HIGH COURT OF TRIPURA THROUGH THE REGISTRAR GENERAL versus TIRTHA SARATHI MUKHERJEE & ORS. on 6 February 2019

692 SUPREME COURT REPORTS [2019] 2 S.C.R.[2019] 2 S.C.R. 692

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HIGH COURT OF TRIPURA THROUGHTHE REGISTRAR GENERAL

v.

TIRTHA SARATHI MUKHERJEE & ORS.(Civil Appeal No. 1264 of 2019)

BFEBRUARY 06, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Judicial Services – Tripura Judicial Service – Revaluation ofanswer papers – Writ petition filed by the first respondentchallenging the results and seeking revaluation was dismissed byCHigh Court – SLP dismissed by Supreme Court – 5 years thereafter,review petition filed against dismissal of writ petition, which wasallowed by High Court – In instant case, appellant contended thatthere was no right to seek re-evaluation unless there is a provisionwhich entitles a candidate to seek revaluation and there was anDinordinate delay with which Review Petition was filed – Held: Inabsence of any provision, the Court should not generally directrevaluation – The Court may permit revaluation, inter alia, only if itis demonstrated very clearly without any inferential process ofreasoning or by a process of rationalization and only in rare orexceptional cases on the commission of material error – In instantEcase, the review petition was filed in High Court after 5 years ofdismissal of the SLP – Also, there were supervening development inthe form of fresh selection in between – It may not be correct tocharacterize the case as a rare or exceptional case when the firstrespondent approaches the Court with a delay of nearly 5 yearsFallowing subsequent events to overtake him and the Court – HighCourt ought not to have allowed the review petition – Delay/Laches– Constitution of India – Art.226.

Allowing the appeal, the Court

Held: 1. There is no legal right to claim or ask forGrevaluation in the absence of any provision for revaluation.Undoubtedly, there is no provision. In fact, the High Court inthe impugned judgment has also proceeded on the said basis.The first question to answer is whether despite the absence of HIGH COURT OF TRIPURA THR. THE REGISTRAR GENERALv. TIRTHA SARATHI MUKHERJEE & ORS.

any provision, are the courts completely denuded of power in theexercise of the jurisdiction under Article 226 of the Constitutionto direct revaluation? It is true that the right to seek a writ ofmandamus is based on the existence of a legal right and thecorresponding duty with the answering respondent to carry outthe public duty. Thus, as of right, it is clear that the first respondentcould not maintain either writ petition or the review petitiondemanding holding of revaluation. [Para 18][701-H; 702-A-B]

2. The question however arises whether even if there is nolegal right to demand revaluation as of right could there arisecircumstances which leaves the Court in any doubt at all. A graveinjustice may be occasioned to a writ applicant in certaincircumstances. The case may arise where even though there isno provision for revaluation it turns out that despite giving thecorrect answer no marks are awarded. No doubt this must beconfined to a case where there is no dispute about the correctnessof the answer. Further, if there is any doubt, the doubt should beresolved in favour of the examining body rather than in favour ofthe candidate. The wide power under Article 226 may continueto be available even though there is no provision for revaluationin a situation where a candidate despite having giving correctanswer and about which there cannot be even slightest mannerof doubt, he is treated as having given the wrong answer andconsequently the candidate is found disentitled to any marks.[Para 19][702-C-E]

3. In the absence of any provision the Court should notgenerally direct revaluation. In instant case, the writ petition wasfiled challenging the results and seeking revaluation. The writpetition came to be dismissed in the year 2012 by the High Court.The Special Leave Petition was dismissed in the year 2013. Thereview petition is filed after nearly 5 years. In the interregnum,there were supervening development in the form of freshselection. While it may be true that the delay in filing the reviewpetition may have been condoned, it does not mean that the Courtwhere it exercises its discretionary jurisdiction under Article 226is to become oblivious to the subsequent development and theimpact of passage of time. [Paras 21 and 22][702-H; 703-A-B]

