Jammu & Kashmir High Court - Srinagar Bench
Mr. Basharat Saleem vs Jk High Court Through Registrar General on 20 November, 2018
Bench: Ali Mohammad Magrey, Sanjeev Kumar
Regular
S.No.16
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No.167/2017
Date of Decision: 20.11.2018
Mr. Basharat Saleem Vs. JK High Court through Registrar General
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Sanjeev Kumar, Judge
Appearance:
For the petitioner(s): Mr. M.A.Qayoom, Advocate
For the respondent(s): Mr. R.A.Jan, Sr.Advocate with Ms Sharaf Wani, Advocate
i) Whether to be reported in law/ Journal. : Yes/No
ii) Whether to be reported in press/media : Yes/No Sanjeev Kumar-J
1. Vide notification No.264-A dated 25-06-2010, issued by the respondent, applications came to be invited to fill up 11 posts of District Judges by direct recruitment. The petitioner submitted application in the prescribed format and was permitted to participate in the selection process. The petitioner was found eligible by the respondent to participate in the written examination, result whereof was declared in the year 2011. The petitioner was indicated at serial no.95 of the result sheet and his total merit in paper-I and paper-II was indicated as 34 ½. He obtained 25 ½ marks in paper-I and 09 marks in paper-II. Since he could not reach the benchmark as fixed in the selection criteria, as such, he was not invited for viva voce and further process of selection. The candidates, who SWP No.167 of 2017 Page 1 of 6 had cleared the benchmark in the written examination, were subsequently invited for viva voce and selection list was accordingly prepared. It is stated that the selection process, which was initiated on 25-06-2010, culminated on 04-08-2011 with appointment of only one candidate, namely, Sh. Shahzad Azim as District Judge, who was appointed vide impugned order no.266-A of 2011.
2. The petitioner, who had failed to qualify the written examination, appears to have approached the respondent with representation highlighting his dissatisfaction with the manner in which his answer scripts had been evaluated by the examiners. The petitioner appears to have moved an application before the Registrar General of this Court for re-checking/re-evaluation of his answer scripts. Petitioner claims that when he did not get any response from the respondent, he moved an application under the J&K Right to Information Act, 2009 on 10-12-2015 before the respondent. In response to the aforesaid application, the petitioner was permitted to inspect and obtain copy of the answer scripts after filing proper application. The petitioner after inspecting and getting the answer scripts felt dissatisfied with the manner in which his answer scripts had been evaluated by the examiners and, therefore, filed the instant petition claiming inter alia the following reliefs:-
I) Mandamus to the respondent for re-evaluation and re-checking of the answer scripts of the petitioner.
II) Mandamus to the respondent to consider his appointment against the post of District Judge.
3. Pursuant to notice issued by this Court, the respondent has filed reply affidavit. The maintainability of the writ petition has been objected inter alia on the ground that the writ petition, challenging the selection of District Judge by direct recruitment made in the year 2011, has been challenged by the petitioner in the year 2017, and, therefore, the writ petition is hit by delay and latches and also that the petitioner having participated in the selection process with his eyes SWP No.167 of 2017 Page 2 of 6 wide open is estopped in law to turn around and challenge the selection only after finding the results were not palatable to him. Apart from aforesaid preliminary objections raised by the respondent, the writ petition is contested on merits as well. A very specific and categoric plea has been raised by the respondent that in absence of any specific provision in the statute, rules and regulations providing for re-evaluation and re-checking, a candidate has no right to claim it and, therefore, no mandamus would lie to direct the respondent to re- evaluate the answer scripts.
4. Having heard learned counsel for the parties and perused the record, we find that the writ petition primarily raises the following questions for determination.
a) Whether re-evaluation/re-assessment/re-checking/re-examination of answer scripts is permissible in the absence of any provision in the statute governing such examinations?
b) Whether, in the facts and circumstances of this case, a case for re- evaluation/re-examination of answer scripts is made out?
c) Whether in the absence of selected/appointed candidates being party to the writ petition, the relief claimed by the petitioner could be granted?
d) Whether the writ petition is inordinately delayed and is hit by delay and latches?
