IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.529 of 2008 1. THE CHAIRMAN, BIHAR SCHOOL EXAMINATION BOARD, PATNA. 2. THE SECRETARY, BIHAR SCHOOL EXAMINATION BOARD, PATNA…................................PETITIONERS/APPELLANTS Versus 1. SMITARAJ D/O SHRI SHIV CHANDRA PRASAD NAVIN, RESIDENT OF VILLAGE- DHAMAUN, P.S. PATORI, DISTRICT- SAMASTIPUR…. OPP.PARTY—IST SET-RESPTS. 2. THE STATE OF BIHAR 3. THE SECRETARY, HUMAN RESOURCES DEVELOPMENT, DEPARTMENT, BIHAR, PATNA. 4. THE DIRECTOR, SECONDARY EDUCATION, BIHAR,PATNA ………………… OPP. PARTIES- 2ND SET RESPONDENTS. P R E S E N T THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON’BLE MR. JUSTICE B.P. VERMA ------------------ Shiva Kirti ingh, & B.P. Verma,JJ Heard learned counsel for the appellants and learned counsel for respondent no.1. 2. This appeal under Clause 10 of the Letters Patent is directed against order dated 13.5.2008 whereby the learned single Judge dismissed the review application bearing Civil Review No. 223 of 2005 which was preferred by the appellants for review and/ or recall of order dated 12.8.2005 allowing writ petition preferred by the respondent no.1 bearing C.W.J.C.No. 12672 of 1999. 3. Before considering the matter on merits, certain 2 basic facts are required to be noticed. The writ petitioner (respondent no.1 herein) appeared as a regular student at the matriculation examination of year 1999 conducted by the appellant- Bihar School Examination Board. She was declared successful having passed in 2nd division. Not satisfied with her result, the writ petitioner applied for scrutiny of her answer books of all the eleven papers and for that deposited the amount asked for . The appellant Board, as per its regulation no.20 which provides for scrutiny and specifically mentions that scrutiny will not imply re- examination of the answer books, found no error in totaling of marks or any error within the scope of scrutiny. The writ petitioner preferred the writ petition for re-evaluation of her answer sheets on two grounds. Firstly, it was contended that she had secured first division marks in test examination and has always obtained high marks in earlier school examinations. Secondly, it was alleged that since the matriculation examination in question was held at a time when the secondary teachers in the State were on strike, the evaluation work was done not by teachers of the secondary schools but by staff and teachers of private schools. 3 4. The writ petition preferred in December, 1999 remained pending for more than 5 years and was first taken up on 22nd February, 2005. On that date the counter-affidavit on behalf of Chairman, Bihar School Examination Board was accepted, subject to a cost of Rs.5,000/-. After some adjournments, on 2-5-2005 the writ court noticed the controversy between the parties on account of averments made in the counter-affidavit to the effect that evaluation work was done by qualified persons. The Board was directed to submit an exhaustive supplementary counter-affidavit giving names, designations and the postings of the persons who had evaluated the answers books of the writ petitioner. The submissions were required to be supported by copies of documents. On the next date the Board prayed for further time and it was accepted on behalf of the Board that it can produce all answer books of the writ petitioner. The answer books were made available to the learned counsels for the parties for inspection on 11-8-2005. Thereafter the writ petition was finally allowed on 12-8-2005. That order is annexure-1 to the memorandum of appeal. Against that judgment the appellants preferred Civil Review No. 223 of 4 2005 on the ground that now the Board had been able to scrutinize vouchers and several related documents to find out the names of examiners who had examined answer books of the writ petitioner in nine subjects. Names of some of the head examiners were also found out. On that basis the appellant prayed for reviewing the final judgment and order dated 12-8-2005 whereby the writ court allowed the writ petition and directed for payment of Rs.50,000/- as cost to the writ petitioner and Rs.50,000/- was directed to be deposited with Secretary, Patna High Court Council of Legal Aid and Advice within a period of four weeks. 5. The learned single Judge, by the impugned order dated 13-5-2008, held that the Board had been unable to produce the relevant materials during a period of six years when the matter had remained pending. On that account and also on the ground that the relevant materials now in possession of the Board were always with the Board and not with some other authority, the prayer for review was rejected. 