Allahabad High Court
The Institute Of Chartered Accountants ... vs Ashutosh Nigam And Another on 14 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 215
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 9 Case :- SPECIAL APPEAL No. - 263 of 2014 Appellant :- The Institute Of Chartered Accountants Of India Throu Secy. Respondent :- Ashutosh Nigam And Another Counsel for Appellant :- Amit Jaiswal Counsel for Respondent :- A.S.G.,Ajay Kishor Pandey,Satish Chandra Rai,Sudeep Kumar Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Sri Amit Jaiswal, learned counsel for the appellant and Sri Sudeep Kumar, learned counsel for the opposite party no.1 and Sri Ajay Kishore Pandey, learned counsel for opposite party no.2.
Facts, in brief, of the present case are that Institute of Chartered Accountants of India (herein after referred as ''Institute') is a statutory body created by an Act of Parliament viz the Chartered Accountants Act,1949 (hereinafter referred at ''Act'). Further , as per regulations which were framed by the Institute a person who has to become a Chartered Accountant has to enroll with the Institute and he has to clear compulsory paper in the Intermediate and final examination conducted by the Institute.
In the present case , writ petitioner/ Ashutosh Nigam appeared in the examination for the purpose of enrollment of Chartered Accountant conducted by the Institute. He was not successful in the said examination, so he approached this Court by filing Writ Petition No.5887(MS) of 2013 (Ashutosh Nigam Vs. Union of India, Ministry of Human Resources through Secretary and another) with the following main relief:-
"(a) Issue writ, order or direction in the nature of mandamus commanding the opposite parties to evaluate/ re-evaluate the answer sheet of the petitioner for the corporate and allied Laws paper.
(b) Issue, writ, order or direction in the nature of Mandamus commanding the opposite parties produce the answer sheet of the petitioner of the corporate and Allied Laws Paper and to get them evaluated by some independent agency.
(c) Issue writ, order or direction in the nature of Mandamus commanding the opposite parties to declare the petitioner as having passed in Corporate and Allied Laws paper for the final group examination, 2013.
(d) Award costs in favour of the petitioner and against the opposite parties and to pass such further or other orders as may be considered just and proper in the interest of justice and in the circumstances of the case."
After exchange of pleadings , the writ petition was allowed vide judgment and order dated 28.04.2014 which reads as under:-
" Heard Shri Manish Mathur, learned counsel for the petitioner as well as Sri Vibhu Shanker, learned counsel for respondent no. 2.
Petitioner seeks reevaluation of the answer sheets of Corporate and Allied Law papers. Through the rejoinder affidavit he has brought on record the relevant documents i.e, (i) answer sheet,(ii) modal question answers prepared by the Institute. He drew the attention of this Court towards answer no. 1 A, 1 D and 4 B as well as answers suggested by the Institute and submitted that after comparing those it is obvious that the petitioner answered the questions in the same very manner. Therefore, he should have been awarded total marks assigned to each and every answer but it has not been done so far,rather in each answer marks have been reduced deliberately. After reading over the comparative chart of the answers, the mistake appears to be apparent.
Shri Vibhu Shanker, learned counsel for the respondent has raised questions on maintainability of the writ petition for the relief as sought therein on the ground that the relief of re-evaluation of answer book is not maintainable unless the rule permits so. He further submits that there is no such rule in the Institute concerned. He also submitted that there are several decisions propounded by Hon'ble the Supreme Court on this point. he pointed out some decisions which are referred to hereunder;
(i)Board of Secondary Education Vs. Pravas Ranjan Panda and anohter (2004) 13 Supreme Court Cases 383,
(ii)Himachal Pradesh Public Service Commission Vs. Mukesh Thakur and another (2010) 6 Supreme Court Cases 759,
(iii)Maharashtra State Board of Secondary and Higher Secondary Education and another Vs. Paritosh Bhupesh Kurmasheet (AIR 1984 Supreme Court 1543).
