Home Patna High Court Public Service Commission Whether Courts can Direct Re-evaluation of PSC Answer Scripts [Case Law]
Public Service Commission - Re-evaluation of answer scripts - in absence of any rule permitting re-evaluation of answer scripts as also in absence of any cogent material having been brought on record by the writ petitioners to show illegalities in evaluation of the answer scripts, the prayer made by the writ petitioners are devoid of any merit.
IN THE HIGH COURT OF JUDICATURE AT PATNA
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
Civil Writ Jurisdiction Case No.5552 of 2018 and Connected Cases
Nehal Ahmad Vs. Bihar Public Service Commission, Patna through its Secretary.
(In CWJC No.5552 of 2018) For the Petitioner/s : Mr. Y.V. Giri, Sr. Adv. Mr. P.K. Shai, Sr. Adv. Mr. Satyam Shivam Sundaram, Adv. Mr. Kumar Kaushik, Adv. Mr. Ravi Ranjan, Adv.
For the Respondent- State : Mr. Md. Harun Quareshi, AC to SC-01 For the BPSC : Mr. Lalit Kiashore, Sr.Adv. (A.G.) Mr. Satyabir Bharti, Adv. Mr. Sanjay Pandey (In CWJC No.5730 of 2018) For the Petitioner/s : Mr. Y.V. Giri, Sr. Adv. Mr. P.K. Shai, Sr. Adv. Mr. Satyam Shivam Sundaram, Adv. Mr. Kumar Kaushik, Adv. Mr. Ravi Ranjan, Adv.
For the Respondent- State : Mr. Manoj Kumar, AC to G.P.4 For the BPSC : Mr. Lalit Kiashore, Sr.Adv. (A.G.) Mr. Satyabir Bharti, Adv. Mr. Sanjay Pandey
(In CWJC No.7604 of 2018) For the Petitioner/s : Mr. Y.V. Giri, Sr. Adv. Mr. P.K. Shai, Sr. Adv. Mr. Satyam Shivam Sundaram, Adv. Mr. Kumar Kaushik, Adv. Mr. Ravi Ranjan, Adv.
For the Respondent- State : Mr. Md. Harun Quareshi, AC to SC-01 For the BPSC : Mr. Lalit Kiashore, Sr.Adv. (A.G.) Mr. Satyabir Bharti, Adv. Mr. Sanjay Pandey
(In CWJC No.5999 of 2018) For the Petitioner/s : Mr. Y.V. Giri, Sr. Adv. Mr. Mr. Mustaque Alam, Adv. Mr. Humayu Ahmad Khan, Adv.
For the Respondent- State : Mr. Md. Harun Quareshi, AC to SC-01 For the BPSC : Mr. Lalit Kiashore, Sr.Adv. (A.G.) Mr. Satyabir Bharti, Adv. Mr. Sanjay Pandey
J U D G M E N T
All the aforesaid writ petitions were heard at length on 02.05.2018 and it has been agreed between the learned counsels appearing for the respective writ petitions that all the writ petitions be disposed of by a common judgment since the issues involved in all the writ petitions are common. On behalf of the writ petitioners the arguments have been advanced by Shri Y.V. Giri and Shri P.K.Shahi, Senior Advocates, assisted by the learned Advocates on record, appearing for the petitioners as also by Shri Kumar Kaushik, Advocate.
2. The learned Advocate General has argued on behalf of the B.P.S.C.
3. For the sake of convenience, the facts of the writ petition bearing CWJC No.5552 of 2018 (Nehal Ahmad & Ors. Vs. The Bihar Public Service Commission & Ors.) are being considered for the purposes of the present judgment. The BPSC has also filed counter affidavit in the said writ petition, which has been adopted by the BPSC in all the cases.
4. The brief facts of the case are that the Bihar Public Service Commission (hereinafter referred to as ―the BPSC‖) published an advertisement on 1.9.2014, inviting applications from the suitable candidates under the 56th to 59th Common Combined (Preliminary) Competitive Examination, 2014 (hereinafter referred to as ―the Examination 2014‖). The applications were to be submitted till 5 PM on 15.10.2014, however, the time was extended up to 27.10.2014 till 5 PM.
5. The preliminary test was held on 15.3.2015 and the result was published on 21.11.2015 wherein the petitioners, along with other candidates were declared successful. The petitioners had then appeared in the Mains (written) examination, which was held in between 8.7.2016 to 30.7.2016 and finally the result was published on 22.2.2018 wherein the roll numbers of the petitioners did not find place, hence the petitioners have assailed the result of the Mains examination.
6. The learned Senior counsels appearing for the writ petitioners have primarily argued that the petitioners have done very well in the Mains Examination, but still they have not been declared successful and the main reason for them not having succeeded in the Mains Examination is on account of the irregularity committed in course of awarding marks to the petitioners as also in the evaluation process. It has been further alleged that the evaluation of the answer books of the Mains examination was done again and again and only then the final result was published, hence the entire evaluation process is faulty. The learned Senior counsels have also submitted that the respondent Commission has not even prepared the model answer before evaluation of the answer book of the candidates, which is against the norms of the BPSC, hence the answer books of the petitioners/ candidates are required to be re-evaluated after preparation of the model answer, so that uniformity can be maintained in awarding marks to the candidates and the evaluation of the answer scripts is not left to the mercy of the individual examiners. Shri Kumar Kaushik, Advocate has further argued that though the Commission, in the 53rd to 55th Combined Competitive Examination had adopted the mode of moderation in the evaluation standard but in the present examination the same does not appear to have been done inasmuch as the model answers were not prepared.
