Facts in brief as submitted by the learned counsel for the petitioner are that petitioner appeared in B.Sc. Part I examination, 2010 whose Role no. was 348816 conducted by Dr. Ram Manohar Lohiya University, Faizabad. In the said examination, answer books of Zoology, Botany and Chemistry as per the version of the petitioner, has not been examined properly by the examiner, as such petitioner filed present writ before this Court with the main following prayers :-
I.a writ, order or direction in the nature of mandamus commanding to opposite party no. 2 to provide the photocopy of the Answer book of the Zoology-III paper and Botany-I paper of the petitioner.
II.a writ order or direction in the nature of mandamus commanding to opposite party no. 2 to reevaluate the answer book of the Zoology-III paper and Botany-I paper of the petitioner by any other competent examiner.
Sri Jitendra Kumar Pandey, learned counsel for the petitioner while pressing the above said reliefs submits that although there is no provision in the Rules and Regulations which governs the filed of the Dr. Ram Manohar Lohiya University for re-evaluation of the answer books but he submits that in view of the law as laid down by this Court in the case of Vice-Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur and others Vs. Smt. Shashikala and another [2009(2) ESC 1223(ALL)(DB)], the relief claimed by the petitioner may be considered and granted to him in the interest of justice.
Dr. Ravi Kumar Mishra, learned counsel for the respondent no. 2 on the other hand opposed the said request made on behalf of the petitioner and submits that once there are no Rules and Regulations in respect to re-evaluation of the answer books in respect to the examination conducted by the Dr. Ram Manohar Lohiya University, Faizabad, then the petitioner is not entitled for any relief as claimed by him in the present writ petition.
I have heard learned counsel for the parties and perused the record.
Facts of the case are not disputed and admittedly, the petitioner who appeared in the B.Sc. Part-I examination, 2010 conducted by Dr. Ram Manohar Lohiya University, Faizabad and secured less marks in the subject of Zoology-IIIrd paper, Botany-Ist paper, hence the present writ petition has been filed for redressal of his grievances.
It is also not disputed by the learned counsel for the parties that there is no Rule or Provision for re-evaluation of the answer books as in the matter in question.
Needless to mention that the issue of re-evaluation of answer book is no more res integra. In view of the law as laid down by the Hon'ble Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupesh Kurmarsheth & Ors, AIR 1984 SC 1543, wherein it is held that "in absence of provision for re-evaluation, a direction to this effect can be issued by the Court. The Hon'ble Supreme Court further held that even the policy decision incorporated in the Rules/Regulations providing for rechecking/verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision.The Hon'ble Supreme Court held as under :-
"In our opinion, this approach made by the High Court was not correct or proper because the question whether a particular piece of delegated legislation-whether a rule or regulation or other type of statutory instrument-is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational acts within the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. 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. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegated by the Statute. In our opinion, the aforesaid approach made by the High Court is wholly incorrect and fallacious. 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 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. "
In the case of Dr. Pragati Joshi Vs. State of U.P. and others in Writ Petition No. 210(MS) of 2010, this Court by means of judgment and order dated 10.02.2010 in the matter of re-evaluation of answer book of M.D.S. Final year, 2009 conducted by the university concerned, held as under :-
"Learned counsel for the University states that there is no provision for revaluation under the Rules. The law in this regard is settled by the Apex Court in the case of Sahiti and others Vs. Chancellor, Dr. N.T.R. University of Health Sciences and others, (2009) 1 SCC 599, The Secretary, West Bengal Council of Higher Secondary Education Vs. Ayan Das and others, (2007) 8 SCC 242, Pramod Kumar Srivastava Vs. Bihar Public Service Commission, (2004) 6 SCC 714 and Board of Secondary Education Vs. Pravas Ranjan Panda, (2004) 13 SCC 383 and has held that if there is no provision for revaluation in the rules, then the court cannot order for revaluation and the order in this regard would be illegal."
The Hon'ble Supreme Court in the case of Pramod Kumar Srivastva V. Chairman, Bihar Public Service Commission, Patna & Others J.T. 2004 SC 380 held as under :-
"Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re-evaluation 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 answer given by a candidate have been examined and whether there has been any mistake in the totaling of marks of each question and nothing 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 has got any right whatsoever to claim of ask for re-evaluation of his marks." In view of the above said facts, the relief which claimed by the petitioner cannot be granted under Article 226 of the Constitution of India, as admittedly there is neither provision nor any rule for re-evaluation of the answer-books in respect to the student who appeared in the examination which is conducted by the Central Board of Secondary Education."
Further, in the case of Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission, Patna & Ors, AIR 2004 SC 4116 held as under:-
"Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re- evaluation 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." (emphasis added)."
A Division Bench of this Court in the case of Vice-Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur and others Vs. Smt. Shashikala and another [2009(2) ESC 1223(ALL)(DB)], in Paragraph nos. 12 & 13 quoted hereinbelow has held as under :-
"Normally, in the absence of any provision for revaluation of the answer books in the relevant Rules etc., the Court will not give any direction for re-evaluation of the answer books. Reference in this regard may be made to the following decisions :-
(1)Maharashtra State Board of Secondary and Higher Secondary Education and another Vs. Paritosh Bhupesh Kumarsheth etc., AIR 1984 SC 1543.
(2)Kshitiji Singh Vs. Joint Secretary Central Board of Secondary Education, Allahabad and others, 2001(3) AWC 2191.
(3)Anuj Gupta (Minor) Vs. Central Board of Secondary Education,Delhi through its Secretary and another, (2003), 1 UPLBEC 44.
However, there may be cases where glaring errors are found in the answer book indicating that the examiner has not at all applied his mind while evaluating the answer book, i.e., there has been total non-application of mind while evaluating the answer book. Such cases will be very rare and exceptional. In such cases, the Court may direct for revaluation of the answer book of a candidate. This is because if the evaluation is done by the examiner without application of his mind and glaring errors are found in the answer book making it evident that the examiner has not at all applied his mind while evaluating the answer book, i.e., there has been total non-application of mind while evaluating the answer book, then such a case will be treated to be a case of non-evaluation of the answer book and direction for revaluation will be deemed to be direction for evaluation of the answer book, and not its revaluation.
Even otherwise, in case this Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India finds glaring and material errors in evaluation of answer book of a candidate, then this Court in order to do substantial justice may give direction for revaluation of such answerbook. Reference in this regard may be made to the decision of the Apex Court in Manish Ujwal Case (Supra)."
Recently, the Apex Court in the case of Himachal Pradesh Public Service Commission Vs. Mukesh Thakur and another (2010) 6 SCC 759, held as under :-
"In view of the above, it was not permissible for the High Court to examine the question paper and answer sheets itself, particularly, when the Commission had assessed the inter-se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for respondent no.1 only. It is a matter of chance that the High Court was examining the answer sheets relating to law. Had it been other subjects like physics, chemistry and mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court.
"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 Vs. Paritosh Bhupeshkumar Sheth, wherein this Court rejected the contention that in the absence of the provision for revaluation, 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/revaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision.
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.
For the foregoing reasons, the relief as claimed by the petitioner by means of present writ petition cannot be granted and the present writ petition filed by him lacks merit.
Accordingly, the writ petition is dismissed.
No order as to costs.
Order Date :- 29/09/2010 krishna/*