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A4. The Court may permit revaluation inter alia only if it isdemonstrated very clearly without any inferential process ofreasoning or by a process of rationalization and only in rare orexceptional cases on the commission of material error. It maynot be correct to characterize the case as a rare or exceptionalcase when the first respondent approaches the Court with a delayBof nearly 5 years allowing subsequent events to overtake himand the Court. This aspect was not fully appreciated by the HighCourt. The review, it must be noted is not a re-hearing of themain matter. A review would lie only on detection without muchdebate of an error apparent. It is here that this Court must noticeCthe argument of the appellant relating to question in Part III ofthe examination alone, engaging the attention of the Court forthe reason that the first respondent pressed this aspect alonebefore the High court. The judgment of the High Court in thewrit petition appears to bear out this submission of the appellant.

The issue relating to the anomaly in the evaluation of the PaperDIII has been discussed thread bare in the judgment. The view ofthe High Court has not been disturbed by this Court. Despitethis the High Court in the impugned judgment has proceeded totake up the plea relating to questions in Part-I and Part-II andproceeded to consider the review petition and grantedErelief that too after the passage of nearly 5 years. This suffices toallow the present appeal. This Court would like to rest itsconclusion on the basis that not being armed with a rightgiven by a provision providing revaluation and in the factswhich have been already set out and the reasons alluded, theHigh Court ought not to have allowed the review petition.F[Paras 22 and 31][703-D-G; 705-G-H]

Himachal Pradesh Public Service Commission v.Mukesh Thakur & Anr. (2010) 6 SCC 759 : [2010]7 SCR 189; Pramod Kumar Srivastava v. Chairman,Bihar Public Service Commission, Patna & Ors. (2004)G6 SCC 714 : [2004] 3 Suppl. SCR 372; Central Boardof Secondary Education Through Secretary, All IndiaPre-Medical/Pre-Dental Entrance Examination & Ors.v. Khushboo Shrivastava & Ors. (2014) 14 SCC 523 :[2011] 10 SCR 286 – relied on.

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HIGH COURT OF TRIPURA THR. THE REGISTRAR GENERALv. TIRTHA SARATHI MUKHERJEE & ORS.

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K. Rajamouli v. A.V.K.N. Swamy (2001) 5 SCC 37: [2001] 3 SCR 473; Ran Vijay Singh & Ors. v. Stateof Uttar Pradesh & Ors. (2018) 2 SCC 357 : [2017]12 SCR 95 ; Gangadhara Palo v. Revenue DivisionalOfficer & Anr. (2011) 4 SCC 602 : [2011] 3 SCR 746 ;V.S. Achuthan v. Mukesh Thakur (2010) 6 SCC 759 ;U.P.P.S.C. through its Chairman & Anr. v. Rahul Singh& Anr. [2018] SCR 28; Salem Advocates BarAssociation Case (2005) 6 SCC 344 : [2005] 1 Suppl. SCR 929 – referred to.

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Case Law Reference

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1264of 2019

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From the Judgment and Order dated 19.03.2018 of the High Courtof Gauhati at Guwahati in Review Petition No. 21 of 2018.

Naresh K. Sharma , Adv. for the Appellant.

Mrs. Urmila Sirur, Kabir Shankar Bose, Suvodeep Roy, P. I. Jose,Ms. P.S. Chandralekha, Dinesh K. Garg, Abhishek Garg, DhananjayGarg, Deepak Mishra, Advs. for the Respondents.

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Tirtha Sarathi Mukherjee, in-person.

AThe Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. The appeal by Special Leave is directed against the order passedby the High Court of Gauhati dated 19.03.2018 in Review Petition No.21of 2018. By the impugned order, the Review Petition filed by theBrespondent No.1 against the dismissal of his Writ Petition, has beenallowed and the Court has directed the re-evaluation of his answer papersin regard to the selection to the post of Grade-I in Tripura Judicial Service.

