Calcutta High Court (Appellete Side)
(Somenath Pal vs State Of West Bengal & Ors.) on 17 June, 2019
1
22/CL
17.06.2019
rrc
W.P.S.T. 46 of 2019
(Somenath Pal Vs. State of West Bengal & Ors.)
Mr. Pampa Dey (Dhabal)
.....For the petitioner
Mr. Swapan Kumar Datta
.....For the State
1. The petitioner before us was an aspirant for the post of
Process Server in the Judgeship of Bankura. Incidentally,
the petitioner took the Staff Recruitment Examination,
2013 of Bankura Judgeship for such purpose. The
process of examination required the aspirants to answer
25 multiple choice questions, full marks wherefor were
50 and four other questions for which full marks were 50
(5+5+20+20). Insofar as the multiple choice questions are
concerned, the petitioner obtained 47.67 marks out of 50
marks. To that was added 39 marks, which the petitioner
obtained out of the rest 50 marks, for answering the
questions other than the multiple choice questions taking
his tally to 86.67. Since the last candidate who obtained
appointment had obtained 87.50 marks, the petitioner
was not offered appointment.
2
2. Exercising his right guaranteed by the Right to
Information Act, 2005, the petitioner sought for his
answer script. The same was provided to him. Perceiving
erroneous evaluation of two part-questions of Question
No. 29, which required the aspirants to translate the
given sentences from vernacular (Bengali) to English, the
petitioner had approached a learned Judge of this Court
with a writ petition [W.P. 17872 (W) of 2014]. The order
passed on 17th June, 2015 on such writ petition reads as
follows:-
"Affidavit of service filed in Court today be
taken on record.
Perusing the instant writ petition, it appears
that the matter is in respect of a stuff recruitment
examination held in the year 2013 for the post of
Process Server under the district Judgeship of
Bankura. Undoubtedly, the matter relates to
State service.
As such, this writ petition is disposed of with
liberty to the petitioner to approach an
appropriate forum, provided of course, he is
otherwise eligible and/or entitled to seek such
relief, as prayed for herein, in accordance with
law.
Urgent photstat certified copy of this order, if
applied for, be given to the learned advocates for
the parties."
3. Unfortunately, the provision contained in Section 2(c) of
the Administrative Tribunals Act, 1985 (hereafter the
1985 Act) does not appear to have been brought to the
notice of the Court at the time of disposal of W.P. 17872
3
(W) of 2014; hence, despite having approached the
appropriate court for redress, the petitioner was left to
pursue his remedy elsewhere.
4. Be that as it may, the petitioner approached the West
Bengal Administrative Tribunal by presenting O.A. 825 of
2015. The original application has been dismissed by an
order dated 1st February, 2018 passed by the tribunal,
the operative portion whereof reads as follows:-
"On close scrutiny of the evaluation of the
answer script of the applicant, we are unable to
accept the contention made on behalf of the
applicant that the evaluation has not been done
properly. Since the evaluation is done properly
and since the applicant did not obtain the
requisite marks for selection to the post of
process server, we do find any merit in the
present application. Accordingly the application is
dismissed."
This order dated 1st February, 2018 is the subject matter
of challenge in this writ petition.
5. It is indeed true that the order dated 1st February, 2018
is without jurisdiction, having regard to the provision
contained in Section 2(c) of the 1985 Act. However, since
the petitioner was relegated to the remedy before an
appropriate forum by the order dated 17th June, 2015
holding that the matter relates to 'State service' and the
tribunal was consequently approached by the petitioner,
thereby unnecessarily forcing him to run from pillar to
4
post for justice, we do not consider it proper to set aside
the order of the tribunal only on the ground of
jurisdictional error and to direct the petitioner to once
again knock the doors of justice by approaching the writ
court. No act of court should harm a litigant and hence
we have proceeded to hear the parties on the merits of
the controversy raised by the petitioner.
6. Ms. Dhabal, learned advocate for the petitioner has
invited our attention to Question No. 29 in terms whereof
the aspirants were required to translate ten sentences to
English from vernacular (Bengali).
7. Reference has first been made to the 8th part-question,
which required translation of the sentence "i¡lahoÑ HL¢V
hs J jq¡e −cnz". The petitioner answered "Bharatbarsha
(India) is a vast and great country."