7. The learned Senior counsels have relied upon a judgment rendered by the Hon’ble Apex Court in the case of Pramod Kumar Srivastava vs. Chairman, Bihar Public Service Commission, Patna and others, reported in (2004) 6 SCC 714 to contend that in order to avoid vagaries of wide difference in standard in awarding marks, the BPSC had followed the pattern of the Union Public Service Commission wherein the Head Examiner with the assistance of other examiners prepares a model answer and the same is used as a guide by all other examiners while examining the answerbooks so that a uniform standard in awarding marks is maintained. However, in the present case no such model answers have been prepared. In this regard, it would be appropriate to reproduce paragraphs 4 and 9 of the judgment rendered by the Hon’ble Apex Court in the case of Pramod Kumar Srivastava (supra) herein below:-
“4. In the counter-affidavit filed by the Commission before the learned Single Judge it was pleaded that in the rules, there was only a provision for scrutiny and there was no provision for re-evaluation of the answer-books. The appellant had applied for scrutiny of his marks in General Science paper which was done and no mistake had been found and the marks remained the same, namely, 35. It was further pleaded that a centralized mode of evaluation is adopted by the Commission wherein examiners approved and selected by the Commission are required to examine the answer-books under the guidance of a Head Examiner. In order to avoid vagaries of wide difference in standard in awarding marks, the Bihar Public Service Commission follows the pattern of the Union Public Service Commission wherein the Head Examiner with the assistance of other examiners prepares a model answer and this is used as guidance by all other examiners while examining the answer-books, and by this process a uniform standard in awarding marks is maintained. It was also submitted that in absence of any provision in the rules for re-evaluation of the answer-books, the said exercise cannot be done and any direction for reevaluation will open a floodgate for other candidates to come out with similar plea which will ultimately cause a great delay in declaring the final result.
9. Even otherwise, the manner in which the learned Single Judge had the answer-book of the appellant in General Science paper re-evaluated cannot be justified. The answer-book was not sent directly by the Court either to the Registrar of Patna University or to the Principal of Science College. A photocopy of the answer-book was handed over to the Standing Counsel for Patna University who returned the same to the Court after some time and a statement was made to the effect that the same had been examined by two teachers of Patna Science College. The names of the teachers were not even disclosed to the Court. The examination in question is a competitive examination where the comparative merit of a candidate has to be judged. It is, therefore, absolutely necessary that a uniform standard is applied in examining the answer-books of all the candidates. It is the specific case of the Commission that in order to achieve such an objective, a centralized system of evaluation of answer-books is adopted wherein different examiners examine the answer-books on the basis of model answers prepared by the Head Examiner with the assistance of other examiners. It was pleaded in the letters patent appeal preferred by the Commission and which fact has not been disputed that the model answer was not supplied to the two teachers of Patna Science College. There can be a variation of standard in awarding marks by different examiners. The manner in which the answerbooks were got evaluated, the marks awarded therein cannot be treated as sacrosanct and consequently, the direction issued by the learned Single Judge to the Commission to treat the marks of the appellant in General Science paper as 63 cannot be justified.‖
8. The learned Senior counsels for the petitioners have then referred to a judgment rendered by the Hon’ble Apex Court in the case of Rajesh Kumar & Ors. vs. State of Bihar & Ors., reported in (2013) 4 SCC 690 to contend that the Court can direct for re-evaluation of the answer scripts. The learned Senior counsels/ counsel appearing for the writ petitioners have also relied upon the judgment reported in (2007) 3 SCC 720 (Sanjay Singh & Anr. Vs. U.P. Public Service Commission, Allahabad & Ors.) and the judgment reported in (2015) 11 SCC 395 (Sujasha Mukherji vs. High Court of Calcutta through Registrar & Ors.).
9. Per contra, the learned Advocate General, appearing for the Bihar Public Service Commission has contended that in the preliminary test of the examination, 2014, 28,707 candidates were declared successful whereafter the Mains (written) examination was held in between 8.7.2016 to 30.7.2016 in which 18,016 candidates had appeared and thereafter the Mains (written) examination result was published on 22.2.2018 declaring 1,933 candidates successful. It has been submitted that the Commission has an almost defect free, full proof system of conducting fair examination(s), evaluation of answer book etc. so that there is no chance of tampering with the answer scripts of the candidates or creeping in of any other malpractices whatsoever. The learned Advocate General has referred to the manner and procedure of selection to be followed from the stage of advertisement till final recommendation by referring to the Bihar Public Service Commission Rules of Procedure, 1996. The respondent Commission has setout the main stages of examination activities in paragraph-16 of the counter affidavit, which are reproduced herein below:-
16. That the Bihar Public Service Commission Rules of Procedure, 1996 provides for the manner & procedure of selection to be followed from the stage of advertisement till final recommendation. The main stages of examination activities which would relevant are as follows:
(i) Confidential Work of BPSC - The confidential work of BPSC relates to Appointment of Question Setters and Examiners; Setting of questions, Printing & Distribution of Question Papers, Answer books & Answer sheets.
(ii) Preparation of the panel of Question Setters & Examiners -As per Chapter-III, Clause (ix) of the "Rules of Procedure, 1996" the panel of subject wise/ paper wise question setters and examiners is prepared by the Controller of Examinations under the guidance of the Chairman.
That the Commission appoints examiners as per the provision made in para- ix of chapter- III of its Rules of procedure, 1996. The para- ix of chapter- III of its Rules of procedure, 1996 envisages that for appointment as question setters, moderators and examiners for evaluation of answer books, the Officer In-charge of Examinations shall prepare a panel of teachers who have put in at least 10 years of service in constituent/government college/ post graduate department or who are Readers or professors and place it for approval before a Committee consisting of the chairman and two members nominated by him.
In light of aforementioned provision of Rules of Procedure, 1996, subject-wise panel of examiners are prepared from the list of teachers of different universities/colleges of the country as given in the university handbook and college/university directories. These subject wise panels of examiners are placed before the committee of chairman & two members nominated by him for consideration. The panel is finalised after the approval of the Committee.
The Commission gets the evaluation of the answer books done by the help of examiners whose names are included in the panel, approved by the Committee. It is also made clear that the answer books have been evaluated only by the examiners of the particular subjects. Thus, the allegations made by the petitioners are baseless.
(iii) Question Setting- Out of the approved panel, ordinarily ten Question Setters in each subject/paper are requested to send manuscripts of question paper in sealed cover to the Controller of Examination’. With the request letter, prescribed syllabus for each subject/Paper and Question Papers of previous examinations, as model, are also sent.