2. By advertisement dated 18.01.2011, applications were invitedfrom practicing Advocates for appointment as Grade-I in Tripura JudicialService. 3 vacancies were notified. Pursuant to the advertisement,CRespondent No.1 appeared in preliminary examination held on12.06.2011. The results were declared on 24.06.2011. The petitioneralong with 16 other candidates were shown as qualified. The mainexamination was held on 30.07.2011 and 31.07.2011. The writtenexamination comprised of 3 papers. The result of the main examinationDwas declared on 29.09.2011 in which Respondent No. 1 was declaredas not qualified. He sought disclosure of marks under the Right toInformation Act, 2005. However, he was allowed to inspect his answerscripts on 01.11.2011. It is the case of the respondent No.1 that somecorrect answers were found marked as incorrect. He secured 175 marksEout of 300. Thus, he was 5 marks short to be shortlisted for appearingfor the interview as the requirement was 60%. He filed Writ PetitionNo.1809 of 2012 seeking re-evaluation of his answer papers in Papers I,II and III and declaring the decision holding him as not qualified for theinterview as null and void. The said Writ Petition came to be dismissedon 12.12.2012. The respondent filed Special Leave Petition before thisFCourt which was dismissed on 23.07.2013. It is, thereafter, he filed theReview Petition. In the Review Petition, the High Court finds that underthe 2003 Rules, which apparently governed the conduct of the examination,there is no provision for re-evaluation of answer scripts. It was, however,found that there is no prohibition against re-evaluation provided it findsany patent error. This may include not awarding any marks for a correctGanswer or treating a correct answer to be an incorrect answer. TheCourt, no doubt notes it has to be bear in mind that it cannot step into theshoes of the examiner and undertake the exercise of re-evaluation like asuper examiner. Thereafter, the following finding is rendered:- H

“25. We have gone through the answer scripts of the petitionerboth in Paper-I and Paper-II. To us, answers given in respect ofQuestion Nos. 3 (xiii), 2(xviii) and 3(xv) of Paper II which weremarked as incorrect answers and Question No.I(xiv) of Paper IIfor which no marks were awarded may require a relook. However,we hasten to add that we have not expressed any final opinion inthis regard”.

3. Regarding the case set up by the petitioner based on thedismissal of the Writ Petition, it was found based on adjudication relatedto Paper-III and that it did not adjudicate the grievance of respondentNo. 1 in respect of Papers I and II, as perhaps, it was not highlighted bythe respondent No.1. Noting that long time has elapsed the Court allowedthe Writ Petition and modified the Judgment by which the Writ Petitionwas dismissed and the Court directed the Registrar General of the TripuraHigh Court to re-evaluate the answer sheet scripts pertaining to PapersII and III of the main examination re-evaluated. For this purpose, theanswer papers in the custody of Gauhati High Court was to be transmittedin sealed cover to the Registrar General, Tripura High Court.

4. We have heard learned counsel for the appellant and learnedcounsel appearing on behalf of respondent No.1.

5. Learned counsel for the appellant would rely upon the judgmentof this Court inK. RajamouliVs.A.V.K.N. Swamyreported in 2001 (5)SCC 37. As per the said decision, it is contended that the Review Petitionin this case, was not maintainable. This is not a case, where the ReviewPetition was filed before filing of the Special Leave Petition. The ReviewPetition was filed after the filing of the Special Leave Petition andthereafter, on this ground alone, the Review Petition should not havebeen entertained by the High Court, runs the argument.

6. Secondly, he would point out the inordinate delay with whichthe Review Petition was filed. The Special Leave Petition was dismissedas we have noted in 2013. It is nearly 5 years thereafter, that the presentReview Petition was filed. Learned counsel highlights the fact ofsubsequent developments in the form of selections which havecommenced after the date of the final judgment in the Writ Petition.

7. Thirdly, learned counsel for the appellant would point out thatthis Court has spoken about circumstances which justify an order forrevaluation. The most important aspect is there is no right to seekre-evaluation unless there is a provision which entitles a candidate to

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698 SUPREME COURT REPORTS [2019] 2 S.C.R.

Aseek revaluation. Admittedly, in this case, there is no provision whichentitles the candidate to seek revaluation. In such circumstances, theHigh court was not justified in allowing the Review Petition and directingre-evaluation of papers. In this regard, he drew our attention to thejudgment of this court in Pramod Kumar SrivastavaVs. Chairman,Bihar Public Service Commission, Patna & Ors. reported in 2004 (6)BSCC 714.

