Dheerjanand Joshi vs Union Of India

S.N.Terdal, J

1.We have heard Mr.Surjeet Singh for Ms. Ritu Singh, counsel for applicant and Mr. R.V. Sinha, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

(i). That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to recheck the Answers/ result of the examination in respect of employment notification No.220E/open mkt/rectt./2012 dated 30.8.12 for selection to the Group 'D' posts in Northern Railway and after correcting the Answer keys revise the result of applicant accordingly based on correct evaluation and provide all consequential benefits including appointment of the applicant from the date of appointment of similarly placed persons and juniors with all the benefits including pay and allowances.

(ii) That the Hon'ble Tribunal may further graciously be pleased to pass an order directing the respondents to declare the merit /marks obtained the Applicant in the written examination after correcting the answer key.

(iii) Any such and further by the Hon'ble Tribunal as it deems fit and proper may also be granted to the applicant along with the costs of litigation."

The relevant facts of the case are that the respondents invited applications for over 7000 Group 'D' posts by Employment Notice dated 30.08.2012. The applicant applied for the said post and he successfully completed written test as well as Physical Efficiency Test (PET). The result was declared on 22.04.2014 and he was not shortlisted. From RTI reply, he came to know that he had secured 80.01 marks in the written examination, whereas the cut off was 81.02 for his category and the respondents refused to supply OMR sheet and the answer key to the applicant. He filed appeal before the appellate authority of under RTI, subsequently he filed appeal before the Central Information Commission, which vide order dated 17.11.2015 directed for providing the OMR sheet and answer key which he ultimately secured by filing a Contempt Petition on 5.02.2016. On verification of his answers he found from his own evaluation that the answer keys were wrong with respect to two questions, namely, question no. 2 and 49. His submission is that if his above said two questions were correctly evaluated he would have got two more marks and he would have got selected. On the above averments, he has filed the present OA seeking the above said reliefs.

At the time of admission on 20.04.2017 this OA was admitted on the basis of the order passed in OA No.3246/2016 admitting the said OA. Even otherwise the reliefs prayed for in this OA are identical to the reliefs prayed for in the said OA no. 3246/21016, namely, regarding a direction to the respondents for re-evaluation or correct evaluation of the answer given by the applicant.

The counsel for the respondents submitted that the answer keys provided in compliance with the order of this Tribunal dated 1.05.2015 are applied to evaluate the answer sheets of all the 5 lakhs candidates who had appeared in the said examination and on the basis of the said answer key, 7000 candidates have been appointed in the said selection process. Thereafter as a consequence of selection process started in the year 2013 more than 5000 candidates have already been appointed, as such the selection process is long over. There is no provision for revaluation and as per the law laid down by the Hon'ble Supreme Court in the following cases, the candidates are not entitled for revaluation and in case relief is granted it will open pandora box. He relied upon the following judgments of Hon'ble Supreme Court:

(1) S.S.Rathore Vs. State of Madhya Pradesh (1989) 4 SCC 582).

(2) D.C.S.Negi Vs. Union of India (SLP (Civil) 7956/2011)

(3) Himachal Pradesh Public Service Commission v. Mukesh Thakur & Anr. ( 2010) 6 SCC 759)

(4) Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna & Ors (2004) 6 SCC 714).

(5) Ram Vijay Singh & Ors v. State of U.P. & Ors (2017) SCC Online SC 1448) Amongst others, the counsel for the respondents brought to our notice the following law laid down by the Hon'ble Supreme Court in the cases of Pramod Kumar Srivastava (supra) and recent judgment of Ram Vijay Singh (supra). The counsel for the respondents specifically brought to our notice paragraph 7 of the above said judgment of Hon'ble Supreme Court0 in the case of Pramod Kumar Srivastava and para 33 of the recent judgment in Ram Vijay Singh (supra). The said paras are extracted 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-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 totalling 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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The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are: (i) 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; (ii) If a statute, Rule or Regulation governing an examination does not permit re-evaluation 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; (iii) 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; (iv) The Court should presume the correctness of the key answers and proceed on that assumption; and (v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate." At the time of hearing, when we asked the counsels for the applicants he could not show any rule or provision regarding revaluation of the answer sheets in the concerned selection process.

In view of the law laid down by the Hon'ble Supreme Court referred to above in the cases of Parmod Kumar Srivastava (supra) and recent judgment of Ram Vijay Singh (supra), we are of the opinion that the applicants in this OA are not entitled to the reliefs prayed for.

Accordingly, OA is dismissed. No order as to costs.