Learned counsel for the petitioner is also unable to produce any such rule, framed by the Institute, which permits the re-evaluation. However, after going through the comparative chart of the answers given by the petitioner as well as the answers suggested by the Institute, I find that there is no difference in the answers written by the petitioner and suggested by the Institute.Therefore, without applying any technical mind over there, I am of the view that the petitioner should have been awarded full marks allotted to each and every question. Therefore, I feel it appropriate to make an observation for the Institute concerned to re-consider petitioner's case as the error committed by the authority in awarding marks is apparent. Besides this Mr Mathur also points out that Regulation 39 of the Regulations framed by the Institute permits the authority to correct mistake. Therefore, it would be appropriate for them to award appropriate marks to the petitioner in the interest of his career.
In the aforesaid manner, this Court interfered with the matter and issued directions accordingly. I hope that the Institute shall come forward to correct its mistake within fifteen days and communicate result to the petitioner forthwith.
In the aforesaid term, the writ petition stands disposed of finally."
The appellant has challenged the judgment and order dated 28.04.2013 on the ground that there is no provisions of re-evaluation in the regulation which has been framed by the Institute, so the direction which has been given by Hon'ble Single Judge is contrary to law as laid down by Hon'ble Apex Court in the cases namely, (I) Board of Secondary Education Vs. Pravas Ranjan Panda and another ( 2004) 13 Supreme Court Cases 383, (ii) Himachal Pradesh Public Service Commission Vs. Mukesh Thakur and another ( 2010) 6 Supreme Court Cases 759, (iii) Maharashtra State Board of Secondary and Higher Secondary Education and another Vs. Paritosh Bhupesh Kurmasheet ( AIR 1984 Supreme Court 1543).
It is stated that the relevant judgments were placed before the Hon'ble Single Judge but the same were not considered while passing the judgment and order dated 28.04.2014, under appeal, and the impugned judgement has been passed, so the present special appeal has been filed and on 15.05.2014, this Court has passed an interim order, which on reproduction reads as under:-
"Sri Manish Mathur has accepted notice on behalf of the respondent no.1, while Miss. Alka Verma, learned counsel has accepted notice on behalf of respondent no.2.
Both may file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List after six weeks.
Apart from other arguments, it is urged that there being no provision under the rules for evaluation, the learned Single Judge exceeded his jurisdiction. It is further urged that even otherwise. the answers given by the respondent petitioner was quite contrary to the answers provided in the model answers of the Institute.
Accordingly, the operation of the order and judgment dated 28.4.2014 passed in Writ Petition No.5887 (M/S) of 2013 shall remain stayed."
Learned counsel for the appellant also submitted that that the observations which has been given by Hon'ble Single Judge while passing the impugned judgment dated 28.04.2014 is not correct as per record and the material on record placed before him as well as contrary to law. Accordingly, he requests that the present appeal may be allowed.
Sri Sudeep Kumar, learned counsel for the respondents submitted that there is no error in the judgement passed by Learned Single Judge rather the same is in accordance with regulation 39 (7) of the Chartered Accountant Regulation1988, which reads as under:-
"39(7) In any case where it is found that the result of an examination has been affected by error, malpractice, fraud, improper conduct or other matter, of whatever nature, the Council shall have the power to amend such result, in such manner as shall be in accordance with the true position and to make such declaration as the Council shall consider necessary in that behalf Provided that no such amendment shall be made which adversely affects a candidate, without giving him an opportunity of being heard:
Provided further that in the event of any error not arising out of any act or default of a candidate, proceedings for amendment adversely affecting the candidate shall not be initiated after the expiry of a period of oe month from the date of the declaration of result."
