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2019 DIGILAW 953 (GAU)

Uttam Kumar Chakraborty v. State of Assam

2019-08-28

KALYAN RAI SURANA

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JUDGMENT : Kalyan Rai Surana, J. Heard Mr. D.C. Kath Hazarika, learned counsel for the petitioner. Also heard Mr. P. Nayak, the learned Standing Counsel for the Finance Department i.e. respondents No.1 and 3, Mr. N. Goswami, the learned Govt. Advocate appearing for the respondent No.2 and Mr. S.S. Sharma, learned senior counsel assisted by Mrs. L. Sharma, the learned counsel for the private respondent No.4. 2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner has assailed the merit/select list dated 19.06.2012 and all consequential orders issued by the respondent No.2, i.e. the Deputy Commissioner, Bongaigaon-cum-Chairman, Selection Committee, thereby selecting and appointing the respondent No.4 in the post of Junior Accounts Assistant in the Bongaigaon Treasury. 3. The learned counsel by referring to the case projected in the writ petition has submitted that the Deputy Commissioner, Bongaigaon had invited applications for filling up two posts of Junior Accounts Assistant ('JAA' for short) and one post of Lower Division Assistant ('LDA' for short) under the Bongaigaon Treasury under the establishment of the Deputy Commissioner, Bongaigaon. The petitioner was one of the applicants for the post of JAA. The selection test consisted of (1) one paper of General English, carrying 100 marks; (2) Precise writing, drafting, composition and grammar, carrying 100 marks; (3) General Knowledge, carrying 100 marks; and (4) viva voce, carrying 50 marks. The petitioner cleared the written test held on 03.06.2012and thereafter, the viva voce was held on 17.06.2012 and the results were published on 19.06.2012. Consequently, on 21.06.2012, appointments were made to the persons whose names appeared in Sl. No.1 and 2 of the select- list. 4. It is submitted that by a reply dated 16.08.2012under Right to Information Act, 2005, the Election Officer & B.O. Personnel Branch, Office of the Deputy Commissioner, Bongaigaon furnished the petitioner photocopies of the answer sheets of Roll. No. TR/JAA/082, TR/JAA/083 and TR/JAA/109 as well as Computer Test and viva voce marks. It is submitted that as per the select list, the marks obtained by the three candidates were as under:- Roll No. Name of candidate Marks in General English and General knowledge (out of 200) Marks in General Maths (out of 100) Total marks obtained out of 300 Viva Voce Total Computer Test out of 5 marks Grand total. It is submitted that as per the select list, the marks obtained by the three candidates were as under:- Roll No. Name of candidate Marks in General English and General knowledge (out of 200) Marks in General Maths (out of 100) Total marks obtained out of 300 Viva Voce Total Computer Test out of 5 marks Grand total. TR/JAA/ 109 Arindam Chakravarty 124 79 203 41 244 4 248 TR/JAA/ 083 Utpal Ray 118 79 197 37.5 234.5 4 238.5 TR/JAA/ 082 Uttam Kr. Chakravarty 129 66 197 36.5 231.5 2 233.5 5. It is also submitted that on a perusal of the marks sheet, major discrepancy was found in the answer sheet of the petitioner as well as the respondent No.4, which is as follows:- a. In respect of Q. No. 39 of General Knowledge paper; it is projected against correct answer that Mrs. Pratibha Devi Singh Patil was the Thirteenth President of India, the petitioner giving correct answer was taken as incorrect marks and was not given any marks, but the respondent giving incorrect answer was accept as right answer and given 2 marks. Hence, it is submitted that while the marks of respondent No.4 would be reduced by 2 marks, the marks obtained by the petitioner would increase by 2 marks. b. In respect of Q. No. 1(B) of General English, it is projected that the petitioner giving similar answer was not accepted as correct and he was not given any marks. It is submitted that the petitioner would have got 2 marks more. c. In respect of Q. No. 1(c) of General Mathematics, the projected that the correct answer given by the petitioner was over-looked and not evaluated, as such, the marks obtained by the petitioner would have increased by 3 marks. 6. Accordingly, it is submitted by the learned counsel for the petitioner that the marks obtained by the petitioner would have got increased from 233.5 to 240.5. Similarly, the marks obtained by the respondent No.4 would have reduced from 238.5 to 236.5. It is further submitted that the respondent No.2 had filed the affidavit- in- opposition through an Extra Assistant Commissioner. Accordingly, it is submitted by the learned counsel for the petitioner that the marks obtained by the petitioner would have got increased from 233.5 to 240.5. Similarly, the marks obtained by the respondent No.4 would have reduced from 238.5 to 236.5. It is further submitted that the respondent No.2 had filed the affidavit- in- opposition through an Extra Assistant Commissioner. However, except for indicating that the examination papers were evaluated by engaging 6 numbers of subject teachers from different Higher Secondary Schools through Inspector of Schools, Bongaigaon, whose names are disclosed, the statements made in paragraphs 2, 3 and 4 of the writ petition were not denied and accordingly, it is submitted that the grievance of the petitioner that his paper was not correctly evaluated and he would have got 240.5 marks was not contradicted. It is also submitted that in the affidavit- in- opposition filed by the respondent No.2, no reference was made to the answer key supplied to the evaluators. 7. In support of his contentions, the learned counsel for the petitioner has referred to two unreported decision of this Court, viz., (i) Moitreyee Das Vs. The State of Assam & 4 ors., W.P.(C) 3337/2011, decided on 30.04.2013; and (ii) Lalima Doley Pegu Vs. The State of Assam & 3 ors., W.P.