6. Learned counsel for the appellants has submitted that in the initial five years the writ petition had remained pending and unlisted. The relevant particulars were directed 5 to be supplied through an affidavit only on 2-5-2005 and after the answer sheets of the writ petitioner were made available and had been inspected on 11-8-2005, on the next date the writ petition was finally allowed. As a result the Board could not get sufficient time to collect relevant information in support of its plea in the counter affidavit that answer books had been evaluated by qualified teachers. It is also submitted on behalf of the Board that the particulars required to be placed before the court had to be collected/weeded from large number of documents because the system of evaluation involved, required it to be done at a particular centre by a large number of qualified persons amongst whom papers had to be distributed and for supply of information required by the court there was no ready list with the Board and therefore it was not a case of deliberate suppression of any material required by the court. 7. On merits, it was submitted that the informations made available through the review petition and now incorporated in paragraph-23 of the memorandum of appeal fully support the case of the Board that evaluation was not done by clerks or unqualified persons. It was further 6 submitted that regulation 20 was placed before the writ court but that was not discussed and therefore the word “Punarikshan” mentioned in the advertisement contained in annexure-4 was not correctly appreciated as per its meaning in the context of regulation 20. 8. Learned counsel for respondent no.1 submitted that the writ court had rightly drawn adverse inference against the Board because of non-furnishing of required materials and particulars even after grant of sufficient time for the purpose. It was further submitted that the word `Punarikshan’ should mean re-evaluation (Punarmulyankan) and not only mere scrutiny as provided in regulation 20. Lastly, it was submitted that as per judgment of this court in the case of Sheodhari Pd. Sah Vrs. State of Bihar,1990(1)PLJR 270, in appropriate case this court under Articles 226 and 227 of the Constitution of India can order for re-evaluation even in absence of any provision for evaluation of the answer sheets and in case the answer books are not available, can order for grant of average marks or re-examination. On that ground it was submitted that the absence of provisions in the regulation for re-evaluation cannot help the appellant. 7 9. On considering the rival submissions and the materials on record, we find that the nature of particulars in support of the stand of the appellants required to be produced, needed sufficient time to go through the records and ultimately when the Board could collect the information to support its stand in the counter affidavit, its plea merited consideration for considering the review petition on merits. Ordinarily, we would have remitted the matter back to the learned single Judge for considering the materials on merits but in view of limited particulars requiring consideration, in our view, that would be a futile exercise because the materials show that the evaluation work was done not by clerks or unqualified persons as alleged by the writ petitioner. 10. At this stage learned counsel for respondent no.1 submits that case of the writ petitioner was also that the evaluation work was not done by competent school teachers. In our view, the aforesaid stand on behalf of writ petitioner can also be of no help because admittedly at the relevant time teachers of Secondary Schools were on strike and therefore 8 engagement of lecturers and teachers of private schools for evaluation work cannot lead to a presumption that they were not qualified to do the evaluation work. 11. We have no difficulty in accepting the proposition of law enunciated in the judgment in the case of Sheodhari Prasad Sah (supra ) but in view of facts supplied by the Board, it is found that the case at hand does not require re- evaluation of answer books of the writ petitioner. 12. It is relevant to point out that the candidates of the 1999 batch who appeared in the matriculation examination in question, by now must have completed their study on the basis of result of matriculation examination duly published. If the Board is not allowed to rely on the material available with it which shows that evaluation work was done by qualified persons, the entire result of matriculation examination of 1999 would become suspect and vulnerable to challenge . Hence it is a fit case for allowing the Board to produce the relevant facts and on that basis to exercise the power of review. In view of aforesaid findings, the judgment 9 and order under appeal is set aside and this appeal is allowed. As a result the direction contained in the order dated 12-8- 2005 ( annexure-1) shall stand reviewed and the writ petition shall stand dismissed. There shall be no order as to costs. Patna High Court, Patna Naresh NAFR Dated the 3rd August, 2010 ( Shiva Kirti Singh, J.) ( B.P. Verma, J)