He further submitted that the judgment passed by learned single judge is also in accordance with law laid down by Hon'ble the Apex Court in the case of Manish Ujwal and others Vs. Maharishi Dayanand Saraswati University and others (2005) 13 SCC 744 where in para 9 and 10 it has been held as under:-
"9. In Kanpur University v. Samir Gupta [(1983) 4 SCC 309] considering a similar problem, this Court held that there is an assumption about the key answers being correct and in case of doubt, the Court would unquestionably prefer the key answers. It is for this reason that we have not referred to those key answers in respect whereof there is a doubt as a result of difference of opinion between the experts. Regarding the key answers in respect whereof the matter is beyond the realm of doubt, this Court has held that it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong. There is no dispute about the aforesaid six key answers being demonstrably wrong and this fact has rightly not been questioned by the learned counsel for the University. In this view, students cannot be made to suffer for the fault and negligence of the University.
10. The High Court has committed a serious illegality in coming to the conclusion that "it cannot be said with certainty that answers to the six questions given in the key answers were erroneous and incorrect". As already noticed, the key answers are palpably and demonstrably erroneous. In that view of the matter, the student community, whether the appellants or intervenors or even those who did not approach the High Court or this Court, cannot be made to suffer on account of errors committed by the University. For the present, we say no more because there is nothing on record as to how this error crept up in giving the erroneous key answers and who was negligent. At the same time, however, it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant caution is necessary in these matters for more than one reason. We mention few of those; first and paramount reason being the welfare of the student as a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answers; the second reason is that the courts are slow in interfering in educational matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, the benefit goes in favour of the University and not in favour of the students. If this attitude of casual approach in providing key answers is adopted by the persons concerned, directions may have to be issued for taking appropriate action, including disciplinary action, against those responsible for wrong and demonstrably erroneous key answers, but we refrain from issuing such directions in the present case."
Sri Sandeep Kumar, in support of his case, has also placed reliance on the judgment passed by the Hon'ble Apex Court in the case of High Court of Tripura through the Registrar General Vs. Tirtha Sarathi Mukherjee and others, 2019 SCC Online SC 139, wherein the Hon'ble Apex Court in paras 19 20 and 23 held as under:-
"19. We have noticed the decisions of this Court. Undoubtedly, a three Judge Bench has laid down that there is no legal right to claim or ask for revaluation in the absence of any provision for revaluation. Undoubtedly, there is no provision. In fact, the High Court in the impugned judgment has also proceeded on the said basis. The first question which we would have to answer is whether despite the absence of any provision, are the courts completely denuded of power in the exercise of the jurisdiction under Article 226 of the Constitution to direct revaluation? It is true that the right to seek a writ of mandamus is based on the existence of a legal right and the corresponding duty with the answering respondent to carry out the public duty. Thus, as of right, it is clear that the first respondent could not maintain either writ petition or the review petition demanding holding of revaluation.
20. The question however arises whether even if there is no legal right to demand revaluation as of right could there arise circumstances which leaves the Court in any doubt at all. A grave injustice may be occasioned to a writ applicant in certain circumstances. The case may arise where even though there is no provision for revaluation it turns out that despite giving the correct answer no marks are awarded. No doubt this must be confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than in favour of the candidate. The wide power under Article 226 may continue to be available even though there is no provision for revaluation in a situation where a candidate despite having giving correct answer and about which there cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marks.
23. In this case we have already noted that the writ petition was filed challenging the results and seeking revaluation. The writ petition came to be dismissed in the year 2012 by the High Court. The Special Leave Petition was dismissed in the year 2013. The review petition is filed after nearly 5 years. In the interregnum, there were supervening development in the form of fresh selection. While it may be true that the delay in filing the review petition may have been condoned, it does not mean that the Court where it exercises its discretionary jurisdiction under Article 226 is to become oblivious to the subsequent development and the impact of passage of time. Even in the judgment of this Court in U.P.P.S.C. through its Chairman & Anr. Vs. Rahul Singh & Anr. reported in 2018 (2) SCC 357 which according to the first respondent forms the basis of the High Court's interference though does not expressly stated so, what the Court has laid down is that the Court may permit revaluation inter alia only if it is demonstrated very clearly without any inferential process of reasoning or by a process of rationalization and only in rare or exceptional cases on the commission of material error. It may not be correct to characterize the case as a rare or exceptional case when the first respondent approaches the Court with a delay of nearly 5 years allowing subsequent events to overtake him and the Court. We feel that this aspect was not fully appreciated by the High Court. The review, it must be noted is not a re-hearing of the main matter. A review would lie only on detection without much debate of an error apparent. Was this such a case? It is here that we must notice the argument of the appellant relating to question in Part III of the examination alone, engaging the attention of the Court for the reason that the first respondent pressed this aspect alone before the High court. The judgment of the High Court in the writ petition appears to bear out this submission of the appellant. The issue relating to the anomaly in the evaluation of the Paper III has been discussed thread bare in the judgment. The view of the High Court has not been disturbed by this Court. Despite this the High Court in the impugned judgment has proceeded to take up the plea relating to questions in Part-I and Part-II and proceeded to consider the review petition and granted relief that too after the passage of nearly 5 years. This suffices to allow the present appeal."
