JUDGMENT : I.A. No. 5034 of 2022 The present Interlocutory Application has been filed for ignoring part of the defect no. 2 as pointed out by the office. 2. Heard learned counsel for the parties. 3. Having regard to the averments made in this application, we are of the view that the defect, as pointed out by the office, is required to be ignored so that the matter may be heard on merit. 4. Accordingly, I.A. No. 5034 of 2022 is allowed and part of defect no. 2 is ignored. I.A. No. 9574 of 2022 5. The present Interlocutory Application has been filed for condonation of delay of 64 days in filing the instant appeal. 6. Heard learned counsel for the parties. 7. No counter affidavit has been filed opposing the prayer for condoning the delay. 8. Having regard to the averments made in this application, we are of the view that the appellants were prevented by sufficient cause from preferring the appeal within the period of limitation. 9. Accordingly, I.A.No.9574 of 2022 is allowed and delay of 64 days in preferring the appeal is condoned. L.P.A. No. 283 of 2020 10. The instant intra-court appeal, under Clause 10 of the Letters Patent, is directed against order dated 11.12.2019 passed by learned Single Judge in W.P. (S) No. 228 of 2019, by which the writ petition was dismissed refusing to interfere with order dated 15.05.2018 passed by respondent no. 3 whereby and whereunder the petitioner has been intimated that the petitioner did not pass in the examination even after re-evaluation. 11. The briefs facts of the case, as per the pleadings made in the writ petition, read as under: The petitioner was initially appointed as Unskilled Khalasi in the year 1990 and thereafter in pursuance of departmental examination, the petitioner along with other candidates were appointed as Correspondence Clerk in the year, 2007. In the year 2012, the petitioner appeared in the examination conducted by the respondents-Nigam for promotion from the post of Correspondence Clerk to Head Clerk, wherein the petitioner was declared unsuccessful. In the year 2012, the petitioner appeared in the examination conducted by the respondents-Nigam for promotion from the post of Correspondence Clerk to Head Clerk, wherein the petitioner was declared unsuccessful. Pursuant thereto, the petitioner submitted application under Right to Information Act, 2005 in the year 2014 itself for answer-sheet but the same alleged to have been denied to be provided, the petitioner preferred first appeal and then second appeal before the State Commission under RTI Act praying for copy of his evaluated answer booklet along with the evaluated answer booklet of the candidates, who were declared successful. Finally, in the year 2017 the answer booklet was provided only after the petitioner superannuated from the services. In the meantime, the petitioner appeared in the exam conducted for departmental promotion was declared successful and in compliance of the standing order of the Board contained as contained Memo No. 285 dated 04.06.1969 the seniority of the petitioner was retained. It is specific case of the petitioner that after receipt of the evaluated copy, the petitioner found that all the questions which were duly answered by the petitioner were marked to be correct however no mark was allotted for a particular question No. 4 of paper 2 and as such he represented before the respondents-authorities for revaluation of his copy. It is the case of the petitioner though a Committee was constituted but forming the members who had previously been prejudicial to the petitioner in course of appeal before the State Information Commission and against whom the petitioner had moved in a criminal case before the competent Court. As a result of the re-evaluation undertaken by the said Committee and keeping in view the consequences already provided in the inter departmental noting the petitioner was declared unsuccessful and as such the benefits for which the petitioner was entitled for were withheld by the respondents and same was communicated to the petitioner vide Memo No. 760/Nigam Mukhyalay, Ranchi dated 15.05.2018. Being aggrieved thereof, he represented before the respondents making the prayer for re-evaluation of the booklet by fair and impartial committee and if declared as pass be pleased to grant the benefits but to no effect hence the petitioner moved before this Court by filing writ petition being W.P. (S) No. 228 of 2019. Being aggrieved thereof, he represented before the respondents making the prayer for re-evaluation of the booklet by fair and impartial committee and if declared as pass be pleased to grant the benefits but to no effect hence the petitioner moved before this Court by filing writ petition being W.P. (S) No. 228 of 2019. The learned Single Judge, after calling upon respondents-Nigam and considering the fact that the answer-sheet has already been re-evaluated and even then the writ petitioner has not found to have obtained the marks which the last selected candidate has obtained, refused to interfere with the impugned decision taken by the respondents-authorities, against which the instant intra-court appeal has been filed. 12. Mr. Shresth Gautam, learned counsel for the petitioner has submitted that the learned Single Judge has not appreciated the fact in right prospective since the very issue of malice of the members of the committee who has re-evaluated the answer-sheet and intentionally allotted lesser marks so that the writ petitioner may not obtain marks at least at par with the last selected candidates who have secured 40 marks whereas the petitioner was allotted 38 marks. It has been contended that if the members of the expert committee would have been a person having no biasness against the writ petitioner, there was likelihood of success of the writ petitioner since the expert committee has awarded only 8 marks out of 20 marks and if 10 marks would have been awarded after re-evaluation in total he would have obtained 40 marks to get successful. In the background of aforesaid facts, it has been submitted that the aforesaid aspect of the matter since has not been considered therefore, the orders passed by the learned Single Judge suffers from infirmity and is not sustainable in the eye of law. 13. Per contra, Mr. Mukesh Kumar, learned counsel appearing for the respondents-Nigam has submitted, by reverting the argument advanced on behalf of appellant with regard to malice of the members of the committee, that though the issue of malice has been raised but the members of the committee has never been impleaded as party in the proceeding and hence in absence of impleadment of an individual person as party-respondent the issue of malice ought not to be allowed to be agitated that too at the stage of intra-court appeal. It has been contended that if the members of the expert committee would have been impleaded as party they would have been noticed to establish the allegation so made by the appellant-writ petitioner but since the members of the committee were not party to the proceeding hence there is no finding to that effect by the learned