Madhya Pradesh High Court
Ankita Chandrawat vs M.P. High Court on 15 June, 2016
Author: Anurag Shrivastava
Bench: Anurag Shrivastava
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 1281 of 2016
Ankita Chandrawat and another
- V/s -
MP High Court and another.
Writ Petition No : 1224 of 2016
Deepak Kumar Shukla and others
- V/s -
MP High Court and another.
Present : Hon'ble Shri Justice Rajendra Menon,
Acting Chief justice; and,
Hon'ble Shri Justice Anurag Shrivastava.
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In both the cases.
Shri Amitabh Gupta and Shri Prashant Chourasiya,
Counsel for the petitioners.
Shri K.N. Fakhruddin, counsel for the respondents.
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Whether approved for reporting: Yes / No.
ORDER
15/06/2016 As common questions of law and fact are involved in these two writ petitions, they are being heard analogously. For the sake of convenience, pleadings and documents available in the record of Writ Petition No.1281/2016 are being referred to in this order. 2- Petitioners participated in the recruitment process conducted by the High Court for appointment on the post of Civil Judge Class II (Entry Level). In Writ Petition No.1281/2016, petitioners secured 85 marks in the preliminary examination, whereas the cut-off marks fixed to be eligible for being successful in the preliminary 2 Writ Petition Nos:: 1281/2016 & 1224/2016.
examination, in the unreserved category, was 86 marks. Similarly, petitioners in Writ Petition No.1224/2016 also appeared in the preliminary examination in the Civil Judge Class II, Entry Level Examination 2015, conducted on 20.12.2015, and received 85 marks. It is their case also that the cut-off mark fixed to be eligible to appear in the final examination was 86 and infact all the petitioners missed their chance to be declared qualified in the preliminary examination by one mark.
3- It is the case of all the petitioners that in the examination, Question No.15 and Question No.55 were answered by them correctly and inspite of having answered the questions correctly, they were not given marks. Interalia contending that if one mark each, in these questions, are granted to each of the petitioners, they would be declared qualified in the preliminary examination and would become eligible to appear in the final examination. It is stated that the model answers notified by the Examination Section of the High Court, with regard to both these questions i.e... Question No.15 and Question No.55 are incorrect, the questions answered by the petitioners are correct and, therefore, seeking benefit of two additional marks, the writ petitions have been filed.
4- Considering the grievance of the petitioners, at the preliminary stage finding a prima facie case made out, the petitioners were permitted to appear provisionally subject to final decision of the writ petitions with a rider that no equity shall be claimed by them at a later stage and they were permitted to appear in the Final Examination, and we are told that all the petitioners appeared in the Final Examination and except for one of the petitioners, in Writ Petition No.1281/2016, the others have not passed the Examination. 5- Be that as it may be, we are now required to consider the grievance of the petitioners and take a decision.
6- Question No.15 reads as under:-
"15. Order rejecting plaint under Order 7 Rule 11, of the CPC."
3Writ Petition Nos:: 1281/2016 & 1224/2016.
The four options given for this question are as under:-
"(1) - is a decree;
(2) - is an order;
(3) - is a deemed decree; and, (4) - is an interim order."
According to the model answer circulated by the High Court, Option 1 is the correct answer, whereas according to the petitioners Option 3 is the correct answer.
7- Question No.55 reads as under:-
"55. Two persons, A & B fight with each other. A was having a blade with which 'A' inflicts injury on the face of 'B' leaving a permanent scar on the face of B. A is guilty of offence of causing -"
The four options given for this question are as under:-
"(1) - Grievous hurt by sharp cutting object; (2) - Grievous hurt by rash or negligent act; (3) - simple hurt by sharp cutting object; and, (4) - Simple hurt by rash or negligent act."
According to the model answer circulated by the High Court, Option 1 is the correct answer, whereas according to the petitioners Option 3 is the correct answer.
8- Shri Amitabh Gupta and Shri P. Chourasiya, learned counsel for the petitioners, invited our attention to the definition of „decree‟ as contained in Section 2(2) of the Code of Civil Procedure, 1908 (hereinafter referred to as „the Code‟), and argued that an order rejecting a plaint under Order VII Rule of the Code is a „deemed decree‟ as per the provisions of section 2(2) and, therefore, the option given by the petitioners to this question i.e... Option No.3 is also the correct option. Learned counsel invites our attention to certain opinion given in the Book on „Civil Procedure with Limitation Act, 1963‟, 7 th Edition, Published by Eastern Book Company, authored by a Former Judge of the Supreme Court, Hon‟ble Shri Justice C.K. Thakker, as contained in Chapter II with regard to commentary on what is a „deemed decree‟ and 4 Writ Petition Nos:: 1281/2016 & 1224/2016.