8. It appears that the examiner awarded the petitioner only
1 mark instead of 2. The reason as to why 1 mark was
deducted is not evident from the answer script on which
the evaluation was made.
9. We enquired from Mr. Datta, learned senior advocate for
the respondents as to whether there can be a better
translation than the one the petitioner attempted. In his usual fairness, Mr. Datta agreed that the answer of the 5 petitioner was indeed correct. If the petitioner were awarded 1 mark more, he would have obtained 87.67 marks which is more than the marks obtained by the last appointed candidate from the panel (87.50 marks).
10. This appears to us to be sufficient ground to pass an appropriate order to protect the interest of the petitioner. However, Ms. Dhabal has also invited our attention to the 7th part-question of Question No. 29. The aspirants were required to translate "B¢j fl£r¡ ¢c−a H−p¢Rz". The petitioner's answer was "I have come to take the examination". The examiner awarded '0' to the petitioner.
11. The classical answer could be "I have come to write the examination." However, the answer given by the petitioner is not wrong. In the Indian context where people are prone to use the verb 'give', the petitioner aptly used the verb 'take'. We are clear in our mind that the answer attempted by the petitioner was again correct and he was entitled to 2 marks therefor, thereby taking his tally to 89.67.
12. A question could naturally arise as to whether it is the function of the writ court to sit in judgement over the evaluation made by examiners who are appointed for the purpose of evaluation of answer scripts of a competitive 6 examination. There can be no doubt that normally, the Court ought not to substitute its opinion for that of the examiner's opinion. The courses open to the Court are summarized in the decision of the Supreme Court reported in (2018) 2 SCC 357 (Ran Vijay Singh & Ors. Vs. State of Uttar Pradesh & Ors.). We can do no better than reproduce paragraph 30 and its sub-paragraphs, reading 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."
7
13. In this case, there is no provision for a scrutiny/reevaluation which the petitioner could have availed of. We have also not been shown that scrutiny/reevaluation is prohibited. From experience gathered over the years, we are aware that the answers in connection with recruitment examinations conducted for appointment of staff in the subordinate courts are evaluated by judicial officers. Should we then direct reevaluation by the judicial officers? Or, is it the law that the Court can never reevaluate? To cite an example, if an examinee is called upon to name the capital of West Bengal and he writes 'Kolkata', but is not given any marks for such answer, should the Court fold its hands? Since the answer is 'Kolkata', he is entitled to full marks. Or take the instance where an examinee is asked to divide 100 by 10, add to it 90 and multiply it by 4. If 400 is the answer written and no credit is given for such answer, should the examinee be told off at the gate by the Court when a challenge is thrown on the specious ground that it ought not to substitute its opinion for the opinion of the examiner? The answer has to be in the negative.
14. We are of the view that instances like the one under consideration, where technical nature of questions are 8 not set and questions are set requiring translation of simple sentences, the same must be addressed by the Court or else justice would be the real casualty.
15. We have noticed hereinbefore as to how the petitioner has suffered. Applying the maxim actus curiae neminem gravabit, we feel compelled to interfere and grant relief to the petitioner without directing re-evaluation since it is clear, without any inferential process of reasoning or by a process of rationalisation, that a material error has been committed. And, this indeed is a rare and exceptional case where the dicta of the Supreme Court in paragraph 20 of the decision reported in AIR 1987 SC 537 (Comptroller and Auditor General v. K. S. Jagannathan) ought to be applied.
16. The order of the tribunal impugned in this writ petition stands set aside. The petitioner shall be treated to have obtained 89.67 marks. The District Judge, Bankura is directed to offer him appointment immediately, but not later than seven days from date, on a vacant post of process server. If no vacancy is available as on date, the next vacancy shall not be filled up by any recruitment process but appointment shall be offered to the petitioner first. Should the petitioner fail to accept the offer of 9 appointment within the period stipulated therefor, the vacancy may be filled up in accordance with law. If the vacancy filled up by the petitioner happens to be reserved, such reservation shall be carried forward to the next vacancy and filled up by a reserved candidate through a process of recruitment conducted in accordance with law.
17. It is made clear that if the petitioner accepts the offer of appointment, he shall not be entitled to claim any benefit with retrospective effect.
18. The writ petition stands allowed. There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. (Saugata Bhattacharyya, J.) (Dipankar Datta, J.)