Delhi High Court
The District & Sessions Judge (Hqs) & Anr vs Narender Kumar on 7 October, 2022
Author: Sanjeev Narula
Bench: Rajiv Shakdher, Sanjeev Narula
$~SB-1 & 2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 22nd July, 2022
Pronounced on: 07th October, 2022
+ Rev.P.No.72/2021 in LPA No.123/2019
THE DISTRICT & SESSIONS JUDGE (HQS) & ANR... Petitioners
Through: Mrs. Avnish Ahlawat, Standing
Counsel with Mr. Neeraj Pal Singh,
Mr. Uday Singh Ahlawat, Mrs. Palak
Rohmetra, Ms. Laavanya Kaushik
and Ms. Aliza Alam, Advocates.
versus
NARENDER KUMAR ..... Respondent
Through: Mr. Pawan R. Upadhyay, Advocate.
+ Rev.P.No.79/2021 in LPA No.124/2019
THE DISTRICT & SESSIONS JUDGE (HQS) & ANR... Petitioners
Through: Mrs. Avnish Ahlawat, Standing
Counsel with Mr. Neeraj Pal Singh,
Mr. Uday Singh Ahlawat, Mrs. Palak
Rohmetra, Ms. Laavanya Kaushik
and Ms. Aliza Alam, Advocates.
versus
NEERAJ KUMAR SANGWAN ..... Respondent
Through: Mr. Ankur Chhibber and Mr.
Anshuman Mehrotra, Advocates.
CORAM:
HON'BLE MR JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE SANJEEV NARULA
Signature Not Verified
Digitally Signed Rev.P.No.72/2021 in LPA No.123/2019 & connected matter Page 1 of 6
By:SAPNA SETHI
Signing Date:07.10.2022
16:49:37
JUDGMENT
SANJEEV NARULA, J.
C.M. APPL. 14690/2021 in Rev. P. No. 79/2021 in LPA No. 124/2019 (for condonation of delay in filing the review petition)
1. For the grounds and reasons stated therein, the application is allowed and delay of 2 days in filing of the review petition is condoned.
2. Accordingly, the application stands disposed of.
Rev. P. No. 72/2021 in LPA No. 123/2019 & Rev. P. No. 79/2021 in LPA No. 124/2019
3. Mr. Narender Kumar and Mr. Neeraj Kumar Sangwan [hereinafter collectively, "Review Petitioners/ Applicants"] seek review of common judgement dated 16th February, 2021 [hereinafter, "impugned judgement"] whereby the appeals preferred by Respondent- District and Sessions Judge, were allowed and order of learned Single Judge dated 16th January, 20191 re- evaluating Review Petitioners' typing sheets in examination for Lower Division Clerk ["LDC"], was set aside. Since the grounds of review are nearly identical, the petitions are being disposed of by way of this common order.
4. Mr. Pawan R. Upadhyay, counsel for Mr. Narender Kumar, and Mr. Ankur Chibber, counsel for Mr. Neeraj Kumar Sangwan, make following submissions:
4.1 There is error apparent on the face of record in the impugned 1 In W.P. (C) Nos. 3245/2012 and 3253/2012.Signature Not Verified Digitally Signed Rev.P.No.72/2021 in LPA No.123/2019 & connected matter Page 2 of 6 By:SAPNA SETHI Signing Date:07.10.2022 16:49:37
judgement as the Court wrongly proceeded on the assumption that Review Petitioners were seeking re-evaluation; whereas, they were only requesting for re-calculation of marks, which is legally permissible for the Court to direct.
4.2 Correction of errors in calculating marks awarded for undisputed mistakes falls within the ambit of judicial review as has been held by the Supreme Court in Ran Vijay Singh v. State of U.P.2 4.3 Although the scope of judicial review may not permit the Court to assume the role of an examiner and substitute its own views and rationale with that of examiner, an exception is carved out in the case of re-totalling of marks. Cases at hand are not of re-evaluation of typing sheets of Review Petitioners requiring an inferential process of reasoning, but merely of re-checking or re-calculation of marks awarded.
4.4 Learned Single Judge vide order dated 16th January, 2019 had merely evaluated the method of calculation of marks awarded to Review Petitioners and did not engage in re-assessment of the typing sheets or mistakes committed therein. There was no digression of the bounds of judicial review by encroaching upon the exclusive domain of expert examiner, as observed in the impugned order. Only objective rules of examination were applied in assessing whether Review Petitioners have qualified LDC examination, as opposed to subjective evaluation in Central Board of Secondary Education v. Khushboo Srivastava and Ors.3 as well as H.P. Public Service Commission v.
2(2018) 2 SCC 357.
3(2014) 14 SCC 523.