argued that an order passed under Order VII Rule 11 CPC is a „deemed decree‟ as per the opinion of the Author and, therefore, the option given by the petitioners were correct. Learned counsel argues that by virtue of a legal fiction created in the matter, the correct answer is „deemed decree‟ and the petitioners are entitled to one mark for this question. In support of his contention, learned counsel further invited our attention to the concept of Legal Fiction as discussed and indicated by Justice G.P. Singh, in his Book on „Principles of Statutory Interpretation‟ and argues that an order passed under Order VII Rule 11 CPC is a „deemed decree‟ and, therefore, the answer given by the petitioners are correct. 9- Shri Amitabh Gupta, learned counsel for the petitioners, further places reliance on a judgment of the Supreme Court in the case of Amal Chandra Mondal Vs. Anita Biswas, 2006 (2) CLJ 180, and certain observations made in paragraph 21 thereto, to say that an order passed under the provisions of Order VII Rule 11(a) of the Code, rejecting a plaint is a „deemed decree‟ as observed by the Supreme Court in the aforesaid judgment.
10- Similarly, Shri Amitabh Gupta, learned counsel for the petitioners, further argued that with reference to Question No.55, the correct answer would be Option No.3 i.e... „simple hurt by sharp cutting object‟. Learned counsel invited out attention to the definition of „grievous hurt‟ as defined in Section 320 of the Indian Penal Code, and the explanation Sixthly thereto, to say that to constitute a „grievous hurt‟ the injury should cause „permanent disfiguration of the head or face‟. It is stated that in this case the injury is a „simple hurt by a sharp edged weapon‟ and merely if there is a scar on the face it cannot be termed as „disfiguration‟. According to learned counsel, „disfiguration‟ means something which happens to the face whereby the entire complexion and look of the face changes. By contending that a scar on the face would not amount to „permanent disfiguration‟, learned counsel argues that the option submitted by the petitioners are correct and in support thereof invites our attention to a judgment of the Kerala High Court, in the case of Mathu Paily Vs. State of Kerala, 1962 (1) CrLJ 652. Learned 5 Writ Petition Nos:: 1281/2016 & 1224/2016.
counsel also invites our attention to the definition of „disfiguration‟ and tried to indicate that it is a case where only a scar is found of the face, this amounts to a „simple injury‟ and, therefore, the respondents have committed an error in deducting two marks from all the petitioners. Learned counsel took us through various aspects of the matter in detail, as indicated hereinabove, in support of his contention. 11- Shri Khalid Noor Fakhruddin, learned counsel for the respondents, refuted each and every contention and argued that the question posed to the candidate was as to what is the nature of an order passed rejecting a plaint under Order VII Rule 11 of the Code. If the definition of the word „decree‟ as indicated in Section 2(2) of the Code, is taken note of, it is crystal clear that „decree‟ would also cover an order passed under Order VII Rule 11 CPC. Learned counsel argued that in the entire Scheme of the CPC, there is nothing like a „deemed decree‟. A „deemed decree‟ is not at all defined in the Code of Civil Procedure. What is provided for in the Code of Civil Procedure is a „decree‟, a „judgment‟, and, an „order‟. There is nothing like a „deemed decree‟ in the Code and the question asked by the examiner is to test the legal acumen of a person. The correct answer, therefore, is that an order passed under Order VII Rule 11 of the Code is a „decree‟ and there being nothing like a „deemed decree‟ in the Code, Shri Fakhruddin argues that the contention of the petitioners is not correct.
12- Shri Fakhruddin, learned counsel for the respondents, invites our attention to the following judgments in support of his contention to say that an order passed under Order VII Rule 11 CPC is a „decree‟. The judgments relied upon are::
(a) Meera Sinha Vs. Girja Sinha and another, AIR 2009 PATNA 19, wherein it has been held by the Patna High Court in paragraph 19, that an order rejecting a plant under Order VII Rule 11 CPC is a „decree‟ within the meaning of Section 2(2);
(b) Shamsher Singh Vs. Rajinder Prashad and others, AIR 1973 SC 2384, wherein also in paragraph 3, it has been held 6 Writ Petition Nos:: 1281/2016 & 1224/2016.
that an order rejecting a plaint under Order VII Rule 11 CPC for non-payment of additional court-fee is appealable, as the same is a „decree‟ within the meaning of section 2(2) of the Code;
(c) Judgment of the Calcutta High Court in the case of Birendra Nath Bakshi Vs. Emperor, AIR 1935 Calcutta 336; Judgments of Nagpur High Court in the case of Shamrao Janrao and another Vs. Amolak Chimnira Maheshwari and others, AIR (36) 1949 Nagpur 373;
Niyaz Bi Vs. Amdumiyan, AIR (36) 1949 Nagpur 375;
Judgment of the Patna High Court in the case of Smt. Sonma Devi Vs. Smt. Urmila Devi and another, AIR 2009 PATNA 71; and, a judgment of the Full Bench of this Court, in the case of Budhulal Kasturchand Vs. Chhotelal and others, AIR 1977 MP 1 (FB), wherein it is consistently held that an order passed rejecting a plaint under Order VII Rule 11 of the Code is a „decree‟ within the meaning of section 2(2).