(C) 1686/2011, decided on 29.04.2014. 8. Per contra, the learned Counsel appearing for the respondent No.1 has submitted that the Finance Department has no role in the conduct of examination, which was done by the Deputy Commissioner, Bongaigaon (respondent No.2) and that the Bongaigaon Treasury falls within the administrative control of the respondent No.2. 9. The learned Govt. Advocate has opposed this writ petition. He has submitted that the results of the selection was declared on 19.06.2012 and all the three selected candidates including the respondent No.4 had joined their respective posts on 21.06.2012, as such, this writ petition filed on 17.09.2012, was not maintainable because of inordinate delay in approaching this Court. It is further submitted that normally the writ Court should not embark upon re-examining the answer scripts when experts have evaluated the answer script and thereby substitute its wisdom on the duly evaluated answer-scripts. It is further submitted that normally the writ Court should not embark upon re-examining the answer scripts when experts have evaluated the answer script and thereby substitute its wisdom on the duly evaluated answer-scripts. Moreover, it is submitted that by passage of time, the respondent No.4 has already put in 7 years of continuous service and it is submitted that assuming but not admitting that the answer scripts were not properly examined, yet, as the respondent No.4 was not guilty of the same, his service may not be disturbed in this belated challenge. 10. The learned senior counsel for the respondent No.4 has reiterated the submissions made by the learned Govt. Advocate and he has further submitted that incorrect marks was awarded to the petitioner in mathematics. In this regard, it is submitted that the petitioner had adopted incorrect procedure in answering question Nos. 1(a), 1(b), 1(d), 1(g), 1(j), 2(b), 3, 3(d). It is submitted that in paragraph 10 of the affidavit- in- opposition, the respondent No.4 has admitted that on one hand the petitioner ought to have been given 2+2+3=7 marks more, but on other hand, for the wrong answers, 9 marks ought to have been reduced from the total marks awarded to the petitioner and, as such, it is submitted that the total marks awarded to the petitioner is required to be reduced from 233.5 to 228.5. In respect of his own marks, the learned senior counsel for the respondent No.4 has submitted that the petitioner was awarded 2 marks for wrong answer, but he was not awarded 2 marks for the right answer given in question No. 10 in English paper, his marks, as such, there would be no change in the total marks given in General Knowledge paper. However, it is submitted that in mathematics paper, the respondent No.4 was not given 5 marks for correct answer against Q. No. 3(c) and he was also not given 7 marks against Q. No. 5. Thus, in the over-all, the total marks awarded to the respondent No.4 is liable to be increased from 238.5 to 250.5, and not reduced to 236.5 as claimed by the petitioner. Hence, it is submitted that as by passage of time, the petitioner has already put in 7 years of continuous service, his service is not liable to be disturbed. Thus, in the over-all, the total marks awarded to the respondent No.4 is liable to be increased from 238.5 to 250.5, and not reduced to 236.5 as claimed by the petitioner. Hence, it is submitted that as by passage of time, the petitioner has already put in 7 years of continuous service, his service is not liable to be disturbed. It is submitted that the writ petition is not maintainable due to non- joinder of all candidates who had participated in the selection process. Moreover, it is submitted that the petitioner having participated in the selection process, cannot be permitted to assail the selection process. 11. From the submissions made by the learned counsel for the petitioner as well as the learned senior counsel for the respondent No.4, they are ad idem on the point that 7 marks to the petitioner was incorrectly denied. Moreover, it is the admitted case of both contesting sides that the evaluation of the answer-scripts of the petitioner as well as that of the respondent No.4 was faulty. It is an undisputed and too well known fact that Mrs. Pratibha Devi Singh Patil was the 13th President of India. She was the 12th incumbent to the highest Office of the Country, as Dr. Rajendra Prasad held office for two terms as the First and the Second President of the Country, having held the said office from 26.01.1950 to 12.05.1962. Thus, the denial of marks to the petitioner in respect of the correct answer given to the effect that Mrs. Pratibha Devi Singh Patil was the 13th President of India, it is apparent that the answer- scripts were not properly examined by the evaluators. 12. The preliminary issue is whether the petitioner having participated in the selection process, cannot be permitted to assail the selection process. In this regard, it is seen that the petitioner has been able to successfully demonstrate that his answers were incorrectly evaluated. At least for one question relating to 13th President of India, the same is found to be correct. As the Court is not an expert, other discrepancies relating to General Knowledge and Mathematics has not been examined. Under such circumstances, the Court finds no reason that the petitioner cannot assail the selection process. Thus, the Court does not find force to dismiss this writ petition on preliminary issues raised by the learned senior counsel for the respondent No.4. 13. Under such circumstances, the Court finds no reason that the petitioner cannot assail the selection process. Thus, the Court does not find force to dismiss this writ petition on preliminary issues raised by the learned senior counsel for the respondent No.4. 