8. Per contra, the first respondent would point out that this is acase where the examiner has not given marks to him for the correctanswers which he has given and the High Court having found the injusticewhich has been done to him had to intervene. Learned counsel forCrespondent No.1 drew our attention to the judgment of this Court inRanVijay Singh & Ors.Vs. State of Uttar Pradesh & Ors. reported in2018 (2) SCC 357. The said judgment, no doubt, was rendered by twolearned Judges. It has been laid down inter alia as follows:- “30.2 If a statute, Rule or Regulation governing an examinationDdoes not permit re-evaluation or scrutiny of an answer sheet (asdistinct from prohibiting it) then the court may permit re-evaluationor scrutiny only if it is demonstrated very clearly, without any“inferential process of reasoning or by a process of rationalization”and only in rare or exceptional cases that a material error hasbeen committed.”E

9. In fact, we also permitted the respondent No.1 who waspersonally present to make submissions at his request. He would alsoemphasize upon the facts and how he has been at receiving end ofgrave injustice, as a result of the clear mistake committed in not awardingmarks where he was entitled to.F

10. The first question we must decide is whether we should allowthe appeal on the ground that this is a case where the Review Petitionwas filed after the dismissal of the Special Leave Petition. No doubt, inK. RajamouliVs.A.V.K.N. Swamyreported in 2001 (5) SCC 37, reliedupon by the petitioner, it was held that inter alia as follows:- G“4. Following the decision in the case of Kunhayammed & Ors.(supra) we are of the view that the dismissal of the special leavepetition against the main judgment of the High Court would notconstitute res judicata when a special leave petition is filed againstthe order passed in the review petition provided the review petition H

was filed prior to filing of special leave petition against the mainjudgment of the High Court. The position would be different whereafter dismissal of the special leave petition against the mainjudgment a party files a review petition after a long delay on theground that the party was prosecuting remedy by way of specialleave petition. In such a situation the filing of review would be anabuse of the process of the law.”……………

11. However, we notice that a different note was struck by anotherBench, in the decision Gangadhara PaloVs. Revenue DivisionalOfficer & Anr.reported in 2011 (4) SCC 602. In the said judgment, aBench of two learned Judges has held inter alia as follows:- “10. We have carefully perused SCC para 4 of the aforesaidjudgment. What has been observed therein is that if the reviewpetition is filed in the High Court after the dismissal of the specialleave petition, “it would be treated as an affront to the order ofthe Supreme Court”. In our opinion, the above observations cannotbe treated as a precedent at all. We are not afraid of affronts.What has to be seen is whether a legal principle is laid down ornot. It is totally irrelevant whether we have been affronted ornot.”

12. Noticing cleavage of judicial opinion, the matter has beenreferred to a larger Bench. In the light of these developments we do notthink that the appellant is entitled to relief on the basis that the ReviewPetition was filed after the dismissal of the Special Leave Petition.

13. The next question to be considered is regarding the merits ofthe order. In Pramod Kumar Srivastavacase (Supra), a Bench of threelearned Judges after, in fact, adverting to the judgment of a Bench oftwo learned Judges in 1984 (4) SCC 27 proceeded to lay down as follows:-

………..”7. There is no dispute that under the relevant rule ofthe Commission there is no provision entitling a candidate to havehis answer-books re-evaluated. In such a situation, the prayermade by the appellant in the writ petition was wholly untenableand the learned Single Judge had clearly erred in having theanswer-book of the appellant re-evaluated.

8. Adopting such a course as was done by the learned SingleJudge will give rise to practical problems. Many candidates maylike to take a chance and pray for re-evaluation of their answer-books. Naturally, the Court will pass orders on different dates as

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and when writ petitions are filed. The Commission will have tothen send the copies of individual candidates to examiners for re-evaluation which is bound to take time. The examination conductedby the Commission being a competitive examination, thedeclaration of final result will thus be unduly delayed and thevacancies will remain unfilled for a long time. What will happen ifa candidate secures lesser marks in re-evaluation? He may comeforward with a plea that the marks as originally awarded to himmay be taken into consideration. The absence of clear rules onthe subject may throw many problems and in the larger interest,they must be avoided.”