Reliance on the judgment of the Division Bench of this Court passed in the case of Saumitra Gigodia Vs. Union of India and others, 2018 (2) ALJ 98 has also been placed, where in this Court in paras 21 and 22 observed as under:-
"21. Thus, we find that the opinion of the University or the expert, normally, should be accepted as it is assumed that such experts are well versed in their subject. We are further of the opinion that the decision of the examining body or the expert is not beyond judicial review. The prime consideration is to maintain the fairness of the examination and welfare of the students/ candidates, inasmuch as, in the event a wrong answer key is accepted, it would alter the fate of many candidates. The object of conducting an examination is to assess the merit of the candidates and to find out as to who is most suitable one for admission. The object of conducting a test would be defeated in case a wrong answer given is held to be beyond judicial review.
22. Normally, the Court should be cautious in interfering with the opinion of the expert but where it is found that the answer keys are demonstrably wrong, that is to say, it cannot be such as no reasonable body of men, well versed in the particular subject, would regard it as correct, in that event the Court should exercise its writ jurisdiction and ensure that the error is rectified."
Sri Sudeep Kumar, learned counsel for the respondent no.1 further submitted that in the present case, the learned Single Judge the pleadings on record and comparative chart, which was produced by the writ petitioner-respondent no.1 before the writ court, as also the answers suggested by the Institute and thereafter the writ court passed the judgment dated 28.04.2014, so it is not a case of re-evaluation rather it is a case where Learned Single Judge has passed the judgment after comparing the answers, which were given by the writ petitioner/ respondent no.1 with the model answers, so the present appeal lacks merit and is liable to be dismissed.
In rebuttal, Sri Amit Jaiswal, learned counsel for the appellant submitted that it is totally incorrect as a matter of fact the answers given by the writ petitioner/ respondent no.1 in examination for enrollment as Chartered Accountant are not same or similar to the answers as suggested in model answers provided by the Institute. Thus, the writ court exceeded its jurisdiction by acting as an expert of the subject. The judgment in appeal is contrary to settled principles on the issue. Prayer is to allow the appeal.
We have heard learned counsel for the parties and gone through the record.
So far the re-evaluation of answer book is concerned, there is no provision under Regulations or Statute of the Institute,the examination conducting body, and as such the court cannot direct for re-evaluation as held by Hon'ble Apex Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education and another Vs. Paritosh Bhupesh Kumar Sheth and others (1984) 4 SCC 27 where in para 12 it has been held as under :-
"12. Though the main plank of the arguments advanced on behalf of the petitioners before the High Court appears to have been the plea of violation of principles of natural justice, the said contention did not find favour with the learned Judges of the Division Bench. The High Court rejected the contention advanced on behalf of the petitioners that non-disclosure or disallowance of the right of inspection of the answer books as well as denial of the right to ask for a revaluation to examinees who are dissatisfied with the results visits them with adverse civil consequences. The further argument that every adverse "verification" involves a condemnation of the examinees behind their back and hence constitutes a clear violation of principles of natural justice was also not accepted by the High Court. In our opinion, the High Court was perfectly right in taking this view and in holding that the "process of evaluation of answer papers or of subsequent verification of marks" under clause (3) of Regulation 104 does not attract the principles of natural justice since no decision-making process which brings about adverse civil consequences to the examinees is involved. The principles of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried to such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been a proper and fair valuation of the answers by the examiners. As succinctly put by Mathew, J. in his judgment in the Union of India v. Mohan Lal Kapoor [(1973) 2 SCC 836 : 1974 SCC (L&S) 5 : (1974) 1 SCR 797 : (1973) 2 LLJ 504] it is not expedient to extend the horizon of natural justice involved in the audi alteram partem rule to the twilight zone of mere expectations, however great they might be. [SCC para 56, p. 863: SCC (L&S) p. 31]. The challenge levelled against the validity of clause (3) of Regulation 104 based on the plea of violation of natural justice, was therefore, rightly rejected by the High Court."