13. The learned senior counsel for the respondent No.5 as well as by the learned Govt. Advocate had both submitted that the writ petition has been belatedly filed. In this regard, it is seen that on 19.06.2012, the results of the selection process was declared. The respondent No.4 was appointed on 21.06.2012. The RTI reply by which the result sheet and photocopy of answer script of three candidates was supplied to the petitioner by forwarding letter dated 16.08.2012. Thereafter, the present writ petition was filed on 17.09.2012, which is within 3 (three) months from the date of declaration of result. Therefore, it cannot be said that the writ petition has been belatedly filed so as to non- suit the petitioner. 14. According to the petitioner, the anomalies were noticed only after the photocopies of answer script were provided to the petitioner under RTI Act, 2005. Both the petitioner as well as the respondent No.4 has alleged that their respective answer scripts were incorrectly assessed. It is seen that the respondent No.2 has not produced the key answers and he has not denied the specific allegations made by the petitioner that the answer- scripts were incorrectly assessed and wring marks had been allotted to the petitioner and respondent No.4. At least out of many answers claimed by the petitioner and the respondent No.4 to be wrongly evaluated, it is well known that Mrs. Pratibha Devi Singh Patil was the Thirteenth President of the Country, but in respect of the said answer incorrect marks has been allotted. 15. While intervening with the selection process, the Court is fully conscious of its limitations while subjecting a selection process to judicial scrutiny in exercise of the power of judicial review. It is not disputed that the writ Court is not to act as an appellate authority over the decision of the selection committee. But, at the same time, it is equally settled that the writ Court cannot shut its eyes when both the aggrieved petitioner and the selected respondent No.4 have stated that answer- scripts were improperly and incorrectly evaluated. It is not disputed that the writ Court is not to act as an appellate authority over the decision of the selection committee. But, at the same time, it is equally settled that the writ Court cannot shut its eyes when both the aggrieved petitioner and the selected respondent No.4 have stated that answer- scripts were improperly and incorrectly evaluated. The learned counsel for the petitioner has been able to demonstrate that at least one answer, which is too well known regarding the name of the thirteenth President of India, is found to be wrongly evaluated as per record. As indicated hereinbefore, the respondent No.2 has not produced the answer-key, as such, it is not known whether the selection committee had provided the wrong answer-key. 16. On the power of the Court to order re-evaluation of answer-scripts, it would be relevant to reproduce paragraphs 13 to 21 of the case of High Court of Tripura through the Registrar General Vs. Tirtha Sarathi Mukherjee, 2019 Supreme 125 , (SC), 2019 SCC OnLine SC 139: as under:- "13. The next question to be considered is regarding the merits of the order. In Pramod Kumar Srivastava case (Supra), 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 reevaluated. 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. What will happen if a candidate secures lesser marks in reevaluation? 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 reevaluation? 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/PreDental 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 Thakur s 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." 17. Thus, it is seen that unless it is shown that the applicable Rules provide for re-evaluation, Courts should not, normally as a matter of routine, issue direction for reevaluation. 18. The issue of non- joinder of other candidates is taken up now. It is seen that as per the result- sheet provided to the petitioner, the names of only three candidates appear in the select list for the post of JAA. The petitioner has made his own assessment of comparative marks awarded to the three candidates and he has taken a view that he can succeed only by challenging the selection of respondent No.4. However, the non- joinder of the other selected candidate for the post of Junior Accounts Assistant, i.e. Arindam Chakravarty appears to be coming in the way for directing a re-evaluation of the answer scripts on the basis of orders passed in this writ petition as because if the answer scripts is required to be re-evaluated, it cannot be the re-evaluation of the answer scripts of two candidates only i.e. the petitioner and the respondent No.4, because, it might be possible that in course of re-evaluation, although the selection and appointment of Arindam Chakravarty is not assailed, the position of the said selected candidate might be disturbed. Accordingly, the writ petition cannot succeed due to non- joinder of Arindam Chakravarty as a necessary party in this writ petition. The learned counsel for the petitioner has not been able to show that there is a specific statement in the writ petition that the answer-sheets of the said selected candidate i.e. Arindam Chakravarty was correctly evaluated without any error in awarding of marks. 19. Therefore, although the evaluation of the answer-sheets of the respondent No.4 in respect of seriatim of Mrs. Pratibha Devi Singh Patil as Thirteenth Presidnet of India is found to be incorrect, but there are reasonable grounds to apprehend that the same incorrect evaluation could have occurred in the answer-sheets of other candidates including that of Arindam Chakravarty for the post of Junior Accounts Assistant. Therefore, if the selection process is bad, being erroneous, the entire selection process must be set aside, and it would be inequitable to set aside and quash the selection and consequential appointment of respondent No.4 alone. 20. In view of the discussions above, this writ petition fails and the same stands dismissed.