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C14. In Himachal Pradesh Public Service Commissionvs.Mukesh Thakur & Anr.2010 (6) SCC 759, a Bench of two learnedJudges held as follows:- “20. In view of the above, it was not permissible for the HighCourt to examine the question papers and answer sheets itself,particularly, when the Commission had assessed the inter se meritof the candidates. If there was a discrepancy in framing thequestion or evaluation of the answer, it could be for all thecandidates appearing for the examination and not for Respondent1 only. It is a matter of chance that the High Court was examiningthe answer sheets relating to Law. Had it been other subjects likePhysics, Chemistry and Mathematics, we are unable to understandas to whether such a course could have been adopted by the HighCourt. Therefore, we are of the considered opinion that such acourse was not permissible to the High Court.”

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FIt was further held more importantly as follows:

“24. The issue of revaluation of answer book is no more res integra.This issue was considered at length by this Court in MaharashtraState Board of Secondary and Higher Secondary EducationV. Paritosh Bhupeshkumar Sheth; (1984) 4 SCC 27, whereinGthis Court rejected the contention that in the absence of theprovision for revaluation, a direction to this effect can be issuedby the Court. The Court further held that even the policy decisionincorporated in the Rules/ Regulations not providing for rechecking/verification/ revaluation cannot be challenged unless there aregrounds to show that the policy itself is in violation of someHstatutory provision.”

15. After referring to the Pramod Kumar Srivastavadecision(supra), it was laid down as follows:- “26. Thus, the law on the subject emerges to the effect that in theabsence of any provision under the statute or statutory rules/regulations, the Court should not generally direct revaluation.”

16. In Central Board of Secondary Education ThroughSecretary, All India Pre-Medical/Pre-Dental Entrance Examination& Ors.Vs. Khushboo Shrivastava & Ors.reported in 2014 (14) SCC523, again a bench of two learned Judges after undertaking a Review ofearlier decisions, held as follows:-

“9. We find that a three-Judge Bench of this Court in PramodKumar Srivastava v. Bihar Public Service Commission; (2004)6 SCC 714, has clearly held relying on Maharashtra State Boardof Secondary and Higher Secondary Education v. ParitoshBhupeshkumar Sheth; (1984) 4 SCC 27, that in the absence ofany provision for the re-evaluation of answer books in the relevantrules, no candidate in an examination has any right to claim or askfor re-evaluation of his marks. The decision in Pramod KumarSrivastava v. Bihar Public Service Commission; (2004) 6 SCC714, was followed by another three-Judge Bench of this Court inBoard of Secondary Education v. Pravas Ranjan Panda;(2004) 13 SCC 383, in which the direction of the High Court forre-evaluation of answer books of all the examinees securing 90%or above marks was held to be unsustainable in law because theregulations of the Board of Secondary Education, Orissa, whichconducted the examination, did not make any provision for re-evaluation of answer books in the rules.”

17. It is, finally, in Ran Vijay Singh & Ors.Vs. State of UttarPradesh & Ors. reported in 2018 (2) SCC 357, that the Court proceededto cull out the conclusions which include para 30.2. We may also noticeconclusion in para 30.5 which reads as follows:- “30.5 In the event of a doubt, the benefit should go to theexamination authority rather than to the candidate.”

18. We have noticed the decisions of this Court. Undoubtedly, athree Judge Bench has laid down that there is no legal right to claim orask for revaluation in the absence of any provision for revaluation.Undoubtedly, there is no provision. In fact, the High Court in the impugnedjudgment has also proceeded on the said basis. The first question which

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Awe would have to answer is whether despite the absence of any provision,are the courts completely denuded of power in the exercise of thejurisdiction under Article 226 of the Constitution to direct revaluation? Itis true that the right to seek a writ of mandamus is based on the existenceof a legal right and the corresponding duty with the answering respondentto carry out the public duty. Thus, as of right, it is clear that the firstBrespondent could not maintain either writ petition or the review petitiondemanding holding of revaluation.