(vi) During Examination Activities- During examination activities consist of several stages / events i.e. dispatch of the Question Booklets / Question papers and Answer sheets / Answer Books to examination centres, ends up with submission of used answer sheets /answer books, roll-sheet and office copy of the admit card to centre superintendents by the invigilators.
(v) Post Examination Activities – Postexamination activities again consist of several stages i.e. from sealing of examination materials & ends with final result.
(vi) Evaluation of Answer Books of Subjective Papers / Answer Sheets of Objective Papers – There are different methodologies for Evaluation of Objective papers and subjective papers. The evaluation of answer sheet of objective papers is done by OMR i.e. computerized machine, whereas, the evaluation of answer books of subjective papers is done manually, by the examiners.
(vii) Evaluation of Subjective Papers – The reports of the District Co-ordinator, the Centre Superintendents, the Zonal Magistrates and Observers, having been found to be normal, the answer books of subjective examination are brought under evaluation process. The Answer Books are codified twice, with a view to remove remotest possibility of recognition / identification of the candidate and thereafter, answer books are evaluated by the examiners. Finally, there is reconciliation of code and marks with the Roll No. of candidates. CCTV cameras have been recently introduced for recording entire process of evaluation of both subjective papers and objective papers.
(viii) First Coding of Answer Book – Firstly, the coding is done by replacing the flap containing Roll No., Name of the candidate on the cover of the Answer Book by pasting a pair of randomly numbered sticker at specified places. The flap containing Roll No., Name of the candidate is then detached and kept separately. This work is done by one set of office staff under the supervision of senior officials deputed by the Controller of Examinations.
(ix) Second Coding of Answer Book -The Second Coding is done similarly and the flap containing first code with second code is kept separately. In this way the Answer Book is left with second code only and marks are awarded on the portion of cover page having second code only.
Second coding of answer books is done by another set of staffs under the supervision of senior officials deputed by the Controller of the Examination.
(x) Inviting the Head Examiners and Examiners for the Evaluation- For the evaluation of answer books, the Head Examiners and Examiners are invited by the Controller of Examination, from the panel approved by a committee consisting of two Members and the Chairman or by the full Commission. There is one Head Examiner for Five or less Examiners. Before the commencement of evaluation the Head Examiners and Examiners so invited are required to submit their Bio-Data in the prescribed Form, wherein they have, inter alia, to give a declaration that no near relative is a candidate in the Examination concerned.
To achieve uniformity in evaluation in a paper, where there is large number of answer books, one or more examiners/ head examiners were appointed. Under the subject-wise Head Examiner/Head Examiners, examiners were also appointed. It would manifest from the rules of procedure followed by the Commission that written instructions/guidelines were issued to all such Head Examiners and Examiners of all the subjects/papers before the commencement of evaluation. A copy of the instructions/ guidelines with forwarding letter is issued to a Head Examiner/Examiners. Thereafter, following steps are taken:-
(i) The Commission arranges meeting of the Head Examiner with Examiners. They discuss thoroughly the question paper, the appropriate answer to each and every question and decide clear-cut standard of evaluation before undertaking the evaluation.
(ii) The Head Examiner closely monitors the set standard of evaluation being followed by each and every examiner while evaluating the answer books and guides them if he finds any deviation on the part of any examiner.
(iii) The Head Examiner examines all the answer books having above 60% marks and less than 30% marks. They are required to examine at least 15% evaluated answer books.
(iv) In course of examining the answer books evaluated by the Examiners, the Head Examiner either confirms the Examiner's award or revises it upwards or downwards and indicates the required award on the answer book.
(v) All the answer books evaluated by the Examiners and examined by the Head Examiners are scrutinized by the staff of the Commission who point out the totaling errors, unevaluated portions etc. so that it might be rectified by the Head Examiner or the Examiner concerned.
(vi) These marks are finally awarded to each paper of every candidate represented by the relevant fictitious code numbers. On the basis of these final paper-wise awards the Combined Merit List is prepared after decoding of the relevant fictitious code numbers.
(xi) Place of Evaluation – The evaluation work is done in evaluation halls, especially earmarked for the purpose under personal supervision of the controller of examinations. The Chairman also takes stock of the evaluation work regularly. Entry of any unauthorised person in the Evaluation Halls is strictly prohibited. Only the members of staff especially deputed by the controller of examinations to assist in the evaluation work are permitted entry in the halls.
(xii) Discussion and Fixation of Modalities - Head Examiner/Head Examiners/Examiners of each and every subject/ paper are supplied with the question-paper of subject concerned. They assemble in the Examination Hall/ Halls of the Commission, discuss in minute detail on each and every aspect of the questions in marathon sessions with the examiners and decide the modalities and criteria regarding giving / awarding marks to each and every answer to the questions and parts thereof.
(xiii) Checking by Head Examiners -After the modalities and criteria are fixed, the answer books are provided to the examiners for evaluation. The Head Examiners are required to check at least 15% of the evaluated answer books. They usually check as many evaluated answer books as desirable in excess of 15%. They are also instructed to make it a point to compulsorily check all the answer books having 60% or more marks. By this method, the uniformity in evaluation is ensured.
(xiv) Awarding of Marks- There is only the second code number on the answer books. Each and every examiner is required to prepare an award list in the prescribed performa, in which s/he enters the second code number and total marks of the evaluated answer books, both in figures and words. Award List is signed both by the Examiner and the Head Examiner.
(xv) Scrutiny of Answer Books- After the evaluation of the answer book of a subject is over, the evaluated answer books are scrutinised by a team of Assistants of the BPSC headed & supervised by the senior officials under the direct supervision of officer-in-charge of confidential section, deputed by the controller of examinations. The scrutiny team mainly scrutinizes the following points on the basis of the Question Paper:-
(vii) Whether the total marks entered by an Examiner on the Answer Books confirm to the total of marks given in each and every answer written by the candidates or not.
(viii) Whether each and every answer of the candidates has been evaluated or not.
(ix) Whether marks entered on the Answer Books are correctly entered in the Award List or not.
(x) Whether the instructions have been properly complied with by the Examiners, Head Examiners and candidates or not.
