A. Arun Thamburaj v. The Secretary Union Public Service Commission

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 07.02.2012CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAW.P.No.21750 of 2011A.Arun Thamburajrep. by his Power of Attorney AgentMr.T.Ashok .. Petitioner-vs-1. The Secretary Union Public Service Commission Dholpur House, Shah Jahan Road New Delhi 110 0692. The Controller of Examination Union Public Service Commission Dholpur House, Shah Jahan Road New Delhi 110 0693. Union of India rep.by its Secretary Department of Personnel and Training North Block New Delhi 110 0014. Central Administrative Tribunal Madras Bench rep.by its Registrar Additional City Civil Court Building High Court Campus Chennai 600 104 .. Respondents Petition under Article 226 of the Constitution of India, prayingfor the issue of a Writ of Certiorarified Mandamus, calling for therecords of the 4th respondent in the impugned order in O.A.No.966 of2011 dated 08.08.2011 and quash the same as illegal, arbitrary,without the authority of law and consequently direct Respondents 1, 2and 3 to revise the rank of the petitioner in Civil ServicesExamination 2010 after verification and re-assessment of Zoologypapers I and II (Code No.40) of the petitioner (Roll No.023975) andto fix the name of the petitioner in the appropriate rank in themerit list with appropriate allocation of services. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.Vijay NarayanSenior Counsel for Mr.P.V.Balasubramanian forM/s BFS LegalFor Respondents : Mr.K.Sridhar for R1 & R2Mr.K.Ravindranath, SCGSC for R3ORDERD.MURUGESAN, J.The writ petition poses the following questions for ourconsideration:(i)Whether in the absence of Regulations enabling a candidate toseek for re-evaluation, the Union Public Service Commission isbound to re-valuate the answer scripts at the request of acandidate who had taken the examination? (ii)Whether the petitioner could plead the violation of Article14 on the ground that in the year 2001, the Union Public ServiceCommission had re-valuated the answer script of one Nitin Verma,even though there is no provision for such re-evaluation?2. The writ petition arises under the following circumstances.The petitioner wrote the Civil Services Examination, 2010 conductedby the Union Public Service Commisison (for short, "the UPSC"). Thepreliminary examination consisted of two papers viz., (a) Optionalsubject and (b) General studies. The petitioner opted to take theexamination in the subject Zoology. After the examination, he wasawarded the following marks:SubjectsMarks SecuredEssay111/200General Studies288/600Geography 349/600Zoology: Zoology I 86/300 Zoology II111/300He was called for interview and he was awarded 215/300 marks. It isthe contention of the petitioner that he had a very good academicrecord right from schooling to medical graduation and he is a goldmedalist. He had secured 93% in Class X examination with a total of928/1000, particularly 149/150 marks in Biology subject. He hadsecured 98% in Class XII examination with a total of 1171/1200,particularly 200/200 marks in Chemistry subject, 199/200 marks inPhysics subject and 99/100 in Zoology subject. He had also receivedthe Hon'ble Chief Minister's special scholarship and he was awardedthe Best Outgoing Student (2003-09) in the medical graduation andreceived gold medals in Obstetrics & Gynaecology and General Surgeryand secured distinction in Pharmacology, Pathology,Otorhinolaryngology. After completion of medical graduation and https://hcservices.ecourts.gov.in/hcservices/ despite the fact that he had obtained distinction, he had chosen toopt for Civil Services Examination and therefore he joined a leadingcoaching institute (Evolution) at New Delhi, where he bagged thefirst rank in all the Zoology tests with high marks. It is the caseof the petitioner therefore that the award of 86/300 marks and111/300 marks in Zoology I and II subject by the UPSC is far belowhis expectations. Hence, he made an application under the Right toInformation Act to the UPSC for re-evaluation and re-totalling and toverify whether all the additional answer scripts used by thepetitioner were in tact and to ensure that the answer scripts used byhim did not get mingled with other candidates answer scripts. Thesaid application was rejected on the ground that the informationsought by him cannot be furnished. Being aggrieved by the saidorder, he preferred an appeal to the appellate authority, which wasalso rejected. A further appeal was also filed before the appellateauthority constituted under the Act and the same is pending. Hisfurther grievance is that some of the candidates ranked 5th, 6th, 9thand 28th had only secured lesser marks in the subjects than himself.However, they were ranked in the top and he was ranked 395th onlybecause those candidates had secured very high marks in Zoologysubject and he had secured very low marks. Under thesecircumstances, he approached the Central Administrative Tribunal fora direction to the UPSC to revise his rank in the Civil ServicesExamination, 2010 after verification and re-assessment of Zoology I &II subject and fix his name in the appropriate rank in the meritlist. As the said application was dismissed by the order dated8.8.2011, he is constrained to file the present writ petition. 