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2019 DIGILAW 1769 (HP)

Naval Kishore v. H. P. University

2019-11-22

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The petitioner has filed the instant writ petition for the following substantive relief: (i) That appropriate writ, order or direction may very kindly be issued and the paper (XII) Cost Accounting, paper (XII) Business, Finance and Management Accounting, paper (XIV) Indian Economics, Problems, Policy and H.P. Economy and Business Organization and Management (II) may very kindly be got evaluated from some independent examiner and the petitioner may very kindly be granted the marks on the basis of such evaluation by an independent examiner being appointed by this Hon'ble Court in the interest of law and justice." 2. It is more than settled that in absence of any provision under the statute of statutory rules/regulations, the Court should not generally direct revaluation. Reference in this regard can conveniently be made to a fairly recent judgment of the Hon'ble Supreme Court in High Court of Tripura through the Registrar General vs. Tirtha Sarathi Mukherjee and others, (2019) AIR SC 3070 wherein it was held as under: "13. The next question to be considered is regarding the merits of the order. In Pramod Kumar Srivastava vs. Chairman, Bihar Public Service Commission, Patna and others, (2004) 6 SCC 714 , a Bench of three learned Judges after, in fact, adverting to the judgment of a Bench of two learned Judges in 1984 (4) SCC 27 proceeded to lay down as follows:- ..........."7. There is no dispute that under the relevant rule of the Commission there is no provision entitling a candidate to have his answer-books re-evaluated. In such a situation, the prayer made by the appellant in the writ petition was wholly untenable and the learned Single Judge had clearly erred in having the answer-book of the appellant re-evaluated. 8. Adopting such a course as was done by the learned Single Judge will give rise to practical problems. Many candidates may like to take a chance and pray for re-evaluation of their answer-books. Naturally, the Court will pass orders on different dates as and when writ petitions are filed. The Commission will have to then send the copies of individual candidates to examiners for re-evaluation which is bound to take time. The examination conducted by the Commission being a competitive examination, the declaration of final result will thus be unduly delayed and the vacancies will remain unfilled for a long time. The Commission will have to then send the copies of individual candidates to examiners for re-evaluation which is bound to take time. The examination conducted by the Commission being a competitive examination, the declaration of final result will thus be unduly delayed and the vacancies will remain unfilled for a long time. What will happen if a candidate secures lesser marks in re-evaluation? He may come forward with a plea that the marks as originally awarded to him may be taken into consideration. The absence of clear rules on the subject may throw many problems and in the larger interest, they must be avoided." 14. In Himachal Pradesh Public Service Commission Vs. Mukesh Thakur & Anr., (2010) 6 SCC 759 , a Bench of two learned Judges held as follows:- "20. In view of the above, it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court." (Emphasis supplied) It was further held more importantly as follows: "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 Education V. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 , 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." 15. After referring to the Pramod Kumar Srivastava decision (supra), it was laid down as follows:- "26. 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." 15. After referring to the Pramod Kumar Srivastava decision (supra), it was laid down as follows:- "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." 16. In Central Board of Secondary Education Through Secretary, All India Pre-Medical/Pre-Dental Entrance Examination & Ors. Vs. Khushboo Shrivastava & Ors., (2014) 14 SCC 523 , again a bench of two learned Judges after undertaking a Review of earlier decisions, held as follows:- "9. We find that a three-Judge Bench of this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission, (2004) 6 SCC 714 , has clearly held relying on Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 , that in the absence of any provision for the re-evaluation of answer 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. Bihar Public Service Commission, (2004) 6 SCC 714 , was followed by another three-Judge Bench of this Court in Board of Secondary Education v. Pravas Ranjan Panda, (2004) 13 SCC 383 , in which the direction of the High Court for re-evaluation of answer 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 answer books in the rules." 17. It is, finally, in Ran Vijay Singh & Ors. Vs. State of Uttar Pradesh & Ors., (2018) 2 SCC 357 , that the Court proceeded to cull out the conclusions which include para 30.2. We may also notice conclusion in para 30.5 which reads as follows:- "30.5 In the event of a doubt, the benefit should go to the examination authority rather than to the candidate." 18. We have noticed the decisions of this Court. We may also notice conclusion in para 30.5 which reads as follows:- "30.5 In the event of a doubt, the benefit should go to the examination authority rather than to the candidate." 18. 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. 19. 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. 20. Should the second circumstance be demonstrated to be present before the writ court, can the writ court become helpless despite the vast reservoir of power which it possesses? 20. Should the second circumstance be demonstrated to be present before the writ court, can the writ court become helpless despite the vast reservoir of power which it possesses? It is one thing to say that the absence of provision for revaluation will not enable the candidate to claim the right of evaluation as a matter of right and another to say that in no circumstances whatsoever where there is no provision for revaluation will the writ court exercise its undoubted constitutional powers? We reiterate that the situation can only be rare and exceptional. 21. We would understand therefore the conclusion in paragraph 30.2 which we have extracted from the judgment in Ran Vijay Singh & Ors. Vs. State of Uttar Pradesh & Ors., (2018) 2 SCC 357 only in the aforesaid light. We have already noticed that in V.S. Achuthan vs. Mukesh Thakurs case, (2010) 6 SCC 759 , a two Judge Bench in paragraph 26 after survey of the entire case law has also understood the law to be that in the absence of any provision the Court should not generally direct revaluation." 3. However, the moot question still remains is whether even in absence of any legal right to demand revaluation as of right, has the petitioner been able to carve out a case of grave injustice for interference after all as held by the Hon'ble Supreme Court that 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 given 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. 4. We have gone through the petition and no such exceptional case have been made out by the petitioner. As a matter of fact, the petitioner was not satisfied with the result of his B.Com. 1st year, 2nd year and 3rd year and applied for re-valuation. 5. Unsatisfied with the revaluation, the petitioner then applied for inspection of his scripts and during inspection thereof, some error was noticed in the totalling of marks which was rectified and marks increased from 51 to 61 in that particular course. 6. The petitioner also appeared for improvement of his division in B.Com. 5. Unsatisfied with the revaluation, the petitioner then applied for inspection of his scripts and during inspection thereof, some error was noticed in the totalling of marks which was rectified and marks increased from 51 to 61 in that particular course. 6. The petitioner also appeared for improvement of his division in B.Com. I and II and on the basis of such improvement, has scored more than 45% marks which even as per the University can be granted to him provided the petitioner surrenders the old detailed marks card which has not been surrendered by him till date. Having exhausted all his chances for improving his grades, the petitioner cannot claim a right of re-evaluation as there is practically no material on record to suggest that even after giving the correct answer the petitioner was not awarded any marks. 7. In view of the aforesaid discussion, even the petitioner has failed to make out a case for revaluation. However, nonetheless he is entitled to the marks obtained by him in the improvement of his division. 8. Consequently, the petition is partly allowed to the extent that the petitioner would be entitled to the improvement marks obtained in the improvement of division in B.Com I and II subject to his surrendering the old detailed card within a period of two weeks from the receipt of a certified copy of this judgment. 9. The petition is disposed of in the aforesaid terms, so also the pending applications if any.