(xi) Whether any candidate has put any sign or symbol in the Answer Book, which reveals the identity of the candidate or not.
(xvi) Reports of Defective Answer books- The defective Answer Books are separated and a consolidated report is prepared by the scrutiny teams, which is placed before the controller of examinations. The Answer Books, in which cases of violations of instructions of Examination by candidates are found, are placed before the BPSC and if the BPSC decides to reject any answer book, further follow up action is taken by the Controller of Examinations.
(xvii) Rectification of Mistake by Head Examiners and Examiners - Head Examiners and Examiners concerned are called in the BPSC to rectify the errors in the total marks as well as in the evaluation. The rectifications made are again checked by the scrutiny teams, which give certificate regarding proper rectifications made.
(xviii) Entry of Second Code and total Marks in the Computer- Second Code and total Marks of each and every Answer Book of all the Papers are entered in the computer from Award List. The hard copy, whereof, is checked and tallied with the Award Lists by a team of Assistants headed by the senior officials and the errors/ discrepancies, if any, are corrected. Accordingly, the computer database is rectified and once again the hard copy of the corrected data is checked as above and thus cent percent correctness of data is ensured.
(xix) Reconciling of Codes -The marks awarded are entered in the computer on the basis of second code. The second code and first code numbers are separately entered in the Computer and first code and roll no. are also entered. The hard copy of these two sets of code numbers are compared and matched with respective flaps till 100% accuracy by team of staffs & officers deputed by the Controller of Examinations is attained. In this way three sets of data: Second Code & Marks, Second Code & First Code and First Code and Roll Nos. are firmed up and kept separately in the Computer and their hard copies used for comparison work are kept under safe custody of the Controller of Examinations.
(xx) Preserving of Data and Publication of Result - For the preparation of result, in the case of subjective examination, the four sets of data kept in the Computer memory, viz. Roll Nos., Name of the Candidates, Reservation Category etc., Second Codes and First Codes, First Codes and Roll Nos. and Second Codes and Awards, are merged together to get the result candidate-wise. The merit-wise result is then computed as per the direction of the BPSC and is brought forward before it for final decision. With the approval of the Commission, the result of the successful candidates is published.
10. The learned Advocate General, referring to paragraph- 18 of the counter affidavit has submitted that the respondent Commission has recently introduced certain initiatives i.e. System of Videography has been introduced at various stages to ensure complete transparacy. It has been further submitted that the postexamination work relating to observation of different reports received from the Centre Superintendents, the Zonal Magistrates etc. codification of Answer Books/ Answer sheets, computerization of marks etc., scanning of Answer Sheets and preparation of result, apart from storage of Answer Books/ Answer Sheets are done in the specified Space/ Rooms in the Commission office, where CCTV cameras have been fixed. This has been done to ensure absolute transparency in the examination oriented work.
11. The learned Advocate General has further submitted that entire examination process, as detailed herein above, has been conducted according to the Rules and Procedure, 1996 and every care has been taken to ensure fair evaluation of the answer books as also achieved uniformity in the evaluation process. The learned Advocate has contended that there is no provision of re-evaluation in the rules, hence the prayer of the writ petitioners for re-evaluation of their answer books cannot be acceded to. The only provision in the Rules of the BPSC is regarding re- totaling for which the candidates can apply within 60 days of publication of the final result by submitting I.P.O. of Rs. 5/- for each subject. The learned Advocate General has also submitted that the writ petitioners who have not been declared successful, had taken a calculated chance and participated in the selection process and now when they have found themselves to be unsuccessful, they are challenging the same, which is not permissible in law. The learned Advocate General has relied upon the case of Pramod Kumar Srivastava vs. Chairman, Bihar Public Service Commission, Patna and others, reported in (2004) 6 SCC 714 to contend that in the case of BPSC itself the Hon’ble Apex Court has held that since under the relevant rules of the Commission there is no provision entitling a candidate to have his answer book re-evaluated, the learned Single Judge of the High Court had clearly erred in having the answer book of the applicant re-evaluated. It would be relevant to quote paragraph-7 and 8 of the said judgment rendered by the Hon’ble Apex Court in the case of Pramod Kumar Srivastava (Supra) herein below:
“7. We have heard the appellant (writ petitioner) in person and learned counsel for the respondents at considerable length. The main question which arises for consideration is whether the learned Single Judge was justified in directing re-evaluation of the answer-book of the appellant in General Science paper. Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re-evaluation of his answerbook. 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 reevaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for reevaluation of his marks. This question was examined in considerable detail in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth1. In this case, the relevant rules provided for verification (scrutiny of marks) on an application made to that effect by a candidate. Some of the students filed writ petitions praying that they may be allowed to inspect the answer-books and the Board be directed to conduct re-evaluation of such of the answer-books as the petitioners may demand after inspection. The High Court held that the rule providing for verification of marks gave an implied power to the examinees to demand a disclosure and inspection and also to seek reevaluation of the answer-books. The judgment of the High Court was set aside and it was held that in absence of a specific provision conferring a right upon an examinee to have his answer-books re-evaluated, no such direction can be issued. 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. 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.
12. The learned Advocate General has referred to a judgment reported in (2007) 8 SCC 242 (Secy. W.B. Council of Higher Secondary Education vs. Ayan Das and Ors.), to contend that in absence of statutory provision, the Court cannot direct reassessment/ re-examination of the answer sheet. In this regard paragraphs 9,10,11,12 and 13 of the said judgment rendered in the case of Secy. W.B. Council of Higher Secondary Education vs. Ayan Das and Ors. (supra) are reproduced herein below:-
9. The permissibility of reassessment in the absence of statutory provision has been dealt with by this Court in several cases. The first of such cases is Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth1. It was observed in the said case that finality has to be the result of public examination and, in the absence of statutory provision, the court cannot direct reassessment/re-examination of answer scripts.
