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2010 DIGILAW 5302 (MAD)

R. Srinivasan v. The State of Tamil Nadu

2010-12-02

N.PAUL VASANTHAKUMAR

body2010
Judgment : By consent of all parties, both the Writ petitions are taken up for final disposal. 2. In W.P. No. 19701 of 2010 Petitioner has prayed for issuing a Writ of Mandamus directing the second respondent/TNPSC to revaluate the answer scripts of law papers – I and II bearing Registration No. 01704004 and for further direction to the respondents to select the petitioner for the post of APP Grade-II, depending upon the total marks based on revaluation to be done. 3. W.P. No. 20800 of 2010 is filed for issuing a Writ of Mandamus directing the respondents to consider the case of the petitioner for selection to the post of APP Grade-II based on the marks obtained by him under B.C. category and further issue appointment order to the petitioner within a time frame. 4. The fact leading to filing of these writ petitions are as follows: (a) After completing B.L. Degree, petitioners herein enrolled in the Bar Council of Tamil Nadu and in response to the notification issued by the TNPSC dated 27/5/2007 inviting applications for direct recruitment to the post of APP Grade – II 2003-2006 to fill up 44 vacancies, petitioners applied along with other candidates. The distribution of vacancies notified are GT-14 (including women-4, physically handicapped-1); BC-13 (including women-4); MBC-9 (including women-2, physically handicapped-1 (deaf); and SC-8 (including women-3). (b) Petitioner in W.P. No.19701 of 2010 was assigned registration No. 01704004 and the petitioner in W.P.No. 20800 of 2010 was assigned registration No. 02502012. As per the scheme of selection announced by the TNPSC, there will be a written examination followed by viva-voce. The written examination comprised of four papers and the same was conducted on 24/11/2007 and 25/11/2007. The oral test/viva-voce was held on 9/9/2008. (C) Before publication of results by the TNPSC on 148/2008 petitioner in W.P. No. 19701 of 2010 filed W.P. No. 21873 of 2008 and during pendency of the said writ petition, the results were published by the TNPSC. The petitioner in W.P. No. 19701 of 2010 was informed that his two papers, viz. law papers – I and II were invalidated as per the website information. The petitioner prayed for production of answer scripts for the above two papers and on production it was noticed that the petitioner used two inks for writing and underlining answer scripts and the papers were also evaluated. law papers – I and II were invalidated as per the website information. The petitioner prayed for production of answer scripts for the above two papers and on production it was noticed that the petitioner used two inks for writing and underlining answer scripts and the papers were also evaluated. He scored 51 marks in law papers –I; 54 marks in law paper – II; 81 marks in law papers-III and IV. (d) Petitioner in W.P. No.19701 of 2010 filed amendment petition in W.P. No. 21873 of 2008 and prayed for revoking the decision to invalidate two papers and to direct the second respondent to evaluate the said papers and make selection. On 24/3/2009 this court directed the TNPSC to revoke the invalidation of the two papers and evaluate the same and declare the results and issue a consequential direction to the effect that if the petitioner succeeds he shall be selected for the post of APP Grade-II. (e) Against the said order TNPSC filed W.A. No. 1408 of 2009. Petitioner in W.P. No. 20800 of 2010 also challenged the said order in W.A. No. 1405 of 2010. Both the writ appeals were dismissed by the Division Bench by common order dated 12/10/2009. TNPSC called the petitioner in W.P. No. 19701 of 2010 for oral test on 29/1/2010 by communication dated 19/1/2010. Petitioner attended the interview and the result was declared on 6/7/2010 and he secured 165.50 marks in the written test and 45 marks in the oral test, thus securing total marks of 210.50, however he was not selected. (f) According to the petitioner when the answer papers of law papers-I & II were produced before this court, he found that he was awarded 186 marks in the written examination, whereas the results declared showed that he was awarded only 165.50 marks. Pointing out the said fact, petitioner has filed the present writ petition i.e., W.P. No. 19701 of 2010 seeking revaluation of Law papers – I & II and for consequential selection. 5. Petitioner in W.p. No. 20800 of 2010 secured total marks of 211.50. Along with the selection list, a supplementary list was published and the B.C. category candidates, who secured upto 212 marks are selected. 5. Petitioner in W.p. No. 20800 of 2010 secured total marks of 211.50. Along with the selection list, a supplementary list was published and the B.C. category candidates, who secured upto 212 marks are selected. When W.P. No. 20800 of 2010 was heard the learned standing counsel for TNPSC submitted that due to the communication of the interim order passed in W.P. No. 19701 of 2010, TNPSC is not in a position to operate the reserve list for BC category and the name of the petitioner in W.P. No. 20800 of 2010 is unable to be sent for appointment. In view of the said submission both the cases are tagged together and disposed of by this common order. 