JUDGMENT : D.P. Choudhury, J. Challenge has been made to the inappropriate action of the opposite parties in not selecting the petitioner in the competitive examination held for the Odisha Judicial Service Examination 2013-2014. FACTS 2. The factual context as depicted is that the petitioner was a candidate for the Odisha Judicial Service Examination 2013-2014 bearing Roll No.3780. In the preliminary written examination he was selected but in the written test his name did not figure in the list called for viva voce test. While he unveiled the reasons for not getting his call for viva voce test, it was revealed that in the paper “Law of Property” he has not secured correct mark and consequently in the aggregate mark. In order to find out the reason of disqualification, he applied for Xerox answer scripts pursuant to the procedure adopted by the Odisha Public Service Commission (hereinafter called ‘OPSC’). It is further asserted that on verification of the Xerox copy of the answer scripts he became astonished that he was awarded ‘0’ mark against question No.12(b)(i) although his answer was correct. 3. It is stated that as per the Scheme of Examination he was required to secure not less than 45% of marks in aggregate and minimum 33% of marks in each paper in the Main written examination. From the website of the OPSC the petitioner came to know that his total mark is 336 purportedly falling short of two marks from the aggregate marks which evidently for wrong evaluation of his paper in “Law of Property”. He is deprived of three marks in such paper for gross negligence, illegality in evaluating his answer script in the paper “Law of Property”. Under Section-C Question No.12 (b) (i) is read as follows:- “12 (b) Whether the following illustrations are sufficient acknowledgement of liabilities: (i) “I am ashamed that the account has stood so long.” Petitioner has answered to such question in following manner: “No.12 (b) (i) I am ashamed that the account has stood so long – It is a valid acknowledgement.” It is alleged, inter alia, that the answer of the petitioner to the said question is apparently available from the Text Book and as such the petitioner has answered correctly although he was awarded ‘0’ mark instead of three marks in such question. Had the three marks added to the paper Law of Property, his aggregate would have been raised by giving him qualifying mark of 45% in aggregate. On the other hand, he could have been qualified for the viva voce test in the event of adding such three marks to the paper Law of Property. So, the petitioner alleged that the faulty and arbitrariness in evaluation of his paper has deprived him to get justice and compelling him to knock the door of the Court seeking relief of revaluation of Question No.12 (b) (i) and consequently the OPSC be given direction as deemed fit and proper by the Court. SUBMISSIONS 4. It is submitted by Mr. Pattnaik, learned counsel for the petitioner that by the illegal and arbitrary action of the opposite parties the petitioner has been deprived of in attending the viva voce test as per rule and consequently he was deprived of his employment in the event of his selection in the viva voce test. The action of the opposite parties was not only illegal and arbitrary but also smacks the flow of justice by depriving the petitioner from becoming a Judicial Officer. He further submitted that there were 69 vacancies as available from the advertisement made by the OPSC to the post of Civil Judges in Odisha Judicial Service, 2014 vide Annexure-1 and only 52 number of candidates were called for interview. Had there been correct evaluation of the mark in the case of the petitioner, he could have at least got a call for viva voce test and ultimately he had got fair chance of successful in the interview and ultimately would have got a berth in the Odisha Judicial service. He further submitted that Articles 14 and 16 of the Constitution of India of the petitioner has been violated by the opposite parties for which the Court may intervene and award justice to the petitioner. He cited the decision of this Court reported in 2016 (I) ILR – CUT-652 (Prajna Lalit Mishra V. O.P.S.C., & others) where this Court has taken decision by allowing the petitioner in that case to appear in a special interview and in the event of success, the opposite parties were directed to give her appointment with full protection of seniority along with other benefits. 5. Mr. 5. Mr. Mohanty, learned Senior Advocate appearing for the opposite party No.1 contended that as per the model answer sheet the papers of the petitioner and other examinees were evaluated and in no case the petitioner has been awarded mark illegally. According to him the contention of the petitioner for reference to different Text Books to find out the answer to the Question No.12 (b) (i) cannot be taken into consideration since the opposite party No.1 is bound to refer to the model answers as similar procedure has been adopted in respect of all the candidates. Moreover, he submitted that the facts and circumstances of the Authority cited by the petitioner is different from the facts and circumstances of the present case. He further submitted that even if the petitioner is selected, he cannot claim employment in the year 2016 when he appeared the Examinations of 2014 and the appointments of candidates have been already held in the interregnum and at no cost the petitioner is entitled to get reliefs asked for. 6. The point for consideration:- (i) Whether the petitioner has answered correctly in Question No.12 (b) (i) of paper “Law of Property” and being deprived of the three marks and consequently in aggregate marks. DISCUSSIONS POINT NO.