10. The courts normally should not direct the production of answer scripts to be inspected by the writ petitioners unless a case is made out to show that either some question has not been evaluated or that the evaluation has been done contrary to the norms fixed by the examining body. For example, in certain cases examining body can provide model answers to the questions. In such cases the examinees satisfy the court that model answer is different from what has been adopted by the Board. Then only can the court ask for the production of answer scripts to allow inspection of the answer scripts by the examinee. In Kanpur University v. Samir Gupta2 it was held as follows: (SCC p. 316, paras 16-17)
―16. Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged textbooks, which are commonly read by students in U.P. Those textbooks leave no room for doubt that the answer given by the students is correct and the key answer is incorrect.
17. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance test for admission to the medical colleges in U.P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is contained in those textbooks. Those textbooks support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong.‖
11. Same would be a rarity and it can only be done in exceptional cases. The principles set out in Maharashtra Board case1 has been followed subsequently in Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission3, Board of Secondary Education v. Pravas Ranjan Panda4 and President, Board of Secondary Education v. D. Suvankar5.
12. In view of the settled position in law, the orders of the learned Single Judge and the Division Bench cannot be sustained and stand quashed.
13. In Suvankar case5 it was inter alia observed as follows: (SCC pp. 606-07, para 5)
―5. The Board is in appeal against the cost imposed. As observed by this Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth1, it is in the public interest that the results of public examinations when published should have some finality attached to them. If inspection, verification in the presence of the candidates and re-evaluation are to be allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking, etc. of the candidates, besides leading to utter confusion on account of the enormity of the labour and time involved in the process. The court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It would be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to pragmatic one was to be propounded. In the above premises, it is to be considered how far the Board has assured a zero-defect system of evaluation, or a system which is almost foolproof.‖
13. The learned Advocate General, in order to counter the arguments advanced on behalf of the writ petitioners on the basis of the judgment of the Hon’ble Apex Court rendered in the case of Sanjay Singh (supra), has relied upon a judgment reported in (2016) 2 SCC 495 (Sunil Kumar vs. BPSC and others) to contend that the Hon’ble Apex Court in the case of BPSC itself held that the entirety of the discussion and conclusion in the case of Sanjay Singh case (supra) was with regard to question of suitability of the scrutiny system to an examination where the question papers were compulsory and common to all candidates and the said judgment rendered in the case of Sanjay Singh (supra) has been held to have not laid down any binding principle of law or direction or even guidelines with regard to holding of examination, evaluation of papers and declaration of result by the Commission. It is thus submitted that the judgment rendered by the Hon’ble Supreme Court in the case of Sanjay Singh (supra) is confined to the facts and circumstances of the said case and is not a binding precedent. In this regard it would be relevant to quote paragraphs 19, 20, 21 and 22 of the judgment rendered in the case of Sunil Kumar (Supra) herein below:-
“19. The entirety of the discussion and conclusions in Sanjay Singh3 was with regard to the question of the suitability of the scaling system to an examination where the question papers were compulsory and common to all candidates. The deficiencies and shortcomings of the scaling method as pointed out and extracted above were in the above context. But did Sanjay Singh3 lay down any binding and inflexible requirement of law with regard to adoption of the scaling method to an examination where the candidates are tested in different subjects as in the present examination? Having regard to the context in which the conclusions were reached and opinions were expressed by the Court it is difficult to understand as to how this Court in Sanjay Singh3 could be understood to have laid down any binding principle of law or directions or even guidelines with regard to holding of examinations; evaluation of papers and declaration of results by the Commission. What was held, in our view, was that scaling is a method which was generally unsuitable to be adopted for evaluation of answer papers of subjects common to all candidates and that the application of the said method to the examination in question had resulted in unacceptable results. Sanjay Singh3 did not decide that to such an examination i.e. where the papers are common the system of moderation must be applied and to an examination where the papers/subjects are different, scaling is the only available option. We are unable to find any declaration of law or precedent or principle in Sanjay Singh3 to the above effect as has been canvassed before us on behalf of the appellants. The decision, therefore, has to be understood to be confined to the facts of the case, rendered upon a consideration of the relevant Service Rules prescribing a particular syllabus.
20. We cannot understand the law to be imposing the requirement of adoption of moderation to a particular kind of examination and scaling to others. Both are, at best, opinions, exercise of which requires an in-depth consideration of questions that are more suitable for the experts in the field. Holding of public examinations involving wide and varied subjects/disciplines is a complex task which defies an instant solution by adoption of any singular process or by a straitjacket formula. Not only examiner variations and variation in award of marks in different subjects are issues to be answered, there are several other questions that also may require to be dealt with. Variation in the strictness of the questions set in a multi-disciplinary examination format is one such fine issue that was coincidentally noticed in Sanjay Singh3. A conscious choice of a discipline or a subject by a candidate at the time of his entry to the University thereby restricting his choice of papers in a public examination; the standards of inter-subject evaluation of answer papers and issuance of appropriate directions to evaluators in different subjects are all relevant areas of consideration. All such questions and, may be, several others not identified herein are required to be considered, which questions, by their very nature should be left to the expert bodies in the field, including, the Public Service Commissions. The fact that such bodies including the Commissions have erred or have acted in less than a responsible manner in the past cannot be a reason for a free exercise of the judicial power which by its very nature will have to be understood to be, normally, limited to instances of arbitrary or mala fide exercise of power.
21. To revert, in the instant case, we have noticed that the contempt proceedings against the Public Service Commission for violation of order dated 26-8-2011 in 53rd to 55th Combined Competitive Examination Candidates Assn. v. State of Bihar2 had failed. We have also noticed that the Public Service Commission made all attempts to gather relevant information from the Union Public Service Commission and other State Public Service Commissions to find out the practice followed in the other States. The information received was fully discussed in the light of the particulars of the examination in question and thereafter a conscious decision was taken by the Resolution dated 15-1-2013, details of which have been already extracted. In the light of the above and what has been found to be the true ratio of the decision in Sanjay Singh3, we cannot hold that in the present case the action taken by the Bihar Public Service Commission deviates either from the directions of the High Court dated 26-8- 2011 in 53rd to 55th Combined Competitive Examination Candidates Assn. v. State of Bihar2 or the decision of this Court in Sanjay Singh3. Also, the absence of any plea of mala fides and the uniform application of the principles adopted by the Commission by its Resolution dated 15-1-2013 would lead us to the conclusion that the present would not be an appropriate case for exercise of the power of judicial review. The absence of reasons in the aforesaid resolution, on which much stress has been laid, by itself, cannot justify such interference when the decision, on scrutiny, does not disclose any gross or palpable unreasonableness.