Single Judge. Therefore, contention has been raised that the issue of malice and prejudice which is being raised on behalf of appellant in absence of impleadment of members of committee as party respondent is not just and proper. It has further been contended that otherwise also there is no question of malice against the writ petitioner since in the selection process of year 2015 the case of the writ petitioner was considered and was granted promotion to the higher post, as such contention has been raised that if there was any mala fide there was no reason to declare successful in the subsequent departmental examination. Further contention has been raised that said expert committee has since re-evaluated and awarded more 8 marks, which in total comes to 38 but even then he could not be declared successful as the last successful candidate secured 40 marks, therefore, there is no fault in the process of selection. Learned counsel for the respondents on the basis of aforesaid submission has submitted that the order passed by the learned Single Judge requires no interference. 14. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by learned Single Judge. 15. The issue which has been raised on behalf of appellant regarding unsuccess in the selection process initiated for the purpose of grant of promotion in the year 2012. In the said selection process, the writ petitioner was awarded 30 marks and was declared unsuccessful since the last selected candidate obtained 40 marks. The writ petitioner on apprehension that such lesser marked ought not to have been awarded to him requested copy of answer-sheet by submitting application under Right to Information Act and when he succeeded in getting copy of answer-sheet he found that answer of question no. 4 has not been evaluated, upon which, an expert committee was constituted consisting of three members for evaluation of answer-script of question no. 4 has not been evaluated, upon which, an expert committee was constituted consisting of three members for evaluation of answer-script of question no. 4, in which he was awarded 8 marks, thereby he obtained in total 38 marks but even then also he could not be declared successful as the last selected candidate has obtained 40 marks. The writ petitioner has raised the issue of malice and prejudice against the members of expert committee since in the departmental proceeding he has deposed against one of the members under the SC/ST Atrocities Act, in which, the said member was awarded punishment, therefore constitution of committee consisting of three members has shown malice and prejudice against the petitioner and did not take proper evaluation. Much emphasis has been given that aforesaid aspect of the matter since has not been taken into consideration by the learned Single Judge, the impugned order suffers from patent illegality. 16. It is admitted fact, as would appear from the material available on record, that the pleading has been made leveling allegation of prejudice and malice but the position of law is well settled that leveling allegation of prejudice and malice is easy to be leveled but proving of it is difficult. 17. It is also settled position of law that the allegation of mala fide, malice or prejudice since is made by a party concerned against anyone the requirement of law is to implead such party/person by name so as to the concerned on being noticed be afforded with an opportunity to defend one’s case of malice. 18. Admittedly, herein the members of the expert committee has not been made party to the proceeding (writ petition) and therefore, according to considered view of this Court aforesaid allegation in absence of party concerned cannot be adjudicated. Further question is that when the expert committee was constituted and eight marks was awarded out of 20 marks then it cannot simply be said that the expert committee due to malice and prejudice has awarded only 8 marks so that the petitioner could not obtain the minimum marks which the last selected candidate has secured. 19. Further question is that when the expert committee was constituted and eight marks was awarded out of 20 marks then it cannot simply be said that the expert committee due to malice and prejudice has awarded only 8 marks so that the petitioner could not obtain the minimum marks which the last selected candidate has secured. 19. It further appears that in the selection process of the year 2015, the writ petitioner has been declared to be successful and was granted promotion, as would appear from the impugned order that there is reference of passing of writ petitioner of the passing in the departmental examination in the year 2015 for the said post. 20. Learned counsel for the appellant has given emphasis to issue a direction for re-evaluation of the answer-sheet in particular answer of question no. 4 which has been evaluated by expert committee, against whom the allegation of malice has been made by the petitioner. 21. The question herein is that whether the High Court sitting under Article 226 of the Constitution of India can issue direction for re-evaluation of the answer-sheet. 22. The law is well settled that there cannot be direction for re-evaluation of the answer-sheet, as has been held by Hon’ble Apex Court in the judgment rendered in Ran Vijay Singh & Ors v. State of U.P. & Ors [ (2018) 2 SCC 357 ] in particular at paragraph 31, which reads as under: “31. 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.” However, in this case, order of re-evaluation has been passed by the respondents-authority itself and not by Court of law, on the basis of information gathered by the petitioner. 23. This Court has shown one way out of an impasse — exclude the suspect or offending question.” However, in this case, order of re-evaluation has been passed by the respondents-authority itself and not by Court of law, on the basis of information gathered by the petitioner. 23. This Court, considering the law as has been settled regarding issuance of direction under Article 226 of the Constitution of India in the matter of issuance of direction for re-evaluation of answer-sheet, is of the view that no direction can be passed. 24. This Court, on the basis of aforesaid facts that the expert committee has already re-evaluated the answer-sheet even then the writ petitioner has found to have obtained only 38 marks, which is less than the last selected candidate and further so far the allegation of malice is concerned in absence of party in person before the proceeding against whom the allegation is leveled, no order can be passed in absence of such party against whom the allegation of malice is being alleged. 25. This Court, after having discussed the facts in entirety as also the legal position and going through the order passed by learned Single Judge, is of the considered view that that the learned Single Judge has considered all these aspects of the matter, therefore, the same requires no interference. 26. Accordingly, the instant intra-court appeal fails and is dismissed. 27. Pending Interlocutory Application, if any, stands disposed of.