CIVIL WRIT PETITION NO.15781 OF 2010 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 22, 2010 Virender Sharma and others .....Petitioners VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Naveen Daryal, Advocate, for the petitioners. **** RANJIT SINGH, J. The petitioners seek a writ of mandamus for holding a separate examination in Paper V i.e. Local Rules and Public Works Account or in the alternative for awarding 21 grace marks to the petitioners in the said paper on the ground that part of questions were out of criteria/syllabus in the examination conducted on 10.5.2010. As per the petitioners, the prescribed syllabus concerning fund flow is not included but the petitioners were asked to prepare cash flow statement as well as fund flow statement in question No.3. In question No.6, the candidates were asked to explain the difference between fund flow and cash flow. The claim also is that question CIVIL WRIT PETITION NO.15781 OF 2010 (O&M) :{ 2 }: Nos.4 to 15 are out of criteria/syllabus. In this regard, reference is made to the previous practice for last 10 years, where question paper prescribed by the Examiner always contained 5 questions required to be attempted compulsory whereas one or two questions were with option. The question in regard to jurisdiction of the Courts and Tribunals to exercise power of judicial review in regard to departmental examination being out of syllabus arose before the Hon'ble Supreme Court in the case of Kanpur University, through Vice-Chancellor and others Vs. Samir Gupta and others, (1983) 4 SCC 309. The question requiring determination in this case was to the effect that if a paper-setter commits an error while indicating the correct answer to a question set by him, can the students who answer that question correctly be failed for reason that though their answer is correct, it does not accord with the answer supplied by the paper-setter to the University as the correct answer?. The answer which the paper-setter supplies to the University as the correct answer is called the `key answer'. The Hon'ble Supreme Court observed that no one can accuse the teacher of not knowing the correct answer to the question set by him, but sometime occasionally, not enough care may be taken by the teachers to set up questions which are free from ambiguity and to supply key answers, which are correct beyond reasonable controversy. The controversy in this case arose mainly because of the question being in the language of Hindi and English and the contention of the students was that the correct answer to Hindi version of the question did not carry the same sense and one is not CIVIL WRIT PETITION NO.15781 OF 2010 (O&M) :{ 3 }: exact translation of the other. The Judges of the High Court had gone into the linguistic niceties and had accepted the contention of the students that there was a marked difference in the English and Hindi version of some of the questions. Noticing the pleas raised in this case, the Hon'ble Supreme Court observed that the findings of the High Court raise a question of great importance to the student community. It is further observed that normally, one would be inclined to the view, especially if one has been a paper setter and an examiner, that the key answer furnished by the paper-setter and accepted by the University as correct, should not be allowed to be challenged. It is noticed that if the University had not published the key answer along with the result of the Test, no controversy would have arisen in this case. The court, however, did not find this to be a correct approach as future of hundreds of students, who were aspirants for the admission to professional courses was involved. Still, the Hon'ble Supreme Court had approved the contention raised by the counsel appearing for the University to the effect that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. This can be so noticed from the following observations made by the Hon'ble Supreme Court while dealing with this limb of submission made by the counsel for the University in this case:- “We agree that the Key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must CIVIL WRIT PETITION NO.15781 OF 2010 (O&M) :{ 4 }: be such as no reasonable body of man well-versed in the particular subject would regard as correct.”. The Hon'ble Supreme Court, however, interfered in this case in the peculiar facts of the case where there was some fault in the translated version of the questions in Hindi. The legal position otherwise is well established, as is noticed by the Hon'ble Supreme Court, that the key answer should be assumed to be correct and that these should not be held to be wrong by inferential process of reasoning or by a process of rationalisation. Recently, the Hon'ble Supreme Court has again dealt with this issue in the case of Himachal Pradesh Public Service Commission Vs. Mukesh Thakur and another, (2010) 6 SCC 759 and has held that court cannot take upon itself task of examiner or Selection Board and examine discrepancies and inconsistencies in the question papers and evaluation thereof. It is further observed that it is not possible for the High Court to examine question papers and answer sheets itself, particularly, when the State Public Service Commission had assessed inter se merit of the candidates. The Hon'ble Supreme Court in this case was dealing with recruitment to the judicial service wherein the High Court has directed the Commission to produce the answer sheets before it and after going through the answer sheets had directed the Commission to arrange special interview for the candidate after forming a view that there had been some inconsistency in framing two questions and in evaluation of the answer to said question. Against this order passed by the High Court, the Himachal Pradesh Public Service Commission had approached the Supreme Court when operation of this order was CIVIL WRIT PETITION NO.15781 OF 2010 (O&M) :{ 5 }: stayed by the Supreme Court. During the pendency of the appeal, the High Court had directed the Commission to send the answer sheets of the candidates to another examiner holding the rank of Reader in law in Himachal Pradesh University for revaluation. This order was again challenged before the Hon'ble Supreme Court. The examiner so appointed by the High Court had awarded some different marks to the candidate on the basis of which the High Court had disposed of the writ petition directing the Commission to issue appointment