22. On the aforesaid conclusions that we have reached we have to dismiss the appeals. We, therefore, do not consider it necessary to go into the question as to whether it was necessary for the appellants to implead the selected candidates as partyrespondents to the present proceedings, an issue on which elaborate arguments have been advanced and several precedents have been cited at the Bar. For the same reasons the weighty arguments advanced by both sides on the power of the Court to mould the relief in a given case will have to await consideration in a more appropriate case.‖
14. Lastly, the learned Advocate General has relied upon a judgment reported in (2018) 2 SCC 357 to contend that the Court should not at all permit reevaluation or scrutiny of the answer sheets of a candidate if statute, rule or regulation governing an examination does not permit re-evaluation of an answer sheet or scrutiny of an answer sheet. It would be relevant to reproduce paragraphs 20, 21, 22, 23, 24, 35, 26, 27, 28, 29, 30, 31, 32 and 33 of the judgment rendered by the Hon’ble Apex Court in the case of Ranvijay Singh (Supra) herein below:
―20. Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth 4 is perhaps the leading case on the subject and concerned itself with Regulation 104 of the Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977 which reads:
―104. Verification of marks obtained by a candidate in a subject.— (1) Any candidate who has appeared at the Higher Secondary Certificate examination may apply to the Divisional Secretary for verification of marks in any particular subject.
The verification will be restricted to checking whether all the answers have been examined and that there has been no mistake in the totalling of marks for each question in that subject and transferring marks correctly on the first cover page of the answer book and whether the supplements attached to the answer book mentioned by the candidate are intact. No revaluation of the answer book or supplements shall be done.
(2) Such an application must be made by the candidate through the head of the junior college which presented him for the examination, within two weeks of the declaration of the examination results and must be accompanied by a fee of Rs 10 for each subject.
(3) No candidate shall claim, or be entitled to revaluation of his answers or disclosure or inspection of the answer books or other documents as these are treated by the Divis ional Board as most confidential.‖
21. The question before this Court was:
Whether, under law, a candidate has a right to demand an inspection, verification and revaluation of answer books and whether the statutory regulations framed by the Maharashtra State Board of Secondary and Higher Secondary Education governing the subject insofar as they categorically state that there shall be no such right can be said to be ultra vires, unreasonable and void.
22. This Court noted that the Bombay High Court, while dealing with a batch of 39 writ petitions, divided them into two groups: (i) Cases where a right of inspection of the answer sheets was claimed; (ii) Cases where a right of inspection and re-evaluation of answer sheets was claimed. With regard to the first group, the High Court held the above Regulation 104(3) as unreasonable and void and directed the concerned Board to allow inspection of the answer sheets. With regard to the second group of cases, it was held that the above Regulation 104(1) was void, illegal and manifestly unreasonable and therefore directed that the facility of re- evaluation should be allowed to those examinees who had applied for it.
23. In appeal against the decision of the High Court, it was held by this Court that the principles of natural justice are not applicable in such cases. It was held that:
―12….The princ iples of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried to such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been a proper and fair valuation of the answers by the examiners.‖
24. On the validity of the Regulations, this Court held that they were not illegal or unreasonable or ultra vires the rule making power conferred by statute. It was then said:
―16….The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulationmaking 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. The Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution. None of these vitiating factors are shown to exist in the present case…..‖.
It was also noted by this Court that:
―22...the High Court has ignored the cardinal principle that it is not within the legitimate domain of the Court to determine whether the purpose of a statute can be served better by adopting any policy different from what has been laid down by the Legislature or its delegate and to strike down as unreasonable a bye-law (assuming for the purpose of discussion that the impugned regulation is a bye-law) merely on the ground that the policy enunciated therein does not meet with the approval of the Court in regard to its efficaciousness for implementation of the object and purposes of the Act.‖
25. Upholding the validity of Regulation 104, this Court then proceeded on the basis of the plain and simple language of the Regulation to hold that
―20….The right of verification conferred by clause (1) is subject to the limitation contained in the same clause that no revaluation of the answer books or supplements shall be done and the further restriction imposed by clause (3), prohibiting disclosure or inspection of the answer books.‖ This Court then concluded the discussion by observing:
―29….As has been repeated ly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while decid ing the instant case.‖
26. In Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission 5 the question under consideration was whether the High Court was right in directing re-evaluation of the answer book of a candidate in the absence of any provision entitling the candidate to ask for re-evaluation. This Court noted that there was no provision in the concerned Rules for re-evaluation but only a provision for scrutiny of the answer book ―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 totalling of marks of each question and noting them correctly on the first cover page of the answer-book.‖ This Court reiterated the conclusion in Paritosh Bhupeshkumar Sheth that ―7…in the absence of a specific provision conferring a right upon an examinee to have his answer-books re- evaluated, no such direction can be issued.‖
27. The principle laid down by this Court in Paritosh Bhupeshkumar Sheth was affirmed in Secy., W.B. Council of Higher Secondary Education v. Ayan Das6 and it was reiterated that there must be finality attached to the result of a public examination and in the absence of a statutory provision re-evaluation of answer scripts cannot be permitted and that it could be done only in exceptional cases and as a rarity. Reference was also made to Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Board of Secondary Education v. Pravas Ranjan Panda7 and President, Board of Secondary Education v. D. Suvankar8.
28. The facts in Central Board of Secondary Education v. Khushboo Shrivastava9 are rather interesting. The respondent was a candidate in the All India Pre-Medical/Pre- Dental Entrance Examination, 2007 conducted by the Central Board of Secondary Education (for short ―the CBSE‖). Soon after the results of the examination were declared, she applied for re-evaluation of her answer sheets. The CBSE declined her request since there was no provision for this. She then filed a writ petition in the Patna High Court and the learned Single Judge called for her answer sheets and on a perusal thereof and on comparing her answers with the model or key answers concluded that she deserved an additional two marks. The view of the learned Single Judge was upheld by the Division Bench of the High Court.