Signature Not Verified Digitally Signed Rev.P.No.72/2021 in LPA No.123/2019 & connected matter Page 3 of 6 By:SAPNA SETHI Signing Date:07.10.2022 16:49:37Mukesh Kumar Thakur.4
5. The principal contention for seeking review of impugned judgement is that the Court has lost sight of the fact that learned Single Judge did not indulge in re-evaluation of marks of Review Petitioners, but merely corrected the error committed by Respondents in calculation of marks. At the outset, it needs to be emphasised that aforesaid ground was not urged before this Court during hearing of the appeals. Mr. Chibber, who was not the arguing counsel when appeals were heard, is unable to assert to the contrary. It is settled law that a review applicant cannot re-argue their case under the guise of seeking a review.5 Thus, Review Petitioners cannot be permitted to assail impugned judgement on grounds that were previously in their knowledge, but not urged. Unless the conditions mentioned in Order XLVII Rule 1 of the Code of Civil Procedure, 1908 are demonstrated, the Court cannot review its order.
6. Be that as it may, we have nevertheless considered the merits of the arguments advanced by both counsel on the above issue. Review Petitioners rely on copies of evaluated typing sheets to submit that Respondents have identified mistakes therein and only the encircled faults must be considered for the purpose of evaluation. Applying this methodology, Mr. Chibber had submitted that only 12 mistakes have been identified in typing sheet of Mr. Neeraj Kumar Sangwan, and as per Respondents' marking criteria, only 1 mark ought to have been deducted, instead of 7 marks. Similar contention 4 (2010) 6 SCC 759.
5See: SEPCO Electric Power Construction Corporation v. Power MECH Projects Ltd, (2021) 10 SCC 792. Signature Not Verified Digitally Signed Rev.P.No.72/2021 in LPA No.123/2019 & connected matter Page 4 of 6 By:SAPNA SETHI Signing Date:07.10.2022 16:49:37 was also adopted by Mr. Upadhyay.
7. The pertinent question, therefore, for determination in present petitions is what constitutes as a 'mistake'. It would be apposite to first examine the evaluation criteria for typing speed entailed in the circular dated 17th August, 2010 for LDC examination. We notice that the above circular is silent on this aspect and the expression 'mistake' has not been categorically defined therein. Nonetheless, it cannot be disputed that under the scheme of LDC examination, candidates were required to have an average speed of typing 30 words per minute and type a passage of about 450 words of 30 marks within 10 minutes. In order to qualify, candidate must have obtained a minimum of 20 marks out of said 30 marks, and 1 mark was to be deducted for every 15 mistakes. However, in absence of a set definition of mistake, it was for Respondents to devise a marking criterion on basis whereof Review Petitioners' typing sheets were evaluated. Respondents have explained that Review Petitioners' marks have been deducted for strokes, faulty typing, repetitions, faulty spacing etc. - which constitute as mistakes. Thus, Review Petitioners' errors in typing sheets are far more than the encircled mistakes.
8. Therefore, in order to identify the mistakes, the Court would necessarily have to re-assess Review Petitioners' typing sheets and award marks based on own evaluation. It needs no reiteration that Courts must tread carefully in such matters and refrain from impinging on an academic evaluator's jurisdiction by re-assessing answer sheets. For us to sit over the typing sheets and calculate the number of mistakes apropos assessment norms decided by Respondents, would amount to re-evaluation of answer Signature Not Verified Digitally Signed Rev.P.No.72/2021 in LPA No.123/2019 & connected matter Page 5 of 6 By:SAPNA SETHI Signing Date:07.10.2022 16:49:37 scripts, which is outside the scope of judicial review.6 Since present cases are evidently not of re-totalling, as sought to be projected by Review Applicants, we do not find any infirmity in the impugned judgement and reiterate that learned Single Judge ought not to have re-examined Review Petitioners' marks with the aid of the Court Master.
9. For the foregoing reasons, since Review Applicants have failed to demonstrate any mistake or error apparent on the face of record, no ground is made out to set aside the impugned judgement.
10. Dismissed along with pending application(s).
SANJEEV NARULA, J RAJIV SHAKDHER, J OCTOBER 07, 2022 nk 6 See: Central Board of Secondary Education v. Khushboo Srivastava and Ors (Supra); Salil Maheshwari v. High Court of Delhi, 2014 SCC OnLine Del 4563; Abhijit Uddhavrao Nikam v. The Maharashtra Public Service Commission, MANU/MH/0757/2013; Ran Vijay Singh v. State of U.P. (Supra).
Signature Not Verified Digitally Signed Rev.P.No.72/2021 in LPA No.123/2019 & connected matter Page 6 of 6 By:SAPNA SETHI Signing Date:07.10.2022 16:49:37