3. Mr.Vijay Narayan, learned senior counsel appearing for thepetitioner would submit that in spite of the fact that there is noprovision for re-evaluation in the Regulations, in the year 2001,such re-evaluation was made in the case of one Nitin Verma and thesaid candidate who was initially ranked 278th, after re-evaluation,was placed in 28th rank. Hence, the denial of the request of thepetitioner for re-evaluation is arbitrary. Secondly, the learnedcounsel would submit that in any case this Court would be competentto call for the answer scripts and the same should be made availableto the petitioner for perusal and thereafter this Court should directan individual expert in the subject to re-value the answer scripts.As the entire academic career of the petitioner has been excellent,the petitioner has got a reasonable apprehension that his answerscripts in optional subject have not been properly evaluated. 4. Controverting the above submissions, Mr.K.Sridhar, learnedcounsel appearing for the UPSC would submit that in the absence of aprovision for re-evaluation, the relief sought for in the writpetition cannot be ordered. He would submit that the answer scriptshave been evaluated by the experts who have vast experience and thefact that number of candidates have obtained higher marks in Zoologysubject would show that the answer scripts have been correctlyevaluated, particularly in the absence of any allegation against theexaminer for having given lesser marks to the petitioner alone. https://hcservices.ecourts.gov.in/hcservices/

5. We have considered the above submissions. 6. Point No.(i): The question as to whether, in the absence of aprovision in the Regulations for re-evaluation, a candidate who hadtaken the examination is entitled for re-evaluation of the answerscripts, came up for consideration far back in the year 1984 beforethe Apex Court in Maharashtra State Board of Secondary and HigherSecondary Education and another v. Paritosh Bhupeshkumar Sheth andothers, (1984) 4 SCC 27. In that case, the Apex Court wasconsidering the validity of the rules denying the right of acandidate to seek for re-evaluation of the answer scripts. Repellingthe challenge to such Regulations, the Apex Court observed as follows:“14.....It would be wholly wrong for the Court tosubstitute its own opinion for that of theLegislature or its delegate as to what principleor policy would best serve the objects andpurposes of the Act and to sit in judgment overthe wisdom and effectiveness or otherwise of thepolicy laid down by the regulation making body anddeclare a regulation to be ultra vires merely onthe ground that, in the view of the Court, theimpugned provisions will not help to serve theobject and purpose of the Act. So long as the bodyentrusted with the task of framing the rules orregulations acts within the scope of the authorityconferred on it, in the sense that the rules orregulations made by it have a rational nexus withthe object and purpose of the statute, the courtshould not concern itself with the wisdom orefficaciousness of such rules or regulations. Itis exclusively within the province of theLegislature and its delegate to determine, as amatter of policy, how the provisions of thestatute can best be implemented and what measures,substantive as well as procedural would have to beincorporated in the rules or regulations for theefficacious achievement of the objects andpurposes of the Act. It is not for the Court toexamine the merits or demerits of such a policybecause its scrutiny has to be limited to thequestion as to whether the impugned regulationsfall within the scope of the regulation makingpower conferred on the delegate by thestatute....”The Apex Court further has held that in the absence of any provisionin the Regulations for re-evaluation, the denial of the request forre-evaluation would not amount to violation of the principles ofnatural justice. The Apex Court therefore held that the denial ofre-evaluation would not constitute denial of fair play in theevaluation. The very same question again came up for considerationbefore the Apex Court in Pramod Kumar Srivastava v. Chairman, BiharPublic Service Commission, Patna and others, (2004) 6 SCC 714. The https://hcservices.ecourts.gov.in/hcservices/ Apex Court, referring to the Maharashtra State Board of Secondary andHigher Secondary Education case, once again reiterated the law inparagraph-7 as follows:"7....The main question which arises for consideis whether the learned Single Judge was justifiedin directing re-evaluation of the answerbook ofthe appellant in General Science paper. Under therelevant rules of the Commission, there is noprovision wherein a candidate may be entitled toask for re-evaluation of his answer book. There isa provision for scrutiny only wherein the answerbooks are seen for the purpose of checking