29. In appeal, this Court set aside the decision of the High Court and reiterating the view already expressed by this Court from time to time and allowing the appeal of the CBSE it was held:
―9.We find that a three-Judge Bench of this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission has clearly held relying on Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth 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 was followed by another three-Judge Bench of this Court in Board of Secondary Education v. Pravas Ranjan Panda 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.
10. In the present case, the bye-laws of the All India Pre-Medical/Pre-Dental Entrance Examination, 2007 conducted by the CBSE did not provide for re-examination or reevaluation of answer sheets. Hence, the appellants could not have allowed such reexamination or re-evaluation on the representation of Respondent 1 and accordingly rejected the representation of Respondent 1 for re-examination/re-evaluation of her answer sheets......
11. In our considered opinion, neither the learned Single Judge nor the Division Bench of the High Court could have substituted his/its own views for that of the examiners and awarded two additional marks to Respondent 1 for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters. .....‖
30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are:
30.1 If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;
30.2 If a statute, Rule or Regulation governing an examination does not permit reevaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any ―inferential process of reasoning or by a process of rationalisation‖ and only in rare or exceptional cases that a material error has been committed;
30.3 The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate – it has no expertise in the matter and academic matters are best left to academics;
30.4 The Court should presume the correctness of the key answers and proceed on that assumption; and
30.5 In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing reevaluation 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.
32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the Courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the Court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination – whether they have passed or not; whether their result will be approved or disapproved by the Court; whether they will get admission in a college or University or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody’s advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers.
33. The facts of the case before us indicate that in the first instance the learned Single Judge took it upon himself to actually ascertain the correctness of the key answers to seven questions. This was completely beyond his jurisdiction and as decided by this Court on several occasions, the exercise carried out was impermissible. Fortunately, the Division Bench did not repeat the error but in a sense, endorsed the view of the learned Single Judge, by not considering the decisions of this Court but sending four key answers for consideration by a one-man Expert Committee.‖
15. I have heard the learned senior counsels and other learned counsels appearing for the writ petitioners as also the learned Advocate General, appearing for the Respondent Commission as also have gone through the materials on record. The issues, which are required to be adjudicated in the present writ petitions, are:-
(i) Whether re-evaluation of answer sheets can be directed by this Court merely on the bald assertions of the writ petitioners that they had done very well in the Mains examination, however, they surprisingly been not declared successful, which is on account of irregularity committed in the course of awarding marks to the writ petitioners as also on account of defective evaluation process,
(ii) Whether this Court can direct for re-evaluation of the answer scripts of the writ petitioners on the ground that no model answers were prepared prior to evaluation of the answer scripts.
16. First of all, it would be relevant to state that the respondent Commission has framed the Bihar Public Service Commission Rules of Procedure, 1996 which provides for manner and procedure of selection to be followed from the stages of advertisement till the final recommendation. The said rules, 1996 very succinctly provides for the stages of the examination activity and the procedure thereof, however, it has nowhere been prescribed that the evaluation process of the answer scripts cannot be undertaken without preparing the model answers. Nonetheless, the fact remains that the writ petitioners have not been able to show as to what prejudice has been caused to them qua the other successful candidates or for that matter, other unsuccessful candidates on account of nonpreparation of the model answers. In any view of the matter, the fact remains that the Commission has to follow the procedure laid down in the Rules and Procedure of 1996, which has undisputedly been followed by the Commission. Therefore, this Court finds that nonpreparation of the model answers cannot be a ground for directing reevaluation of the answer sheets of the writ petitioners.
17. Now, coming to the other issue regarding reevaluation of the answer scripts of the writ petitioners on the ground of defective evaluation system, large scale malpractices and the writ petitioners being sanguine about their wisdom and competence to the extent that they had faired very well in the Mains examination, but still have not been declared successful in the Mains examination, firstly this Court, upon going through the pleadings made in the writ petitions, finds that the writ petitioners have failed to establish much less make out any case to the effect that there has been large scale malpractices, irregularity in the evaluation process and the answer scripts of the writ petitioners, have not been properly evaluated. In fact, no material has been brought on record of the writ petitions to substantiate the bald allegations made by the writ petitioners herein, hence this Court is not required to invoke its extraordinary writ jurisdiction under Article 226 of the Constitution of India merely on the pleadings of erroneous act or omission on the part of the authority without the same having even been remotely established. Another aspect of the matter is that the Commission has assessed the inter se merit of the candidates and the same system of evaluation of answer sheets has been followed for all the candidates appearing in the examination and not for any particular candidate, hence this Court cannot take upon itself the task of a statutory authority. In fact, a learned Division Bench of this Court in the case of Ravinder Kumar Singh Vs. The High Court of Judicature at Patna reported in 2016(1) PLJR 865 has held that it is not desirable to interfere with the result of the scrutiny test on such technical pleas as raised in the present batch of the proceedings without showing any prejudice having been caused to the writ petitioners.
18. Secondly, it is a well settled law that in case the statutory rule, regulation/ law does not permit re-evaluation, the Courts cannot direct for re-evaluation of the answer scripts. The learned Advocate General has rightly relied upon the judgments rendered by the Hon’ble Apex Court in the case of Pramod Kumar Srivastava (supra) and Ranvijay Singh & Ors. (Supra).
19. At this juncture, it would be relevant to mention here that the learned senior counsels for the writ petitioners have sought to rely on the very same judgment i.e. Pramod Kumar Srivastava (supra) to contend that in order to avoid vagaries of wide difference in standard in awarding marks, model answers should be prepared, which has not been done in the present case. In this connection it must be stated that the Hon’ble Apex Court in the case of Pramod Kumar Srivastava (supra) had deprecated the directions issued by the learned Single Judge for re-evaluation of the answer book in absence of any provision regarding the same in the Rules of the BPSC and the issue under consideration was not as to whether the model answers are mandatorily required to be prepared.
