Chandigarh 4 held that permitting re-evaluation would lead to uncertainty regarding result of competitive examination for indefinite period of time and that such course shall be against public interest. It was held to the following effect:

"28. As pointed out by a Constitution Bench of this Court in Fatehchand Himmatlal v. State of Maharashtra (1977) 2 SCC 670, "the test of reasonableness is not applied in vacuum but in the context of life's realities". If the principle laid down by the High Court is to be regarded as correct, its applicability cannot be restricted to examinations conducted by School Education Boards alone but would extend even to all competitive examinations conducted by the Union and State Public Service Commissions. The resultant legal position emerging from the High Court judgment is that every candidate who has appeared for any such examination and who is dissatisfied with his results would, as an inherent part of his right to "fair play" be entitled to demand a disclosure and personal inspection of his answer scripts and would have a further right to ask for revaluation of his answer papers. The inevitable consequence would be that there will be no certainty at all regarding the results of the competitive examination for an indefinite period of time until all such requests have been complied with and the results of the verification and revaluation have been brought into account.

29. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case."

Following the said judgment, the Supreme Court in Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission (2004) 6 SCC 714 held to the following effect:

"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 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 case (supra). 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.

8. Adopting such a course as was done by the learned Single Judge will Kumar Vimal 2013.05.04 12:45 give rise to practical problems. Many candidates may like to take a chance I attest to the accuracy and integrity of this document Chandigarh 6 and pray for re-evaluation of their answer-books. Naturally, the Court will pass orders on different dates as and when writ petitions are filed. The Commission will have to then send the copies of individual candidates to examiners for re-evaluation which is bound to take time. The examination conducted by the Commission being a competitive examination, the declaration of final result will thus be unduly delayed and the vacancies will remain unfilled for a long time. What will happen if a candidate secures lesser marks in re-evaluation? He may come forward with a plea that the marks as originally awarded to him may be taken into consideration. The absence of clear rules on the subject may throw many problems and in the larger interest, they must be avoided."

In President, Board of Secondary Education, Orissa Vs. D. Suvankar (2007) 1 SCC 603, the Supreme Court held that the court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It was held to the following effect:

"5. The Board is in appeal against the cost imposed. As observed by this Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth case (supra), it is in the public interest that the results of public examinations when published should have some finality attached to them. If inspection, verification in the presence of the candidates and re-evaluation are to be allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking, etc. of the candidates, besides leading to utter confusion on account of the enormity of the labour and time involved in the process. The court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It would be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed Kumar Vimal 2013.05.04 12:45 I attest to the accuracy and integrity of this document Chandigarh 7 to pragmatic one was to be propounded. In the above premises, it is to be considered how far the Board has assured a zero-defect system of evaluation, or a system which is almost foolproof.

6. Award of marks by an examiner is to be fair, and considering the fact that re-evaluation is not permissible under the statute, the examiner has to be careful, cautious and has a duty to ensure that the answers are properly evaluated. No element of chance or luck should be introduced. An examination is a stepping stone on career advancement of a student. Absence of a provision for re-evaluation cannot be a shield for the examiner to arbitrarily evaluate the answer script. That would be against the very concept for which re-evaluation is impermissible."

The above said principle of law was also reiterated in a later judgment reported as Himachal Pradesh Public Service Commission Vs. Mukesh Thakur (2010) 6 SCC 759. Recently in another judgment reported as Sanchit Bansal Vs. Joint Admission Board (2012) 1 SCC 157 relating to admission to professional Engineering Colleges, the Supreme Court observed that process of evaluation, the process of ranking and selection of candidates are of technical matters in academic field and the courts will not interfere in such processes. The Court will interfere only if there is violation of any enactment, statutory rules and regulations; malafides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious. The Court held to the following effect:

"27. Thus, the process of evaluation, the process of ranking and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialised courses, are all technical matters in academic field and the courts will not interfere in such processes. The courts will interfere only if they find all or any of the following: (i) violation of any enactment, statutory rules and regulations; (ii) mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious."

In the present case, the first representation of the petitioner for re-checking of Civil Law - I paper and round off of marks was considered and no discrepancy was detected. Second representation has been considered by the Committee and was rejected on 31.01.2013. The petitioner submitted another representation on 14.02.2013, which has been again declined on 03.04.2013. In view of thereof, we find that in the matter of examination more so in respect of subjective paper, this Court should refrain itself from entertaining the present writ petition, the hardship of the petitioner notwithstanding.

It may be noticed that a fresh advertisement inviting applications for Haryana Superior Judicial Services Examination has since been published.

In view of the above, we do not find any merit in the present writ petition. The same is accordingly dismissed.

                                                                        (HEMANT GUPTA)
                                                                            JUDGE



            02.05.2013                                                    (RITU BAHRI)
            Vimal                                                            JUDGE




Kumar Vimal
2013.05.04 12:45
I attest to the accuracy and
integrity of this document
Chandigarh