Case: HIGH COURT OF TRIPURA THROUGH THE REGISTRAR GENERAL Vs. TIRTHA SARATHI MUKHERJEE

2. By advertisement dated 18.01.2011, applications were invited from practicing Advocates for appointment as Grade-I in Tripura Judicial Service. 3 vacancies were notified. Pursuant to the advertisement, Respondent No.1 appeared in preliminary examination held on 12.06.2011. The results were declared on 24.06.2011. The petitioner along with 16 other candidates were shown as qualified. The main examination was held on 30.07.2011 and 31.07.2011. The written examination comprised of 3 papers. The result of the main examination was declared on 29.09.2011 in which Respondent No. 1 was declared as not qualified. He sought disclosure of marks under the Right to Information Act, 2005. However, he was allowed to inspect his answer scripts on 01.11.2011. It is the case of the respondent No.1 that some correct answers were found marked as incorrect. He secured 175 marks out of 300. Thus, he was 5 marks short to be shortlisted for appearing for the interview as the requirement was 60%. He filed Writ Petition No.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 the interview as null and void. The said Writ Petition came to be dismissed on 12.12.2012. The respondent filed Special Leave Petition before this Court which was dismissed on 23.07.2013. It is, thereafter, he filed the Review Petition. In the Review Petition, the High Court finds that under the 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 finds any patent error. This may include not awarding any marks for a correct answer or treating a correct answer to be an incorrect answer. The Court, no doubt notes it has to be bear in mind that it cannot step into the shoes of the examiner and undertake the exercise of re-evaluation like a super examiner. Thereafter, the following finding is rendered:-25. We have gone through the answer scripts of the petitioner both in Paper- I and Paper-II. To us, answers given in respect of Question Nos. 3 (xiii), 2(xviii) and 3(xv) of Paper II which were marked as incorrect answers and Question No.I(xiv) of Paper II for which no marks were awarded may require a relook. However, we hasten to add that we have not expressed any final opinion in this regard3. Regarding the case set up by the petitioner based on the dismissal of the Writ Petition, it was found based on adjudication related to Paper-III and that it did not adjudicate the grievance of respondent No. 1 in respect of Papers I and II, as perhaps, it was not highlighted by the respondent No.1. Noting that long time has elapsed the Court allowed the Writ Petition and modified the Judgment by which the Writ Petition was dismissed and the Court directed the Registrar General of the Tripura High Court to re- evaluate the answer sheet scripts pertaining to Papers II and III of the main examination re-evaluated. For this purpose, the answer papers in the custody of Gauhati High Court was to be transmitted in sealed cover to the Registrar General, Tripura High Court.

Reasoning:
12. Noticing cleavage of judicial opinion, the matter has been referred to a larger Bench. In the light of these developments we do not think that the appellant is entitled to relief on the basis that the Review Petition was filed after the dismissal of the Special Leave Petition18. We have noticed the decisions of this Court. Undoubtedly, a three Judge Bench has laid down that there is no legal right to claim or ask for revaluation in the absence of any provision for revaluation. Undoubtedly, there is no provision. In fact, the High Court in the impugned judgment has also proceeded on the said basis.It is true that the right to seek a writ of mandamus is based on the existence of a legal right and the corresponding duty with the answering respondent to carry out the public duty. Thus, as of right, it is clear that the first respondent could not maintain either writ petition or the review petition demanding holding of revaluationA grave injustice may be occasioned to a writ applicant in certain circumstances. The case may arise where even though there is no provision for revaluation it turns out that despite giving the correct answer no marks are awarded. No doubt this must be confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than in favour of the candidate. The wide power under Article 226 may continue to be available even though there is no provision for revaluation in a situation where a candidate despite having giving correct answer and about which there cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marksIt is one thing to say that the absence of provision for revaluation will not enable the candidate to claim the right of evaluation as a matter of right and another to say that in no circumstances whatsoever where there is no provision for revaluation will the writ court exercise its undoubted constitutional powers? We reiterate that the situation can only be rare and exceptional22. In this case we have already noted that the writ petition was filed challenging the results and seeking revaluation. The writ petition came to be dismissed in the year 2012 by the High Court. The Special Leave Petition was dismissed in the year 2013. The review petition is filed after nearly 5 years. In the interregnum, there were supervening development in the form of fresh selection. While it may be true that the delay in filing the review petition may have been condoned, it does not mean that the Court where it exercises its discretionary jurisdiction under Article 226 is to become oblivious to the subsequent development and the impact of passage of time. Even in the judgment of this Court in U.P.P.S.C. through its Chairman & Anr. Vs. Rahul Singh & Anr. reported in 2018 (2) SCC 357     which according to the first respondent forms the basis of the High Courts interference though does not expressly stated so, what the Court has laid down is that the Court may permit revaluation inter alia 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 on the commission of material error. It may not be correct to characterize the case as a rare or exceptional case when the first respondent approaches the Court with a delay of nearly 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. A review would lie only on detection without much debate of an error apparent. Was this such a case? It is here that we must notice the argument of the appellant relating to question in Part III of the examination alone, engaging the attention of the Court for the reason that the first respondent pressed this aspect alone before the High court. The judgment of the High Court in the writ petition appears to bear out this submission of the appellant. The issue relating to the anomaly in the evaluation of the Paper III has been discussed thread bare in the judgment. The view of the High Court has not been disturbed by this Court. Despite this the High Court in the impugned judgment has proceeded to take up the plea relating to questions in Part-I and Part-II and proceeded to consider the review petition and granted relief that too after the passage of nearly 5 years. This suffices to allow the present appealDespite all this we would also make a few observations on the merits of the matter27. The complaint of the first respondent is that he ticked Answer No.B but he is given cross sign which means his answer is wrong whereas he would contend that all the other answers namely A,C and D were incorrect and it is only B which could possibly be correct30. It is to be noted that it is not an objective type question, the maximum marks are 3. This is not a case even if we proceed on the basis that the answer is correct, marks is to be awarded as such. We noticed that for 5 questions, the respondent No. 1 has been given 1 mark, even though, the maximum is 3 marks. It would appear that awarding full marks is based, not merely, on the correctness of the answer.