(d) Reliance is also placed in this regard on another judgment of this Court in the case of Jai Narain Charitable Registered Society Vs. Smt. Kumud Verma and others, 1998 MP ILR 227.
13- Shri Fakhruddin, learned counsel for the respondents, took us through all these judgments; the definition of the word „decree‟ as defined under section 2(2) of the Code, and argued that the correct answer to this question is „decree‟. There being nothing like „deemed decree‟ under the Code of Civil Procedure, the petitioners contention according to Shri Fakhruddin cannot be accepted.
14- With regard to Question No.55, Shri Khalid Noor Fakhruddin invited out attention to the provisions of Section 320 of the Indian Penal Code, and the implication of the Explanation - Sixthly thereto, particularly with reference to the words „permanent disfiguration of the head or the face‟ as provided in the definition. Learned counsel 7 Writ Petition Nos:: 1281/2016 & 1224/2016.
further referred to the question and argued that if the wordings of the question are taken note of, it would be clearly seen that the question speaks about the injury being inflicted by a blade on the face of the victim leaving a „permanent scar‟ on the face of the victim. The words „permanent scar‟ used in the question is indicative of the fact that it is a permanent mark in the form of a „scar‟ in the face, which amounts to „permanent disfiguration‟ and, therefore, it is a „grievous hurt caused by a cutting object i.e.... a blade‟, and the correct answer is Option No.1 and not Option No.3, as canvassed by the petitioners. 15- Shri Fakhruddin, learned counsel for the respondents, in this regard invites our attention to a judgment of the Supreme Court in the case of Alister Anthony Pareira Vs. State of Maharashtra, AIR 2012 SC 3802, and the principle laid down therein to say that when a „permanent scar‟ is made on the face of the victim, it is not a „simple injury‟, but would be covered by the definition of „grievous injury‟, as defined under section 320 IPC. Learned counsel took us through the observations made by the Supreme Court in paragraphs 66 and 67, of this judgment, to buttress his contention.
16- Shri Fakhruddin finally argued that the preliminary examination for the Selection in question is conducted by putting objective type questions and is to test the basic legal acumen and intelligence of a candidate and, therefore, questions are formulated and the options given in a manner so as to create confusion and then test the intelligence of the candidate with reference to their knowledge of law in specific terms related to the concept of Law and the definitions or the principle of law governing the question. Learned counsel argued that the examination was a preliminary examination based on objective type questions and the candidate was required to give specific reply based on the option and as far as the present two questions are concerned, they were based on the statutory definition of a particular provision, and when based on the definition a specific answer was available as per the option that would only be the correct answer and if an option just to create confusion and to test the intelligence of the candidate in the 8 Writ Petition Nos:: 1281/2016 & 1224/2016.
backdrop of his legal knowledge based on the definition, an option which is not the correct one with specific reference to the definition cannot be treated as the correct one. Learned counsel emphasized that in this case the options given were deliberately incorporated by the Expert Examiner‟s to somehow create confusion in the matter for the purpose of testing the legal aptitude and acumen of the candidate. 17- We have considered the rival contentions and we find that Question No.15 as indicated hereinabove was as to what is the nature of an order passed rejecting a plaint under Order VII Rule 11 of the Code. The option given is that it is a „decree‟. A „decree‟ is defined in section 2(2) of the Code and merely because certain orders passed by legal fiction as contended by Shri Amitabh Gupta may be „deemed to be a decree‟, this cannot be the correct answer as under the statutory provisions and the definition of „decree‟ as is detailed in the Code of Civil Procedure, there is nothing like a „deemed decree‟. The Code of Civil Procedure only contemplates a „decree‟ as defined under section 2(2) and when a plaint is rejected under Order VII Rule 11 of the Code, the order is in the nature of a „decree‟. Even if by legal fiction the order can be „deemed to be a decree‟, but the correct answer which is based on the definition of „decree‟ would be that it is a „decree‟ and the contention of the petitioners that the option given by them is also correct cannot be accepted, because the definition of „decree‟ under section 2(2) only by creating a legal fiction includes certain orders to be „decree‟, but there being no specific term like a „deemed decree‟ defined under the Code of Civil Procedure, the only correct answer would be that it is a „decree‟ and the High Court in prescribing the answer in the manner as done has not committed any error. The judgments relied upon by Shri Fakhruddin also indicates that an order rejecting a plaint under Order VII Rule 11 of the Code is a „decree‟ within the meaning of Section 2(2). Petitioners‟ contention that by legal fiction the answer is „deemed decree‟ cannot be accepted for the simple reason that the specific question asked for was as to whether such an order is a „decree‟. Once it is found to be „decree‟ fulfilling the requirement of section 2(2), the correct answer could only 9 Writ Petition Nos:: 1281/2016 & 1224/2016.
be that it is a „decree‟ and the contention of the petitioners that it is a „deemed decree‟ cannot be accepted for the reasons as discussed hereinabove. Accordingly in deciding this issue as done, the respondents have not committed any error.
