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WRIT PETITION (CIVIL) NO. 337/2013
Through Mr. Sanjay Jain, Sr. Advocate with Mr. Rishab Wadhwa and
Mr. Deepak Anand, Advocates.
Through Mr. Viraj R. Datar, Advocate with Mr. Chetan Lokur and
Mr. Ashish Kumar Pandey, Advocates.
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL SANJIV KHANNA, J. y
For detailed order see W.P. (C) 207/2013 titled Rajesh Kumar
HIGH COURT OF DELHI today.
•//^
JANUARY 28"', 2013 kkb (SANJIV KHANNA)
JUDGE y A (SIDDMARTH MRIDUL)
' JUDGE
2013:DHC:7124-DB , i 1N 11-IE HIGH COURT OF DEL0.1 AT NEW DELHI
H- WR.ri\PETnTON (CIVIL) .NO. 207/2013
• " Through IN PERSON
Through ' Mr. Viraj R. Datar, Advocate with Mr. Ashish Kumar Pandey, Advocate.
WRfT PETITION (CIVIL) NO. 337/2013
Mr. Rishab Wadhwa and Mr. Deepak Anand, Advocates.
Through Mr. Viraj R. Datar, Advocatewith Mr. Chetan Lokur and
Mr. Ashish Kumar Pandey, Advocates.
HONVBLE MR. JUSTICE SIDDHARTH MRIDIJL SANJIV KHANNA, J.
Aforcnientioned two writ petitions question the results of Delhi
.Tudicial Scrviccs Mains .Examination, 2012. Interviews for sclcction arc to coiTiiTicncc on 2B"' January, 2013 and there being urgcncy, we have
V. ly \ the two petitioners and others similarly situated siiould be called for interview would have created its own complications or a stay order would have upset the entire schedule causing prejudice to others. In these circumstances we have dispensed with the requirement of counter affidavit and the respondents have been permitted to rely upon data/figures furnished in a form of a chart.
/ 2. Rajesh Kumar Verma, who argued the writ petition in person, has submitted that he had secured qualifying marks in three papers viz.
General l<aiowledge and Language (115 out of250), Criminal Law (104
. out of 200) and Civil Law-ll (103.5 out of 200), but could not qualify
Civil Law-I in which he was awarded 53 marks out of 200. Rajesh
Kumar Verma moved an application, under the Right to Information
Act, 2005, for inspection ofthe answer script. On inspection he came to know that in Question No. 1of Part-A, Civil Law - I paper, he was awarded '0' (zero) out of 25 marks.
JUDGMENT
3. The contention of Rajesh Kumar Verma is that the evaluation of Part-A of Civil Law-I paper, in which he scored low marks, was done arbitrarily since there were no guidelines, scheme ofvaluation or model answers. Further, there was no system of supervision or review of assessment i.e. marks awarded by the examiner. Ihis, according to him, has resulted in violation ofArticle 14 ofthe Constitution as he has been denied right to fair evaluation, appearance before the interview panel and possible selection. Reliance is placed on the instructions, m the examination paper of Civil Law-I, to the effect that "Even ifyou do not know the answer, you may attempt the questions as the test is not only of knowledge of law but of the candidate's analytical skill also." In KState of U.P. and Ors. (1991) 1 SCC 212; F. Srinivasa Rao v. J. Veeraiah and Ors. (1992) 3 SCC 63; The Institute of Chartered Accountants ofIndia v. Shaunak H. Satya and Ors. (2011) 8SCC 781 and decision of Kerala High Court inDr. B.K. Madhumohan andAm.
V. State ofKerala and Ors. 2000 KLJ 911. Rcliance was also placed upon Ihc decision of the Bombay High Court in Sunil Kumar Sharma and Ors. v. University ofBombay and Anr. 1987 MhlJ 124, to contend that there is difference between re-evaluation of examination paper, which may not be permissible unless there is arule or policy to the said effect, and cases where the examiner or the examination results itself are faulty because the examiner has not followed certain basic parameters or standard oi' assessment. lie has contended that his ease falls into the latter category.
4. On the other hand, learned Senior Advocate, appearing for Bhupender Pal Sharma, has impelled that it is open to the court to dhect V re-evaluation or rechecldng of answer-sheets when the rules, policy or terms of examination are silent. Reliance has been placed on the judgment ofthis Court in Writ Petition (Civil) No. 2636/2012 titled Salil Maheshwari v. High Court of Delhi, through Registrar General, decided on 4^'' May, 2012.