Further Hon'ble the Apex Court in the case of The Secretary, All India Pre- Medical/ Pre-Dental Examination, C.B.S.E. and others Vs. Khushboo Shrivastava and others, (2014) 14 SCC 523 has held in para 7 and 8 as under:-
"7. We find that a three-Judge Bench of this Court in Pramod Kumar Srivastava v. Chairman, Bihar Public ServiceCommission, Patna & Ors. (2004) 6 SCC 7141 has clearly held relying on Maharashtra State Board of Secondary and Higher Secondary Education & Anr. v. Paritosh Bhupeshkumar Sheth & Ors.(1984)4 SCC 27 that in the absence of any provision for the re-evaluation of answers books in the relevant rules, no candidate in an examination has any right to claim or ask for re-evaluation of his marks. The decision in Pramod Kumar Srivastava v.Chairman, Bihar Public Service Commission, Patna & Ors. (2004)6 SCC 714 was followed by another three-Judge Bench of this Court in Board of Secondary Education v. Pravas Ranjan Panda & Anr. [(2004) 13 SCC 383] in which the direction of the High Court for reevaluation of answers books of all the examinees securing 90% or above marks was held to be unsustainable in law because the regulations of the Board of Secondary Education, Orissa, which conducted the examination, did not make any provision for re-evaluation of answers books in the rules.
8. In the present case, the bye-laws of the All India Pre-Medical/Pre-Dental Entrance Examination,2007 conducted by the CBSE did not provide for re-examination or reevaluation of answers sheets. Hence, the appellants could not have allowed such re-examination or re-evaluation on the representation of the respondent no.1 and accordingly rejected the representation of the respondent no.1 for reexamination/ re-evaluation of her answers sheets. The respondent no.1, however, approached the High Court and the learned Single Judge of the High Court directedproduction of answer sheets on the respondent no.1 depositing a sum of Rs.25,000/- and when the answer sheets were produced, the learned Single Judge himself compared the answers of the respondent no.1 with the model answers produced by the CBSE and awarded two marks for answers given by the respondent no.1 in the Chemistry and Botany, but declined to grant any relief to the respondent no.1. When respondent no.1 filed the LPA before the Division Bench of the High Court, the Division Bench also examined the two answers of the respondent no.1 in Chemistry and Botany and agreed with the findings of the learned Single Judge that the respondent no.1 deserved two additional marks for the two answers. In our considered opinion, neither the learned Single Judge nor the Division Bench of the High Court could have substituted his/its own views for that of the examiners and awarded two additional marks to the respondent no.1 for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters. This Court in Maharashtra State Board of Secondary and Higher Secondary Education & Anr. v. Paritosh Bhupeshkumar Sheth & Ors. (supra) has observed :
".... 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. ..."