6. TNPSC has filed counter affidavit in W.P. No. 19701 of 2010 by stating that the marks obtained by the petitioner in W.P. No. 19701 of 2010 in the written examinations and oral test put together was not sufficient to select him for the said post. The procedures followed in the valuation for all descriptive type examinations (except civil judges) will be for double valuation. Two different examiners will value each paper and award marks in two different mark sheets. If the variation in the marks awarded in the first and second valuation is 15 and above, the answer papers will be placed for third valuation after removing the mark statement of earlier valuations. The nearest between the two marks among the three valuations will be taken into account to arrive at the average marks. It is further stated in the courter affidavit that in the first and second valuation for law paper-I the petitioner was awarded 40 and 51 marks respectively by two examiners and therefore the average mark of 45.5 was taken. In law paper-II in the first and second valuation, petitioner was awarded 39 and 54 marks respectively. Since the difference of marks being 15 for law paper – II, the said paper was placed for third valuation. In the third valuation the petitioner was awarded 39 marks. Since the marks awarded in the first and third valuation are same, the petitioner was awarded 39 marks in law paper-II. Same is the procedure followed for all candidates wherever there is difference of 15 and above marks in first and second valuations. In the third valuation the petitioner was awarded 39 marks. Since the marks awarded in the first and third valuation are same, the petitioner was awarded 39 marks in law paper-II. Same is the procedure followed for all candidates wherever there is difference of 15 and above marks in first and second valuations. It is also stated in the counter affidavit that in the instructions issued to the candidates along with the application form it was clearly stated that the request for furnishing the reason for non-selection or re-valuation of answer books will not be entertained. The same is stated so in paragraphs 24 of the commission’s instructions which reads as follows: “24. Request from candidates for furnishing the causes of their failure in the test or revaluation of their answer books will not be compiled with. However, the commission reserves to itself the right to get any answer book revalued if in its opinion there are sufficient and valid ground to do so.” Pointing out the above facts and as there is no compelling necessity to consider the request of the petitioner for re-valuation, the petitioner in W.P. No. 19701 of 2010 is not entitled to seek re-valuation and the writ petition has to be dismissed. 7. C. Selvaraj, learned senior counsel for the petitioner in W.P. No. 19701 of 2010 submitted that the petitioner is entitled to get revaluation of marks as there is a difference between first and second valuation to an extent of 15 marks and even if the average of first and second valuation or second and third valuation are taken, petitioner will be getting more than the cut-off marks and the action of the TNPSC in taking the marks awarded by the first and third valuation in not justified. 8. C.N.G. Niraimathi, learned standing counsel for the TNPSC submitted that the petitioners are bound by the instructions issued which clearly states that the candidates are not entitled to seek revaluation of the written answer scripts and recently the supreme court in the decision reported in H.P. Public Service Commission Vs. Mukesh Thakur, AIR 2010 SC 2620 : 2010 (6) SCC 759 , held that in the absence of any provisions under the statute or statutory rules/regulations, the court should not direct revaluation. Therefore W.P. No. 19701 of 2010 is to be dismissed. Mukesh Thakur, AIR 2010 SC 2620 : 2010 (6) SCC 759 , held that in the absence of any provisions under the statute or statutory rules/regulations, the court should not direct revaluation. Therefore W.P. No. 19701 of 2010 is to be dismissed. The learned standing counsel for the TNPSC further submitted that in the counter affidavit instead of stating the difference makrs as 15, it is wrongly mentioned as 15% and it is also wrongly stated that nearest between two marks among the three valuation, whichever is beneficial to the candidate will be taken into account. The learned counsel also submitted that the same is not the position mentioned in the office order and also produced the officer order issued by the TNPSC to that effect. 9. Mr. U, M. Ravichandran, the learned counsel for the petitioner in V.P. No. 20800 of 2010 submitted that if W.P. no.19701 of 2010 filed by the rival candidate is dismissed, the petitioner is entitled to get selected and appointed as he is the next candidate available for selection, having secured 211.50 marks. 10. I have considered the rival submissions of the respective learned counsels. 