20. The latest law, on the aforesaid issue under consideration i.e. as to whether the Courts can direct for re-evaluation of the answer scripts in absence of any rule to that effect, has been authoritatively laid down by the Hon’ble Apex Court recently in a judgment dated 16.2.2018 rendered in the case of Tanya Mallick vs. The Registrar General of the High Court of Delhi [Writ Petition (Civil) No. 764 of 2017] and other analogous cases. In this regard it would be appropriate to reproduce paragraph-15 of the said judgment rendered by the Hon’ble Apex Court in the case of Tanya Mallick (supra) herein below:-
15. Now we take up the second submission with respect to revaluation of answer scripts. It is settled proposition of law that in the absence of provision it cannot be ordered. In Himachal Pradesh Public ServiceCommission v. Mukesh Thakur & Anr. (2010) 6 SCC 759, this Court has considered various decisions and observed:
―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 and Anr. v. Paritosh Bhupesh Kurmar sheth wherein this Court rejected the contention that in absence of provision for re-evaluation, 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/reevaluation 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: (SCC pp. 39-40 & 42, paras 14 & 16)
―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 draw-backs 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 re-iterated by this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission, (2004) 6 SCC714 observing as under: (SCC pp. 717- 18, para 7)
―7. ….Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for reevaluation of his answer-book. There is a provision for scrutiny only wherein the answerbooks 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 reevaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks.‖ (emphasis added) A similar view has been reiterated in Dr. Muneeb-Ul-Rehman Haroon (Dr.) v. Govt. of J&K State (1984)4 SCC 24; Board of Secondary Education v. PravasRanjan Panda (2004) 13 SCC 383; Board of Secondary Education v. D. Suvankar (2007) 1 SCC 603; 15 W.B. Council of Higher Secondary Education v. Ayan Das (2007)8 SCC242; and Sahiti v. Dr. N.T.R. University of Health Sciences (2009) 1 SCC 599.
26. Thus, the law on the subject emerges to the effect that in absence of any provision under the Statute or Statutory Rules/Regulations, the Court should not generally direct revaluation.‖
In Mukesh Thakur (supra) it was laid down that in the absence of provision for reevaluation it cannot be resorted to and the observations which were made in the case of CPIL v. Registrar General of High Court of Delhi (supra), the decision was rendered in 2016 after the examination had already been held, thus the provision for reevaluation could not have been introduced after the examination had been held. In our opinion, for examination in question in the absence of provision for revaluation when the examination was held, it could not be resorted to.‖
21. Thus, this Court is left with no iota of doubt that in absence of provision of re-evaluation, the same cannot be resorted to since there is no provision of re-evaluation in the Rules of the Commission. Hence, the said issue regarding re-evaluation of the answer scripts is decided against the writ petitioners and in favour of the respondents Commission.
22. Thirdly, there is an another important aspect of the matter to the effect that the petitioners herein had appeared in the Mains Examination held in between 8.7.2016 to 30.7.2016, but did not choose to challenge the selection process either on the ground of non-preparation of the model answer or on the allegations of irregularities and illegalities having been committed in evaluation of the answer scripts, till after the publication of the Mains result on 22.2.2018 and that too only when they found that they had not been declared successful.
23. It is a settled law that such candidates, who have taken a calculated chance and participated in the selection process, cannot be permitted to challenge the said selection process after they have been declared unsuccessful.
24. Now, coming to the judgment referred to by the Hon’ble Supreme Court in the case of Sanjay Singh (Supra), the same has already been distinguished herein above in the submissions made by the learned Advocate General inasmuch as the same has been held to be not a precedent and has been only confined to the facts of the said case, as has been held by the Hon’ble Apex Court in the case of Sunil Kumar and others (supra).
25. The other judgment referred to i.e. (2013) 4 SCC 690 (Rajesh Kumar and Ors. Vs. State of Bihar & Ors.), deals only with the issue of application of erroneous ―model answer Key‖ for evaluation of answer script of a candidate leading to erroneous results, hence the said case is not applicable to the facts and circumstances of the present case.
26. Now, coming to the case of Sujasha Mukherji (supra) referred to by the learned counsel for the petitioners, the same is based on the judgment rendered in the case of Sanjay Singh (supra), which has already been dealt with herein above, hence does not require any further.
27. In view of the well settled laws laid down by the Hon’ble Apex Court in a catena of decisions, more particularly the law laid down in the case of Pramod Kumar Srivastava (supra), Ayan Das and others (supra), Ranvijay Singh and others (supra) and the latest judgment i.e. one rendered in the case of Tanya Mallick (supra), this Court is of the opinion that since there is no provision entitling a candidate to have an answer sheet re-evaluated, under the Rules of the respondent Commission, this Court cannot direct for re-evaluation of the answer scripts of the writ petitioners, especially since the writ petitioners in the present case have failed to demonstrate very c learly, without any ―inferential process of reason or process of rational‖ that a material error has been committed and more particularly since the writ petitioners have failed to substantiate the charges of irregularities and bungling in evaluation of the answer script with cogent materials apart from bald feeble statements made in the writ petition. It must be stated here that the entire examination process cannot be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them and there must be finality attached to the result of the public examination. In fact, the Hon’ble Apex Court has very aptly held that ―all cand idates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible‖.
In fact, the Hon’ble Apex Court has further held that sympathy or compassion does not play any role in the matter directing or not directing re-evaluation of an answer sheet and if an error is committed by the examination authority, the complete body of candidates suffers. The Hon’ble Apex Court has deprecated the practice of the courts directing for re-examination of the answer script especially in absence of any rule to the said effect.
28. Having regard to the facts and circumstances of the case and for the reasons mentioned herein above, this Court finds that in absence of any rule permitting re-evaluation of answer scripts as also in absence of any cogent material having been brought on record by the writ petitioners to show illegalities in evaluation of the answer scripts, the prayer made by the writ petitioners in all the aforesaid writ petitions are devoid of any merit and consequently, all the aforesaid writ petitions are liable to be dismissed.
29. The aforesaid writ petitions are dismissed, however without any order as to cost.