19. The question however arises whether even if there is no legalright to demand revaluation as of right could there arise circumstanceswhich leaves the Court in any doubt at all. A grave injustice may beCoccasioned to a writ applicant in certain circumstances. The case mayarise where even though there is no provision for revaluation it turns outthat despite giving the correct answer no marks are awarded. No doubtthis must be confined to a case where there is no dispute about thecorrectness of the answer. Further, if there is any doubt, the doubtDshould be resolved in favour of the examining body rather than in favourof the candidate. The wide power under Article 226 may continue to beavailable even though there is no provision for revaluation in a situationwhere a candidate despite having giving correct answer and about whichthere cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is foundEdisentitled to any marks.

20. Should the second circumstance be demonstrated to be presentbefore the writ court, can the writ court become helpless despite thevast reservoir of power which it possesses? It is one thing to say thatthe absence of provision for revaluation will not enable the candidate toFclaim the right of evaluation as a matter of right and another to say thatin no circumstances whatsoever where there is no provision forrevaluation will the writ court exercise its undoubted constitutionalpowers? We reiterate that the situation can only be rare and exceptional.

21. We would understand therefore the conclusion in paragraph30.2 which we have extracted from the judgment inRan Vijay Singh &GOrs.Vs. State of Uttar Pradesh & Ors. 2018 (2) SCC 357 only in theaforesaid light. We have already noticed that in V.S.Achuthan vsMukesh Thakur’scase reported in 2010 (6) SCC 759, a two JudgeBench in paragraph 26 after survey of the entire case law has alsounderstood the law to be that in the absence of any provision the CourtHshould not generally direct revaluation.

22. In this case we have already noted that the writ petition wasfiled challenging the results and seeking revaluation. The writ petitioncame to be dismissed in the year 2012 by the High Court. The SpecialLeave Petition was dismissed in the year 2013. The review petition isfiled after nearly 5 years. In the interregnum, there were superveningdevelopment in the form of fresh selection. While it may be true that thedelay in filing the review petition may have been condoned, it does notmean that the Court where it exercises its discretionary jurisdiction underArticle 226 is to become oblivious to the subsequent development andthe impact of passage of time. Even in the judgment of this Court inU.P.P.S.C. through its Chairman & Anr. Vs. Rahul Singh & Anr.reported in 2018 (2) SCC 357 which according to the first respondentforms the basis of the High Court’s interference though does not expresslystated so, what the Court has laid down is that the Court may permitrevaluation inter alia only if it is demonstrated very clearly without anyinferential process of reasoning or by a process of rationalization andonly in rare or exceptional cases on the commission of material error. Itmay not be correct to characterize the case as a rare or exceptionalcase when the first respondent approaches the Court with a delay ofnearly 5 years allowing subsequent events to overtake him and the Court.We feel that this aspect was not fully appreciated by the High Court.The review, it must be noted is not a re-hearing of the main matter. Areview would lie only on detection without much debate of an errorapparent. Was this such a case? It is here that we must notice theargument of the appellant relating to question in Part III of the examinationalone, engaging the attention of the Court for the reason that the firstrespondent pressed this aspect alone before the High court. The judgmentof the High Court in the writ petition appears to bear out this submissionof the appellant. The issue relating to the anomaly in the evaluation ofthe Paper III has been discussed thread bare in the judgment. The viewof the High Court has not been disturbed by this Court. Despite this theHigh Court in the impugned judgment has proceeded to take up the plearelating to questions in Part-I and Part-II and proceeded to consider thereview petition and granted relief that too after the passage of nearly 5years. This suffices to allow the present appeal.

Despite all this we would also make a few observations on themerits of the matter.

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A23. The first respondent has fallen short of 5 marks. In theimpugned judgment in paragraph 25, the Division Bench picks up fourquestions. The Court has premised its interference on the basis of theaforesaid answers given to the 4 questions by the first respondent. Ifwe take Question 3(xiii), the question was as follows:

B“Question no.-3(xiii) of paper-II

Adjournment under order xvii Rule 1 C.P.C. cannot be grantedunder any circumstances for more than 3 times to a party duringtrial of the suit (Mark -1)”.