(i) : 7. It is admitted fact that the petitioner was a candidate bearing Roll No.3780 for the Odisha Judicial Service Examination 2013-2014. It is admitted fact that he has appeared in the Main Written Examination as available from the answer at Annexure-5 where he has secured total written marks 336. It is admitted fact that in the said Examination the candidate has to secure 33% marks in each paper and in total the candidate has to secure 45% of marks so as to qualify for attending viva voce test as per the Odisha Superior Judicial Service and Odisha Judicial Service Rules 2007 (hereinafter called ‘the Rules 2007). It is also not disputed that during 2013-2014 advertisement was made by the opposite party No.1 for filing up 69 vacancies to the post of Civil Judges in Orissa vide Annexure-1 series. The contention of the learned counsel for the petitioner that in the paper Law of Property vide Annexure-7 series Question No.12 (b) carries 15 marks. As stated, the said question has got five illustrations and it has been asked whether those illustrations are sufficient acknowledgement of liabilities. The contention of the learned counsel for the petitioner that in the paper Law of Property vide Annexure-7 series Question No.12 (b) carries 15 marks. As stated, the said question has got five illustrations and it has been asked whether those illustrations are sufficient acknowledgement of liabilities. Learned counsel for the opposite party No.1 has not filed the Scheme of Examination showing the model answer. Since the onus lies on the petitioner to show that he has given the right answer, he got the Text Book written by one Dr. Ashok Kumar Jain where the illustration of sufficient acknowledgement of liability has been mentioned at page 113 stating “I am ashamed that the account has stood so long”. He also produced the Text Book of B.B. Mitra on the Limitation Act 1963 of the 1994 edition where at page-302 under Section 18 of the Limitation Act it has been mentioned that “I am ashamed that the account has stood so long” was held to be a good acknowledgement. The author has also cited said proposition being observed in the case of Cornford v Smithard (1859) 5 H & N 13; Holmes v Mackrell (1858) 3 CB (NS) 789. When the Text Book of reputed author speaks about the answer followed by another author Dr. Jain and the Text Book has quoted the same from the Case Laws, it is undoubtedly that sufficient acknowledgement of liability would be if the person concerned admitted “I am ashamed that the account has stood so long”. Learned counsel for the opposite parties could not produce any document including model answers against the Text Book contents to explain such answer to be incorrect. On going through Annexures-5 and 6 series it appears that the petitioner has answered in the same manner and as such he is entitled to get three marks for such answer but unfortunately was awarded ‘0’ mark against such answer. When the petitioner has proved that he has answered correctly Question No.12 (b) (i) in paper “Law of Property” according to Text Book and the opposite party No.1 has not produced the Scheme of Examination including model answer but merely submits that the model answer according to Scheme of Examination is otherwise to such question, we are constrained to observe that the petitioner is entitled to three marks in accordance with the correct answer given by him. Point No.(i) is answered accordingly. Point No.(i) is answered accordingly. CONCLUSION 8. Since the petitioner has given the correct answer to Question No.12 (b) (i) in paper “Law of Property” in the Main Written Examination and is entitled to three marks against such answer, we are of the considered view that petitioner is entitled to the re-addition of marks to the paper concerned and consequently to the re-addition of the total marks. At the same time, we are conscious that the Court cannot sit as an examiner but can opine about the injustice meted out to the petitioner. It is appropriate for the opposite parties to reevaluate the answer in Question No.12 (b) (i) of the petitioner and make fresh tabulation of aggregate of marks. In the event of fresh evaluation and tabulation if the petitioner qualifies, he should be given consequential benefits. 9. Hence, we direct the opposite parties in the following manner:- (i) The opposite parties shall re-evaluate the answers of the petitioner to the Question No.12 (b) (i) in the light of the observation made above and make fresh tabulation of marks in aggregate. In the event of his success in the main written examination, opposite parties shall arrange a special interview for the petitioner. (ii) In the event he comes out successful in the interview, he should be given appropriate place in the final merit list of OJS Examination 2014 and should be given appointment accordingly with full protection of his seniority amongst successful candidates of the said Examination 2014 as per redrawal of merit list as we are aware that there were 69 vacancies in the said year. 10. All these exercises should be completed by opposite parties within a period of two months from today and necessary compliance be reported on 25.8.2016. The writ petition is disposed of accordingly. I. Mahanty, J. - I agree