whetherall the answers given by a candidate have beenexamined and whether there has been any mistake inthe totalling of marks of each question and notingthem correctly on the first cover page of theanswer book. There is no dispute that afterscrutiny no mistake was found in the marks awardedto the appellant in the General Science paper. Inthe absence of any provision for re-evaluation ofanswer book in the relevant rules, no candidate inan examination has got any right whatsoever toclaim or ask for re-evaluation of his marks....."In order to hold so, the Apex Court quoted the following reason inparagraph-8, which reads as follows:"8. Adopting such a course as was done by thelearned Single Judge will give rise to practicalproblems. Many candidates may like to take achance and pray for re-evaluation of their answerbooks. Naturally, the Court will pass orders ondifferent dates as and when writ petitions arefiled. The Commission will have to then send thecopies of individual candidates to examiners forre-evaluation which is bound to take time. Theexamination conducted by the Commission being acompetitive examination, the declaration of finalresult will thus be unduly delayed and thevacancies will remain unfilled for a long time.What will happen if a candidate secures lessermarks in re-evaluation? He may come forward with aplea that the marks as originally awarded to himmay be taken into consideration. The absence ofclear ruls on the subject may throw many problemsand in the larger interest, they must be avoided."7. In Board of Secondary Education v. Pravas Ranjan Panda andanother, (2004) 13 SCC 383, the Apex Court reiterated the very samelaw once again. In Sahiti and others v. Chancellor,Dr.N.T.R.University of Health Sciences and others, (2009) 1 SCC 599,the Apex Court held as follows: https://hcservices.ecourts.gov.in/hcservices/ "32.The plea that there is absence of specificprovision enabling the Vice Chancellor to orderre-evaluation of the answer scripts and,therefore, the judgment impugned should not beinterfered with, cannot be accepted. Re-evaluationof answer scripts in the absence of specificprovision is perfectly legal and permissible. Insuch cases, what the court should consider iswhether the decision of the educational authorityis arbitrary, unreasonable, mala fide and whetherthe decision contravenes any statutory or bindingrule or ordinance and in doing so, the courtshould show due regard to the opinion expressed bythe authority."The very same view has been again reiterated by the Apex Court in thejudgment in Himachal Pradesh Public Service Commission v. MukeshThakur, (2010) 6 SCC 759. Recently, the Apex Court in Civil AppealNo.7024 of 2011 dated 17.8.2011 (The Secretary, All India Pre-Medical/Pre-Dental Examination, CBSE and others v. KhushbooShrivastava and others), after referring to the judgment inMaharashtra State Board of Secondary and Higher Secondary Educationcase, has once again reiterated the very same law. 8. There is no controversy that the Regulations relating to theCivil Services Examination do not provide a provision for re-evaluation. In view of the binding precedents, the petitioner cannotseek for re-evaluation. However, the grievance of the petitioner isthat he had a very good academic record and particularly he hadsecured very high marks in Zoology subject. On the basis of suchpleading, can it be presumed that he had performed well in theoptional subject and in spite of such performance he had been givenlesser marks? This argument of Mr.Vijay Narayan is on hypotheticalbasis. The petitioner may be academically sound, particularly inZoology subject while in school and college days, which does not meanthat he had written well in the optional subject in the CivilServices Examination. Acceptance of such argument would be only onpresumption. It is not the case of the petitioner that thepetitioner alone had been singled out by the examiner for extraneousreasons to award lesser marks when the other candidates had beengiven higher marks. The Court should also be extremely reluctant tosubstitute its own views as to what is wise, prudent and proper inrelation to academic matters, particularly in preference to thoseassessed by professional men possessing expertise in the respectivesubjects and rich experience in evaluation. Civil Services isessential for the functioning of the Government. A well functioningcivil services helps to foster good policy making and effectiveservice delivery. To provide the candidates to the Government forsuch service, the UPSC has devised a scheme with the necessaryelement of finality in examination. As per the Regulations of theUPSC, where large number of candidates are taking the examination andthe conduct of examination is a recurring process, the examinationmust reach its finality and the selected candidate must be made https://hcservices.ecourts.gov.in/hcservices/ available for appointment at the earliest. It is also to be kept inmind that if inspection, verification in the presence of thecandidates and revaluation are to be allowed as of right, it