24. The first respondent’s answer is that it is incorrect but he hasCbeen given no marks as apparently cross sign is given as he has givenwrong answer. Order XVII Rule 1 reads as follows:

“1. Court may grant time and adjourn hearing – (1) The Courtmay, if sufficient cause is shown, at any stage of the suit, granttime to the parties or to any of them, and may from time to timeadjourn the hearing of the suit for reasons to be recorded in writing:DProvided that no such adjournment shall be granted more thanthree times to a party during hearing of the suits.”

25. The case of the first respondent is based on the judgment ofthis Court inSalem Advocates Bar Association Case 2005 (6) SCC344. According to him even though under Order XVII Rule 1 under noEcircumstances can adjournment be granted to a party during trial formore than three times, this Court in the aforesaid judgment has takenthe view that beyond 3 times adjournment can be granted. It is clearthat going by the provisions of Order XVII Rule 1, the answer given bythe first respondent is wrong. It is on the basis of interpretation placedFby the Court that adjournment can be in excess of 3 times. If theexamining body has proceeded to evaluate the answers on the basis ofactual provision of Order XVII Rule 1, it is not a matter where particularlythere is no right to revaluation, we are persuaded to interfere. We woulddefer to the view which the examining body would have taken.

26. The next question is Question No.2 (xviii) which reads asGfollows:

“Q.No. – 2(xviii) in paper no. – (II)The Plaintiff can file anapplication under section 5 of Limitation Act seeking extension ofthe period of limitation prescribed (Mark – 1)”.

The choices given are as follows:

(a) for filing a suit,(b)for filing an appeal,

(c) for filing an application under Order XXI CPC

(d) for all the above.

27. The complaint of the first respondent is that he ticked AnswerNo.B but he is given cross sign which means his answer is wrong whereashe would contend that all the other answers namely A,C and D wereincorrect and it is only B which could possibly be correct.

28. We will proceed on the basis that there is merit in the contentionof first respondent. The next question is Question No.3 (xv) in PaperNo.2. The question was “Appellate Court cannot allow a party to produceadditional evidence.” But for the answer given `incorrect’. Respondentwas given the cross sign and no marks given. Here also we proceed onthe basis that first respondent may have legitimate grievance. Finally,there is Question No.1 (xiv) in Paper No.2 which reads as follows:

“Q.No. – 1(xiv) in paper no. – (II) Plaintiff sues the defendantsfor recovery of Rs. 1,00,000/- in order to prove the case, theplaintiff proved the entries in his books of account showing thedefendant to be indebted to him to the said amount (Mark – 3)”.

29. The answer of the petitioner appears to be as follows:

“In civil case, the case is proved by preponderance of probabilities.But in the above case, neither written of nor money receipt wasproved.

So, entries in the Books of account is not sufficient.”

30. It is to be noted that it is not an objective type question, themaximum marks are 3. This is not a case even if we proceed on thebasis that the answer is correct, marks is to be awarded as such. Wenoticed that for 5 questions, the respondent No. 1 has been given 1mark, even though, the maximum is 3 marks. It would appear thatawarding full marks is based, not merely, on the correctness of the answer.

31. However, we would like to rest our conclusion on the basisthat not being armed with a right given by a provision providing revaluationand in the facts which we have already set out and the reasons we havealluded we would think that the High Court ought not to have allowedthe review petition. We may incidentally also notice that the High Courthas, on the one hand reasoned that what was covered by the judgment A

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Ain the writ petition was a complaint related to Paper III. Despite this,the direction is given for evaluation of Paper II and Paper III. It may betrue that direction to evaluate Paper III may be a mistake but even if thisis treated as Paper No.I & II, the High Court has premised its interferenceon the premise of answer to Paper No.II. In such circumstances, weallow the appeal and set aside the impugned judgment. The review petitionBfiled before the High Court shall stand dismissed. There shall but noorder as to costs.

Ankit Gyan

Appeal allowed.

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