11. The claim regarding re-valuation of answer papers of law papers I and II by the petitioner in W.P. No. 19701 of 2010 is contrary to the instructions given to the candidates. The candidates having applied after noticing the notification and taken part in the selection process, they are not entitled to seek direction for revaluation. The said issue is already settled by the supreme court in the decision reported in H.P. Public Service Commission V. Mukesh Thakur, AIR 2010 SC 2620 : 2010 (6) SCC 759 , the Supreme Court held that in the absence of any provision under the statute or statutory rules/regulations, the court should not direct revaluation. Paragraphs 24 to 26 (in SCC) the Supreme Court held thus, “24. The issue of revaluation of answer book is no more res integra. This issue was considered at length by this court in Maharashtra State Board of Secondary and Higher Secondary Examination Vs. Paritosh Bhupeshkumar Sheth, AIR 1984 SC 1543 , wherein this court rejected the contention that in the absence of the provision for revaluation, a direction to this effect can be issued by the court. This issue was considered at length by this court in Maharashtra State Board of Secondary and Higher Secondary Examination Vs. Paritosh Bhupeshkumar Sheth, AIR 1984 SC 1543 , wherein this court rejected the contention that in the absence of the provision for revaluation, a direction to this effect can be issued by the court. The court further held that even the policy decision incorporated in the rules/regulations not providing for rechecking/verification/revaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The court held as under: “14. ….. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the act…. 16. …..The court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the act.” 25. This view has been approved and relied upon and reiterated by this court in Pramod Kumar Srivatsava Vs. Bihar Public Service Commission, AIR 2004 SC 4116 : 2004 AIR SCW 4541, observing as under: “7. …..Under the relevant rules of the commission, there is no provision wherein a candidate may be entitled to ask for revaluation of his answer book. There is a provision for scrutiny only wherein the answer books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totaling of marks of each question and noting them correctly on the first cover page of the answer book. There is a provision for scrutiny only wherein the answer books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totaling of marks of each question and noting them correctly on the first cover page of the answer book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for revaluation of answer books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for revaluation of his marks”. (emphasis added) A similar view has been reiterated in Muneeb-ul-Refanan Haroon (Dr,) Vs. Govt. of J & K State, AIR 1984 SC 1585 ; Board of secondary Education Vs. Pravas Ranjan panda, 2004 (13) SCC 383 ; Board of secondary Education Vs. D. Sivasankar, 2007 (1) SCC 603 ; W.B. Council of Higher Secondary Education vs. Ayan Das, AIR 2007 SC 3098 : 2007 AIR SCW 5976; and Sahiti Vs. Dr. N.T.R. University of Health Sciences, 2009 (1) SCC 599 : AIR 2009 SC 879 : 2008 AIR SCW 8194. 26. Thus, the law on the subject emerges to the effect that in the absence of any provision under the statute or statutory Rules/Regulations, the court should not generally direct revaluation.” 12. Insofar as the contention of the learned senior counsel for the petitioner in W.p. No. 19701 of 2010 that if the average of 1st and 2nd valuation marks or 2nd and 3rd valuation marks for law paper – II is taken, the petitioner will be in a position to cross the cut-off marks also cannot be countenanced in view of the procedure adopted by the commission, which was evolved by an office order, which clearly states that the nearest between the two marks among the three valuation is to be taken into consideration. In this case the petitioner secured 39 marks in first and third valuation in law paper – II and therefore, the same was taken into consideration for arriving at the final marks. 13. In this case the petitioner secured 39 marks in first and third valuation in law paper – II and therefore, the same was taken into consideration for arriving at the final marks. 13. In Page no.83 of the file produced the number of papers placed for third valuation is stated which is as follows: Paper – I… 228 Papers Paper – II… 395 Papers Paper – III… 294 Papers Paper – IV … 453 Papers For all those candidates common procedure was adopted and all the candidates, whose papers were sent for third valuation are awarded marks nearest to the two marks among the three valuations. Therefore, there is uniformity in the procedure and there is no discrimination shown towards the petitioner in W.P. no. 19701of 2010 by the TNPSC. Hence there is no substance in the submission of the learned senior counsel for the petitioner. Consequently, W.P. No. 19701 of 2010 is liable to be dismissed as the same is devoid of merits. 14. In the result, W.P. No. 19701 of 2010 is dismissed. In view of the dismissal of W.P. No. 19701 of 2010, W.P. No. 20800 of 2010 is disposed of with a direction to the respondents 2 to 4 to forward the name of the petitioner to the government if there is vacancy and if the said petitioner is the next candidate eligible for selection in B.C. Category to the post of APP Grade II. The respondent 2 to 4 are directed to complete the said process within four weeks from the date of receipt of a copy of this order and if selected, the first respondent is directed to process his selection and issue appointment order within four weeks there from after observing the usual formalities in accordance with law. No costs M.P. No.1 of 2010 in W.P. No. 19701 of 2010 is dismissed.