18- Similarly, as far as Question No.55 is concerned, the question if scrutinized meticulously would indicate that the question speaks about an injury being caused on the face of the victim by use of a blade and the effect of the act resulting in a „permanent scar‟ on the face of the victim. A „permanent scar‟ on the face of a victim is nothing, but a „permanent mark‟ on the face, which has the consequential effect of „permanent disfiguration‟ of the face. Once there is a „permanent mark‟ caused on the face of a person, it is nothing but a „permanent disfiguration‟ of his face and, therefore, injury of this nature would be nothing but „grievous hurt‟ caused by a sharp cutting weapon. 19- Definition of „disfigure‟ as defined in the Oxford Dictionary reads as under:-
"disfigure - v.tr. spoil the beauty of; deform; deface. Disfigurement n. [ME f. of des-figurer f. Rmc (as DIS-, FIGURE)]."
Any deformation or defacement would amount to disfiguration and when a „permanent scar‟ is caused on the face by a person, it is nothing but „disfiguration‟.
Similarly, a „scar‟ is defined in the Dictionary in the following terms:-
"scar - n & v. 1 - A usu. permanent mark on the skin left after the healing of a wound, burn, or sore. 2 - the lasting effect of grief etc. on a person‟s character or disposition. 3 - a mark left by damage etc (the table bore many scars). 4 - a mark left on the stem etc of a plant by the fall of a leaf etc.
-v (scarred, scarring). 1 tr. (esp. as scarred adj.) mark with a scar or scars (was scarred for life). 2 intr. heal over; form of a scar. 3 tr. form a scar on. - scarless adj. [ME f. OF eschar(r)e f. LL eschara f. Gl eskhara scab]."10
Writ Petition Nos:: 1281/2016 & 1224/2016.
20- We further find much substance in the contentions advanced by the respondents to say that the examination was a preliminary examination based on objective type questions and the candidate was required to give specific reply based on the option and as far as the present two questions are concerned, they were based on the statutory definition of a particular provision, and when based on the definition a specific answer was available in the options provided that could only be the correct answer and if an option just to create confusion and to test the competence of the candidate in the backdrop of his legal acumen pertaining to the definition is asked, the option which is not the correct one with specific reference to the definition cannot be treated as the correct one. In the present case, the options given were deliberately incorporated by the Expert Examiner‟s to somehow create confusion for the purpose of testing the legal aptitude and acumen of the candidate. The wisdom of the experts, the purpose and the justification given by the respondents for the impugned action when found to be reasonable and based on proper consideration of various factors relevant to the issue in hand cannot be reassessed by this Court exercising power akin to that of an appellate authority nor can this Court sit over the decision of the experts once the same is found to be proper and in accordance to law. 21- In that view of the above, we are of the considered opinion that with regard to Question No.55 the correct answer would be „grievous hurt‟ and the contention of the petitioners cannot be accepted. 22- It may also be taken note of that after the model answers were published, objections were called for from various candidates. The objections were placed before a High Power Committee of the High Court and based on the opinion of the High Power Committee, a final decision was taken. Objections were received with regard to both these questions also and the records produced by the respondents indicate that the High Power Committee examined the matter in detail and rejected the objections. Once a High Power Committee has also examined the matter in detail, and for the reasons as are indicated by the respondents in the return, which is also considered by us, when the matter is rejected, 11 Writ Petition Nos:: 1281/2016 & 1224/2016.
we see no reason to interfere, as an Expert Body has also considered the grievance of the petitioners and rejected it.
23- Keeping in view the totality of the facts and circumstances, we find no error in the action taken warranting reconsideration. The petitions are misconceived. They are dismissed and the benefit granted to the petitioners to participate in the second phase of the selection process by virtue of the interim order stands vacated. They are also not entitled to participate in the second phase of the Examination and, therefore, their results be cancelled.
24- Accordingly, finding no ground for interference, both the writ petitions stand dismissed.
( RAJENDRA MENON ) ( ANURAG SHRIVASTAVA )
ACTING CHIEF JUSTICE JUDGE
Aks/-