5. It was accentuated that the candidate in question, Bhupender Pal Sharma, had secured 79 marks out of 200 marks in Civil Law-I and, therefore, because of one mark, has failed to qualify for the interview, in spite ofsecuring requisite marks in other written papers. It is submitted that the said candidate has been awarded '0' (zero) mark in Question NO. 4(b), out of 12.[5] marks allocated to the said question.
6. Another submission made is that 205 candidates, wlio were*^ declared as quahfied in 2"^/3"' Ust, published on 30^'^ May, 2012, have • been discriminated against because they were asked to appear in the Main Subjective Written Examination merely eight days thereafter, on 9"' and lO"' June, 2012. Therefore, the other 346 candidates, whose names were published on 21'' April, 2012, benefited by gaining longer / lime to prepare for the Main Subjective Written Examination. The discrimination and lack of preparation time is apparent, as it resulted in just 15 out of 215 candidates qualifying for the interview, whereas 61 out of 346 candidates qualified for interview from the earlier list.
7. In the writ petition, filed by Bhupendcr Kumar Sharma, reliance has been placed upon decision of Kerala High Court in B.K. Madhumohan (supra) and the decision of Supreme Court in F. Srinivasa Rao (supra) and Sanchit Bansal &Anr. v. Joint Admission Board & Ors. in Civil Appeal No. 8520/2011 (AIR 2012 SC 214) and V Sanjay Singh &Anr, v. U.P. Public Service Commission, Allahabad & Anr. (2007) 3 SCC 720.
8. In order to decide the above contentions, certain basic facts may be noticed. Recruitment ofjudicial officers to Delhi Judicial Service is held as per the procedure, criteria and qualifications prescribed under the Delhi Judicial Service Rule, 1970. The said rules (See Appendix to the Rules) prescribe a three stages process. In the first stage, the eligible candidates appear in the objective type multiple choice exammation and, on the basis of their scores, qualify to appear in the Delhi Judicial Service Mains Written lixaminafion. This written examination is subjective with long answers and consists of four distinct papers, L marks in cach paper and 45% marks in aggregate and 35%.marlcs in each paper, if he/she belongs to the reserved category, qualify for the interview.
9. Tlie Civil Law-I paper, in the present case, consisted of two parts 'Part-A' and 'Part-B'. The cumulative marks, obtained in both the parts, have been taken into consideration for deciding whether the minimum criteria, as mentioned in the rules, are satisfied by the candidate.
10. Writ petition, filed by Rajesh Kumar Verma, was listed before another Bench and transferred to be listed before this Bench on 16"" January, 2013. On the said date, the respondents entered appearance, on advance notice, and their counsel was directed to place on record details which were relevant and material, in form of data. It was also directed, that to the extent permitted and permissible in law, the said details or data shall be furnished to the petitioner.
11. The respondents on the next date i.e. 21^' January, 2013, placed before us, a chart setting out data required in order to decide the controversy before us. I'or the sake of completeness, we are producing the entire chart:- "DELHI JUDICIAL SERVICE MAIN EXAM (WRITTEN)
HELD ON 9''"'"' AND lO'''".lUNE, 2012 QUESTION Whether papers were checked by one l-xaminer. How many students had PAPER - CIVIL LAW-I ANSWER Yes. The paper was divided in 2 parts i.e. Part-A & Part-
12. In addition to the said data, the respondents have filed a detailed chart with the name of the candidates, their category and the marks awarded to each question in Civil Law-I paper, for all candidates who appeared in the Delhi Judicial Service Main Written Examination, held on June, 2012. To maintain secrecy and confidentiality, this data was not provided to the two petitioners. However, the chart, filed in support of the data/figures quoted above, validates the data quoted above. The said chart will be kept on record in a sealed cover by the Registrar General.