5. The first question should not detain us any more, in that, the law on the subject is well settled. A Division Bench of this Court in LPA No.03/2018 titled J&K Public Service Commission v. Hidayat Ahmad Mir and Others decided on 13th March, 2018 after surveying the case law on the point in para 23 held thus:-
"23.From the analysis of aforementioned judgments, following conclusion can be drawn:-SWP No.167 of 2017 Page 3 of 6
i) An examinee can ask for re-evaluation of his/her answer scripts and access to the model answer keys, if the Statute, Rules or Regulations, governing the examination provide for it.
ii) Even in the absence of any specific provision in the Statute, Rules or Regulations governing the examination, the power to correct the model answer keys and re-evaluate the answer scripts of the candidates inheres in the examination body, unless there is specific prohibition in such Statute, Rules or Regulations.
iii) The Court may also permit re-evaluation or scrutiny, if it finds that the errors in the model answer keys are demonstrably erroneous without any inferential process of reasoning or by a process of rationalization. But this power shall be exercised by the Court only in rare and exceptional cases.
iv) Ordinarily, the questions set out in the question paper and the model answer keys prepared by the examination body with the assistance of experts are presumed to be correct and the Courts would be loathe to interfere with the opinion of the experts and there must be finality attached to the result of the public examination and in the absence of statutory provision, re-evaluation of answer scripts cannot be permitted other than in exceptional cases and as a rarity.
v) While the examination body has inherent power to correct the question paper and model answer key and direct re-
evaluation, yet said power is to be exercised in a bona fide manner and should not be actuated by mala fide considerations or result in arbitrariness."
6) From the reading of para 23 aforesaid it is abundantly clear that in the absence of specific provision in the statute, rules and regulations governing the examination, an examinee cannot, as a matter of right, claim his answer scripts to be re-evaluated/re-examined. This is very aptly observed by Hon'ble the Supreme Court in the Suvankar's case (2007) 1 SCC 603, which is noticed by the Supreme Court in the subsequent judgment rendered in the case of Secy., W.B. Council of Higher Secondary Education v. Ayan Das and Others. Para 13 SWP No.167 of 2017 Page 4 of 6 of the judgment rendered in Ayan Das's case (supra) observation be noticed and same is reproduced hereunder:-
"13. In Suvankar case it was inter alia observed as follows: (SCC pp.606-07, para 5) "5. The Board is in appeal against the cost imposed. As observed by this Court in Maharastra State Board of Secondary and Higher Secondary Education v Paritosh Bhupeshkumar Sheth, 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 end 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 pragmatic one were 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 fool-proof".
7. The reliance placed by the learned counsel for the petitioner on the judgment of Supreme Court rendered in the case of Sahiti & Ors v. Chancellor, Dr. N.T.R University of Health Sciences and Ors., reported in AIR 2009 Supreme Court 879, is totally misplaced. In the judgment aforesaid, it is, nowhere, held that the examinee, if dissatisfied with the evaluation of his answer scripts, can claim, as a matter of right, re-evaluation of his answer scripts. The careful perusal of the judgment aforesaid would demonstrate that while the Supreme Court conceded power of re-evaluation in favour of examination conducting authority/examiner under certain set of circumstances SWP No.167 of 2017 Page 5 of 6 but categorically provided that no such power inheres in the examinee. The results of public examination, when published, should have some finality attached to them and if at the instance of any unsuccessful and dissatisfied examinees the inspection/re-evaluation is permitted, as of right, it would lend to indefinite uncertainty to the process. The evaluation is a job best left for the experts and unless there are compelling reasons the Courts would be reluctant to substitute their own views as to what they feel would have been wise, prudent and proper. In the instant case, it is not the grievance of the petitioner that evaluation of the answer scripts has been done contrary to the norms fixed by the examining body nor learned counsel appearing for the petitioner has been able to point out anything glaring in the process of evaluation that would shock the conscience of this Court.
8. We were taken through the answer scripts of the petitioner which the examiners in their wisdom and on the basis of their long experience in the judiciary evaluated and for some answers which were not up to the mark thus awarded zero marks. The petitioner cannot be permitted to be the judge of his own cause nor can he be permitted to evaluate his answer scripts as per his prudence and wisdom. Having said that, we do not find it a case of such grave nature in the matter of evaluation of the answer scripts that would impel us to direct the re-examination/re-evaluation of the answer scripts of the petitioner.
9. In view of aforesaid discussion and our answer to the questions (a) and
(b), given above, we do not feel any necessity to go into other two questions formulated by us hereinabove.
10. For the foregoing reasons, we find no merit in this writ petition and same is accordingly dismissed.
1.
(Sanjeev Kumar) (Ali Mohammad Magrey)
Judge Judge
Srinagar
20.11.2018
Sarveeda
SWP No.167 of 2017 Page 6 of 6