In regard to the arguments advanced by learned counsel for the respondent no.1,while supporting the judgment under challenge in the present appeal, that in view of the provisions as provided under Regulation 39(7) of the Chartered Accountant Regulation,1988, quoted herein above, the court has power to telly the answers given by the writ petitioner model answer and thereafter direct the appellant to award appropriate marks to the writ petitioner in the interest of the career, we have considered the Regulation 39(7) of the Chartered Accountant Regulation,1988 and a perusal thereof it appears that under Regulation 39(7) the Council has power to amend the result in any case where it is found that the result of an examination has been affected by error, malpractice, fraud, improper conduct or other matter, of whatever nature. Thus, we are of the view that keeping in view the provision as envisaged in Regulation 39(7), the Court neither can direct for re-evaluation nor the court is empowered to act as an expert and record the finding to the effect that "I find tht there is no difference in the answers written by the petitioner and suggested by the Institute."
Further, on the point in issue, Hon'ble the Supreme Court in the case of Ran Vijay Sigh and others Vs. State of U.P. and others, 2017 SCC Online SC 1448 in paras 33 to 37 has held as under:-
"33. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are: (i) 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; (ii) 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; (iii) The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate - it has no expertise in the matter and academic matters are best left to academics; (iv) The Court should presume the correctness of the key answers and proceed on that assumption; and (v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
34. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse - exclude the suspect or offending question.
35.It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the Courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the Court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination - whether they have passed or not; whether their result will be approved or disapproved by the Court; whether they will get admission in a college or University or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers.
36.The facts of the case before us indicate that in the first instance the learned Single Judge took it upon himself to actually ascertain the correctness of the key answers to seven questions. This was completely beyond his jurisdiction and as decided by this Court on several occasions, the exercise carried out was impermissible. Fortunately, the Division Bench did not repeat the error but in a sense, endorsed the view of the learned Single Judge, by not considering the decisions of this Court but sending four key answers for consideration by a one-man Expert Committee.
37. Having come to the conclusion that the High Court (the learned Single Judge as well as the Division Bench) ought to have been far more circumspect in interfering and deciding on the correctness of the key answers, the situation today is that there is a third evaluation of the answer sheets and a third set of results is now ready for declaration. Given this scenario, the options before us are to nullify the entire re-evaluation process and depend on the result declared on 14th September, 2010 or to go by the third set of results. Cancelling the examination is not an option. Whichever option is chosen, there will be some candidates who are likely to suffer and lose their jobs while some might be entitled to consideration for employment."
The law on the subject is thus clear that in absence of any provision, the students have no right to re-evaluate the answer-sheet. The Court in absence of any provision can not direct for re-evaluation nor the court can act as an expert and evaluate the answers and direct to award numbers as per its opinion.
The grounds, which have been taken by the writ petitioner in the writ petition under Article 226 of the Constitution of India are not sufficient for issuing directions to the appellant to reconsider the case of the petitioner-respondent no.1 and grant appropriate marks, which has been done by the writ court, as an expert in the present case after going through the comparative chart of the answers given by the writ petitioner/ respondent no.1 as well as the answers suggested by the Institute. There is no provisions for re-evaluation in the regulation specially Regulation 39(7) of the Chartered Accountant Regulation,1988, as the said provision only permits the Institute to correct the mistake and award appropriate marks .
So far as the judgments cited by Sri Sudeep Kumar, learned counsel for the respondent no.1 are concerned, we have carefully gone through the aforesaid judgments and to our view the same are not applicable in the present case. In the judgments cited by learned counsel for respondent no.1, the Hon'ble the Apex Court has not propounded the law that in absence of provision of re-evaluation the High Court can direct for re-evaluation or can act as expert in exercise of its power under Article 226 of the Constitution of India and compare the model answers with the answers given by the candidates, who appeared in the examination, as such the writ petitioner-respondent no.1 cannot derive any benefit from the same.
For the foregoing reasons, the impugned judgment and order dated 28.04.2014 passed by learned Single Judge in Writ Petition no.5887 (MS) of 2013 (Ashutosh Nigam Vs. The Union of India, Ministry of Human Resources through Secretary and another) is not in accordance with law.
In the result, the Special Appeal is allowed and the order dated 28.04.2014 passed by learned Single Judge in Writ Petition no.5887 (MS) of 2013 is set aside.
No order as to costs.
(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date : 14.02.2020 dk/