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CASE NO.:

Appeal (civil) 5046 of 2004

PETITIONER:

Pramod Kumar Srivastava

RESPONDENT:

Chairman, Bihar Public Service Commission, Patna and others

DATE OF JUDGMENT: 06/08/2004

BENCH:

CJI, G. P. MATHUR & C. K. THAKKER.

JUDGMENT:

J U D G M E N T

(Arising out of Special Leave Petition [C]No. 13322 of 2003)

G.P. MATHUR, J.

Leave granted.

2. The writ petitioner has preferred this appeal by Special Leave against

the judgment and order dated 16-4-2003 of a Division Bench of Patna High

Court by which the Letters Patent Appeal preferred by Bihar Public Service

Commission (hereinafter referred to as 'the Commission') was allowed and

the judgment and order dated 11-9-2001 of a learned Single Judge whereby

a direction was given to the Commission to reconsider the case of the

appellant after treating his marks in the General Science paper as 63 was set

aside.

3. For holding the Judicial Services (Competitive) Examination, 1999,

the Commission issued an advertisement on 19-4-1999. The appellant

appeared in the written examination which was held from 25th to 31st

January, 2000. After the viva voce examination, the final result was

declared on 6-8-2000. The appellant did not qualify in the written

examination and was not called for interview. A copy of the mark-sheet was

sent to him on 1-1-2001. He applied for scrutiny of his marks in General

Science paper wherein he had secured 35 marks. The Commission found

that there was no mistake and, accordingly, an intimation to that effect was

sent to him on 18-7-2001. Thereafter, the appellant preferred a writ petition

in the High Court wherein the main prayer made was that a direction be

issued to the Commission to re-evaluate his General Science paper. It was

averred in the writ petition that he had secured very good marks in all other

papers, namely, General Hindi, General Knowledge, Law of Evidence &

Procedure, Transfer of Property and Personal Law etc, and had also

answered the questions in General Science paper correctly and, therefore, he

should have been awarded much higher marks in the said paper.

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 Union Public Service Commission

wherein the Head Examiner with the assistance of other examiners prepares

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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 re-evaluation 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.

5. The learned Single Judge issued a direction to the Commission to

produce the answer-book of the appellant of General Science paper after he

had deposited an amount of Rs.5000/- by way of security. The answer-book

was shown to the standing counsel for Patna University, who apparently had

science background, and, he was of the opinion that the appellant deserved

more marks. The learned Single Judge then directed the standing counsel

for the Patna University to have the answer-book re-evaluated by expert

teachers through the Principal, Science College, Patna. A photocopy of the

answer-book (after blacking out the marks awarded by the examiner of the

Commission) was handed over to the said counsel. After fresh evaluation of

the answer-book by two experts, viz., a Physics teacher and a Biology

teacher of Patna Science College, the answer-book was returned to the Court

by the counsel. In that fresh evaluation, the appellant was awarded 63 marks

as against 35 marks which had been awarded to him by the examiner of the

Commission. The writ petition was allowed and a direction was issued to

the Commission to re-consider the case of the appellant treating his marks in

General Science paper as 63.

6. The Commission preferred a Letters Patent appeal against the

aforesaid judgment and order of the learned Single Judge which was allowed

by the Division Bench by the impugned judgment and order dated 16-4-2003

and the order of the learned Single Judge was set aside.

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-evalution of

his answer-book. 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 re-evaluation 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. This question was

examined in considerable detail in Maharashtra State Board of Secondary

and Higher Secondary Education and another v. Paritosh Bhupesh

Kurmarsheth and others AIR 1984 SC 1543. 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 re-evaluation 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.

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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 re-evaluation? He may come forward with a plea that the

marks as originally awarded to him may be taken into consideration. The

absence of clear rules on the subject may throw many problems and in the

larger interest, they must be avoided.

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 the Patna University or to the Principal of the Science

College. A photocopy of the answer-book was handed-over to the standing

counsel for the 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 the Patna Science College. There

can be a variation of standard in awarding marks by different examiners. The

manner in which the answer-books 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.

10. We are, therefore, of the opinion that the view taken by the Division

Bench of the High Court is correct and calls for no interference.

11. The appeal is, accordingly, dismissed. There shall be no order as to

costs.