letter to the candidate. The Hon'ble Supreme Court got the said answer sheet evaluated from another eminent professor of law with the consent of the parties, who awarded only 82 marks to the candidate against 119 awarded by an examiner detailed by High Court. Submission was also made that there was no provision of revaluation or re-checking of the answer sheets and the comparative merit of the candidate was to be assessed on the basis of questions as posed and if there was some inconsistency in framing of the questions/marking of particular question, it would be the same in case of all the candidates and, therefore, it was not permissible for the court to direct revaluation of the answer sheets of a particular candidate. The Hon'ble Supreme Court on the basis of pleas raised before it, formulated three basic questions, which arose for consideration before this court and these were as under:- (i)As to whether it is permissible for the court to take the task of examiner/Selection Board upon itself and examine discrepancies and inconsistencies in the question papers and evaluation thereof? CIVIL WRIT PETITION NO.15781 OF 2010 (O&M) :{ 6 }: (ii) Whether the court has the power to pass a general order restraining the persons aggrieved to approach the court by filing a writ petition on any ground and depriving them of their constitutional rights to approach the court, particularly, when some other candidates had secured the same marks i.e. 89 and stood disqualified for being called for interview but could not approach the court? (iii) Whether in the absence of any statutory provision for revaluation, the court could direct for revaluation? After making reference to large number of precedents, the Hon'ble Supreme Court has held that it is the settled legal proposition that the court cannot take upon itself the task of statutory authorities. In this regard, reference is made to Hindustan Shipyard Ltd. V. Dr. P.Sambasiva Rao, (1996) 7 SCC 499, Govt. of Orissa V. Hanichal Roy, (1998) 6 SCC 626, LIC Vs. Asha Ramchhandra Ambekar, (1994) 2 SCC 718 and A. Umarani Vs. Coop. Societies, (2004) 7 SCC 112. Having so observed, the Hon'ble Supreme Court finally has held as under:- “In view of the above, it was not permissible for the High Court to examine the question papers 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 1 only. It is a matter of chance that the High Court was examining the CIVIL WRIT PETITION NO.15781 OF 2010 (O&M) :{ 7 }: 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 Hon'ble Supreme Court has also observed that the issue of revaluation of answer book is no more res integra. Reference is made to the case of Maharashtra State Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 to observe that the Supreme Court had rejected the contention that in the absence of the provision for revaluation, a direction to this effect can be issued by this court. It was observed 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. 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. As has been held, 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 CIVIL WRIT PETITION NO.15781 OF 2010 (O&M) :{ 8 }: for revision and improvement. But any drawbacks in the policy incorporated in the rules or regulations would 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 a prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. Thus, the law on the subject, which would emerge from these judgments is to the effect that in the absence of any provision or statutory rules/regulations, the court should not generally direct revaluation. The law, thus, can be summed up to say that the Courts can not take on the role of examiner or the evaluator or that of the Selection Board to examine discrepancies either in the question papers or the answer sheets. Courts can not also examine the question paper or the answer sheet itself. Obviously, if the Courts would start doing so, they would assume the role of examiner, paper setter and evaluator, which is to be left to the expert body. It is with reason and purpose that the courts are to assume the answer given in the `key answer' to be correct. Any interference in this regard would tend to make them to take on the role of paper setter, which would be beyond the purview of judicial review. As is well understood, the judicial review generally speaking is not directed against a decision but is directed against the `decision making process'. Any exercise to observe that a particular question is discrepant or the answer in the key answer is not correct, would tend to be going beyond the permissible grounds of judicial review. As observed in the case, of Public Utilities Commission of the District of Columbia Vs. Pollak, (1951) 343 US 451, the judicial process demands that a Judge moves within the frame work of CIVIL WRIT PETITION NO.15781 OF 2010 (O&M) :{ 9 }: relevant legal rules and the covenanted modes of thought for ascertaining them. The fact is that on the whole Judges do lay aside private views in discharging their judicial functions. The plea in the present case also is that some of the questions are out of the criteria/syllabus. Plea further is that the previous practice followed for the last ten years has been given go- bye. As per the petitioner, earlier question papers prescribed by the examiner always contained five questions required to be attempted compulsory, whereas one or two questions were with options. As per the clear position of law as enunciated and noticed above, it is not within the domain of this court to examine the question papers or the answer sheets to notice any discrepancies or inconsistencies either in setting the questions or evaluation thereof. The question paper was set up and was equally applicable to all the candidates, who appeared in the exam. No particular prejudice would have been caused to the petitioner in any case. It is certainly not within the jurisdiction of this court to see if any question has been asked out of syllabus or some answers are required to be corrected or if some grace marks are to be awarded. The prayer made in the writ petition certainly would be beyond the jurisdiction of this court to grant. The submission that the trend was changed in setting the question papers cannot be a valid ground either to make a prayer for grant of grace marks or for cancelling the examination. The writ petition, therefore, has no merit and is accordingly dismissed. September 22,2010 ( RANJIT SINGH ) khurmi JUDGE