13. At this stage, we would first like to deal with the contention raised
1. • by the petitioner Bhupender Pal Sharma that re-evaluation and rechecking of the question 4(b), in which the said petitioner had secured '0' zero marks out of 12.[5] marks, should be permitted. It is an accepted and admitted position that the rules and the terms, on which the examination was held, are silent regarding re-evaluation. The petitioner •J propels that silence does not amount to a negative command and, therefore, does not bar or prohibit re-evaluation. We reject the said contention. The issue in question is not res integm and has been settled by the Supreme Court in several decisions. In Maharashtra State Board of Secondary and Higher Secondary Education & Anr. v. Paritosh Bkupesh Kurmarsheth and others. AIR 1984 SC 1543, the Supreme Court has held that direction for re-evaluation cannot be issued when there is no provision or absence of provision for re-evaluation. In other words, there must be a specific provision for re-evaluation on merits before it can be directed. The Supreme Court further held that a policy decision or provisions in rules that no re-checking, verification or be shown that the poUcy itself was in violation of some statutory provision. It was observed:- " 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 < The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may bea 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, butis even a foolish one, and that it will not really serve to effectuate the purposes of the Act...."
14. A more categorical exposition on the said principle is elucidated in Pmmod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna tS: Ors. AIR 2004 SC 4116:-
15. • A similar view has been taken Dr. Muneeh Ul Rehman Haroon V v\ Anr. (2004) 13 SCC 383; President, Board of Secondary Education, On'ssa & Anr. v. D. Suvankar Anr. (2007) 1 SCC 603; The Secretary, West Bengal Council of Higher Secondary Education v. Ayan Das & Ors. AIR 2007 SC 3098; and Sahiti & Ors. v. Chancellor, Dr. N.T.R. University of-Health Sciences & Ors. (2009) 1 SCC 599.
16. Referring to the aforesaid decisions, the Supreme Court in Civil Appeal Nos. 907/2006 and 897/2006 titled H.P. Public Service Commission v. Mukesh Thakur &. Anr. decided on 25'"'^ May, 2010, set aside the judgment and order of High Court and allowed the appeals observing that in the absence of any provision under the Statute or Stcitutory Rules/Regulations, the court should not generally direct reevaluation.
17. The decision of this Court in the case of Salil Maheshwari (supra) and Gunjan Sinha Jain v. High Court of Delhi through decided on 9"' April, 2012, are clearly distinguishable and are not contrary to the principle or ratio stated above. Judgment in Salil Maheshwari's case (supra) simply refers to the decision in Gunjan Sinha Jain's case (supra). In Gunjan Sinha Jain's case, a Division Bench of this Court noticcd dcfccts in some of the objective questions and the suggested correct answers. The answers had to be marked by pcncil for the puipose ofOptical Mark Recognition (OMR). It was, in these circumstances that certain directions were issued in paragraphs 75, 76 and 77 of the judgment, after noticing that the rules stipulated that minimum •qualifying marks must be secured and the number of candidates, to be admitted in the mains examination, should not be more (9 candidates to be onl}' 10 times the seats was diluted. This was a pragmatic solution to the problem which had arisen. In Salil Maheshwari's case (supra), it was noticed that the petitioner therein, on the basis of computation of marks, pursuant to decision in Gunjan Sinha Jain's case (supra), had got 118.[5] marks. However, the list of top 230 candidates had ended at 122.[5] marks and, therefore, the writ petition of ^ Salil Maheshwari was dismissed.
18. We do not think that the judgment in the case of Gunjan Sinha Jain's case (supra), postulates re-evaluation or re-examination of a single answer or the entire paper. The said judgment was given in a peculiar situation, where some questions were ambiguous and debatable, or multiple choices were incorrect or the' answers given in the answer sheet were incorrect. The situation was entirely different. Similarly, in the case of Siinil Kumar Sharma's case (supra), the Bombay High Court dealt with a peculiar factual matrix. 729 students had appeared J and their papers in question were checked by 3 different examiners. One examiner had checked and awarded marks to 22 candidates. He failed the entire lot of 22 candidates whose papers were checked by him. They \ were awarded marks between 4% to 19%. The High Court allowed the writ observing that there was violation of two statutory paragraphs which stipulated that the Chairman shall discuss the synoptic answers with his examiners to ensure uniform standard in assessment and the Chairman/ Senior Examiner had the right to review the assessment done by the examiner and could issue instructions to the examiner to review or reassess the answer-sheet. Hie examiner was to abide by the instructions. The statutory paragraphs were important as they prevented said decision. In Sanchit