may leadto gross and indefinite uncertainty, particularly in regard to therelative rankings etc., of the candidates besides leading to utterconfusion on account of the enormity of the labour and the timeinvolved in the process. In the event such Regulations are made, thesame cannot be diluted by Courts in directing re-evaluation, as suchexercise of power would unsettle the examination and would not be inthe interest of large number of candidates who have been declaredsuccessful. It must also be noted that the petitioner has notquestioned the Regulations without a provision for re-evaluation.Even otherwise, challenge to similar Regulations denying re-evaluation has been negatived by the Apex Court in Maharashtra StateBoard of Secondary and Higher Secondary Education case. Hence, thepoint no.(i) is answered against the petitioner. 9. Point No.(ii): So far as the second issue is concerned, it isthe case of the petitioner that one Nitin Verma was shown as 278thrank in the merit list. On his request, the answer scripts were re-valuated and after re-evaluation, he was ranked in 28th place. In suchcircumstance, the respondent-UPSC should adopt the same procedure inallowing the request of the petitioner for re-evaluation. In ouropinion, the said argument is untenable and cannot be accepted forthe simple reason that in the absence of any Regulations, the Courtcannot issue a direction to the authorities to violate their ownRegulations and order re-evaluation. Mr.Vijay Narayan, learnedsenior counsel has drawn our attention that the above factual aspecthas not been disputed in the counter affidavit. In our opinion, evenassuming that the answer script of one candidate was re-evaluated inthe year 2001, such re-evaluation would be in contravention of theRegulations and such re-evaluation cannot be recognised by this Courtas valid in law for issuance of a similar direction. If suchdirection is issued, it would amount to directing the authorities tocommit a further mistake de hors the Regulations. A writ of mandamuscan be issued by the High Court only when there exists a legal rightin the writ petitioner and the corresponding obligation in the State.Merely because an illegality has been committed, the same cannot bedirected to be perpetuated by a Court of law. There cannot be anequality in illegality as well. In these circumstances, thesubmission of Mr.Vijay Narayan deserves only to be rejected. (SeeRamesh Prasad Singh v. State of Bihar, AIR 1978 SC 329; U.P. SugarCorporation Ltd. v. Santraj Singh, (2006) 9 SCC 82; State of Orissav. Prasanna Kumar Sahoo, (2007) 15 SCC 129). For the said reason, weare not inclined to accept the submission on discrimination underArticle 14 of the Constitution of India. Accordingly, we answer theissue in the negative. 10. The above discussions take us to the incidental question asto whether after the Right to Information Act, the UPSC can deny theinformation relating to the answer scripts of the petitioner. In ouropinion, this submission is made on the basis of the judgment of theApex Court in Central Board of Secondary Education and another v. https://hcservices.ecourts.gov.in/hcservices/ Aditya Bandopadhyay and others, (2011) 8 SCC 497, wherein the ApexCourt has held that the examinees have a right under the Right toInformation Act to examine their answer scripts. The said questionrequires no consideration in this writ petition, as admittedly therequest of the petitioner for such information had been denied by thetwo authorities of the respondent-UPSC under the Right to InformationAct and a further appeal to the appellate authority under the Act isalso pending. The petitioner would be entitled to pursue his remedyunder the Act before the appellate authority in the pending appeal.For that reason, we are not inclined to express any opinion on thequestion as to whether the petitioner would be entitled to perusal ofthe answer scripts produced before this Court as per our earlierdirection. 11. For all the above reasons, we are of the considered viewthat the petitioner has no right to seek for re-evaluation and therelief of a direction for such re-evaluation cannot be ordered. TheCentral Administrative Tribunal has correctly dismissed the petition,which order requires no interference. Accordingly, the writ petitionfails and the same is dismissed. No costs.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarssTo1. The Secretary Union Public Service Commission Dholpur House, Shah Jahan Road New Delhi 110 0692. The Controller of Examination Union Public Service Commission Dholpur House, Shah Jahan Road New Delhi 110 069 https://hcservices.ecourts.gov.in/hcservices/

3. The Secretary Department of Personnel and Training North Block New Delhi 110 0014. The Registrar Central Administrative Tribunal Madras Bench Additional City Civil Court Building High Court Campus Chennai 600 104 +1 CC to M/s.K.Ravindranath, SCGSC, Advocate Sr.No.8755 +1 CC to M/s.B.F.S.Legal, Advocate Sr.No7910 +1 CC to Mr.K.Sridhar, Associates, Advocate Sr.No.7767 Order in W.P.No.21750 of 2011 KSK(CO)DRL : 27/02/2012