Bansal(supm) it has been observed that Court can interfere and direct re-evaluation of the performance etc. where, (i) there is violation of any enactment, statutory Rules and Regulations; (ii) mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious. The procedure is arbitrary and < capricious when it is illogical and whimsical, something without any reasonable explanation. • 19. In the present case, the answer sheets of Part-A of Civil Law-I, • have been examined by one examiner and not by multiple or several examiners. The said examiner has uniformly applied the same standard while checking the answers of all the candidates. The chart quoted,-above shows that, out of 453 candidates, 265 candidates passed Civil Law-I paper and 188 candidates have failed. Substantial number of candidates have cleared the paper and secured good marks. In Part-A of the said V paper, the maximum mark secured by a candidate is 76% and the minimum marks secured is 7. In Part-B of the paper, which was checked by a different examiner, maximum marks secured is 73% and the minimum marlcs secured is 4%. Even in Part-B examination, several candidates have secured '0' zero marks in respect of their answers. The number of candidates securing '0' zero marks in Part-A paper may be more, but this cannot be a ground to re-examine or re-cvaluate the entire paper or even specific answers. If we allow re-examination or recvaluation oi" the answer paper, in one case or even one question, the said exercise may have to be completed across the board, in all cases where candidates have secured '0' zero or one, two or low marks. No r •j \ situation which should be avoid. Rajesh Kumar Verma has secured 53 marks out of 200 in Civil Law Paper 1 and he is short by 17 marks. The difference is substantial in his case. In Bhupender Pal Sharma's case the difference may be of only one mark but this by itself as noticed and clucidatcd below cannot be a ground to direct re-evaluation or award gracc marks. Given the intense competition, it is not uncommon to come across cases where the difference between a selected and unselected candidate is in fraction or less than one mark.
20. In matters of examination, especially competitive examination for selection judicial interference should be exercised with care and grave caution. Such kind of intrusion is rare. Wc do not thinlc that present case warrants interference and the valuation of marks award in the two papers/answers are so glaring, absurd or demonstrably un-consciousable that interference is called for. Answers papers of the two petitioners were in fact shown to us. The present cases do not fall under the limited exceptions carved out in Sanchit Bansal's Case (supra). Any interference will lead to gross and indefmite uncertainty besides creating utter confusion, 'llie position which has been highlighted and explained by the Supreme Court inMaharashtraStateBoard's case (supra).
21. The contention of Bhupender Pal Sharma that he should be given one mark, does not have any merit. We noticed that as perthe chart, five candidates have missed the qualifying mark by one and another five candidates by two marks. There is no provision for giving bonus marks or additional marks to any candidate. It will be improper and incoiTect to give bonus mark or even upgrade the marks. In Registrar, Rajiv Gandhi University of Health Sciences, Bangalore v. G. Hemlatha and r / "12. No provision of any statute or any rules framed thereunder have been shown to us, which permit roundingoff of ehgibihty criteria prescribed for the quahfying examination for admission to the PG course in MSc (Nursing). When the ehgibility criteria is prescribed in a quahfying examination, it must be strictly adhered to. Any dilution or tampering with it will work injustice on other candidates. The Division Bench of the High Court erred in holding that the learned Single Judge was right in rounding-off of 54.71% to 55% so as to make Respondent 1 eligible for admission to the PG course. Such roundingoff is impermissible." The said judgment also makes reference to an earlier decision in Orissa Service Public Commission v. Rupashri Chaudhary, (2011) 8 see 108, thatneither grace marks nor rounding offis permissible unless there is a permissible term under which the examinations were held. In the said case, the candidate in question had secured qualifying marks in each individual paper but in aggregate had 44.93% marks and not 45% marks as stipulated in the rules. The difference was only 0.07% but the appeal tiled was allowed by the Supreme Court and the judgment ofthe High Court was. set aside, observing that rounding off or additional marks could not have been given.
22. In Umesh Chand Shukla v. UOI, AIR 1985 SC 1351, Full Court resolution of the High Court directing moderation by awarding 2 marks in each paper to all candidates was adversely commented upon and the moderation done was struck down'. Exercise of power of moderation was likely to create a feeling of discrimination in the process of selection and would violate principle of.equality and may lead to arbitrariness. There might be hard cases, but hard cases cannot be allowed to make a bad law.
23. In Rajinder Kumar Aggarwal v. High Court ofDelhi andAnr., / I ' V answer-sheets. In the said case, the petitioner therein had secured one marlc less for qualifying, in one ofthe papers, but had obtained sufficient marks in other papers. The petitioner therein had made reference to a f\ill Court Resolution. The said contention was rejected, after referring to order dated 26"' July, 1985 passed by the Supreme Court in an application in Writ Petition No. 3805/1985 dated 26"' July, 1985, which for the sake of convenience is reproduced below:- "At the hearing of the above writ petition Mr. F.S. Nariman, learned counsel for ShriRajan Sharma, one of the candidates selected for the Delhi Judicial Service Examination held in the year 1984, who has been imp leaded as a respondent in this case submits fairly and we think rightly that in the absence of an express rule for re valuation it was not possible for the examining body to get one of the answer books of Shri Rajan Sharma revalued. In the absence of 18 marks which were added at the reevaluation, Shri Rajan Sharma would not have been eligible for the viva voce examination even though insome of the papers at the examination, he had done well. Shri Rajan Sharma, Therefore, withdraws his application for appointment to the Delhi Judicial Service. We appreciate the stand rightly taken by Sim Rajan Sharma in this Court. In view of the above we direct that the name of Shri Rajan Sharmawould not be considered by the examining body for the purpose ofapp.ointnient atthe 1984 examination. sd/- E.S.Venkataramahia, J. R.B. Mishra, J. July 26, 1985." I'he Division Bench rejected the contention that the petitioner had excellent academic record and had secured First Division in LL.B. and that 1(one) grace mark should be given. Similar view has been taken in Vipin Sanduja v. Registrar, Delhi High Court, 85 (2000) DLl 471.
24. The contention that the absence of guidelines, moderation or \ •J Part-A were examined by one single examiner and not by different examiners. The rules do not stipulate that there should be model answers or mandatory guidelines, in writing, for assessment. The answer papers have been checked by examiners who are proficient, well conversant and have knowledge of the subjects. The examination, in' question, is for appointment to Delhi Judicial Service and is a competitive examination and not a college or school examination. High standards are required and justified. The checking and allotting of marks, for Part-A, may be strict, but this does not mean that Court can interfere in exercise of its jurisdiction under Article 226 of the Constitution. In matters of evaluation by experts and the standards which should be adopted and applied, the courts cannot substitute or adorn the role ofthe examiner. It cannot substitute its own opinion regarding what marks could or should have been awarded, as the result. Interference is rare and justified only when there is a blatant miscarriage ofjustice as set out in Sanchit Bansal's case (supra). The following observations in H.P. Public Service Commission (supra), are apposite:
25. In view of what we have stated above, we need not specifically J • cases of Shrilekha Vidyarthi (supra). In'F. Srinivasa Rao's case (supra), abetter candidate with the B.Com degree and longer experience was ignored on the ground that the said aspects cannot be taken into consideration for the purpose ofcomparison with the selected candidate though they were relevant for the puipose of marks. Selection was by interview and the allegation was that the interview was a farce. The Supreme Court while allowing the appeal observed that in the absence of guidelines, the selection was left to the whims of the individual officei holding the interview who had unbridled powers. This is not so in the present case as there was a written examination and marks have been awarded by examiners. The question papers and answer papers are available. The decision in Dr. BJC Madhumohan (supra), is distinguishable for the reason, in the said case the question setters themselves admitted that several questions should be deleted as there were no correct choices in the answer booklet and the questions were controversial. It is in this context, it was observed that capricious acts of examiners are not immune from interference of the court. Ihis was a case of blatant miscarriage ofjustice.
26. The contention raised by Bhupender Pal Sharma regarding lack of preparation time and discrimination, as there were two separate lists and last and second list came out eight days before the examination, has to be rejected. Having participated in the examination and taken the chance, the candidate cannot be allowed to object to the date of examination or submit that the examination should have been postponed. The said plea is unacceptable and would set at naught the entire examination process. It was open to the candidates, who had fded Civil x. w was circLilatcd pursuant to the order of" the Supreme Court in the judgment dated 28"' May,'2012. By that time, the date of written examina;tion in June, 2012 had already been notified and this was Imown to all candidates, including the petitioners. Similar contentions were raised in WP(C) No. 3667/2012 Vivek Tomar v. the Registrar General, High Court of Delhi and WP(C) 3668/2012 Archana Aggarwal v. the dated 6"^ June, 2012, recording thatthe Supreme Court while passing the order dated 28^' May, 2012, did not consider it necessary to extend the date for conducting the examination.
27. In view of the aforesaid position, the writ petitions are dismissed. No Costs. (SANJIV KHANNA) JUDGE iRTH MRIDUL) • JUDGE JANUARY^^, 2013 klcb ^